A bench of justices B S Chauhan and Swatanter Kumar said that if the Army authorities were not keen on court-martial proceedings, then the CBI can seek sanction from the Centre for prosecution of the Army officers.
Army personnel were allegedly involved in the killing of 7 persons in an alleged staged shootout at Pathribal in Jammu and Kashmir 12 years ago.
In the event of the accused officers being tried by the regular criminal courts, the Centre shall consider the CBI`s plea for sanction within three months, the apex court said. The bench had reserved its verdict on April 23.
Earlier, while concluding their arguments, Additional Solicitor General Harin Raval and senior counsel Ashok Bhan, appearing for CBI, had reiterated that Army personnel involved in the alleged fake encounter have no immunity from prosecution.
CBI had earlier told the special bench that it was a case of "cold-blooded murder and the accused officials deserve to be meted out exemplary punishment."
CBI had contended that no prior sanction was required for prosecuting the Army personnel and the need to ensure "public confidence in the rule of law and dispensation of justice" warranted their prosecution.
"Our investigations have revealed it was a fake encounter and cold-blooded murders. If public confidence in the rule of law and dispensation of justice is to be sustained, the accused officers deserve to be meted out exemplary punishment," Bhan had told the bench.
Bhan`s submission was contrary to the stand taken by Additional Solicitor General P P Malhotra, who, appearing for the Army officers, had said prior sanction was mandatory for prosecuting the personnel who otherwise were innocent.
The Defence Ministry and CBI have differed on the issue of immunity enjoyed by the Army under the controversial AFSPA (Armed Forces Special Powers Act) and other regular laws in encounter killing cases.
CBI had maintained the expression used in Section 6 of the Armed Forces Special Powers Act, which gives immunity to Army personnel for encounters killings, was not available to the accused officers in the present case.
Additional Solicitor General P P Malhotra, on behalf of the Centre, had denied the allegations of fake encounter and argued they enjoyed protection in discharge of their official functions.
CBI had earlier moved an application for vacating the stay granted by the apex court on the trial relating to the killings of 7 persons allegedly by the Army in retaliation to the killing of 36 civilians by militants at Chattisingpora in 2000.
According to CBI, though the right to immunity under 197 CrPC was available to the officers, in the present case it has not been sought by the accused but by senior Defence Ministry officers, which was contrary to the law.