The Supreme Court on Friday asked the Central Bureau of Investigation to answer certain questions relating to the 2000 Pathribal encounter case in Jammu and Kashmir initiated by it.
The CBI has initiated a case against five Army officers involved in an alleged fake encounter since the Army did not take any action under the Army Act and also did not allow the criminal courts from proceeding with the prosecution.
A Bench of Justices B.S. Chauhan and Swatanter Kumar asked the CBI to answer the following questions on the next date of hearing on February 24. Where did the weapons found on the deceased come from? How did the agency establish they were planted? Had it verified the communications between the Army and the Special Task Force while planning the operation? Did the J&K Police register an FIR that there had been five deaths? The Bench sought the statement of the STF chief too.
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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 J&K. The CBI, on the other hand, had registered cases against Army men treating some of the killings as encounter deaths and filed charge sheets in the courts concerned.
Senior counsel Ashok Bhan, appearing for the CBI, made it clear to the Bench that no sanction was required either under the AFSPA or the Cr.PC for prosecution of Army officers allegedly involved in the Pathribal fake encounter. Mr. Bhan said the question of sanction would arise only after cognisance had been 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.
He said the so-called weapons recovered from the scene of “fake encounter” were actually planted by Army personnel. “Therefore, it is a case of fake encounter murders, which cannot be immune under Section 6 and 7 of the AFSPA. So it will come under the ordinary penal law of the country; the CBI does not need prior sanction,” he said.
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Additional Solicitor-General Mohan Parasaran, appearing for the Defence Ministry, sought time for placing on record the Centre's view on the controversy between the CBI and the Army.
However, Additional Solicitor-General P.P. Malhotra said Section 6 and 7 contemplates that the institution of any proceedings must necessarily have the Central government's sanction.
Mr. Malhotra said the Army had to work under hostile conditions to counter terrorist activities. “And the Army is not voluntarily there. It is there at the request of the State government in the disturbed areas of Kashmir, which have been declared as disturbed under The Disturbed Areas Act.”
He said the Army did not act independently but in aid of the local police and the civil authorities for maintenance of public order and counter-terrorist activities.