New Delhi: The Army could take over the prosecution in the Poonch death case, even though the Jammu and Kashmir police have lodged a murder case against unknown persons, ThePrint has learnt. The civilians were reportedly among eight picked up by the Army Friday, in the wake of the killings of four soldiers in an ambush by terrorists.
While sources in the defence and security establishment remained mum on the outcome of the probe so far, they said that the Army would not tolerate any violation of its ethos and standard operating practices when it comes to questioning suspects in an operational area.
Though the police are investigating the case, the Army has also started an internal probe, as reported first by ThePrint.
For a free and fair probe, the Army has already removed from command Brigadier P. Acharya, in-charge of the Poonch sector, along with the commanding officer and the second-in-command of the 48 Rashtriya Rifles, besides the company commander.
As reported, the Army probe will look into the aspects of the torture of civilians, who “shot” the purported videos of torture that have been doing the rounds of social media and “leaked it” and the eventual death of the three whose bodies have been found.
The Army probe will also look into a series of operational lapses seen in the Poonch Rajouri area in the past one-and-a-half years, which have claimed the lives of several soldiers ambushed by the terrorists.
ThePrint was the first to report in November that there was a shocking pattern developing in the region when terrorists seemed to have the upper hand.
Talking about the latest Poonch case, sources indicated that the Army could take over the prosecution of the case, if police investigations find Army personnel responsible for the death of the civilians.
However, lawyers associated with the Armed Forces Tribunal questioned the findings and prosecution of court-marital proceedings, because they said the “concept and process of military justice is still evolving”.
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Legal provisions
According to sources, there are past examples of Section 475 of the Code of Criminal Procedure (CrPc) being invoked, which provides for the civil magistrate to hand over the accused and the case to the military, in case the competent military authority opts for a trial by court-martial instead of in a regular court.
The transfer of the case from the civil to the military can be undertaken once the personnel have been charged for the offence by the police in a regular criminal court.
While normally, in case of an area like the national capital, the police will file chargesheet in a civil court and prosecute Army personnel accused of murdering civilians, Section 70 of the Army Act, 195O allows the Army to take over when an incident that has taken place “while on active service”.
Sources said that the Poonch incident happened “while on active service”, but a final call will be taken at a later stage.
Section 70 talks about civil offences not triable by court-martial. “A person subject to this Act who commits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be tried by a court-martial, unless he commits any of the said offences- while on active service, or at any place outside India, or at a frontier post specified by the Central Government by notification in this behalf,” it says.
There are past examples of the Army taking over the prosecution. For example, in a 2020 incident at Amshipora in J&K’s Shopian district, where three civilians were killed by Army personnel in an alleged fake encounter, the Army held a court martial and sentenced to life Captain Bhoopendra Singh alias Major Bashir Khan.
However, the Major then approached the Armed Forces Tribunal (AFT) which raised doubts over the findings of court-martial proceedings, and suspended the sentence.
And this is where some question the process of court-martial. Two AFT lawyers, both veterans who have served in the armed forces, told ThePrint that the court-martial proceedings are not the ideal place for prosecuting such cases because the concept and process of military justice is still evolving.
“The issue is that the military court is made up of regular officers and JAG [judge advocate generals, legal branch] representatives who could have zero knowledge of criminal prosecution. The Army does not have the wherewithal to go for forensics, call records and other prosecution techniques,” said one of the two lawyers on condition of anonymity.
Another pointed out that because of the opaque nature of the court-martial, innocent people or those committing minor offences could get prosecuted,while actual culprits escape.
“The power lies completely in the hands of the armed forces of how they want to play it. And hence a number of court-martial proceedings are set aside by the tribunals and the civil courts,” the second lawyer said.
(Edited by Poulomi Banerjee)
Also read: Army launches probe into Poonch civilian deaths and torture videos, commanders likely to be replaced