Senior counsel for CBI Ashok Bhan told a bench of justices BS Chauhan and Swatanter Kumar that the question of sanction would arise only after cognizance had been take by a magistrate.
The CBI today told the Supreme Court that no sanction was required either under the Armed Forces (Special Powers) Act or Code of Criminal Procedure Code for prosecution of army officers allegedly involved in the fake encounter killings of five persons at Parthibal in Jammu and Kashmir.
Senior counsel for CBI Ashok Bhan told a bench of justices BS Chauhan and Swatanter Kumar that the question of sanction would arise only after cognizance had been take by a magistrate, but in the present decade-old case the army chose to challenge the prosecution at the time of the charge sheet.
Seven people were gunned down by army personnel on March 25, 2000, at Pathribal in South Kashmir and they were branded as terrorists of Lashker-e-Taiba group who were responsible for the gunning down of 36 Sikhs at Chittisingpura in the same district on the intervening night of March 19-20, 2000.
Citing a catena of apex court judgements, Bhan said, "Sanction is not required. Colour of duty is very important if it is not in accordance with the nature of duty and colour of office then no immunity is available to army officers.
"Institution of the case is not necessarily to be accompanied by sanction and the question of sanction will arise only after cognizance had been taken under 190 CrPC."
Meanwhile, Additional Solicitor General Mohan Parasaran sought time from the bench for placing on record the Centre's view on the controversy between CBI and army on the issue.
Bhan said the so-called weapons recovered from the scene of "fake encounter" was actually planted by army personnel.
"Therefore, it is a case of fake encounter murders which cannot be immune under section 6 and 7 of AFSPA. So it will come under the ordinary penal law of the country, CBI does not need prior sanction," he said.
"Therefore, this proceedings pending before the magistrate in is vitiated on account of want of sanction," Bhan said.
However, Additional Solicitor General P P Malhotra said Section 6 and 7 contemplate that institution of any proceedings must necessarily have the Central government's sanction.
The ASG said that the army had to work under hostile conditions to counter terrorist activities.
"And the army is not voluntarily there it is at the request of the state government in the disturbed areas of Kashmir which has been declared as disturbed under Declaration of Disturbed Areas Act."
He said the army does not act independently, but acts in aid of the local police and the civil authorities for maintenance of public order and counter terrorist activities.
The apex court posted the matter for further hearing to January 24.
At the last hearing, the bench expressed displeasure that more than the decade-old encounter killings was yet to reach the trial stage due to Army's perceived defiance against prosecution of its personnel supposedly enjoying immunity under the AFSPA.
Irked by army's stance that its officials cannot be prosecuted for alleged fake encounter killings in Jammu and Kashmir and Assam without prior sanction, the court had sought responses from the Union Home and Defence ministries.
The apex court had also pointedly queried Malhotra 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.
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