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 youth by the Army in
retaliation for killing of 36 civilians by militants at
Chattisingpora in 2004.
A bench of justices B S Chauhan and Swatanter Kumar
granted the time after Additional Solicitor General Parag
Tripathi, appearing for the Army, said the issue was being
"discussed at the highest level" and the matter would be
"We are conscious of the matter and want to strike a
balance between civilians' rights and national security. The
matter is being dealt at the highest level," the ASG told the
bench while seeking adjournment of the case.
Additional Solicitor General Harin Rawal and senior
counsel Ashok Bhan, appearing for CBI, argued the right of
immunity provided under Section 197 CrPC was available to
But in this case, they said, the immunity was not sought
by the accused officers but by senior army and law officers of
the Defence Ministry, which was contrary to the law and hence
immunity can be granted to the army personnel involved in the
The bench then told Tripathi "we appreciate your concern
but we need to hear the matter. If you don't take a decision,
we will proceed with the matter.
It then adjourned the matter to December 16.
At the last hearing, irked by the Centre's diametrically
diverse views on army and para military forces' immunity from
criminal prosecution in fake encounter killings, the bench had
asked the government to spell out its position on AFSPA and
"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," the apex court had remarked.
The apex court had made the remarks after senior counsel
Ashok Bhan, appearing for the Centre, voiced divergent views
on two separate encounter killings involving military
personnel in J&K and Assam.
In the 2004 Chattisingpora killing in J&K, where seven
youth were killed in an alleged fake encounter by Rashtriya
Rifles personnel, Bhan sought prosecution of the armymen
whereas in a similar alleged fake encounter by CRPF men in
Assam, the counsel said they enjoyed immunity.
"How can you adopt diametrically different views?" the
bench had said, to which Bhan admitted it was "compulsions of
his professional duties."
He urged the court to de-link the two issues and deal
with them separately.
The court had then asked the government to clearly spell
out its stand on two issues: whether army/para military
personnel enjoy immunity from criminal prosecution for any
penal offence committed in discharge of their official duties
including fake encounters and rapes vis-a-vis AFSP Act,
Section 197 CrPC and Section 17 of the CRPF Act.
New Delhi: The Supreme Court on Friday granted
the Centre three weeks to spell out its stand on the extent of
immunity enjoyed by Army personnel under the controversial
Armed Forces Special Powers Act(AFSPA) and other laws for fake
First Published: Friday, November 04, 2011, 20:27