The March 2000 encounter at Pathribal in Jammu and Kashmir that claimed the lives of seven civilians was nothing but a cold-blooded murder and no sanction was required to prosecute the Army personnel involved in the incident.
This submission was made on Monday by senior counsel Ashok Bhan, who appeared for the CBI, before a Bench of Justices B.S. Chauhan and Swatanter Kumar in the Supreme Court.
The Centre had asserted that no Army personnel could be prosecuted without sanction and in this case no offence was committed as the killings were genuine encounters in the discharge of their official duties. Army personnel had shot dead seven alleged militants in the incident.
“No sanction is required for prosecution of the accused after the CBI filed a charge sheet against the five officers in Srinagar. In order to restore faith in rule of law, trial should now commence,” Mr. Bhan said. The question of sanction would arise only after cognisance was taken by a magistrate, but in the present decade-old case, the Army chose to challenge the prosecution at the time of the charge sheet.
The case had been pending with a Srinagar trial court, with both the Army authorities and the Army officers challenging the magistrate's order asking the Army to explain under Section 125 of the Army Act, whether it wanted to take over the case and try its men or wanted the court to go ahead and try them. The CBI had been insisting that no sanction was necessary to prosecute the officers as the cold-blooded murders could not be said to fall within their official duties.
The provision of the Armed Forces (Special Powers) Act (AFSPA) that protects officers from unnecessary litigation, Section 6, was intended to protect anything done in exercise of official duty and not otherwise, Mr. Bhan argued.
However, Additional Solicitor-General P.P. Malhotra, appearing for the Army, had said that under the AFSPA, no case could even be instituted against the officers without government sanction. He had been insisting that the CBI should first approach the Union government on the issue of sanction.
He said the question of the magistrate asking the Army to take over the case or else leave it to the courts would arise only after sanction was obtained, as before that the magistrate could not even take cognisance of the case.
Meanwhile, in another case, on behalf of the Assam government, its counsel told the Bench that the State did not wish to press for sanction to prosecute CRPF men allegedly involved in a fake encounter. The case against the CRPF men was closed after a CB-CID inquiry. In view of this, Assam said it would not pursue the case any further. The Bench then disposed of the petition.
Arguments will continue on March 26.