Srinagar, Apr 12: The state High Court on Thursday heard arguments on the petition by Union of India challenging the trial court order wherein it held that the civil court has the jurisdiction to try the Army men accused in Machil fake encounter case.
After vehement arguments that consumed better of the post-break proceedings, Court of Justice Hasnain Massodi directed that the case be listed on any date in the week commencing April 23.
Union of India has filed the petition in the HC challenging orders of Sessions Court Baramulla and Chief Judicial Magistrate (CJM) Sopore wherein the courts held that civil court has the jurisdiction to proceed against the accused in the case.
 Counsel for Union of India, D S Thakur assisted by Karnail Singh Wazir pleaded that under section 125 of the Army Act discretion vests with the commanding officer of the Army Corps, Division or Army Brigade, to decide on the option whether the accused can be tried through Court Martial or a Criminal Court.
 Three civilians of Rafiabad in district Baramulla were allegedly killed in a fake encounter by Army in Machil area of Kupwara district in April 2010 and passed on as foreign militants.
 “Under section 549 of the Code of Criminal Procedure, the government may make rules consistent with code and the Army Act in force in the state,” the counsel for Union of India argued.
 He said when a person is brought before a magistrate and charged with an offence for which he is liable under the Army Act in force in the state to be tried by Court Martial, such magistrate shall have regard to such rules.
 Challenging the legality of Rule 8 of the Jammu and Kashmir Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules 1983, the counsel said, “The rule is ultra vires to Army Act and Constitution of India.”
 “Rule 8 empowers a magistrate to issue notice to a 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. Under this rule the magistrate can also stay the proceeding against such person before the Court Martial to determine which proceeding should be instituted,” Thakur argued.
 Counsel for the victim families, Mian Abdul Qayoom while arguing informed the court that the victim families can get justice only in criminal courts.
 “It is the Army that has caused delay in the trial as charge sheet has been presented in the trial court but the accused have not been produced before it despite the directions of the Chief Judicial Magistrate Sopore,” Qayoom argued.
 Qayoom argued that the CJM has only passed a direction for producing the accused before it and the said sections of the Army Act were irrelevant to it.
 He told the court that section 549 of the Code of Criminal Procedure or section 125 or 126 of the Army Act have application only if the accused are produced before the trial court.
 Additional Advocate General JK, Shabir Ahmad Naik, arguing for the state government, told the court that at preliminary stage when challan has been produced, the accused personnel must be produced before the trial court.
 The accused Army men charge-sheeted in the case include Colonel D K Pathania of the 4 Rajput Rifles, Major Upendra Singh, Major Maurya (Adjutant), Subedar Satbir, Hawaldar Bir Singh, Sepoy Chadra Bhan, Sepoy Nagendra Singh, Sepoy Narendra Singh and Abbas Hussain Shah of the Territorial Army.

Lastupdate on : Thu, 12 Apr 2012 21:30:00 Makkah time
Lastupdate on : Thu, 12 Apr 2012 18:30:00 GMT
Lastupdate on : Fri, 13 Apr 2012 00:00:00 IST