The Supreme Court on Friday asked the Government of India 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 B. S. 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 encounter killings.
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 P. P. 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 official functions.
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."