'Murder': SC cites AFSPA, lets Army choose what kind of trial


The Supreme Court gave the Army full "discretion" to choose between a court martial and a criminal trial for seven officers accused of killing five persons in an encounter in Pathribal over 12 years ago.

Today's verdict is the end-result of a legal battle fought by the CBI — from the chief judicial magistrate's court in Srinagar to the Supreme Court — to defend its May 24, 2006 chargesheet accusing the officers of having hatched a conspiracy to kill "innocent persons" in a "fake" encounter.

The CBI had challenged the Army's interpretation of Section 7 of the Armed Forces J&K (Special Powers) Act of 1990 — that prior sanction is required even before the CBI can file a chargesheet against a serving Army officer.

It had said that the Pathribal case was one of "cold-blooded murder and the accused officials deserve to be meted out exemplary punishment." It had argued that no prior sanction was required for prosecuting the Army personnel and the need to ensure "public confidence in the rule of law and dispensation of justice" warranted their prosecution.

With today's verdict, however, the tug-of-war between the Army and the CBI over the question of prior sanction has come a full circle. The apex court made it clear that prosecution of the officers is possible only if the Centre sanctions it.

This is the very thing the Army said before the Srinagar court on May 24, 2006 in an application: "No prosecution could be instituted except with the previous sanction of the Central Government in view of the provisions of Section 7 of the Armed Forces J & K (Special Powers) Act, 1990 and, therefore, the proceedings be closed by returning the chargesheet to the CBI".

On the other hand, the question of prior sanction does not even arise if the Army chooses to opt for the court martial route, the bench of Justices B S Chauhan and Swatanter Kumar observed.

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