Pathribal Encounter: SC Issues Notice To Centre, CBI Against Acquittal Of Accuced On Plea By Victim’s Kin [Read Petition]

The Supreme Court has agreed to examine a plea filed by the family members of five civilians killed in an alleged fake encounter in Pathribal area of south Kashmir in 2000, against acquittal of Army personnel in the Case.

A Bench comprising Justice Dipak Misra, Justice A.M. Khanwilkar and Justice M.M. Shantanagoudar issued notice in the matter, and directed it to be listed for final disposal after six weeks.

The petitioners have submitted that the case is “one of cold blooded murder”, and have challenged the dismissal of their Petition by the Jammu and Kashmir High Court last year.

The summary of evidence held by the Army, they have contended, was “illegal, arbitrary, violative of principles of natural justice, and amounted to mockery of the entire judicial system”. They have alleged that the persons who had nothing to do with the incident were made witnesses, and since they couldn’t testify against the accused, the evidence was deemed to be prima facie lacking.

“Special Powers are given to the army so that its personnel do not escape the consequences of gross violations. The Army in this case has made these powers a cloak for wanton murder. The Army, has, to all intents and purposes defied the order of Hon’ble Supreme Court and refused to conduct trial of the accused personnel even through Court-Martial. By virtually holding that there was no evidence, by a preliminary dismissal, the Army has set at naught the entire investigation done until date and their own admission that the abovenamed persons were killed in an army operation by the 7 PR,” they had contended.

A summary procedure, in the face of a detailed CBI investigation and record, is a “frontal violation of the individual’s right to life”, the petitions further state. “Inasmuch as the Army has failed to conduct a trial, and in fact has not taken effectual action, the criminal courts should resume jurisdiction of the matter,” they plead.

Besides, they aver that permitting the army to hold court-martials in cases of human rights violations by the army itself violates the principle of natural justice- Nemo judex in sua causa (no one should be a Judge in their own cause).

“…unlike the ordinary criminal courts, court martials simply do not have the inbuilt mechanisms to independently and effectively prosecute severe human rights violations because the Army Act was drafted primarily to maintain military discipline. The present Pathribal Fake Encounter Case exposes further weaknesses of Army Act and court martial process,” the Petitions explain.

The process of court martial, they contend, was never meant to try such grave offences, and hence, the procedure prescribed in the Act is inadequate to try heinous crimes.

They then proceed to raise seventeen questions of law, and submit that the Petitioners are denied their right to be heard and their right to appeal, as the Army Act does not provide for any remedies once charges are dismissed.

“The current interpretation allows extremely wide power to the Commanding Officer to dismiss charges of even heinous offences such as rape and murder. This overreaching power as observable from the present case, is very like to be abused and used arbitrarily,” they contend.

They point out that while the family members of the deceased were cross-examined and made to attend the proceedings on two consecutive days, they were not given an opportunity to question the accused.

“…the summary of evidence severely compromised due process and fundamental criminal law principles… There is no procedural safeguard made available to the victims under the Army Rules, 1954 in order to give them a right to cross-examine the accused,” it thereby submits.