Srinagar, Apr 11: The Principal Sessions Judge Bandipore, M A Chowdary, has dismissed army’s application seeking withdrawal of charge sheet filed by the state government before the Chief Judicial Magistrate Sopur in Ganderbal fake encounter case against its personnel.
The army had said that its men enjoy impunity under Armed Forces Special Powers Act (AFSPA) and the state government cannot file a charge sheet till centre gives sanction.  The army application said that CJM had erred in asking the commanding officer to decide whether he would opt for civil trial or court martial. The army had said the incident was related to the powers conferred to the accused army men under the AFSPA.
However, the Judge said that that facts and circumstances of the case were different. “When a poor hawker was murdered in cold blood in a fake encounter for petty gains of receiving rewards, appreciation and to retain the posting of their choice can in no way be said to be within the authority of the accused petitioners as the authority to use force even to the causing of death as provided under section 4 of the AFSPA was permissible only in grave situation. The provision of section 7 of the Act 1990 is not blanket protection to every act of the armed forces even in disturbed areas but only in good faith,” the judge said in his detailed order.
The army had filed two separate applications to challenge the order of the Chief Judicial Magistrate before the Principal Sessions Court Bandipore. The petitioner general officer commanding Kilo force through Bashir Ahmad Mir challenged the CJM order on grounds that he failed to exercise the jurisdiction vested in him under the law.  “The CJM was duty bound to see whether the prior sanction of the centre government under section 7 has been obtained or not,” it said.
The application said that the CJM overlooked the settled position of the law applicable in the case and ignored the judgment passed by the Apex Court.
However the Public Prosecutor Jan Muhammad Mir said that CJM order has been passed perfectly in consonance with law and prayed for dismissal of revision petition.
He said that on March 14, 2006 a report was lodged at the police post Ajas by Major adjutant 13 RR claiming that on March 13, 2006 STF Ganderbal and Army at Dudhwan Ajas killed a “terrorist Zulfikar Ahmad of Muzaffarabad.” Prosecution said the Army claimed he belonged to Harkat-ul-Islam.
Meanwhile, the PP said, a case was registered vide FIR 6/2007 under section 302 at police station Batmaloo. The FIR says that the accused Farooq Ahmad Gadda had seen one civilian in the lock-up of SOG Ganderbal in March 2006 who was later killed by army personnel of 13 RR and SOG Ganderbal at Ajas.
Subsequently, an investigation was ordered on the whole issue including the claim of Army of killing foreign militant on March 13, 2006.
The PP informed the court that during the investigation it surfaced that in March 2006 a criminal conspiracy was hatched by the then SP Ganderbal Hans Raj Parihar, the then Dy SP Operations Ganderbal Bhadur Ram, the then ASI SOG Camp Ganderbal Farooq Ahmad Gadda and DSP’s PSO Bansi Lal to pick up a person and kill him in fake encounter. The petitioners Colonel Vikram Singh and other Army personnel joined them in the conspiracy.
The PP said that Ghulam Nabi Wani son of Ghulam Qadir Wani resident of Nowbugh Kokernag who was selling sheets on the pavement at Biscoe School was abducted on March 3, 2006 was picked up by Bansi Lal and was taken to Ganderbal and kept in Lock up. It said on the night of March 13, he was taken out by the SOG out of the camp and they were joined by Colonel Vikram Singh of 13 RR and his troops. Later they killed Wani at Dudwan hills. His body was kept in 13 RR Camp at Mansabal. On March 14, it was claimed that the deceased was foreign militant Zulfikar of Muzaffarabad.
The prosecution said that during investigation it was proved that Wani was killed in fake encounter at Dudwan hills and dubbed as foreign militant. The State Government produced chargesheet before the Court of CJM Sopur against the accused.
However, the CJM asked the army personnel including Colonel Vikram Singh to exercise the option of trial. The prosecution said the army sought dropping of proceedings against the troopers or returning of the chargsheet saying the state government requires sanction under section 7 of AFSPA for prosecution.  But the Magistrate insisted on the letter option and fixed the date of August 21, 2007.

Lastupdate on : Sun, 11 Apr 2010 21:30:00 Makkah time
Lastupdate on : Sun, 11 Apr 2010 18:30:00 GMT
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