Sanction needed to prosecute Armymen in Pathribal case: Centre *MoD files affidavit before SC

NEW DELHI, Mar 26:
The Centre today told the Supreme Court that it needs four months to decide on sanction for producing the Army officials charged with a “fake encounter” in Pathribal in J&K 12 years ago in which seven people were killed, saying matter involves the sensitive issue of human rights.
“It is the joint stand of Home and the Defence Ministries that prior sanction is needed to institute legal proceedings against Army officers as per AFSPA,” an affidavit filed by the Ministry of Defence before a bench of Justices B S Chauhan and Swatanter Kumar said.
The affidavit said “since the matter involves sensitive issues, including human rights, a practical solution should be found very expeditiously”.
It said the Centre would pass appropriate and judicious order on sanction for prosecution of eight Army personnel involved in the case.
The apex court, which is examining the immunity to Army personnel for encounters killings under Section 6 of the Armed Forces Special Powers Act (AFSPA), was told by CBI that the protection granted in the law cannot be allowed to be “misused” in discharge of official duty.
The agency had during the last hearing said that the incident was “cold-blooded murders” and the accused officials deserve to be meted out “exemplary punishment” and should not be protected by AFSPA.
“It was a fake encounter with a motive…It can’t be termed as discharge of duty by the Army and these Army officials should not be protected by AFSPA,” senior advocate Ashok Bhan, appearing for CBI, had said.
CBI had said no prior sanction was required for prosecuting the Army officials and the need to ensure “public confidence in the rule of law and dispensation of justice” warranted their prosecution.
Bhan’s submission was contrary to the stand taken by Additional Solicitor General P P Malhotra, who appearing for the Army officers, said prior sanction was mandatory for prosecuting the officials who otherwise are innocent.
The bench, which had asked CBI to explain what was the meaning of the expression “acting in discharge of duty or acting in purported discharge of the duty,” as provided in Section 6 of the AFSPA, posted the hearing for April 2.
The apex court had asked the Centre to convey its stand as to whether five officials, including a Major General, can be tried under the Army Act.
The Defence Ministry and CBI have differed on the immunity enjoyed by the Army under controversial AFSPA and other regular laws in encounter killings.
Malhotra, on behalf of the Centre, had denied that fake encounter killings had taken place in the specific case pertaining to J&K and another case relating to Assam pending before the apex court.
Another Additional Solicitor General Harin Rawal, appearing for CBI, had also insisted that they were “fake encounters.”
Rawal insisted the accused Army officials did not enjoy any immunity from prosecution while Malhotra argued they enjoyed protection in discharge of their official functions.
The bench passed the direction on a 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 though the right to immunity under 197 CrPC was available to the officers but in the present case it has not been sought by the accused but by senior Defence Ministry officers, which was contrary to the law.
At an earlier hearing, irked by the Centre’s diverse views, the bench had said “you cannot say that an Army man can enter any house and commit a rape and say he enjoys immunity as it has been done in discharge of official duties.” (PTI)

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