Men of defence forces cannot be prosecuted or hauled up on criminal charges without prior sanction of the Central Government as mandated under Section 197 of Code of Criminal Procedure - 1973 and Armed Forces Special Powers Act.
Very recently, Army Major Aditya Kumar who was leading a convoy of forces in Shopian district of J and K suddenly came under attack from a mob in Janovpora village. The mob pelted stones to the Army men and for self defence, Major Aditya opened fire on the mob which resulted in the death of three civilians. On the basis of the incident, an FIR was lodged by local police against the Army major and other defence personnel. J and K police started investigation. On the basis of the criminal charge against the Army men, recently the Supreme Court stalled further investigation by the J and K State police against Army Major Aditya who was accused of murder.
The court directed that it will decide later on whether police of J and K are justified in initiating criminal case against the Army men with the full knowledge that the action requires prior sanction of the Central Government. The court also pointed out that under the Armed Forces Special Powers Act (AFSPA), prior sanction of the Central Government is necessary for prosecution. In the case, the J and K police appeared before the Supreme Court through senior advocate Shekhar Naphade who submitted before the court that the Major Aditya has not been named in the FIR as an accused. The court after hearing the leaned defence counsel and the Attorney General observed that the FIR states clearly that the Army convoy under the command of the Major fired bullets on the mob and therefore the Major can be roped in the charge of murder at any point of time. Accordingly, the court directed to stop further investigation by the J and K State police. The matter was adjourned for further hearing.
Besides prior sanction for prosecution of Army men by the Central Government according to provisions under the Armed Forces Special Power Act in vogue in J and K, Section — 197 of the Code of Criminal Procedure — 1973 also provides prior sanction of Government for prosecution of public servants and judges.
Section — 197 reads as (1) When any person who is or was a judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction — (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, or the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, or the State Government.
Significantly, before the Supreme Court in the Shopian case, it was argued strongly by the Attorney-General that AFSPA requires the State police to seek prior sanction from the Centre for criminal prosecution against Army men and even for instituting a complaint. In reply, the counsel for J and K State said that does not mean that Army has a licence to kill anybody. This contention was repelled by the Attorney- General who said that daily several of our soldiers are being killed while in the line of service. In this backdrop of arguments and counter arguments in the Shopian case, as a matter of fact, prior sanction is absolutely necessary and is a must to prosecute Army men and they cannot be entangled in criminal charges without proof and without proper inquiry about their complicity. In the Shopian incident, the Army Major for self-defence of the forces under his command and in retaliation to ward off the aggression of the stone pelters fired at the mob killing three civilians. Therefore the Supreme Court pragmatically took the view that in such situations and incidents, the Army personnel cannot be treated as ordinary criminals and as such, prior sanction of the Union Government is necessary for prosecution which would boost up the morale of the Army to discharge their duties effectively and without fear of being prosecuted.
Moreever, it can be well said that sometimes supreme interest of the State overrides law.
Therefore, keeping in mind the larger issues of the sovereignty and integrity of our country, lighted heartedly initiating of criminal prosecution against Army personnel for their any acts of omission and commission would certainly demoralise the defence forces and they would not be free to discharge their duties fearlessly while safeguarding our frontiers during peace time as well as in war time situations.
(The writer is an ex-Special Judge, CBI, Bhubaneswar, Mob: 9437022723)