Karela Fry

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Will Pathribal be a turning point?

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Two years ago Karan Thapar wrote in an opinion piece in HT:

Section 6 [of the Armed Forces (Special Powers) Act] bars prosecution for killing or other violations “except with the previous sanction of the central government”. Such sanction is rarely, if ever, given. Consequently even though the CBI has indicted army soldiers for the fake encounter deaths at Pathribal in 2001, the government has refused sanction for prosecution. Human rights lawyers claim that in every case of disappearance, where the matter has gone to court, sanction for prosecution has been denied. Once again, Kashmiris keenly feel the injustice.

DNA reports on the beginning of a beginning to this case, after a long wait:

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 [against] army personnel in J&K and the insurgency-affected Kamrup in Assam in 1994.

Now, 11 years after the alleged murders, the Supreme Court has set a time limit to start proceedings against the accused. The Hindu reports:

The Supreme Court on Tuesday asked the Army authorities to decide whether its personnel accused of fake encounter killings in Jammu and Kashmir and Assam should be tried by court-martial proceedings or by regular criminal courts.

A bench of justices B S Chauhan and Swatanter Kumar said that if the Army authorities were not keen on court-martial proceedings, then the CBI can seek sanction from the Centre for prosecution of the Army officers.

Army personnel were allegedly involved in the killing of 7 persons in an alleged staged shootout at Pathribal in Jammu and Kashmir 12 years ago.

In the event of the accused officers being tried by the regular criminal courts, the Centre shall consider the CBI’s plea for sanction within three months, the apex court said.

Earlier, while concluding their arguments, Additional Solicitor General Harin Raval and senior counsel Ashok Bhan, appearing for CBI, had reiterated that Army personnel involved in the alleged fake encounter have no immunity from prosecution.

CBI had earlier told the special bench that it was a case of “cold-blooded murder and the accused officials deserve to be meted out exemplary punishment.”

CBI had contended that no prior sanction was required for prosecuting the Army personnel and the need to ensure “public confidence in the rule of law and dispensation of justice” warranted their prosecution.

“Our investigations have revealed it was a fake encounter and cold-blooded murders. If public confidence in the rule of law and dispensation of justice is to be sustained, the accused officers deserve to be meted out exemplary punishment,” Bhan had told the bench.

Justice has been delayed tremendously, with the Supreme Court still trying to decide on the form of the process. If this case results in some clarity on the limits of immunity, at least it will have done some service to the nation.

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