New Delhi:
The Supreme Court has given the army eight weeks to decide whether officers accused of a fake encounter in Pathribal in the state of Jammu and Kashmir should be tried by court-martial proceedings or by regular criminal courts. If the army chooses not to go for a court martial, the central government will have to decide within a month whether to grant sanction for the prosecution of the army officers accused in the case.
Upholding an important part of the Armed Forces Special Powers Act or AFSPA, the judges said that the prosecution of army officers in states where AFSPA applies, like Assam and Kashmir has to be sanctioned by the government.
Today's verdict is based on a shootout at Pathribal in Jammu and Kashmir 12 years ago. In March 2000, 35 people were killed by Pakistani terrorists. A few days later, seven people were killed by five army officers, who alleged those shot dead were militants. But their bodies were exhumed after large local protests, and were identified as innocent civilians.
The CBI began proceedings against the officers involved because it said that the army refused to take any action against them and also prevented the case from moving to a regular court.
The Supreme Court has used the Pathribal encounter to also order the Army to decide whether personnel accused of fake encounter killings in Jammu and Kashmir and Assam should be tried by court-martial proceedings or by regular criminal courts. The two judges said that if the Army is not keen on court-martial proceedings, then the CBI can seek sanction from the Centre for the prosecution of the Army officers. The centre will have three months to decide on the request for sanction, the judges ruled.
The CBI has been arguing that army officers involved in the alleged fake encounter have no immunity from prosecution. The agency told the Supreme Court that the Pathribal encounter was a case of "cold-blooded murder and the accused officials deserve to be meted out exemplary punishment."
The CBI argued that no prior sanction is required for prosecuting the Army personnel and the need to ensure "public confidence in the rule of law and dispensation of justice" warrants their prosecution. But lawyers appearing for the Army officers disagreed.
The Defence Ministry and CBI have differed on the issue of immunity enjoyed by the Army under the controversial AFSPA. The CBI has said that the section of the act which gives immunity to Army personnel for encounter killings does not apply to the accused officers in the present case.