Fiat to Army: decide on trial or court-martial

May 2, 2012
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New Delhi, May 2: The Supreme Court on Tuesday directed the Army to decide whether its personnel involved in fake encounter killings in Pathribal in Jammu and Kashmir and Assam should be court-martialled or tried in regular criminal courts.

If Army authorities were not keen on court-martial proceedings, the Central Bureau of Investigation could seek sanction from the Centre for prosecution of the erring officers, said a Bench of Justices B.S. Chauhan and Swatanter Kumar.

The case of killing of five civilians in the March 2000 Pathribal encounter has been pending in a Srinagar trial court with both the Army authorities and the officers challenging the Magistrate's order which asked the Army to explain, under Section 125 of the Army Act, whether it would try its men or wanted the civilian court to do the job. As the Jammu and Kashmir High Court ruled against them, the Army personnel appealed to the Supreme Court.

The CBI maintained that no sanction was necessary to prosecute the erring officers under the Armed Forces (Special Powers) Act (AFSPA) as the cold-blooded murders could not be said to fall within the ambit of their official duties.

In Assam, the CBI completed the investigation and filed charge sheet against seven Army personnel in the Court of Special Judicial Magistrate, Kamrup, under Section 302/201 read with Section 109 of the Indian Penal Code, for killing five civilians in a fake encounter. In this case, the Centre maintained that sanction from the competent authority was required for the prosecution of Army personnel.

Writing the judgment, Justice Chauhan said: “The competent Army Authority has to exercise his discretion as to whether the trial would be by a court-martial or a criminal court after the filing of the charge sheet and not after cognisance of the offence is taken by the court. A conjoint reading of the relevant statutory provisions and rules makes it clear that the term ‘institution' contained in Section 7 of the Act 1990 means taking cognisance of the offence and not mere presentation of the charge sheet by the investigating agency.”

Rejecting the Centre's stand that the Army personnel facing the CBI charge sheet could not be tried as they were discharging their official duty, the Bench said: “Facts of this case require sanction of the Central government to proceed with the criminal prosecution/trial. In case option is made to try the accused by a court-martial, sanction of the Central government is not required.”

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September 23,2024

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Nagpur: Union Minister Nitin Gadkari on Sunday teased his cabinet colleague Ramdas Athawale over his ability to hold onto his cabinet spot across multiple governments. "It may not be guaranteed that our government will return for a fourth term, but what is definitely guaranteed is that Ramdas Athawale will become a minister," he remarked at an event in Maharashtra's Nagpur.

The playful jibe, with Mr Athawale present on stage, was followed by Mr Gadkari clarifying that he was "just joking."

Mr Athawale, leader of the Republican Party of India (RPI), has served as a minister three times and expressed confidence in continuing his streak if the BJP returns to power.

Mr Athawale on Sunday said his party RPI (A), an ally in the ruling Mahayuti government in Maharashtra, should get to contest on at least 10 to 12 seats in the upcoming assembly elections. Addressing a press conference in Nagpur, Mr Athawale said the RPI-A will contest the election on its party symbol and ask for three to four seats in Vidarbha, including north Nagpur, Umred (Nagpur), Umarkhed in Yavatmal and Washim.

Mr Athawale's party is part of the Mahayuti alliance, comprising the BJP, Shiv Sena led by Chief Minister Eknath Shinde and Ajit Pawar's NCP.

The Union minister said, "The RPI-A has made a list of 18 probable seats, which it will be sharing with the Mahayuti partners in a few days and expects to get at least 10 to 12 seats in the seat-sharing pact." He said the BJP, Shiv Sena and NCP should give four seats each from their quota for his party.

In Palghar earlier this week, Mr Athawale claimed that due to the inclusion of the Ajit Pawar-led NCP in the Mahayuti government, the RPI (A) did not get any ministerial berth in the state despite a promise.

He claimed that the party was promised cabinet positions, chairmanship of two corporations, and roles in district-level committees, but all this could not happen because of Pawar's inclusion.

The elections to 288 assembly seats in Maharashtra are likely to be held in November.

In the current assembly, the BJP is the single largest party with 103 MLAs, followed by Shiv Sena 40, NCP 41, Congress 40, Shiv Sena (UBT) 15, NCP (SP) 13 and others 29. Some seats are vacant. 

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September 13,2024

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In a huge relief for Delhi Chief Minister Arvind Kejriwal ahead of the Haryana elections, the Supreme Court has granted him bail in the Delhi excise policy case. The AAP chief will now be released from jail, six months after his arrest by the Enforcement Directorate on March 21. He was subsequently arrested by the CBI in June.

Here are some of the Supreme Court's key quotes:

•    Perception also matters and CBI must dispel the notion of being a caged parrot and must show it is an uncaged parrot. CBI should be like Caesar's wife, above suspicion. 

•    "No impediment in arresting person already in custody. We have noted that CBI in their application recorded reasons as to why they deemed necessary. There is no violation of Section 41A (3) of Code of Criminal Procedure," said Justice Surya Kant.

•    Justice Ujjal Bhuyan, however, noted, "CBI did not feel the need to arrest him (Mr Kejriwal) even though he was interrogated in March 2023 and it was only after his ED arrest was stayed that CBI became active and sought custody of Mr Kejriwal, and thus felt no need of arrest for over 22 months. Such action by the CBI raises serious question on the timing of the arrest and such an arrest by CBI was only to frustrate the bail granted in ED case."

•    Submission of additional solicitor general cannot be accepted that appellant has to first approach trial court for grant of bail. Process of trial should not end up becoming a punishment. Belated arrest by CBI is not justified.

•    Regarding building a public narrative of a case... Arvind Kejriwal shall not make any public comments about this case and be present for all hearings before trial court unless exempted.

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September 25,2024

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New Delhi: The Supreme Court today closed proceedings against Karnataka High Court Judge Justice Vedavyasachar Srishananda, following his public apology for controversial comments made during court sessions. Chief Justice of India DY Chandrachud, leading a five-judge bench, stated that the decision was made in the interest of justice and the dignity of the judiciary.

Justice Srishananda during a recent court hearing. Justice Srishananda, while addressing a landlord-tenant dispute, referred to a Muslim-majority area in Bengaluru as "Pakistan" and made a misogynistic comment involving a woman lawyer. His comments, which went viral on social media, prompted the Supreme Court to seek a report from the Karnataka High Court, which was submitted shortly after the incident.

"No one can call any part of territory of India as 'Pakistan'," Chief Justice Chandrachud said. "It is fundamentally against the territorial integrity of the nation. The answer to sunlight is more sunlight and not to suppress what happens in court. The answer is not to close it down."

The Supreme Court had taken up the case on its own and had sought a report from the Karnataka High Court over the controversial remarks. A five-judge bench led by CJI Chandrachud, along with Justices S Khanna, B R Gavai, S Kant, and H Roy, had on September 20 expressed the need for establishing clear guidelines for constitutional court judges regarding their remarks in court. 

"Casual observational may indicate personal biases especially when perceived to be directed at a certain gender or community. Thus one must be wary of making patriarchal or misogynistic comments. We express our serious concern about observations on a certain gender or a community and such observations are liable to be construed in a negative light. We hope and trust that the responsibilities entrusted to all stakeholders are discharged without bias and caution," CJI Chandrachud said today. 

The Supreme Court bench said that when social media plays an active role in monitoring and amplifying courtroom proceedings, there is an urgency to ensure judicial commentary aligns with the decorum expected from courts of law.

Videos of Justice Srishanananda were viral on social media.

In one video, he refers to a Muslim-dominated locality in Bengaluru as "Pakistan" and in another video he was seen making objectionable comments against a woman lawyer. In the second incident, Justice Srishanananda can be heard telling the woman lawyer that she seemed to know a lot about the "opposition party", so much so that she might be able to reveal the colour of their undergarments.

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