NEW DELHI, Jan 23: The Supreme Court (SC) on Monday pulled up the Army for not resorting to court-martial nor allowing the CBI to prosecute five Army personnel for alleged fake encounter in the wake of a killing of 36 Sikhs at Chhatisinghpura in Anantnag district of Jammu and Kashmir in 2000.
The Supreme Court had called for the Army to file a reply by Friday if it's taking over the case or handing over to criminal court. It had already stayed the prosecution and asked the Army counsel on Friday to tell it by Monday (today) if these officers can be subjected to court-martial.
The court also issued notices to Home and Defence Secretaries asking whether a sanction was needed even if the Army took over the case.
The CBI, meanwhile, accused the Army of burying the case.
During the two-hour-long hearing, the apex court bench of Justice B.S. Chauhan and Justice Swatanter Kumar expressed displeasure over the delay in trial on account of the Army's stance. It (SC) pointedly queried Additional Solicitor General P P Malhotra, appearing for the army whether the Army was willing to initiate "court martial" proceedings against the accused army officials but the latter sought time to "seek instructions" from the government on the issue.
Irked by army’s stance, the court also issued notice to the central government on its (army’s) stand that no proceedings could be initiated against its officers without its prior sanction.
The reprimand from the apex court came after the Army told it (SC) today that it would not take over the case of its officers involved in Pathribal killings in Jammu and Kashmir. The Army said that the initiation of proceedings without permission was illegal.
Criticising the Army, the apex court said, “You are neither willing to take over the case nor hand it over to the magistrate. Nothing has happened for the last 10 years. Victims could not get justice... citizens can't wait on interpretation and misinterpretation of facts."The reprimand from the apex court came after the Army told it (SC) today that it would not take over the case of its officers involved in Pathribal killings in Jammu and Kashmir. The Army said that the initiation of proceedings without permission was illegal.
The Supreme Court had called for the Army to file a reply by Friday if it's taking over the case or handing over to criminal court. It had already stayed the prosecution and asked the Army counsel on Friday to tell it by Monday (today) if these officers can be subjected to court-martial.
The court also issued notices to Home and Defence Secretaries asking whether a sanction was needed even if the Army took over the case.
The CBI, meanwhile, accused the Army of burying the case.
During the two-hour-long hearing, the apex court bench of Justice B.S. Chauhan and Justice Swatanter Kumar expressed displeasure over the delay in trial on account of the Army's stance. It (SC) pointedly queried Additional Solicitor General P P Malhotra, appearing for the army whether the Army was willing to initiate "court martial" proceedings against the accused army officials but the latter sought time to "seek instructions" from the government on the issue.
The army told the court that Section 6 of the AFSPA said that army personnel operating in an area where the law was in force shall not be proceeded against for anything that occurred during the discharge of their duties.
“Whatever may be the scheme of the Armed Forces (Special Powers) Act (AFSPA), the victims could not be left remediless,” the court said.
The apex court bench said, “These officers (accused of killing five people) have nothing but to protect themselves but the Union of India has the dual responsibility of protecting its genuine officers and the administration of justice to the citizens.”
Five people were killed by the army in the wake of the March 20, 2000, massacre of 36 Sikhs in a gurdwara in a village in Anantnag district of Kashmir. The victims, who were initially described as militants, later turned out to be innocent.
The court, at the very outset of the hearing, told the army that if it did not want to take up the matter that was another matter, but these arguments being advanced about its immunity and prior sanction would not stand.
While issuing the notice, the court observed: “You (Army) are creating a situation where no body can proceed. You are yourself not doing anything and not allowing other to do anything.”
The court issued the notice during the hearing of an appeal by the army challenging the jurisdiction of Central Bureau of Investigation (CBI) for initiating court proceedings against its officers involved in the alleged killing of five people.
The court also asked Malhotra, appearing for the army, if there was any case wherein the army had sought prior sanction of the central government before initiating court martial proceedings against any officer or a soldier charged with misconduct.
“Show us one case where army has taken sanction before initiating court martial proceedings,” the court said.
Additional Solicitor General Harin Raval told the court that the army wanted to bury the case.
Malhotra said: “The CBI says as if I have done something wrong, but I say that I have done nothing wrong.”
“We have gone there and we are bound to protect them,” Malhotra said.
Malhotra said army officers accused of killing people in the discharge of their duties, while operating in an area under AFSPA, could not be proceeded against without the prior sanction of the central government.
The court said if one were to accept that position then there would be chaos. “The army will collapse if that happens,” the court said.
The court told Malhotra that his case was that institution of a case against the suspected army officers amounted to filing of a case in the court registry and the same was barred by virtue of the AFSPA.
“Whatever may be the scheme of the Armed Forces (Special Powers) Act (AFSPA), the victims could not be left remediless,” the court said.
The apex court bench said, “These officers (accused of killing five people) have nothing but to protect themselves but the Union of India has the dual responsibility of protecting its genuine officers and the administration of justice to the citizens.”
Five people were killed by the army in the wake of the March 20, 2000, massacre of 36 Sikhs in a gurdwara in a village in Anantnag district of Kashmir. The victims, who were initially described as militants, later turned out to be innocent.
The court, at the very outset of the hearing, told the army that if it did not want to take up the matter that was another matter, but these arguments being advanced about its immunity and prior sanction would not stand.
While issuing the notice, the court observed: “You (Army) are creating a situation where no body can proceed. You are yourself not doing anything and not allowing other to do anything.”
The court issued the notice during the hearing of an appeal by the army challenging the jurisdiction of Central Bureau of Investigation (CBI) for initiating court proceedings against its officers involved in the alleged killing of five people.
The court also asked Malhotra, appearing for the army, if there was any case wherein the army had sought prior sanction of the central government before initiating court martial proceedings against any officer or a soldier charged with misconduct.
“Show us one case where army has taken sanction before initiating court martial proceedings,” the court said.
Additional Solicitor General Harin Raval told the court that the army wanted to bury the case.
Malhotra said: “The CBI says as if I have done something wrong, but I say that I have done nothing wrong.”
“We have gone there and we are bound to protect them,” Malhotra said.
Malhotra said army officers accused of killing people in the discharge of their duties, while operating in an area under AFSPA, could not be proceeded against without the prior sanction of the central government.
The court said if one were to accept that position then there would be chaos. “The army will collapse if that happens,” the court said.
The court told Malhotra that his case was that institution of a case against the suspected army officers amounted to filing of a case in the court registry and the same was barred by virtue of the AFSPA.
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