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Supreme Court says cannot invoke AFSPA in rape and murder

Questioning the extent to which the Army can claim blanket immunity under the Armed Forces Special Powers Act (AFSPA), the Supreme Court today said rape and murder committed by its personnel should be considered a “normal crime”, and that there is “no question of sanction” from the government before prosecution of offenders in such cases.

Under AFSPA, prior approval is required before prosecution or any other legal action can be initiated against armed forces personnel operating in areas declared “disturbed” by the government.

“You go to a place in exercise of AFSPA, you commit rape, you commit murder, then where is the question of sanction? It is a normal crime which needs to be prosecuted, and that is our stand,” a bench of Justices B S Chauhan and Swatanter Kumar remarked to Additional Solicitor General P P Malhotra, representing the Army.

The court said AFSPA gave “very limited protection” confined to action in “discharge of duty”.

The court was hearing the CBI challenge against the Army invocation of AFSPA, allegedly to stall prosecution of eight officers chargesheeted in the Pathribal fake encounter in March 2000. While the five men were identified as Lashkar-e-Toiba mercenaries by the Army, they had turned out to be locals from nearby villages of Brariangan, Halan and Anantnag.

In arguments in the Supreme Court, the CBI accused the Army of trying to “bury” the case.

In the previous hearing, the court had asked the centre to give its view on grant of sanction. The Army contended today that since it does not come under the state list, the centre alone has the authority to sanction prosecution of its men.

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