Court rejects pleas of govt, KBA

SYED BASHARAT. Dated: 5/30/2014 12:20:17 AM

SRINAGAR, May 29: The Chief Judicial Magistrate (CJM) Srinagar has dismissed applications seeking certified copies of the court martial proceedings in Pathribal fake encounter case.
The applications were moved before the court by IGP Kashmir on behalf of the state government through prosecution and Kashmir Bar Association and the court had reserved its orders on the same.
According to public prosecutor Iftikhar Ahmad, the CJM dismissed both the applications with a direction that both the parties are at liberty to approach an appropriate forum.
The public prosecutor informed that in its order, the court has observed that the army was supposed to inform the court about the court martial proceedings in the matter and the same has been complied with.
On April 16, the army had objected to issuance of certified copies of court martial verdict in Pathribal fake encounter case to the IG Police Kashmir saying that the latter, not being a party in the case, has no locus to obtain the copies of effectual proceedings conducted by the commanding officer in the matter against the five accused army personnel.
In its objections, the army had said that CJM was already informed about the effectual proceedings against the accused under army act and rules in the matter. “It is humbly prayed that the application filed on behalf of IGP Kashmir be dismissed, being without jurisdiction,” read the objections that were filed by army.
The prosecution had filed an application on behalf of the IGP Kashmir seeking a copy of relevant records pertaining to the army judgment in Pathribal fake encounter case. However, the Army’s standing counsel has vehemently argued that army be given time to file its objections which has been allowed by the court.
In January 2014, eight years after the Central Bureau of Investigation (CBI) charged five Army men, including four officers and a Junior Commissioned Officer, with murder of five civilians in Pathribal area of south Kashmir’s Anantnag district, Army closed the case “because the evidence recorded couldn’t establish a prime-facie case against any of the accused.”
The Army had taken up the case from the Civil Court in 2012 following the Supreme Court directions while it has earlier challenged the charge-sheet filed by the CBI, which described the killings as a cold-blooded murder.
Brigadier Ajay Saxena, Lt Col Brajendra Pratap Singh, Major Sourabh Sharma, Major Amit Saxena and Subedar Idrees Khan were charge-sheeted by the CBI in 2006 for killing five civilians and later dubbing them as foreign militants.
Five civilians were killed and branded as militants, days after 35 Sikhs were killed in Chattisingpora village, nearer to Pathribal. The CBI had filed the charge-sheet against the accused army officers in 2006 but the Army contested its maintainability on the grounds that prior sanction from the Government of India was required under the Armed Forces Special Powers Act (AFSPA), which provides immunity against prosecution to Army personnel deployed in ‘disturbed’ areas.
In 2012, the Supreme Court gave the Army eight weeks to decide whether the officers accused of the fake encounter in Pathribal should be tried by court-martial proceedings or by regular criminal courts. The CBI argued before the Apex Court that army officers involved in the “fake encounter” have no immunity from prosecution.
The CBI sought exemplary punishment for the accused. However, the Army said “it is very sensitive to all allegations of human rights and makes sure that due process of law is followed and action taken against the accused persons.”

 

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