HC sets aside order of Trial Court
MACHIL FAKE ENCOUNTER CASE
D A RASHID
Srinagar, July 4: The Jammu and Kashmir High Court on Wednesday allowed the petition of Union of India against the Trial Court order wherein the court had held that the accused army officer in Machil Fake encounter case could be tried before it.
A bench of Justice Hasnain Massodi while setting aside order of Chief Judicial Magistrate Sopore and Sessions Judge Baramulla held that the accused Army officers were on “active service” within the meaning of Section 9 of the Army Act read with SRO 17-E of 1997.
The Union of India had filed a petition in 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.
“The nature of the offence alleged against the Army officers at the time of commission of the offence was not determinative of being on ‘Active Service’ and the SRO 17-E made reference to the place of posting and not the nature of offence alleged against the Army officers,” the High court held.
“As the Army officers were at the time of the commission of alleged offence posted in the state of Jammu and Kashmir, they were deemed to be on Active Service as the Jammu and Kashmir state was included in the areas of the country mentioned in the said SRO,” the court observed.
The Writ Court also disagreed with the arguments of counsels for the respondents (state government) and the interveners (victim family) that the accused Army officers were to be necessarily present before the CJM court to enable the court to give opportunity to the concerned Commanding Officer to exercise option of initiating the proceedings against the army officers before the court.
The High Court held that the accused Army Officers were triable for the offences before the Court-Martial or the ordinary criminal court at the option of the commanding officer.
The Court directed the CJM Sopore to issue a notice to the Commanding officer under Rule 4 of Jammu and Kashmir Criminal Courts and Court- Martial (Adjustment of jurisdiction), Rules 1983 within a week and the concerned commanding officer to exercise the option in terms of section 125 of Army Act within two weeks.
The Court also directed the CJM Sopore to proceed in the matter in accordance with the rule 4 of Rule 4 of Jammu and Kashmir Criminal Courts and Court- Martial ( Adjustment of jurisdiction), Rules 1983.
The Court also directed for initiating the proceedings against accused other than the Army officers before the CJM Sopore asking for filing a separate chargesheet against the accused.
Three civilians of Rafiabad 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.
Counsels D S Thakur and Karnail Singh Wazir were representing the Union of India and the state government was defended by Shabir Ahmad Naik in the case. The victim families were represented by Mian Abdul Qayoom as interveners.
Lastupdate on : Wed, 4 Jul 2012 21:30:00 Makkah time
Lastupdate on : Wed, 4 Jul 2012 18:30:00 GMT
Lastupdate on : Thu, 5 Jul 2012 00:00:00 IST
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