Sunday, November 22, 2015

Delay in Indian homicide case

It seems from this Tribune report that civilian court proceedings in a case in which Indian Army soldiers are under investigation for mistaken-identity homicide in Chattergam are being held up because the Army has dragged its feet in turning over the report of a court of inquiry, a step that seems to be necessary for the Jammu and Kashmir Police to take the case into civilian court. Excerpts:
“The Army has already completed the court of inquiry but the police are yet to file the chargesheet. The Army cannot award punishment on its own in a military court because the case was being concurrently probed by the Army and the police and is in a civilian court,” said an official source. 
“The Machil fake encounter case of 2010 was transferred to a military court, which is not so in this case where the chargesheet has not been filed as yet,” the source added. “The Army’s court of inquiry might have found the charge of use of excessive force against the soldiers to be true but legal procedures have to be followed,” the source said. 
The killings of two teenagers and injuries to two others had triggered a wave of protests in Kashmir that saw Northern Command chief Lt Gen DS Hooda issuing an apology barely five days after the shootout. 
On November 3, 2014, a patrol belonging to 53 Rashtriya Rifles opened fire on a white Maruti car after it allegedly didn’t stop at two check points, fuelling suspicions that they were terrorists. 
The Army held a probe against 14 soldiers, out of whom four were found guilty of violating standard operating procedures. 
A senior police officer said the police was still awaiting the Army’s court of inquiry copy. “Without the Army’s court of inquiry report, we cannot file the chargesheet. We have repeatedly sought it from them (Army) but there is no response from their side to date. Therefore, the case definitely is in limbo,” he said. 
Under legal provisions the chargesheet has to be filed within 90 days of the incident and the deadline lapsed in the first week of February this year, he added. 
He said the chargesheet had to be filed in Munsiff Court in Chadoora. The police FIR had stated that the soldiers had opened fire on the car with the “intention to kill’’ the occupants. 
The underlying incident took place over a year ago. It thus seems that the Army can thwart civilian prosecution by continuing to withhold the court of inquiry's report. Can Indian readers clarify? (Real names only, please.)


  1. In case a military person has violated any provision of law, (in this case the Indian Penal Code, 1860), the civil police have to file charge sheet in the civil (criminal) court. After the court takes cognizance in the matter, it would make a reference to the commanding officer of the military accused to take over the case for trial by a court martial under the Criminal Court and Court Martial (Adjustment of Jurisdiction Rules, 1978. In case the commanding officer refuses to take over, the case will progress in the civil court. The proceedings of a court of inquiry are not required in a civil court to prosecute military personnel. In fact the proceedings of a court of inquiry are not admissible in evidence even in a trial by a court martial (Rule 182 of the Army Rules, 1954 refers).
    U C Jha

    1. Thank you for the comment. Do you think this case will wind up being tried within the military justice system?

  2. This case, in all probabilities will be tried by a military court.
    U C Jha


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