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19 Aug 2017

PUDR welcomes the decision of the Supreme Court to examine a plea filed by the family of five civilians killed in a fake encounter in Pathribal, Kashmir in 2000. The notice issued by SC follows the closure of the Pathribal case by the Army and the refusal of the J&K High Court last year in admitting the petition of the victims’ families challenging the closure of the case. The apex court has also given liberty to the petitioners to mention the matter for early hearing. The Union of India was represented by the Additional Solicitor General and the petitioners by Advocate Nitya Ramakrishnan.

The Petition was filed by the kin of five civilians killed by the Army on the night of 24-25th March 2000. Jumma Khan s/o Amirullah Khan, Jumma Khan s/o Faqirullah Khan, Zaroor Ahmad Dalal, Bashir Ahmad Bhat and Mohd Yousuf Malik were abducted and killed in Pathribal in Anantnag district, by the personnel of 7 Rashrtriya Rifles. Proclaiming that these men were responsible for the killing of 36 Sikh men in Chattisinghpora, the Army dubbed them as “foreign militants.” Subsequently, on protests being raged by citizens and families of victims, the Government of Jammu and Kashmir ordered an enquiry to ascertain the identity of those killed.  From the investigation, it emerged that these men were abducted and shot dead in a fake encounter, and their bodies mutilated to protect from identification.  State Police and the Central Bureau of Investigation (CBI) had frontally indicted five personnel of the Army, namely a Brigadier Ajay Saxena, Lt Colonel Brajendra Pratap, Major Sourabh Sharma, Major Amit Saxena and Subedar Idrees Khan of 7 Rashtriya Rifle for the killings as well as for fabricating records and evidence to falsely proclaim that the five killed were “foreign militants”.

The Army moved the apex court and objected to the chargesheet filed by the CBI before the trial could begin in sessions court, on grounds that prior sanction is required for prosecution of any Army personnel under AFSPA.  Although the court turned down the objection, in 2012, it upheld the Army claim that after the filing of a chargesheet; sanction is required before the trial can begin, and had given the Army an option to either hold the trial in a Criminal Court or hold the Trial by General Court Martial. Instead of doing either, the Commanding Officer had closed the case as one of ‘no evidence’ thereby wiping out the investigation carried out by CBI, which the petitioners claim was mala fide and something for which the law does not authorize the Commanding Officer. Following this, in January 2014, the Army gave these personnel a clean chit stating lack of evidence as the basis of its decision.

Unraveling the opacity of operations of the Court Martial, this case became yet another example of armed forces rarely prosecuting their own personnel. PUDR had earlier drawn attention to the sequence of events resulting in travesty of justice in the Pathribal case ( Today’s decision of the SC is a modest step towards attaining justice for thousands who have been killed brutally in fake encounters by Army personnel. PUDR welcomes the judgment for its substantial stand on the matter and expects that the Court would pursue the hearings with tenacity and challenge unabashed impunity that armed forces enjoy. In welcoming the move of the apex court, however, PUDR reiterates its demand that all crimes committed by the Armed Forces against civilians must be tried in a civilian court.

Cijo Joy and Anushka Singh

Secretaries, PUDR

19th August 2017