Supreme Court pulls up Army in Pathribal encounter case

“You don't allow the criminal justice system to go ahead”

The Supreme Court on Monday pulled up the Army for stalling the prosecution in the 2000 Pathribal encounter case in Jammu and Kashmir, initiated by the CBI against five officers, by not taking action under the Army Act and not allowing the criminal courts from proceeding with their prosecution.

Responding to the court's query on January 20 on the stand of the Army, Additional Solicitor-General P.P. Malhotra told a Bench of Justices B.S. Chauhan and Swatanter Kumar that the Army was not interested in taking over the case and court-martialling the officers under the Army Act.

The Bench is hearing petitions relating to the Centre's claim of immunity and applicability of the controversial Armed Forces (Special Powers) Act (AFSPA) in the North East and Jammu and Kashmir. The CBI, on the other hand, registered cases against Army men, treating some of the killings as encounter deaths, and filed charge sheets in the courts concerned. Shocked to hear this response from the Army, Justice Swatanter Kumar told the ASG: “You [the Army] don't want to take over the case and initiate court martial proceedings against them. You don't allow the criminal justice system to go ahead.”

Justice Chauhan observed: “The victims cannot be remedy less. No person can be harassed. No jawan should exceed limits. You cannot interpret and misinterpret the law and expect citizens to wait.”

“We cannot take over the case,” Mr. Malhotra said. “The Armed Forces are bound to protect their men.”

The Army contended that in a disturbed area, where the AFSPA was in force, no inquiry could be initiated against armed forces personnel called in to assist the civilian police, without the government's sanction let alone a charge sheet being filed.

“They are protected under Section 6 of the AFSPA,” Mr. Malhotra said. This had vitiated the entire CBI inquiry into the episode. The Army personnel shot dead seven alleged militants in the incident. The Army had then claimed that they were responsible for killing several Sikhs in an earlier encounter in Chhattisinghpora during the former U.S. President Bill Clinton's visit to India. But the J&K government later sought sanction for their prosecution after some evidence came to light that it was a fake encounter.

Not satisfied with the ASG's response, the Bench sought Army records to show whether these cases had been put up before the Commanding Officer (CO) of the area for his decision. The CO was the authority to decide whether to court martial the men or allow civilian courts to try them.

The Bench also suo motu impleaded the Union Home and Defence Secretaries and asked them to explain their position on whether sanction was a must even for filing an FIR. The Bench said: “These officers will now have to protect themselves. But the Union of India has a dual responsibility. It has to ensure that the innocent are acquitted and the guilty punished.”

The Bench wondered why the Army was reluctant to try these cases when it did not have to take any sanction from the government to act against them. “Article 21 of the Constitution [right to life] is for both the accused and the victims,” The Bench said. It wanted to know from the Army whether in any prior case sanction from the government had been sought for investigating any case.

The Bench directed that the matter be listed for further hearing on February 3.

Supreme Court to hear Amit Shah’s plea to return to Gujarat

  The Supreme Court on Wednesday agreed to hear the plea of former Gujarat Home Minister Amit Shah, who was forced to leave the State during pendency of his trial in Sohrabuddin fake encounter killing case, for permission to return.

A bench headed by Justice Aftab Alam said that it would hear his plea along with the CBI’s petition seeking cancellation of Mr. Shah’s bail in the Sohrabuddin case.

Mr. Shah, who was directed by the apex court to leave the State during the pendency of the trial in Sohrabuddin fake encounter case, had yesterday approached the apex court saying living outside his home state for the last 16 months has caused “irreparable hardship” to him and his family members.

The apex court had on October 30, 2010, directed Mr. Shah to leave the State and ordered him to stay out till further order.

Pleading with the apex court to modify its order, Mr. Shah said, “He will suffer irreparable injury and hardship if an appropriate order to the effect of modification of order of October 30, 2010, is not made.”

“The applicant has remained outside his own State for approximately 16 months resulting into a situation where one of the largest assembly constituencies in the country, which has reposed faith in the applicant since four consecutive terms, is deprived of its representatives,” he said.

Mr. Shah, a close aide of Gujarat Chief Minister Narendra Modi, was arrested by the CBI on July 25, 2010.

Supreme One on earth

   The Supreme One, who took many incarnations to save us, is without blemish. It is said that the Lord, in His Rama avatara, gave liberation even to blades of grass in Ayodhya.

But how do we surrender to God, who is not present now in our midst as an incarnation? We need not worry, for we have God in archa, that is, the idol form in temples, where we can offer our surrender.

Nammazhvar says of Lord Srinivasa of Tirumala that He is the One with Goddess Lakshmi on His chest, and that he (Nammazhvar) surrenders at His feet. The Lord's archa form shines brilliantly like a lamp lit in a dark room. This world, full of blemishes, has in its midst the Lord who is blemishless, said Akkarakkani Srinidhi.

Five forms

The Lord has five forms — Para, Vyuha, Vibhava, Antaryami and Archa. So how does the archa form score over the other forms? Antaryami is the Lord's presence within every one of us. But we lack the gnana to discern Him as Antaryami. To tell a man who seeks liberation to understand the Lord who resides in him as Antaryami is like telling a thirsty man, who asks for water, to dig a well and then take water from it.

By the time he is finished with the job, he will be dead. Likewise, to tell a seeker of moksha to fathom the Lord in the form of Antaryami will not work.

What then of the Para form of the Lord? To direct a man who seeks liberation to the Para form of the Lord is like telling a thirsty man to walk several miles to a lake to slake his thirst there.

To tell a devotee that he should approach the Vyuha form is like telling him to approach a lake, which may not be several miles distant, but is still at a considerable distance from where he is.

To tell him to approach the Vibhava avataras, which all ended thousands of years ago, is like asking him why he did not make use of the water that a flood brought to the land, years before his birth.

But to guide him to the archa form of the Lord in temples is like guiding him to pools of water that remain after the rain has ended, and the floodwaters have receded.

Supreme Court-appointed panel inspects Vaigai dam

Supreme Court-appointed Empowered Committee members inspecting Vaigai dam near Theni on Sunday. Photo: G. Karthikeyan

Kerala Irrigation Department engineers accompanied it

The Supreme Court-appointed Empowered Committee on Sunday inspected Tamil Nadu Hydel Power generation station at Lower camp and Vaigai dam as part of its inspection of Mullaperiyar dam here.

Kerala Irrigation Department engineers accompanied the panel during inspection.

The panel's main objective was to assess utilisation of water, including drinking water and irrigation purposes, and to inspect the ayacut areas.

The panel comprising C.D. Thatte and D.K. Mehta, first inspected the Four Bay dam and power station at Lower Camp near Goodalur and enquired with officials representing Tamil Nadu. Later, it inspected a limestone quarry, situated on the way to the Sri Mangaladevi Kannagi Amman Temple near Lower camp. (Limestones present at this site were used for construction of the Periyar dam 120 years ago).

The panel then checked the condition of the Vaigai dam. The members asked the officials to lift one of the main shutters to check the functioning of the electric-powered shutters. When they saw the flow chart of Vaigai dam, they enquired about distribution of water for irrigation and drinking water supply at various points.

The Tamil Nadu Public Works engineers, who accompanied the team, explained the flow chart and utilisation pattern of Vaigai dam water in five southern districts.

The officials said the water was used for irrigation of several lakh acres of land under its ayacut in Madurai, Theni and Dindigul districts and to fill tanks in Sivaganga and Ramanathapuram districts for irrigating several acres. The team also inspected the dam's tunnel to check seepage levels.

The team also visited Mudalakkampatti village and inspected the pick-up weir to study distribution of drinking water to Madurai city and for the Sedapatti drinking water scheme.

Mr. Mehta and Mr. Datte came to Dindigul district in the evening and inspected Peranai, one of the main drinking water supply sources to Dindigul, and many wayside villages.

2G scam: Supreme Court grants bail to five corporate executives

 The Supreme Court has granted bail to five corporate executives who were arrested for their alleged involvement in the 2G spectrum scam.

A surety of Rs. 5 lakh is to be given by each of the accused. The Central Bureau of Investigation can move the Supreme Court if it feels the bail is misused.

The executives - Unitech Wireless' former MD Sanjay Chandra, Swan Telecom's Director Vinod Goenka and Reliance Anil Dhirubhai Ambani Group's executives Hari Nair, Gautam Doshi and Surendra Pipara - had been in jail for over seven months. They are expected to walk out of Tihar Jail later today or tomorrow, depending on when their lawyers complete the necessary paperwork.

"I most humbly thank Hon'ble Supreme Court for granting me bail. I am also deeply touched by the support extended to me from all my employees, lawyers , friends and members of the media. I reiterate that I am committed to cooperating in the trial and hope that finally justice will be done, & my innocence proved," said a statement from Mr Sanjay Chandra.

The Supreme Court's decision acted as sentiment booster for the companies these officials represented.

Stocks of DB Realty, Unitech and Reliance Communications were trading higher despite a market crash today. DB Realty has plunged 45 per cent since the arrest of Mr Goenka.

Unitech stocks have tanked nearly 50 per cent since the arrest of Mr Chandra who headed Unitech Wireless when he was arrested seven months ago. RCom stocks have fallen nearly 34 per cent since the arrest of the three executives.

This is the first instance of accused persons being granted bail in the 2G case. On December 1, the Delhi High Court is scheduled to hear the bail pleas of eight other accused, including DMK MP Kanimozhi. They have challenged the Special Court's November 3 order denying them bail. But in the wake of today's order, their lawyers have approached the High Court seeking advancement of their bail plea hearing.

The five corporate executives were arrested on April 20. On November 1, the apex court had reserved its order on their bail pleas. The CBI had opposed their bail.

The five accused had moved the apex court challenging the Delhi High Court and trial court orders turning down their bail pleas. The accused, who have been charged under various offences under the Indian Penal Code and Prevention of Corruption Act, contended that they should be granted bail as the charges have already been framed and there was no chance of them tampering with the evidence.

The verdict was delivered by Justice H L Dattu who had heard their arguments along with CBI's submission opposing their bail pleas.

Other accused in the case include former Telecom Minister A Raja, DMK MP Kanimozhi, former Telecom Secretary Siddhartha Behura and Raja's former private secretary R K Chandolia.

Swan Telecom promoter Shahid Usman Balwa, his cousin Asif Balwa and their colleague Rajeev Agarwal have also been booked in the case.

Three telecom firms - Reliance Telecom Ltd, Swan Telecom and Unitech (Tamil Nadu) Wireless Ltd - have also been named accused in the case.

All the accused have pleaded that they have not done anything wrong and refuted the charge of drawing illegal benefits in allocation of 2G spectrum.