Machil record dilutes CM’s ‘speedy justice’ idiom | Govt yet to file objections

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Srinagar, Jan 05: Though the Chief Minister Omar Abdullah has asserted that “his government will move to any court to provide justice” to the family of Altaf Ahmad Sood killed by CISF personnel in Boniyar on Monday, in Machil fake encounter killings the state government has not even filed objections for the past one year delaying trial of the case.
In July 2010 Army had moved an application before the Chief Judicial Magistrate (CJM) Sopore seeking transfer of the case for court martial when the trial of the case commenced. But the CJM rejected the application.
The presiding officer instead issued notice to the Army directing it to produce the accused Army personnel including a Colonel and two Majors before the Court.
Army had pleaded that Army personnel serving in Jammu and Kashmir are on “active service” and as “such option to try Army personnel has to be exercised by the Commanding Officer.”
Under a notification issued in September 1977, in terms of section 9 of the Army Act, the armed forces are on “active service” while they serve in the state of Jammu and Kashmir.
Subsequently, Army moved a revision petition before the Court of Principal District and Sessions Judge Baramulla against the CJM’s order.
On December 13, 2010 the Sessions Court rejected Army plea citing rule 8 of the Jammu and Kashmir Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules 1983.
Under the rule 8, magistrate can issue notice to the Commanding Officer to seek presence of a person who is subject to Military, Naval and Air Force Law or any other law related to the armed forces if he has committed an offence. The magistrate can also, under rule 8, stay proceedings against such person before the Court Martial to determine which proceedings should be instituted.
Army then moved to the High Court and secured stay on the trial. It moved a petition challenging jurisdiction of the criminal court to try the accused. Army also challenged the rule 8 of the Jammu and Kashmir Criminal Courts and Court Martial (Adjustment of jurisdiction) Rules 1983.
“The case concerns about the discipline in the armed forces and we are not for delay in the trial. We are also not here to defend the accused. We are only questioning jurisdiction of Criminal Court to try the accused. Under section 125 of the Army Act discretion lies with Commanding Officer of the Army, Army Corps, Division or Independent Brigade to decide on the option as to whether the accused are to be tried by way of a court martial or by a trial before the criminal court,” counsel DS Thakur who was pleading case on behalf of Union of India, informed single bench of the High Court in latest hearing.
“Section 3 (1) and section 9 of the Army Act 1950 deals with the powers of the Central Government to declare persons to be on active duty, and serving in Jammu and Kashmir under sections has been declared as to be in the active duty.”
He said the Union of India has also challenged legality of rule 8 of the Jammu and Kashmir Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules 1983 describing it as ultra virus to Army Act and the Constitution of India.
“So far over a dozen hearings of the case have taken place and the State Government has not filed any objections thus delaying the trial,” said KS Wazir, one of the counsels for Army in the case.
On April 29, 2010 evening, Army killed three youth in Machil sector of Kupwara district. The following day Army described them as unidentified foreign militants. However, police investigation conducted after protests by locals revealed that the youth were innocent civilians from Nadihal Rafiabad of Baramulla district. The bodies of the youth were exhumed on May 28, 2010.
Chief Minister Omar Abdullah while assuring speedy justice in the case had even gone to the extent of saying that the killings have brought under the arc of suspicion all such encounters in the valley.

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