Pathribal Fake Encounter – Killings were cold-blooded murders: CBI tells SC

New Delhi: The CBI Monday told the Supreme Court that the alleged fake encounter at Pathribal in Jammu and Kashmir 12 years ago in which seven people were killed by Army personnel “were cold-blooded murders and the accused officials deserve to be meted out exemplary punishment.”
Senior counsel Ashok Bhan told a special bench of justices B S Chauhan and Swatanter Kumar that 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.
“Our investigations have revealed it was a fake encounter and cold-blooded murders. If public confidence in the rule of law and dispensation of justices is to be sustained, the accused officers deserve to be meted out exemplary punishment,” Bhan told the bench.
Bhan’s submission was contrary to the stand taken by Additional Solicitor General PP Malhotra, who appearing for the Army officers, said prior sanction was mandatory for prosecuting the officials, who otherwise are innocent.
The apex court posted the matter for further hearing on Monday next and asked the CBI to clarify the expression used in Section 6 of the Armed Forces Special Powers Act which gave immunity to Army personnel for encounters killings.
The bench wanted the 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.
On the last hearing, 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 the CBI have differed on the immunity enjoyed by the army under the controversial AFSPA (Armed Forces Special Powers Act) and other regular laws in encounter killings.
Additional Solicitor General PP 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 that 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 gunmen at Chattisinghpora in 2000.
Rawal had earlier argued that though right of 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 observed, “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.”


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