HC reserves judgment in Machil fake encounter case
D A RASHID
Srinagar, Apr 24: The High Court on Tuesday reserved the Judgment on the petition filed by Union of India seeking directions to set aside the trial court order wherein in it held that the accused army men in Machil fake encounter case can be tried in a criminal Court.
After hearing verbose arguments of the counsel of the victim families, the counsels D S Thakur and Karnail Singh Wazir representing the Union of India and counsel for the state government, Shabir Ahmad Naik, Justice Hasnain Massodi reserved the Judgment which will be pronounced later.
The counsels for the union of India argued that the CJM in violation of the provisions of the Army Act in Machil fake encounter case did not give the Army commanding officer an option whether the accused can be tried in a Court- martial or a criminal court.
The counsels defending the Union of India argued that under section 125 of the Army Act, if a criminal court and court martial have each jurisdiction in respect of an offence, it shall be in the decision of the officer commanding of the Army, army cops, division or independent brigade in which the accused person is serving to decide before the court in which court the proceedings shall be initiated .
“Under section 126 of the Army Act, when a criminal court having jurisdiction is of the opinion that proceedings shall be instituted before it in respect of any alleged offence, it may, by written notice require the officer, either to deliver over the offender to the nearest magistrate so that proceedings can be initiated against him or can postpone the proceedings pending a reference to the central government,” they argued.
Counsel for the Victim families, Mian Abdul Qayoom argued that the criminal court has a jurisdiction to try the accused army personnel and the order passed by the CJM is very much in his jurisdiction.
Qayoom referred to different apex court judgments in support of his contention and informed the court that the order passed by the Chief Judicial Magistrate Sopore is in sync with the provisions of law.
He told the court that section 549 of the Code of Criminal Procedure or section 125 or 126 of the Army Act hold relevance only if the accused are produced before the trial court.
He told the court that the victim families can get justice only from a Criminal court as the Court martial has punished only a few accused so far.
“ An information sought under RTI Act reveals that during the Court martial proceeding among 4 RR officers accused of committing heinous crimes three have been punished and the punishment is dismissal from the service only while one was acquitted” Qayoom argued.
He said the accused army men have not chosen to challenge the trial court order but it is the Union of India that has acted and approached the High Court challenging the trial court order.
Counsel for the state government, Shabir Ahmad Naik argued that the magistrate has not yet given the option with regard to the proceedings to be initiated against the accused and such no violation of the
Three civilians of Rafiabad in district Bandipora were allegedly killed in a fake encounter in Machil area of north Kashmir’s Kupwara district in April 2010 and passed on as foreign militants.
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 : Tue, 24 Apr 2012 21:30:00 Makkah time
Lastupdate on : Tue, 24 Apr 2012 18:30:00 GMT
Lastupdate on : Wed, 25 Apr 2012 00:00:00 IST
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