The CBI told the SC that no sanction was required either under the Armed Forces (Special Powers) Act or CrPC for prosecution of army officers.
New Delhi: The CBI on Friday 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
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.