THE alleged fake encounter killing of three Kashmiris — Shahzad Ahmad Khan, Mohammad Shafi Lone and Riyaz Ahmad Lone — on April 29-30, 2010 by officers of the 4th Rajputna Rifles led by Major Upender and his team members, including two Subedar Majors and a sepoy from Rafiabad area has once again brought the spectre of extrajudicial executions in Kashmir to the fore. Defence Minister A.K. Anthony was quick to announce that the guilty will be punished. After the police inquiry indicted the army officers, the army ordered its inquiry.
Mr Antony told Parliament that though his ministry received 23 requests for permission to prosecute the army in the last three years, "no permission for prosecution was granted during the same period". Once the public anger fades away, the army authorities will make all efforts to obfuscate justice.
The Jammu and Kashmir Police have been helpless in the face of the Defence Ministry's commitment to protect the criminals in the army. The prosecution of the army officials for fake-encounter killing of Imam Showkat Ahmad Kataria of Doligam-Jabdi-Banihall is instructive. Kataria went missing on October 4, 2006 at around 10 pm from Alamgari Bazaar. The Army claimed that Abu Zahid, a foreign militant from Karachi was killed in an encounter, and buried him. However, after exhumation of the buried body of so-called Abu Zahid from Bazipora-Ajas-Bandipore on February 3, 2007, the Central Forensic Science Laboratory, Chandigarh concluded that the exhumed body was that of Showkat Ahmad Kataria and not Abu Zahid. Five army officers of the 13th Rashtriya Rifles – Col Vikram Singh, his second in command V K Sharma, Major Rishi, Junior Commissioned Officer Puran Singh and Naik Satya Lal were charged with the murder and criminal conspiracy along with five police officers and a civilian.
When the Srinagar District and Session Court issued non-bailable warrants against the five accused army officers, the Army requested the court to suspend the trial pending the ruling of the Supreme Court in the case of the Central Bureau of Investigation versus Brig. Ajay Saxena.
Brig. Ajay Saxena and his colleagues, Lt-Col Brijendra Pratap Singh, Major Sourabh Sharma, Major Amit Saxena and Subedar I Khan of 7th Rashtriya Rifles were charged with Pathribal fake encounter killing in which five civilians were executed on March 24, 2000. The Army claimed the five terrorists responsible for the Chhatisinghpora massacre of the Sikhs on March 20, 2000 were killed in an encounter.
In April 2006, the CBI following an investigation found that the so-called five terrorists killed at Pathribal were civilians killed in fake encounters and filed charges against five army officers — before the Chief Judicial Magistrate, Srinagar. The accused army officers challenged the CBI's chargesheet on the ground that the CBI did not have prior permission of the Central Government to chargesheet them. On June 21, 2006, the CBI replied before the court that the Central Government's permission was not necessary in this case. The J and K High Court also dismissed the appeal of Brig. Saxena and others.
Brig. Saxena and others thereafter filed special leave petition before the Supreme Court on the same ground that no permission was sought from the Defence Ministry as required under the Jammu and Kashmir Armed Forces Special Powers Act. On September 13, 2007, the Supreme Court in its interim order stated "Until further orders, further proceedings before the trial court shall remain stayed."
The last hearing of the SLP filed by Brig. Ajay Saxena took place on Dec 9, 2009 and the pleadings are yet to be completed. However, the Army has been using the September 13, 2007 interim order to stall all the legal proceedings in various cases of extrajudicial executions in Kashmir as was shown by Kataria case.
Dozens of cases pertaining to the regime of permission were filed before the Supreme Court but the court on its part failed to set the case law on the regime of prior sanction from the government. In January 2009, the Supreme Court in the case of Choudhruy Parveen Sultana vs State of West Bengal stated that "all acts done by a public servant in purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of Section 197 Criminal Procedure Code". The apex court while setting aside the Calcutta High Court order that denied permission to prosecute West Bengal Deputy Superintendent of Police Sahabul Hussain by a magisterial court in Behrampore for threatening a resident to withdraw his complaint held that: "It was no part of his duties to threaten the complainant or her husband to withdraw the complaint."
Will fake encounters like the ones by Brig. Saxena and others be considered part of official duties that would require permission for prosecution of the accused? At present, there is no will on the government's part to consider otherwise, and therefore, fake encounters have become an integral part of law enforcement and counter-insurgency operations.
Promotions for killing alleged terrorists or wanted criminals have further increased fake encounter killings. The National Human Rights Commission recently stated that it alone registered 2956 cases in connection with police encounters in different parts of the country since its inception on October 12, 1993 till April 30, 2010. These figures do not include the fake encounters by the army in Jammu and Kashmir and the North East as the NHRC does not have jurisdiction over the army.
Fake encounters are not only sustaining the insurgencies but also ensuring that the gains made by the governments against insurgencies in Kashmir and elsewhere are lost. India is yet to realise the costs of protecting criminals in uniform.