New Delhi: The Supreme Court on Friday asked the
Centre to convey by Monday whether five officials, including a
Major General, can be tried under the Army Act in connection
with the gunning down of seven people in the alleged fake
encounter in Pathribal in Kashmir 12 years ago.
A bench of Justices BS Chauhan and Swatanter Kumar gave
the direction even as Centre and CBI continued to differ on
the immunity enjoyed by the army under the controversial AFSPA
(Armed Forces Special Powers Act) and other regular laws in
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.
The case was investigated by the CBI which filed its
chargesheet in 2007 against five army personnel including the
then Brigadier who later rose to become a Major General.
However, the trial in the case was stopped after the army
moved Supreme Court claiming immunity for its personnel under
the AFSPA whereas the CBI contended that the five had
allegedly indulged in murder of civilians for which the
immunity could not be provided.
Additional Solicitor General PP Malhotra, on behalf of
the Centre, denied that any fake encounter killings had taken
place in the specific cases pertaining to Kashmir and Assam
pending before the apex court.
Another Additional Solicitor General Harin Rawal,
appearing for CBI, insisted that they were "fake encounters."
Rawal insisted that the accused army officials
did not enjoy any immunity from prosecution, while Malhotra
argued that they enjoyed protection in discharge of their
The bench passed the direction on CBI`s application
for vacating the stay granted by the apex court on the trial
in a J&K court relating to the killing of 7 people by the army
allegedly in retaliation to the killing of 36 civilians by
militants at Chattisingpora in 2000.
Rawal had earlier argued that though right of immunity
under 197 CrPC was available to the officers, but in the
present case it is not sought by the accused, but by senior
Defence Ministry officers, which was contrary to the law.
At the earlier hearing, irked by the Centre`s diverse
views the bench had observed, "You cannot say that an army man
can enter any home and commit a rape and say he enjoys
immunity as it has been done in discharge of official duties."