The Centre on Friday questioned the Supreme Court for its reported remark terming as "murderers" some Manipur Police personnel, chargesheeted in alleged fake encounter cases, saying it has "completely shaken" the morale of armed forces and securitymen operating in insurgency-hit areas.
The government told a bench of Justices Madan B Lokur and Deepak Gupta that they supported the applications filed by some Manipur Police personnel seeking recusal of the bench from hearing the Manipur fake encounters cases in which the CBI's special investigation team is carrying out a probe.
The petitioners, however, challenged the government's contention, saying this was an attempt to "overawe" the court, which should not recuse from hearing the matter.
The court, which is hearing a PIL seeking a probe into as many as 1,528 cases of alleged extra-judicial killings in Manipur, had on July 14 last year constituted an special investigation team of the Central Bureau of Investigation BI and ordered lodging of FIRs and investigating them.
Besides the policemen, over 300 army personnel have also approached the top court challenging registration of FIRs against them for operations in Manipur and Jammu and Kashmir where the Armed Forces (Special Powers) Act is in force.
"I have instructions from the Union of India that we are supporting these petitions (seeking recusal of bench). So far as armed forces in Manipur are concerned, they are having difficult time fighting insurgency," Attorney General K K Venugopal told the bench.
The AG also questioned the prosecution of personnel from the armed forces and the police for conducting operations in the areas where the Armed Forces (Special Powers) Act is in force, saying "they cannot understand why they are asked to face the prosecution".
He said the reported remarks by the bench that "murderers" were walking freely has "shaken" the morale of armed forces and police personnel as they were sacrificing their lives but facing the prospect of being awarded death penalty for the alleged offence of murder.
The bench, however, said the oral remarks by the bench during the hearing on July 30 was not "designed or directed" against any individual as it happened during the discussion in the court with the CBI Director.
Justice Lalit said that on July 30, they were asking the CBI Director, who was then present in the court, about the status of the case. The court was informed that till then, 14 persons were chargesheeted for the alleged offences of murder, criminal conspiracy and destruction of evidence by the SIT.
"We will make it clear and we will pass an order today that whatever had happened was in the course of discussion (with the CBI Director). It was not intended against any individual," the bench said.
Senior lawyer Mukul Rohatgi, appearing for petitioners, told the court that persons who were chargesheeted had a "genuine apprehension" that they would not get a fair trial and impartial justice due to the remarks by the bench.
"This affects morale of army and police personnel," he said, adding "this is our submission that this bench should not hear this case".
Rohatgi, while making it clear that nobody was saying that court was "biased", said these persons, having been chargesheeted for the offence of murder, were facing the charge of life or death.
The bench after hearing the submissions reserved its order on the application seeking its recusal from hearing the matter.
During the arguments, Venugopal said personnel from armed forces and police were "sacrificing their lives" in the insurgency hit areas and after the reported remarks by the bench, "they do not know what will happen to them".
He said after this remark by the highest court of the land, it would be very difficult for the trial judge to go against the observations of the apex court.
"Even if you clarify this, will they ever be able to get rid of this thought from their mind. They are not saying that this matter should not be heard. But some other bench should hear this," Venugopal said.
To this, the bench observed, "The CBI is investigating. No court is going to interfere with the investigation. We are just monitoring it. Is it your submission that some other bench should monitor the investigation?"
The bench also said it has not been stated that the CBI was not investigating these cases properly.
"Morale of entire armed forces in insurgency hit area under the Armed Forces (Special Powers) Act is shaken," the Attorney General said, adding that even before the trial in the alleged encounter cases have started, the police personnel were termed as "murderers".
"It is justified that you leave it to other bench to monitor this. Life of people is involved," he said.
Senior advocate Colin Gonsalves, who is representing the petitioners in the main case related to alleged fake encounters in Manipur by Army, Assam Rifles and state police, said the bench should not recuse from hearing the matter as it had not said that these accused were murderers.
"It (seeking recusal) is an attempt to overawe the court," he said, adding that these applications should be dismissed with cost.
An advocate, assisting the court as an amicus curiae in the main matter, also opposed the plea seeking recusal of the bench.
Rohatgi, however, said, "Anybody can make a mistake. The court can also make a mistake. In section 377 (apex court's verdict on gay sex) and adultery case, the mistakes made earlier by this court has been corrected by this court".
