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Pathribal Fake Encounter Case Judgement: Indictment Sans Justice

By Abdul Majid Zargar

14 May, 2012

The Supreme Court judgment in Pathribal fake encounter case constitutes a severe assault on the right to life of common people living in conflict areas like Kashmir. Following Chittisinghpora massacre of Sikhs in the year 2000, five innocent civilians were virtually dragged from their beds and killed in cold blood by personnel of 7 Rashtriya Rifles. The victims were labeled as LET mercenaries responsible behind the chittisinghpora incident. Even the then Union Home Minster, Lal Krishen Advani flew from New-Delhi to shower praises on the Army unit responsible for the Act.

When the identity of five men became known as innocent civilians, protests intensified across Anantnag, forcing the government to order a judicial inquiry. On April 3, 2000, the protesters marched towards the Deputy Commissioner’s office. Nine of them were killed and 35 injured in police firing, including some of the relatives of the missing men at Brackpora.

After much uproar the case was handed over to the CBI in late 2000. Following an exhaustive enquiry spanning over more than two years, it registered a case in February 2003, charging five Army personnel, all of 7 Rashtriya Rifles, with abduction, murder, criminal conspiracy and destruction of evidence.

Once CBI filed a charge-sheet and prosecution was to begin in the sessions court, the Army challenged it on the grounds that the Central government’s sanction had not been obtained for prosecuting its personnel. And it is this matter which was heard & decided by the apex court twelve years after the incident.

During the hearing of the case in the Apex Court, hopes of getting Justice were raised when the Honorable judges of the Court remarked that forces do not enjoy any immunity for a normal crime. Their particular remark that --“You go to a place in exercise of AFSPA, you commit rape, you commit murder, then where is the question of sanction? It is a normal crime which needs to be prosecuted, and that is our stand” was perceived as a ray of light in a dark tunnel filled with brutality & repression.

In the final dispensation the Apex Court has upheld the Army version that Prior sanction of the Central Govt. is a condition precedent to prosecute an Army personnel irrespective of the fact whether he has killed an innocent person in the discharge or purported discharge of his duties or not. In the light of this judgment it is immaterial whether the army person was “on duty” or “Off duty” during the operation Kill.. And that has been made abundantly clear by the Apex Court when the parties in Zahid Farooq Killing case were told to go through the judgment in Pathribal case to see if something has been left uncovered. And if the past record is any indication, Sanction for prosecution of security personnel is hardly to come by.

This highlights that ‘the more things change, the more they remain the same’. Neither is there any attempt to resolve the J&K dispute nor is there any relaxation in the oppression & brutality perpetrated on its people. This Judgment reinforces the view that justice has to travel a long way to reach Kashmir.

(The author is a practicing chartered Accountant. Feed back at amzargar1@indiatimes.com)


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