The ultimatum came even as the CBI accused the Army of trying to “bury” the case.

Monday’s hearing saw the court accuse the Army of having never exercised the option to go for a court martial of the accused men and instead stalling prosecution by a criminal court by invoking AFSPA to declare immunity against prosecution.

The case revolves around a “surgical” operation conducted in Pathribal on March 24, 2000 by the 7 Rashtriya Rifles and the local police, killing five men identified as Lashkar-e-Toiba militants. The Army claimed they were behind the massacre of 35 Sikhs outside a gurdwara at Chittisinghpora in South Kashmir.

Local residents alleged that the five men had gone missing from the nearby villages of Brariangan, Halan and Anantnag. They alleged that the police and the Army had killed them in a fake encounter calling them “killers of Chittisinghpora”.

After the CBI filed a chargesheet before the local magistrate indicting eight Army personnel for the “fake encounter”, the magistrate, in a written order, gave the Army the choice to either go for a court martial or leave it to the civil courts to initiate criminal proceedings against the accused.

The Army then challenged the authority of the CBI to conduct an investigation, and said the chargesheet is void ab initio. Challenging the magistrate’s order, the Army invoked Section 6 of the AFSPA to claim that the CBI should have sought sanction before even venturing to investigate the men.

Making it clear that the Army has dilly-dallied enough, a Bench of Justices B S Chauhan and Swatanter Kumar cautioned Additional Solicitor General P P Malhotra to “take a stand now on whether you want to court martial them or not. Do not play with the courts”.

“You are neither taking over the case under the Army Act for court martial nor are you allowing the proceedings under the criminal court to continue. This cannot go on. You are creating a situation in which nobody can proceed,” Justice Chauhan said.

Additional Solicitor General Harin Raval, representing the CBI, said “they (army) are trying to bury the case. I am here to stop that from happening”. “None of the persons have been arrested, they are still in service,” Raval added.

The court issued notices to the secretaries of Home Affairs and Defence to produce the file showing they had approached the Commanding Officer concerned and sought his opinion on a court martial. The court also told the secretaries to clarify whether sanction is required before a court martial. The next hearing is on February 3.

Timeline
2000

March 24: Five days after unidentified gunmen killed 35 Sikhs in Chittisinghpora, local police and Army officers claim that five LeT members behind the attack were eliminated in a “surgical operation”.

Locals say five men went missing from the nearby villages of Brariangan, Halan and Anantnag and allege that they were killed in a fake encounter. A judicial probe is ordered.

April 3: Ten protesters killed in police firing, including relatives of the missing men. The then Farooq Abdullah government suspends Anantnag SSP Farooq Khan and an SHO, and orders exhumation of the bodies and DNA tests.

April 6: A team of forensic experts exhume the bodies.

Anantnag police exonerate Mohammad Yousuf Wagay, a milkman who was arrested and alleged to be the main link between the Chittisinghpora and the Pathribal encounter.

2001