New Delhi: The Supreme Court Tuesday said that military personnel operating in areas under the Armed Forces Special Powers Act (AFSPA) and facing allegations of excesses could not be tried by criminal courts without the prior sanction of the central government.
An apex court bench of Justice B.S. Chauhan and Justice Swatanter Kumar said in its judgment that army personnel could be tried by criminal courts only after army authorities had declined to exercise the option of holding court martial proceedings against them. But for the trial courts to proceed against army personnel, a sanction from the government was a must.
Justice Chauhan said that “the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty”.
The court said this in a case where the army contended that its personnel operating in disturbed areas of Jammu and Kashmir and the northeast, including Assam, covered under the AFSPA, could not be tried without the prior sanction of the central government.
The proceedings were relaed to an incident in which army personnel were accused of killing five people of Pathribal village in Anantnag district of Jammu and Kashmir in March 2000. These people were suspected to be militants and killed by the army in the wake of Chittisinghpora incident of March 28, 2000, in which 36 Sikhs were massacred in a gurdwara.
Cautioning against motivated complaints, the court said: “In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him. However, there must be a discernible connection between the act complained of and the powers and duties of the public servant.”
The court said that “there has to be material to attribute or impute an unreasonable motive behind an act to take away the immunity clause”.
“It is for this reason that when the authority empowered to grant sanction is proceeding to exercise its discretion, it has to take into account the material facts of the incident complained of before passing an order of granting sanction or else official duty would always be in peril even if performed bonafidely and genuinely,” the court said.
The court said that “we wish to record that the protection and immunity granted to an official, particularly in provisions of the…acts, has to be widely construed in order to assess the act complained of”.
This wider assessment would include cases like “mistaken identities” or an act performed on the basis of a “genuine suspicion”.
“We are therefore of the view that such immunity clauses have to be interpreted with wide discretionary powers to the sanctioning authority in order to uphold the official discharge of duties in good faith and a sanction therefore has to be issued only on the basis of a sound objective assessment and not otherwise,” the judgment said.
The court said this while addressing the question whether a court, after a charge sheet was filed, could entertain it and proceed to frame charges without sanction of the the central government.
The apex court said this while deciding an appeal by the army challenging the Jammu and Kashmir High Court order of July 10, 2007 by which it upheld a trial court’s decision to reject the army’s plea not to entertain the charge sheet filed by the Central Bureau of Investigation (CBI) in the alleged staged shootout case in Patribal Punchalthan village involving army personnel.
The chief judicial magistrate, Srinagar, had rejected the army’s plea Aug 24, 2006.
Another case from Assam was clubbed with the Kashmir incident in the hearing.
The Assam incident involved the killing of five people Feb 22, 1994, allegedly by the personnel of Punjab Regiment deployed in Saikhowa Reserve Forest of Tinsukhia district of Assam for counter insurgency operations.
The army contended that its personnel operating in disturbed areas of Jammu and Kashmir and the northeast, covered under the AFSPA, could not be tried without the prior sanction of the central government.
The court directed that the competent authority in the army shall take a decision within a period of eight weeks whether the trial in such an incident would be by the criminal court or by a court-martial and communicate the same to the chief judicial magistrate.
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