ANIL ANAND
New Delhi, Jan 23: The Supreme Court Monday censured the Army for not deciding if it wants to take action against its officers involved in the Pathribal fake encounter case. The CBI has, meanwhile, accused the Army of burying the case.
The apex court issued notice to the Union Defence and the Home Secretaries in the March 25, 2000 fake encounter at Pathribal in South Kashmir in which five civilians were gunned down and passed on as Lashker-e-Toiba militants responsible for Chattisinghpora massacre.
The court asked the Army if it will initiate court martial proceedings against the officers involved in the case. The Centre has to decide whether five Army officials including a serving Major General could be tried under the Army Act in the case.
A bench of Justices BS Chauhan and Swatanter Kumar gave the direction even as the Centre and the CBI continue to differ on the immunity enjoyed by the Army under the controversial AFSPA (Armed Forces Special Powers Act) and other regular laws in encounter killings.
The Apex Court observation came after Army conveyed its inability to hold the trial as doing so without permission would be illegal. This led to the Court criticizing the Army and gave them a week’s time to respond.
Censuring the Army, the court said, "You are neither willing to take over the case nor hand it over to the magistrate. Nothing has happened for the last 10 years. Victims could not get justice. Citizens can't wait on interpretation and misinterpretation of facts."
The Supreme Court has called for the Army to file a reply by Friday if it's taking over the case or handing over to criminal court.
The issue has been mired in a controversy following a tussle between the Army and the CBI. The Army says their eight men cannot be tried by CBI as they have immunity under Armed Forces Special Powers Act (AFSPA).
The proceedings in trial court in Jammu and Kashmir had been stayed by the Supreme Court in 2007 on a plea by the Army that its personnel can't be prosecuted without permission from the Centre.
Interestingly, the Central Bureau of Investigation (CBI), which had found a prima facie case against the Army officers, pleaded before the Supreme Court to vacate the stay on the trial, being conducted by the Chef Judicial Magistrate Srinagar. CBI counsel told the Apex Court that a prima facie case existed against Brigadier Ajay Saxena, Lt Col Brajendra Pratap Singh, Major Sourabh Sharma, Major Amit Saxena, Sudedar Idrees Khan and others in the fake encounter case.
However, the trial in the case was stopped after the Army moved Supreme Court claiming immunity for its personnel under the AFSPA whereas the CBI contended that the five had allegedly indulged in murder of civilians for which the immunity could not be provided.
Arguing the matter on behalf of the Centre, Additional Solicitor General PP Malhotra had denied that any fake encounter killings had taken place in the specific cases pertaining to Kashmir and Assam pending before the Apex court.

BACKGROUND
Five persons were gunned down by army personnel on March 25, 2000 at Pathribal in South Kashmir. They were branded as militants belonging to Lashker-e-Taiba responsible for the gunning down of 36 Sikhs at Chattisinghpora in the same district on the intervening night of March 19-20, 2000.
On the evening of 20 March 2000, unidentified gunmen entered Chattisinghpora village in Anantnag district massacring 35 members of the Sikh community there.
Five days after the Chattisinghpora massacre army and Special Operations Group (SOG) of J&K police killed five men at village Pathribal,claiming that the victims were “foreign militants” of LeT group responsible for the massacre of Sikhs. The bodies were buried separately without any post-mortem.
However, over the following days, locals began to protest, claiming that the slain men were innocent civilians killed in fake encounter and passed on as militants. On March 30, local authorities in Islamabad relented to the growing public pressure and agreed to exhume the bodies and conduct an investigation.
With no action being taken with regard to the promised investigation into the Pathribal deaths, the local population grew increasingly restless. On 3 April 2000, an estimated 4000 to 5000 protesters started marching to the Islamabad town, where they intended to present a memorandum to the Deputy Commissioner demanding exhumation of bodies. When they reached Brakpora village, 3 kms from Islamabad, the paramilitary CRPF men posted in a nearby camp and SOG personnel opened fire on the protesters killing seven and injuring at least 15 more, of whom two later succumbed to injuries.
On 5 April 2000, then Chief Minister Farooq Abdullah ordered exhumation of five bodies from Pathribal killings, which began the next day. DNA samples were collected from the five bodies as well as the relatives of the missing young men, and were submitted to forensic laboratories in Kolkata and Hyderabad. However, in March 2002 it was discovered that the DNA samples allegedly taken from the bodies of the Pathribal victims (all of whom were men) had been tampered with, when, according to a report from the Times of India, lab workers found that the samples sent to the laboratory were those of females. Fresh samples were collected in April 2002, which, upon testing, conclusively proved that the victims were innocent local civilians, and not foreign militants as the Army had been claiming for the past two years.
Meanwhile, the government headed by Dr Farooq Abdullah ordered a judicial enquiry into Pathribal fake encounter case and Brakpora firing under Justice S R Pandian. What happened to the enquiry isn’t known till date.
Later on, the Pathribal case was handed over to the CBI. In 2006, CBI found five army personnel guilty. The case is pending disposal in the Supreme Court.

Lastupdate on : Mon, 23 Jan 2012 21:30:00 Makkah time
Lastupdate on : Mon, 23 Jan 2012 18:30:00 GMT
Lastupdate on : Tue, 24 Jan 2012 00:00:00 IST