CBI probe in Army-police encounter paints an ambiguous picture

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Former US President Bill Clinton’s visit to India in March 2000 was indeed significant in some aspects and eventful. While this visit marked a new chapter in India-US relations, it also got marked by the massacre of 35 Sikhs at Chattisinghpora in Kashmir on March 20. Mr Clinton’s visit to Pakistan thereafter stood out for its stark contrast.

Five days in India were followed by six hours in Pakistan, where Mr Clinton unprecedentedly arrived in Islamabad in an unmarked jet moments after a decoy aircraft carrying his look-alike had landed there. His motorcade from Islamabad airport contained six black limousines, with the cars switching positions once they left the airport.
This was the first known instance of a US President having travelled to another country with the cover of a decoy plane and decoy men, deception measures against any terrorists wanting to assassinate Mr Clinton. The President’s spokespersons said, the elaborate security precautions were necessitated by the fact that Pakistan harboured terrorists, some of whom were actually members of the Pakistan military. It was no wonder that Mr Clinton did not inspect a guard of honour. Also, no photograph was allowed showing Mr Clinton shaking hands with the then Pakistani dictator Pervez Musharraf, or even a picture of them posing together.
The irony is that while 12 years later the US has no doubts about strong connections of Pakistan Army and ISI with terrorist organisations, in India, the Army, which has been combating terrorists supported by Pakistan’s military for over two decades, is being accused of staging a fake encounter in an operation it conducted jointly with the police.
A day after the heinous massacre at Chattisinghpora the Jammu and Kashmir police arrested one suspected terrorist named Mohammad Yaqoob Wagey, who during his interrogation, admitted being part of a militant group which carried it out. He also gave information about the possible hideouts of those militants at Punchalthan area. That information was shared by the then SSP Ananatnag with the then Commander, 1 Sector Rashtriya Rifles (RR), and a joint operation by the RR and police personnel was launched on March 25, 2000, in which five unidentified terrorists were killed.
Immediately after the operation, then SSP Anantanag and higher Army officials visited the site, saw the dead bodies and arms and ammunition recovered from the terrorists and gave interviews to media.
On March 29, 2000, there was a protest demonstration by local villagers demanding further investigation of the incident which resulted in chief judicial magistrate (CJM), Anantnag directing that the bodies be exhumed for DNA testing. Anantnag police station was asked to register a case and investigation by a SIT, headed by SSP Anantnag, was launched.
On March 6, 2002, a leading Delhi-based newspaper published a report, “J&K govt fudges DNA samples to cover up civilian killings”. On March 9, 2002, the J&K government set up a one-man commission by Justice G.A. Kuchaoi to probe the DNA fudging. After submission of the commission report to the state government, a three-member Cabinet sub-committee under the deputy chief minister was constituted, which recommended that all cases be handed over to CBI. The CBI after its investigation was of the view that the Army unit, ie, 7 RR, hatched a criminal conspiracy to pick up some persons and to kill them in a fake encounter so that they could be labelled as persons responsible for Chattisinghpora killings. Accordingly, the CBI filed a challan against the then CO, three officers and one JCO of 7 RR for their alleged involvement in the murder and abduction of five civilians in the court of CJM at Srinagar. No police person was named in the case.
The CJM granted opportunity to the Army to exercise the option of the competent military authority taking over the case under the provisions of Army Act Section 125 for trial by court martial or that the trial be held in criminal court. The Army authorities filed an application before the court pointing out that no prosecution could be instituted without the previous sanction of the Central government in view of Section 7 of the Armed Forces (J&K) Special Powers Act (AFSPA), 1990 and, therefore, the proceedings may be dropped by returning the chargesheet. The probe agency filed a reply to the application by Army authorities, wherein it averred that since the alleged act cannot be termed as, “discharge of official duty”, the accused persons are not eligible for protection under Section 7 of the AFSPA (J&K), 1990. The case, initially heard in the courts, subsequently came up for hearing in the Supreme Court based on a special leave petition filed by the Army challenging the directions of the high court.
The CBI report curiously does not mention the involvement of the police in the entire episode. The police not only provided the information based on which the operation was launched, but was active participants and took credit at the end of the operation, as admitted in statements of senior police officers. These anomalies raise questions on the CBI investigation and subsequent filling of a challan in the court of CJM, Srinagar.
On February 3, 2012, the matter was taken up before the bench of Justice B.S. Chauhan and Justice Swatanter Kumar in the Supreme Court of India. The additional solicitor-general (ASG) argued that to meet the peculiar conditions of employment of the Armed Forces in the State of J&K, the Parliament has provided a protection in the form of Section 7 of AFSPA which requires that once investigation is done, the matter has to be referred to the Central government to examine whether sanction for the prosecution has to be accorded or not. Thereafter, the ASG pointed out the documents to show that the operation was undertaken by the Rashtriya Rifles unit, based on intelligence provided by the J&K police and it was a joint operation as per the daily diary entry made by the police. The operation undertaken is well documented with timely situation reports and the seizure memos were well documented in conjunction with civil police. Thus the ASG countered the CBI’s charge that the Army Unit had stage managed the killing after abducting innocent civilians.
The court then called upon the senior counsel for CBI, for his arguments. The CBI counsel relied upon the final report presented by the CBI to put forward their argument. The court questioned the senior counsel as to how the arms and ammunition recovered from the scene of occurrence reached there, the views of CBI on the official situation reports of the military authorities.
The court then adjourned the case to February 24, 2012, directing the CBI counsel to make submissions on the aforesaid queries and also directed the ASG appearing for Union of India through ministry of defence and ministry of home affairs as to their stand on the issue of prior sanction for the prosecution.

Anil Bhat, a retired Army officer, is a defence and security analyst based in New Delhi