Apex court asks army to decide how to try its personnel involved in Pathribal fake encounter.
The Supreme Court has ruled that in a case of `fake encounter’ killing by an army personnel in an area which is under the Armed Forces Special Powers Act, an investigating agency would have to seek the home ministry’s sanction to prosecute the accused. However, there’s no need to secure the sanction if the personnel is court-martialled under the Army Act.
In a first-ever ruling that distinguishes between the code of criminal procedure - which regulates criminal proceedings under the Indian Penal Code and similar laws - and the Army Act, the court on Tuesday held that sanction in a criminal case such as the encounter killings of seven innocent persons allegedly by army personnel in Pathribal, J&K, 12 years ago, is necessary.
Sanction is required to “assess the act complained of. This would also include the assessment of cases like mistaken identities or an act performed on the basis of a genuine suspicion,” said the court.
“We are therefore of the view that such immunity clauses have to be interpreted with wide discretionary powers to the sanctioning authority in order to uphold the official discharge of duties in good faith and a sanction therefore has to be issued only on the basis of a sound objective assessment and not otherwise,” the top court said while issuing a slew of directions in fake encounter cases by army personnel in J&K and the insurgency-affected Kamrup in Assam in 1994.
The trial of suspected army personnel has been unduly delayed due to the prolonged litigation on whether a civil court could take cognisance of the grave offence committed by the army personnel, without sanction from the appropriate authority.
While in Pathribal killings, five armed personnel were involved in the crime, in the insurgency-affected Saikhowa Reserve Forest in Kamrup, Assam, army personnel were accused of killing five local residents under the pretext of exchange of fire with armed insurgents.
According to CBI lawyer Ashok Bhan, “This ruling is guidance for the civil and army authorities when they face cases relating to suspected fake encounter killings by the armed personnel.”
The Judges granted two months to the army authorities to take a call on whether they want to invoke the Army Act, otherwise they must inform the respective chief judicial magistrates so that the process of trial under the IPC could be resumed. But, the court martial proceedings must start immediately, judges said.
According to the CBI chargesheet in Pathribal case, the then Col Ajay Saxena , Major Brajendra Pratap Singh, Major Sourabh Sharma and Subedar Idrees Khan `hatched’ a conspiracy to cover up the fake encounter killings. It also said in the chargesheet that innocent persons were killed in Pathribal soon after the terrorists had gunned down 36 Silkhs in village Chittising Pora, District Anantnag on March 20,2000.
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