The Machil Fake Encounter Case: Military court delivers justice, still uses defensive language
14 July 2015 4:25 pm
On 28 April 2010, Shazad Ahmad Khan, 27; Riyaz Ahmad Lone, 20; and Mohammad Shafi Lone, 19, travelled to Machil, an area close to the Pakistani border about three hours from their homes, on the promise of work from a man named Bashir Ahmad Lone who lived in their village. They never came back.
The next morning, all three families approached Bashir Ahmad Lone to ask about their sons’ whereabouts. He denied he had taken them to Machil the previous day. The next day, there was a report in the media that said that the army had killed three infiltrators in a fake encounter.
The families began to suspect that the militants reported in the newspaper were in fact their sons. They approached Baramulla police station and registered a case against Bashir Ahmad Lone. The police began investigations into the case and filed charges of murder and conspiracy to commit murder against 11 persons: two villagers, and nine army personnel (including three officers) which they submitted to the Chief Judicial Magistrate in Sopore, Baramulla District, on 15 July 2010.
Media reports quoted senior military commanders expressing their commitment to conducting thorough and transparent investigations soon after the incident occurred. On 7 June 2010, the General Officer Commanding, Northern Command, Lt. General B.S. Jaswal said that the “Army was committed to bring out the truth…The commanding officer of that unit has been removed from command. The second officer has been suspended and an inquiry ordered,” he said in a media report. “It would be totally transparent and the truth will be in front of you.” He also said that “it is very difficult to point out that every encounter is absolutely correct. I believe in my troops and I believe that all encounters are true…unfortunately there are one or two [exceptions]…”
However, the Indian army refused to produce the accused army personnel for either the purposes of investigation, or in court. Instead, on 10 July 2010, the army notified the Superintendent of Police, Sopore, that a military investigation (Court of Inquiry) was being conducted, and that the “provisions of Army Rule 180 have been invoked in this case as the character and military reputation is at stake/affected. These witnesses will however be made available to the police authorities for the investigation within Army premises.”
The investigating officer informed the Chief Judicial Magistrate that “the accused persons have not been handed over to him by the military authorities during investigation, especially for purpose of presentation of challan [charges] at this time.” In the order on 15 July, the Chief Judicial Magistrate stated that under the provisions of the Army Act, the army had no jurisdiction to try the accused persons and that the trial would be conducted by a civilian court.
On 27 May 2011, the army filed a revision petition before the District and Sessions Court, Baramulla, challenging the Chief Judicial Magistrate’s order of 15 July 2010 seeking the production of the eight army personnel accused in the case.
The army submitted before the court that “some time back in the month of May/June 2010 a few militants were coming back from training [in Pakistan] and in an encounter with army personnel, they were killed. The army reported the incident to the police…some vested interests in order to defame the Armed Forces also lodged a complaint with the police who, without proof and proper investigation, in hot haste, capriciously, and arbitrarily recorded the statement of those persons and have now filed charges before the Chief Judicial Magistrate, Sopore.”
In the petition, the army referred to the case registered and investigated by the Jammu and Kashmir state police as motivated by “vested interests in order to defame the Armed Forces.” As in other cases, the army claimed that because service in Jammu and Kashmir is considered “active service” at all times, the Chief Judicial Magistrate had no jurisdiction to proceed with the case. The Sessions Court judge, Baramulla, upheld the Chief Judicial magistrate’s orders for the case to proceed in the civilian court, but the army appealed to the High Court.
On 4 July 2012, the Jammu and Kashmir High Court reversed the decisions of the lower courts, and allowed the army to court-martial nine of its accused soldiers. The decision was made just two months after the Supreme Court had held that the army could exercise the option of court-martial in the Pathribal fake encounter case from 2000.
According to media reports, the army began court-martial proceedings on 30 April 2013. As of 25 December 2013, the army was conducting a pre-trial procedure called the “summary of evidence” before proceeding to the trial. As of 2 February 2014 when the case was last reported on in the media, the court-martial hearings were said to be still ongoing. No further information became available until media reports on 13 November 2014 that five army personnel, including two officers, had been convicted and sentenced to life imprisonment.
Although the Machil case was an example of military courts delivering justice for human rights violations, the army’s early conduct in the case, and the language used in the revision petition filed in 2011, points to the documented propensity of army authorities to almost categorically dismiss allegations of human rights violations against their personnel.
For more details on this case study, read the full report, “Denied” – Failures in accountability for human rights violations by security force personnel in Jammu and Kashmir