Pathribal fake encounter: Court rejects IGP, victim family’s pleas for army verdict copy

Srinagar: A local court here has rejected petition by one of the victim families as well as an application by Inspector General of Police (Kashmir), seeking copy of army’s court-martial judgment and various other documents regarding closure of the infamous Pathribal fake encounter case.
In February last, Nazir Ahmad Dalal, maternal uncle of Zahoor Ahmad Dalal, who was one of the five men killed in the fake encounter, had filed the petition before Chief Judicial Magistrate Srinagar for directions to the army to submit before the court entire record of the case as well as submit the detailed judgment passed in the fake encounter case of 2000.
Dalal had also sought direction to the CBI Special Branch Chandigarh to submit the whole record of the case before the court.
Subsequently, IGP also filed an application for record of the case as well as of the copy of the judgment.
Army objected to both the petition and the application, submitting that the applicants have no locus standi and urged for their dismissal of the pleas.
Announcing the judgment, the CJM Virender Singh Bahu allowed the prayer by army through Brigadier Adjutant 16 Corps on behalf of General Officer Commanding 16 corps.
In its order, the CJM has answered three queries which it observed arose after considering rival arguments, and include whether Dalal is competent to file application in the court to seek copy of the judgment and whole record of the case from CBI; whether IGP Kashmir has been authorized by the state to seek the record; and whether the information furnished by Brigadier Adjutant 16 Corps on behalf of the GOC can be construed as final, and whether same should be accompanied with proceedings conducted by army authorities.
“So for as locus of the applicant (Dalal) to seek copies of the whole record and judgment is concerned, it is explicit that applicant has no such locus to seek because he is not a party to the case, so he cannot move an application before this court.”
To the other question, court observed that record furnished by IGP Kashmir nowhere indicates that he has been authorized by government to move court for seeking record as well as copy of the judgment.
“Letter of Under Secretary to the Government Home department addressed to Director General of Police and letter of IGP Kashmir Zone to CPO Sadder Court nowhere indicate that IGP Kashmir has been authorized to seek requisite documents.”
Lastly, the court observed that the competent military authority has authority to inform it (CJM) when the effectual proceedings have taken against the accused soldiers.
“Since the effectual proceedings have already taken place, so an intimation as required has been forwarded to this court and this court has left with no option but to accept the intimation report regarding proceedings filed and information furnished in this context is not required to be accompanied with record of the case as well as copy of the judgment,” the court said.
Only in case where the effectual proceedings have not taken place, the CJM said, court can direct for production of the record.
“But the same situation has not arisen in this cast,” the court said, dismissing the petition and the application.
However, court said, IGP Kashmir and the applicant are at liberty to approach “concerned forum” to seek relevant documents and judgments if they so require.
In 2006, India’s premier investigation agency CBI indicted army’s Brig Ajay Saxena, Lt. Col. Brajendra Pratap Singh, Maj. Sourabh Sharma, Maj. Amit Saxena and Subedar Idrees Khan for the cold-blooded murder of the five civilians.
Subsequently, the chargesheet was handed over to army for court marital in consonance with the orders by Supreme Court.
However, on January 20 this year, the army informed the CJM through a communication that no prima facie case was made against its accused men following the court martial by it.

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