New Delhi: The Centre on Monday told the Supreme
Court that it needs four months to decide on sanction for
producing the army officials charged with a "fake encounter"
in Pathribal in Jammu and Kashmir 12 years ago in which seven
people were killed, saying matter involves the sensitive issue
of human rights.
"It is the joint stand of Home and the Defence Ministries
that prior sanction is needed to institute legal proceedings
against army officers as per AFSPA," an affidavit filed by the
Ministry of Defence before a bench of Justices BS Chauhan and
Swatanter Kumar said.
The affidavit said "since the matter involves sensitive
issues, including human rights, a practical solution should be
found very expeditiously".
It said the Centre would pass appropriate and judicious
order on sanction for prosecution of eight army personnel
involved in the case.
The apex court, which is examining the immunity to Army
personnel for encounters killings under Section 6 of the Armed
Forces Special Powers Act (AFSPA), was told by CBI that the
protection granted in the law cannot be allowed to be
"misused" in discharge of official duty.
The agency had during the last hearing said that the
incident was "cold-blooded murders" and the accused officials
deserve to be meted out "exemplary punishment" and should not
be protected by AFSPA.
"It was a fake encounter with a motive...it can`t be
termed as discharge of duty by the army and these army
officials should not be protected by AFSPA," senior advocate
Ashok Bhan, appearing for CBI, had said.
CBI had said no prior sanction was required for
prosecuting the Army officials and the need to ensure "public
confidence in the rule of law and dispensation of justice"
warranted their prosecution.
Bhan`s submission was contrary to the stand taken by
Additional Solicitor General P P Malhotra, who appearing for
the Army officers, said prior sanction was mandatory for
prosecuting the officials who otherwise are innocent.
The bench, which had asked CBI to explain what was the
meaning of the expression "acting in discharge of duty or
acting in purported discharge of the duty," as provided in
Section 6 of the AFSPA, posted the hearing for April 2.
The apex court had asked the Centre to convey its stand
as to whether five officials, including a Major General, can
be tried under the Army Act.
The Defence Ministry and CBI have differed on the
immunity enjoyed by the army under controversial AFSPA and
other regular laws in encounter killings.
Malhotra, on behalf of the Centre, had denied that fake
encounter killings had taken place in the specific case
pertaining to J&K and another case relating to Assam pending
before the apex court.
Another Additional Solicitor General Harin Rawal,
appearing for CBI, had also insisted that they were "fake
Rawal insisted the accused army officials did not enjoy
any immunity from prosecution while Malhotra argued they
enjoyed protection in discharge of their official functions.
The bench passed the direction on a 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 though the right to immunity
under 197 CrPC was available to the officers but in the
present case it has not been sought by the accused but by
senior Defence Ministry officers, which was contrary to the
At an earlier hearing, irked by the Centre`s diverse
views, the bench had said "you cannot say that an Army man can
enter any house and commit a rape and say he enjoys immunity
as it has been done in discharge of official duties."