In likely the first such instance since the onset of militancy in Jammu and Kashmir, Indian Army has invoked the cover of Criminal Procedure Code to block prosecution of its 16 accused personnel in the case of a custodial murder in Kishtwar 25 years ago when Armed Forces Special Powers Act was not applied to the area.
On October 22, 1993 soldiers led by Captain T.K. Chopra captured Mushtaq Ahmad Bhat when he was on his way home to Hunjala from Dool.
Fearing for his life, Bhat’s family immediately informed top police and civil administration authorities that Army was keeping him in illegal confinement along with few other locals.
But nothing much happened until November 3 that year when Bhat’s bullet-riddled body was found.
On a complaint by Bhat’s family, police registered a case (FIR number 181/93 under section 302, 364 and 34 RPC) of illegal confinement and murder against personnel of Army’s 10 JAK RIF.
Later, police Crime Branch investigation revealed 16 soldiers were involved in the crime and the state government approached the ministry of defence seeking sanction to prosecute the accused personnel in a civilian court – a prerequisite under AFSPA.
On February 2, 2015 the ministry in a rare response told the state government prosecution of the accused soldiers under AFSPA could not be agreed to because Kishtwar district, where the crime was committed, was not declared a disturbed area under the impunity law.
This meant the state government didn’t need any permission and could go ahead to prosecute the 16 accused army personnel.
Bu the Army claimed they were covered under section 197 (1)(a) of CrPC, which implies prior permission was required to prosecute its personnel under this law too.
“Troops were on bonafide military duty and though AFSPA was not in vogue in the region, troopers are covered (under) section 197 (1) (a) of CrPC,” the Army’s Northern Command contended.
However, after having sought their presence priori, on September 6, 2017 the Crime Branch went ahead to file a charge-sheet, but the court at Kishtwar declined to accept it in absence of the accused army personnel who had not turned up.
Enacted in 1990, AFSPA is applicable only to areas declared disturbed areas by the government. In 1990, the state government declared all the districts of Kashmir Valley as disturbed to pave way for imposition of AFSPA in the region.
Jammu region, including Kishtwar which was then a part of erstwhile Doda district, was declared as disturbed in 2001 and brought under AFSPA.