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2007 Supreme(J&K) 121
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Hakim Imtiyaz Hussain, J.
General Officer Commanding - Appellant
Versus
CBI & Ors. - Respondent
561-A Cr.P.C. No. 78/2006
Decided On : 10 July, 2007
Advocate For Appellant: Sanjeev Sharma
Advocate For Respondent: S.A. Naik
Advocate For Respondent: S.K. Bhat
The court emphasized that the question of sanction under the Armed Forces Special Powers Act, 1990 was a mixed question of fact and law, and should be decided based on the relevant facts and material collected during the investigation. The court also highlighted the limited jurisdiction of the court at the preliminary stage and the need to leave the issue of sanction to the trial court.
Headnote:
Sanction - Criminal Procedure - Armed Forces Special Powers Act - Section 561-A
Fact of the Case:
The case involved a charge sheet against army officers for alleged crimes committed during active service in Jammu and Kashmir. The accused challenged the charge sheet, claiming it was filed without the required sanction under the Armed Forces Special Powers Act, 1990.
Finding of the Court:
The Chief Judicial Magistrate and Additional Sessions Judge both dismissed the petitions, stating that the question of sanction could be decided at a later stage, either during trial or at the conclusion of the trial. They held that the court had limited jurisdiction at the preliminary stage and that the issue of sanction should be left to the trial court.
Issues: The main issue was whether the charge sheet against the army officers was filed without the required sanction under the Armed Forces Special Powers Act, 1990.
Ratio Decidendi: The court held that the question of sanction under the Act was a mixed question of fact and law, which should be decided based on the relevant facts and material collected during the investigation. The court emphasized that the scope of the inquiry at the preliminary stage was limited and that the issue of sanction should be left to the trial court.
Final Decision: The petitions were dismissed, and the court directed the competent authority to decide within a specified period whether it wanted to take over the case for trial of the accused in court martial.
2. Brief facts, relevant for the disposal of this petition, are as under:
3. On 11th May 2006, CBI ( Special Crime Branch), Chandigarh filed a charge sheet against five army officers and others including petitioner Brig. Ajay Saxena, under sections 302,307, 364, 201, 120-B RPC and 25 Arms Act, before the Court of Chief Judicial Magistrate, Srinagar. The incident related to the `Pathirbal killings "which took place in District Anantnag on 25th March, 2000, in which about five persons were killed. On the allegations that the army has killed the civilians of the area and claimed they were the terrorist, the Government had assigned the investigation to CBI vide Government SRO No. 301 dated 13.8.2002. The CBI on completion of the investigation found the accused were involved in commission of the crime. The CBI have concluded as under:--
"Investigation has, thus, established that it was not a genuine encounter. Col. Ajay Saxena, Commanding Officer of 7 RR ( now Brigadier) ( A-1) along with Major B.P. Singh ( Now Lt. Col.) ( A2) Major Sourabh Sharma ( A-3)), Subedar Idrees Khan ( A-4) and othet troops of 7 RR ( whose identity could not be established during investigation) entered into a criminal conspiracy during 21.3.2000 and 25.3.2000 to abduct some persons and kill them in a fake encounter and project that the militants responsible for the Chittisingh Pora massacre had been killed and in furtherance of the said criminal conspiracy, they abducted, Jumma Khan S/o Amirullah Khamn, Jumma Khan S/o Faqirullah Khan, Zahoor Ahmad Dalal, Bashir Ahmad Bhat and Mohd. Yousuf Malik and killed them in a fake encounter in Panchalthan forests claiming that they were militants involved in the Chittisingh Pora Massacre. After abduction, wrongful confinement and killing of the aforesaid 5 civilians, accused Col. Ajay Saxena ( A-1), Maj. B.P. Sing ( A-2) , Maj. Sourabh Sharma ( A-3) and Subedar Idrees Khan ( A-4) in furtherance of the said criminal conspiracy and in connivance with accused Maj. ( Adj.) Amit Saxena of 7 RR ( A-5) prepared false `Seizure Memoshowing recoveryf arms and ammunition from the 5 civilians so skilled, gave false complaint to the police station for registration of the case against the said 5 civilians showing some of them as foreign militants and also passed on false information to the senior officers to create an impression that the encounter was genuine and, thereby, caused disappearance of the evidence of the commission of the aforesaid offences, knowing or having reasons to believe that the offences had been committed, with the intention of screening the offenders from legal punishment and with that intention gave such information respecting the offence which they knew or believe to be false.
The above facts and circumstances, thus, establish that accused Brig. Ajay Saxena IC 34544F ( A-1) Ltd. Col. Brajendra Paratap Singh IC 4777731, ( A-2) Major Sourabh Sharma ( A-3) , Subedar Idrees Khan JC 115929P ( A-4) and others unknown committed offences punishable u/s 120-B r/w 342, 364,302, 201 RPC and substantive offences thereof. Accused Major ( Adj) Amit Saxena IC 51321A ( A-5) committed offence punishable u/s 120-B r/w 201 RPC and substantive offence u/s 201 RPC with regard to the aforesaid offences."
4. Accordingly the charge sheet. Since the accused involved in the case are army officer, ld. Chief Judicial Magistrate informed the concerned army authority about the presentation of the charge sheet and asked to intimate whether they wanted to try the accused in Court Martial. On 24.5.2006, when the hearing in the case was fixed, two applications were filed, one on behalf of lt. Gen. GOC 15 Corps, the competent authority in the matter and another on
