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Machil Encounter Case in December 2013 and Which Took the Bulk of Evidence from the Police Investi- Dashed Hopes Gations Into Account

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Machil Encounter Case in December 2013 and Which Took the Bulk of Evidence from the Police Investi- Dashed Hopes Gations Into Account COMMENTARY the court martial proceedings starting Machil Encounter Case in December 2013 and which took the bulk of evidence from the police investi- Dashed Hopes gations into account. The police had fi led a charge sheet against 11 people. The case was meticulously followed and Shujaat Bukhari it fi nally culminated in the confi rmation of sentence to the fi ve army personnel: The Machil encounter case of hen an army court martial the then four Rajputana Rifl es Command- 2010 in which three civilians were awarded life imprisonment to ing Offi cer Colonel Dinesh Pathania, killed in Kashmir’s Kupwara Wfi ve army personnel, including Captain Upendra (holding the fi eld rank a colonel, in 2015 for faking an encounter of Major), Havildar Devendra Kumar, district, can be seen as a test case. in the border area of Machil in Kupwara Lance Naik Lakhmi and Lance Naik It shows that contrary to the view district to kill three civilians in 2010, it Arun Kumar. In September 2015, the then that the Armed Forces (Special was widely welcomed in Kashmir Valley Northern Army Commander Lt General Powers) Act gives impunity to the as it seemingly reversed the practice of D S Hooda confi rmed the sentence on the defending the human rights violations on basis of unequivocal advice of his legal army personnel in confl ict areas, the part of the army. Over the 27 years of headquarters. This was indeed the fi rst in actuality it is the Army Act and confl ict in Jammu and Kashmir (J&K), case (of such a magnitude) in which the certain sections of the Code of armed forces personnel have hardly ever army took upon itself the responsibility Criminal Procedure along with been punished even when the cases of of punishing the guilty in this manner, human rights violations were clearly seen. though there are earlier instances of various government orders that Even if they were acted against, the punish- punishments given out to erring offi cers. give full cover to erring army ments were either struck down by the offi cers and allow them to go civilian courts or by the army’s higher-ups. Hopes Dashed unpunished for violating However, the Machil case award appeared The hopes that this was a welcome to have ensured that justice was going to change were dashed with the AFT’s sus- human rights. be done. The fi ve year long process culmi- pension of the punishment and the com- nated in awarding imprisonment to the plete disregard it showed towards the army personnel and it raised hopes fi ndings of the J&K police, the army among the masses that things were turning court of inquiry and the court martial. around. But those hopes were short-lived Delivering the judgment, the AFT com- since the Armed Forces Tribunal (AFT) prising Justice V K Shali and Lt General suspended the imprisonment sentence S K Singh said, “There was absolutely no and granted bail to all the fi ve in July. justifi cation for a civilian to be present at The Machil fake encounter took place such a forward formation near LoC, that on 29 April 2010 in Sona Pindi in Machil too during the night when the infi ltra- sector. It pushed Kashmir into unprece- tion from across the border was high.’’ dented turmoil that the then Omar This was stated, inspite of the fact that Abdullah government failed to deal with. the three slain men were lured by an Soon after the news about the killing army source to Machil near the Line of of three civilians—Shazad Khan (27), Control (LoC) on the pretext of giving Shafi Lone (19) and Riyaz Lone (20)—of them jobs. Another frivolous argument Nadihal village in Rafi abad came to be that the AFT made while freeing the known, it literally set Kashmir afi re army men was to invoke the “Pathan leading to four months of unrest that left suit” theory. They said, 120 people (mostly youth) dead in the the accused persons were terrorists who have police and Central Reserve Police Force infi ltrated across the border or were crossing (CRPF) fi ring. The police investigation over to the other side cannot be ruled out be- garnered irrefutable evidence that did cause they were wearing pathan suits (a not leave any room even for the court common attire of men, particularly Muslims, in South Asia) which are worn by terrorists. martial to give the erring army personnel Shujaat Bukhari ([email protected]) is the usual “benefi t of doubt.” The army’s They even got the dates wrong and editor-in-chief of Rising Kashmir, Srinagar. court of inquiry began in July 2010 with mentioned October instead of April. Economic & Political Weekly EPW AUGUST 26, 2017 vol lIi no 34 13 COMMENTARY This has dealt a severe blow to the Section 125 of the Army Act, 1950 allows persons acting in good faith under this confi dence that had been restored, how- it to choose between a regular criminal act—No prosecution, suit or other legal ever slightly, and the families of the court and court martial and has continued proceeding shall be instituted, except with victims have threatened to hang them- to shield personnel of the armed forces the previous sanction of the central gov- selves. Not only is Kashmir dismayed from being tried in the former despite ernment, against any person in respect over this travesty but those associated commission of grave human rights viola- of anything done or purported to be with the process of taking the case to its tions. The section reads as follows: done in exercise of the powers conferred logical conclusion are also disturbed. At Section 125. Choice between criminal court by this act. least two army offi cers on the condition and court-martial. When a criminal court Interestingly so far the AFSPA has not of anony mity told the Indian Express’s and a court-martial have each jurisdiction been invoked as there seems to be no Sushant Singh that they were upset in respect of an offence, it shall be in the need in view of the Army Act covering by the AFT’s decision. General Hooda discretion of the offi cer commanding the its interests. army, army corps, division or independent told Singh, brigade in which the accused person is serv- Ironically, erring army personnel I can’t comment on the AFT ruling. It’s not ing or such other offi cer as may be pre- choose the civil courts when it comes to really my place to do so. However, the case scribed to decide before which court the accidents, as they fear stern punishment went through the whole process of the mili- proceedings shall be instituted, and, if that from army courts on grounds of violat- tary judicial system over a period of more offi cer decides that they should be institut- ing discipline. The case in which an army than fi ve years. There are well established ed before a court- martial, to direct that the practices which were followed and any criti- accused person shall be detained in military major was punished and dismissed from cism of the Army is not really justifi ed. custody. service with a sentence of seven years (Indian Express, 3 August 2017) by the army court martial comes to The manner in which the Machil fake Similarly, the powers vested in the mind. He later approached the civil encounter has been dealt with is in line army regarding prosecution of its per- court. Captain Ravinder Singh Tewatia with the pattern that has been followed sonnel have also ensure that justice and Special Police Offi cer (SPO) Bharat and which denies justice to the victims is not done as in the case of Pathribal. Bhushan were found guilty of raping of atrocities by personnel of the armed Essentially, whenever the security forces two women at their home in Banihal in forces. There are many examples where- commit human rights violations, two Doda district on 14 February 2000. Two in justice still eludes the victims or their legal provisions hamper accountability: separate charge sheets were fi led in the families despite due processes having fi rst, the concerned personnel can choose court of the chief judicial magistrate taken place. The army plays the “veto” the forum, and in most cases they choose Banihal. Finally, the court martial in this card since it enjoys unbridled powers the court martial and second, parti- case confi rmed the crime and the captain and absolute cover in getting away with cularly after the Supreme Court decision was punished. He approached the district crimes which, if tried in a civil court, in Pathribal, the need for sanction for court which refused to provide relief would invite severe punishment. We prosecution of army personnel. following which he challenged the ruling have the classic example of the infamous in the high court. The high court set Pathribal fake encounter in which fi ve Hampering Accountability aside the court martial judgment but offi cers, including a colonel who later The relevant sections of the various laws the army appealed before a division retired as a major general, were found regarding prior sanction for prosecution bench where the case is pending. guilty in staging an encounter and killing of the armed forces include: The biggest hurdle against the basic fi ve civilians in March 2000, following the (i) Section 45(1), the Code of Criminal principle of justice in cases of human massacre of 35 Sikhs in Chattisinghpora Procedure (CrPC)—Notwithstanding any- rights violations by the armed forces’ in South Kashmir.
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