General Officer Commanding vs Cbi & Anr

2. Brief facts relevant to the disposal of this appeal are as under:

Ayub Gujjar, residents of Wuzukhan, Panchalthan, J & K. C. The 7 RR deposited the said recovered weapons and ammunition with 2 Field Ordnance Depot. However, the local police insisted that the Army failed to hand over the arms and ammunition allegedly recovered from the terrorists killed in the encounter, which tantamounts to causing of disappearance of the evidence, constituting an offence under Section 201 RPC. In this regard, there had been correspondence and a Special Situation Report dated 25.3.2000 was sent by Major Amit Saxena, the then Adjutant, to Head Quarter–I, Sector RR stating that, based on police inputs, a joint operation with STF was launched in the forest of Pathribal valley on 25.3.2000, as a consequence, the said incident occurred. However, it was added that ammunition allegedly recovered from the killed militants had been taken away by the STF.

E. The CBI conducted the investigation in Pathribal incident and filed a chargesheet in the court of Chief Judicial Magistrate-cum- Special Magistrate, CBI, (hereinafter called the ‘CJM’) Srinagar, on 9.5.2006, alleging that it was a fake encounter, an outcome of criminal conspiracy hatched by Col. Ajay Saxena (A-1), Major Brajendra Pratap Singh (A-2), Major Sourabh Sharma (A-3), Subedar Idrees Khan (A-4) and some members of the troops of 7 RR were responsible for killing of innocent persons. Major Amit Saxena (A-5) (Adjutant) prepared a false seizure memo showing recovery of arms and ammunition in the said incident, and also gave a false complaint to the police station for registration of the case against the said five civilians showing some of them as foreign militants and false information to the senior officers to create an impression that the encounter was genuine and, therefore, caused disappearance of the evidence of commission of the aforesaid offence under Section 120-B read with Sections 342, 304, 302, 201 RPC and substantive offences thereof. Major Amit Saxena (A-5) (Adjutant) was further alleged to have committed offence punishable under Section 120-B read with Section 201 RPC and substantive offence under Section 201 RPC with regard to the aforesaid offences.

C. Two writ petitions were filed before the High Court by the non- parties alleging that the Army officials apprehended 9 individuals and killed 5 of them in a fake encounter. The High Court directed the CBI to investigate the matter.

D. The CBI completed the investigation and filed chargesheet against 7 Army personnel in the Court of Special Judicial Magistrate, Kamrup under Section 302/201 read with Section 109 of the Indian Penal Code, 1860 (hereinafter called `IPC’). The Special Judicial Magistrate issued notice dated 30.5.2002 to the appellant i.e. Army Headquarter to collect the said chargesheet. The appellant requested the said Court not to proceed with the matter as the action had been carried out by the Army personnel in performance of their official duty and thus, they were protected under the Act 1958 and in order to proceed further in the matter, sanction of the Central Government was necessary. The learned Special Judicial Magistrate rejected the case of the appellant vide order dated 10.11.2003. Being aggrieved, the appellant preferred the revision petition which has been rejected vide impugned order dated 28.3.2005 by the High Court.

According to the appellants, institution of prosecution is a stage prior to taking cognizance and, therefore, the word ‘institution’ is different from the words taking ‘cognizance’.

(i) Except :

62. Thus, the law on the issue is clear that under Section 125 of the Army Act, the stage of making option to try an accused by a court- martial and not by the criminal court is after filing of the chargesheet and before taking cognizance or framing of the charges.

66. Sum up:

67. In view of the above, the appeals stand disposed of with the following directions: