New Delhi: The Supreme Court on Monday expressed
its displeasure that more than the decade-old encounter
killings case in Pathribal, Jammu and Kashmir, was yet to
reach the trial stage due to Army`s perceived defiance against
prosecution of its personnel supposedly enjoying immunity
under the Armed Forces Special Powers Act.
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 today
sought responses from the Union Home and Defence Ministries.
A bench of justices B S Chauhan and Swatanter Kumar
issued notices to the two ministries after Additonal Solicitor
General P P Malhotra, while denying the fake encounters at
Pathribal and Assam, repeatedly insisted that CBI cannot
prosecute them without the central government`s prior
Malhotra`s defence was countered by another Solicitor
General Harin Rawal, appearing for CBI, who said "they (the
Army) want to bury the case."
The apex court 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.
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.
In another incident in 1996, about seven men were shot
dead by the Army in an alleged fake encounter with Bodo
The bench is examining CBI`s plea for prosecution of
these Army personnel.
During the two-hour-long hearing, the apex court
expressed displeasure over the delay in trial on account of
the Army`s stance.
The bench brushed aside Malhotra`s argument that prior
sanction was a prerequisite for prosecuting the army officials
as they enjoyed immunity under Sections 6 and 7 of the Army
Malhotra submitted the safeguard was evolved as they
were working in the "disturbed areas under peculiar
The bench then asked Malhotra whether the Army was
willing to "initiate court martial proceedings against the
But the ASG insisted that even for court martial
proceedings prior permission was required.
However, the submission failed to convince the bench
which remarked "if that is the case, no army personnel can be
prosecuted. Give us even one instance of the Army seeking
prior sanction of the central government for court martial
"Have you ever taken permission of the central government
even for court martial proceedings against a jawan? Show us
even one instance, then we will accept your argument, " the
The apex court said the Army cannot play around with the
court by seeking immunity.
"The matter is pending for the past 10 years. How do you
expect the citizens of India to wait? You (army) create a
situation where no one is able to take a decision. You can`t
play around with the court," the bench told Malhotra.
Counsel Ashok Bhan, appearing for CBI in the Pathribal
encounter case, said no immunity existed for the Army
personnel involved in fake encounter killings.
Bhan read out from Section 125 of the Army Act to show
that no immunity existed for the personnel.
The Pathribal case was investigated by 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 the Supreme Court claiming immunity for its personnel
under AFSPA whereas CBI contended the five had allegedly
indulged in murder of civilians for which the immunity could
not be provided.