“You don't allow the criminal justice system to go ahead”

The Supreme Court on Monday pulled up the Army for stalling the prosecution in the 2000 Pathribal encounter case in Jammu and Kashmir, initiated by the CBI against five officers, by not taking action under the Army Act and not allowing the criminal courts from proceeding with their prosecution.

Responding to the court's query on January 20 on the stand of the Army, Additional Solicitor-General P.P. Malhotra told a Bench of Justices B.S. Chauhan and Swatanter Kumar that the Army was not interested in taking over the case and court-martialling the officers under the Army Act.

The Bench is hearing petitions relating to the Centre's claim of immunity and applicability of the controversial Armed Forces (Special Powers) Act (AFSPA) in the North East and Jammu and Kashmir. The CBI, on the other hand, registered cases against Army men, treating some of the killings as encounter deaths, and filed charge sheets in the courts concerned. Shocked to hear this response from the Army, Justice Swatanter Kumar told the ASG: “You [the Army] don't want to take over the case and initiate court martial proceedings against them. You don't allow the criminal justice system to go ahead.”

Justice Chauhan observed: “The victims cannot be remedy less. No person can be harassed. No jawan should exceed limits. You cannot interpret and misinterpret the law and expect citizens to wait.”

“We cannot take over the case,” Mr. Malhotra said. “The Armed Forces are bound to protect their men.”

The Army contended that in a disturbed area, where the AFSPA was in force, no inquiry could be initiated against armed forces personnel called in to assist the civilian police, without the government's sanction let alone a charge sheet being filed.

“They are protected under Section 6 of the AFSPA,” Mr. Malhotra said. This had vitiated the entire CBI inquiry into the episode. The Army personnel shot dead seven alleged militants in the incident. The Army had then claimed that they were responsible for killing several Sikhs in an earlier encounter in Chhattisinghpora during the former U.S. President Bill Clinton's visit to India. But the J&K government later sought sanction for their prosecution after some evidence came to light that it was a fake encounter.

Not satisfied with the ASG's response, the Bench sought Army records to show whether these cases had been put up before the Commanding Officer (CO) of the area for his decision. The CO was the authority to decide whether to court martial the men or allow civilian courts to try them.

The Bench also suo motu impleaded the Union Home and Defence Secretaries and asked them to explain their position on whether sanction was a must even for filing an FIR. The Bench said: “These officers will now have to protect themselves. But the Union of India has a dual responsibility. It has to ensure that the innocent are acquitted and the guilty punished.”

The Bench wondered why the Army was reluctant to try these cases when it did not have to take any sanction from the government to act against them. “Article 21 of the Constitution [right to life] is for both the accused and the victims,” The Bench said. It wanted to know from the Army whether in any prior case sanction from the government had been sought for investigating any case.

The Bench directed that the matter be listed for further hearing on February 3.

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