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Machil Encounter Case

Dashed Hopes

Shujaat Bukhari (shujaat7867@gmail.com) is editor-in-chief of Rising Kashmir, Srinagar.

The Machil encounter case of 2010 in which three civilians were killed in Kashmir’s Kupwara district, can be seen as a test case. It shows that contrary to the view that the Armed Forces (Special Powers) Act gives impunity to the army personnel in conflict areas, in actuality it is the Army Act and certain sections of the Code of Criminal Procedure along with various government orders that give full cover to erring army officers and allow them to go unpunished for violatinghuman rights.

When an army court martial awarded life imprisonment to five army personnel, including a colonel, in 2015 for faking an encounter in the border area of Machil in Kupwara district to kill three civilians in 2010, it was widely welcomed in Kashmir Valley as it seemingly reversed the practice of defending the human rights violations on the part of the army. Over the 27 years of conflict in Jammu and Kashmir (J&K), armed forces personnel have hardly ever been punished even when the cases of human rights violations were clearly seen. Even if they were acted against, the punishments were either struck down by the civilian courts or by the army’s higher-ups. However, the Machil case award appeared to have ensured that justice was going to be done. The five year long process culminated in awarding imprisonment to the army personnel and it raised hopes among the masses that things were turning around. But those hopes were short-lived since the Armed Forces Tribunal (AFT) suspended the imprisonment sentence and granted bail to all the five in July.

The Machil fake encounter took place on 29 April 2010 in Sona Pindi in Machil sector. It pushed Kashmir into unprecedented turmoil that the then OmarAbdullah government failed to deal with. Soon after the news about the killingof three civilians—Shazad Khan (27), Shafi Lone (19) and Riyaz Lone (20)—of Nadihal village in Rafiabad came to be known, it literally set Kashmir afire leading to four months of unrest that left 120 people (mostly youth) dead in the police and Central Reserve Police Force (CRPF) firing. The police investigation garnered irrefutable evidence that did not leave any room even for the court martial to give the erring army personnel the usual “benefit of doubt.” The army’s court of inquiry began in July 2010 with the court martial proceedings starting in December 2013 and which took the bulk of evidence from the police investigations into account. The police had filed a charge sheet against 11 people.

The case was meticulously followed and it finally culminated in the confirmation of sentence to the five army personnel: the then four Rajputana Rifles Commanding Officer Colonel Dinesh Pathania, Captain Upendra (holding the field rank of Major), Havildar Devendra Kumar, Lance Naik Lakhmi and Lance Naik Arun Kumar. In September 2015, the then Northern Army Commander Lt General D S Hooda confirmed the sentence on the basis of unequivocal advice of his legal headquarters. This was indeed the first case (of such a magnitude) in which the army took upon itself the responsibility of punishing the guilty in this manner, though there are earlier instances of punishments given out to erring officers.

Hopes Dashed

The hopes that this was a welcome change were dashed with the AFT’s suspension of the punishment and the complete disregard it showed towards the findings of the J&K police, the army court of inquiry and the court martial. Delivering the judgment, the AFT comprising Justice V K Shali and Lt General S K Singh said, “There was absolutely no justification for a civilian to be present at such a forward formation near LoC, that too during the night when the infiltration from across the border was high.’’ This was stated, inspite of the fact that the three slain men were lured by an army source to Machil near the Line of Control (LoC) on the pretext of giving them jobs. Another frivolous argument that the AFT made while freeing the army men was to invoke the “Pathan suit” theory. They said,

the accused persons were terrorists who have infiltrated across the border or were crossing over to the other side cannot be ruled out because they were wearing pathan suits (a common attire of men, particularly Muslims, in South Asia) which are worn by terrorists.

They even got the dates wrong and mentioned October instead of April.

This has dealt a severe blow to the confidence that had been restored, however slightly, and the families of thevictims have threatened to hang themselves. Not only is Kashmir dismayed over this travesty but those associated with the process of taking the case to its logical conclusion are also disturbed. At least two army officers on the condition of anonymity told the Indian Express’s Sushant Singh that they were upsetby the AFT’s decision. General Hooda told Singh,

I can’t comment on the AFT ruling. It’s not really my place to do so. However, the case went through the whole process of the military judicial system over a period of more than five years. There are well established practices which were followed and any criticism of the Army is not really justified. (Indian Express, 3 August 2017)

The manner in which the Machil fake encounter has been dealt with is in line with the pattern that has been followed and which denies justice to the victims of atrocities by personnel of the armed forces. There are many examples wherein justice still eludes the victims or their families despite due processes having taken place. The army plays the “veto” card since it enjoys unbridled powers and absolute cover in getting away with crimes which, if tried in a civil court, would invite severe punishment. We have the classic example of the infamous Pathribal fake encounter in which five officers, including a colonel who laterretired as a major general, were found guilty in staging an encounter and killing five civilians in March 2000, following the massacre of 35 Sikhs in Chattisinghpora in South Kashmir. The massacre coincided with the then US President Bill Clinton’s visit to India. It was the Central Bureau of Investigation (CBI) that had clinching evidence against the officers but in this case the Government of India refused permission to prosecute. The case went upto the Supreme Court, which gave the army the choice of holding a court martial or being tried in a civil court. The army decided to hold a court of inquiry and disposed off the case!

The power to choose the course ofinquiry which has been vested with the army has indeed played a significant role in thwarting justice in such cases. Section 125 of the Army Act, 1950 allows it to choose between a regular criminal court and court martial and has continued to shield personnel of the armed forces from being tried in the former despite commission of grave human rights violations. The section reads as follows:

Section 125. Choice between criminal court and court-martial. When a criminal court and a court-martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer commanding the army, army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which court the proceedings shall be instituted, and, if that officer decides that they should be instituted before a court- martial, to direct that the accused person shall be detained in military custody.

Similarly, the powers vested in the army regarding prosecution of its personnel have also ensure that justiceis not done as in the case of Pathribal. Essentially, whenever the security forces commit human rights violations, twolegal provisions hamper accountability: first, the concerned personnel can choose the forum, and in most cases they choose the court martial and second, particularly after the Supreme Court decision in Pathribal, the need for sanction for prosecution of army personnel.

Hampering Accountability

The relevant sections of the various laws regarding prior sanction for prosecution of the armed forces include:

(i) Section 45(1), the Code of Criminal Procedure (CrPC)—Notwithstanding anything contained in Sections 41 to 44 (both inclusive), no member of the armed forces of the union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the central government.

(ii) Section 197(2), CrPC—No court shall take cognisance of any offence alleged to have been committed by any member of the armed forces of the union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the central government.

(iii) Section 7, Armed Forces (Special Powers) Act (AFSPA)—Protection ofpersons acting in good faith under this act—No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the central government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this act.

Interestingly so far the AFSPA has not been invoked as there seems to be no need in view of the Army Act covering its interests.

Ironically, erring army personnel choose the civil courts when it comes to accidents, as they fear stern punishment from army courts on grounds of violating discipline. The case in which an army major was punished and dismissed from service with a sentence of seven years by the army court martial comes to mind. He later approached the civil court. Captain Ravinder Singh Tewatia and Special Police Officer (SPO) Bharat Bhushan were found guilty of raping two women at their home in Banihal in Doda district on 14 February 2000. Two separate charge sheets were filed in the court of the chief judicial magistrate Banihal. Finally, the court martial in this case confirmed the crime and the captain was punished. He approached the district court which refused to provide relief following which he challenged the ruling in the high court. The high court set aside the court martial judgment but the army appealed before a division bench where the case is pending.

The biggest hurdle against the basic principle of justice in cases of human rights violations by the armed forces’ personnel is that both the Army and Border Security Force (BSF) Acts are silent about the right to defence of the victims in army courts, an example of which is the Pathribal case wherein no relative of the victim was allowed to present their side. There is absolutely no provision for the victims to plead their case.

There are rare cases like that of Major Rehman Hussain who was dismissed from service on charges of rape in Handwara in 2005. A comprehensive report “Structure of Violence” compiled by the International People’s Tribunal on Human Rights and Justice and Association of Parents of Disappeared Persons (APDP) and released in September 2015 points out that:

Military Tribunals compromise the basic principle of equality before the law or equal treatment before the law. While the Pathribal victims wait for justice, we know it is only when court-martials are replaced by an open, transparent and fair trial in a regular independent court system, can the victims of armed forces atrocities in Kashmir even begin to expect justice.

Against the common perception that the AFSPA gives impunity to the army personnel in conflict areas, the reality is that it is the Army Act and certain sections of the CrPC and various governmentorders that give full cover to erringofficers and allow them to go unpunished. The Machil fake encounter was a test case for both the state and the centre as also the army. Even as the state government fulfilled its job of proving that the three civilians were innocent, the AFT had the last word in labelling them “terrorists” and letting the guilty out of jail.

Updated On : 29th Aug, 2017

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