General officer commanding v. CBI

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FACTS OF THE CASE:

1. In Village Chittising Pora, District Anantnag, J&K, 36 Sikhs were killed by terrorists on 20.3.2000. Five persons, assumed to be the terrorists, were killed by the 7 Rashtriya Rifles (7RR) at village Pathribal Punchalthan, District Anantnag. Major Amit Saxena, the then adjutant contented their involvement in the Sikh massacre while preparing a seizure memo showing seizure of arms and ammunition obtained from all the 5 unidentified terrorists killed. Following the failure of the Army to hand over the arms, long marches in the valley protesting the encounter alleged the killing of civilians.
2. Notification dated 19.12.2000 was issued asking the CBI to investigate the case under section 5 of Delhi Police Special Establishment Act, 1946. The CBI under its report tagged the incident as criminal conspiracy and fake encounter. CJM refrained from looking into the evidence since it was outside its jurisdiction.
3. The provisions of Armed Forces J & K (Special Powers) Act 1990 (hereinafter 1990 Act) offer protection for the actions falling within the ambit of duty and the opportunity to choose the competent authority for the case trial to the Army person.
4. The Army officers on 24.5.2006, filed an application before the court pointing out lack of jurisdiction and later a revision petition in Sessions Court which stood rejected. The High Court further dismissed the plea seeking protection of the provisions of Section 6 1990 Act.
5. Two writ petitions w.r.t counter insurgency operation undertaken by 18th Battalion of Punjab Regiment in Tinsukhia District of Assam on 22.2.1994, contending killing of 5 persons in a fake encounter were filed before the Guwahati High Court. CBI post investigation filled the chargesheet. The appeals having similarity in terms of facts and legal issues were clubbed under Criminal Appeal No. 257 of 2011 as a single case.

ISSUES RAISED:

• Is prior sanction from the Central government required to institute the prosecution of Army personnel for acts committed in the discharge of duty.
• Interpretation of ‘Institution’ under Section 7 of 1990 Act and at what stage sanction is required.

CONTENTIONS OF THE PETITIONER:

1.   The learned counsel appearing for the Union of India and Army personnel argued that there lies no scope for prosecution of the officers without prior sanction of the Central Government. Filing and receipt of charge sheet by the Court amounted to initiation of the case which was beyond its jurisdiction. Not only this, the ‘acts’ in question lie in line with the discharge of duty hence the provision of protection under Section 6 shall be availed.

CONTENTIONS OF THE RESPONDENT:

1.   The learned Senior counsel in support of the CBI contended that mere presentation or filing of charge sheet does not per se amount to institution of the case. Fabrication of facts and killing of innocent people in a fake encounter do not fall within the ambit of official duty.

Thus no protection can be claimed.

PROVISION OF THE ACT IN DISPUTE:

Section 6 and 7 provide for an umbrella protection to the Army personnel for any act done as official duty or in exercise of powers conferred by the act. The provision seeks a mandatory sanction of the Central Government before institution of the prosecution. The uncertainty with interpretation of the term ‘institution’ ,ie what constitutes ‘institution’, assumes the issue of the case.

DECISION OF THE COURT:

1. Through case by case analysis and conjoint reading of several relevant statutory provisions, the interpretation of term ‘institution’ mentioned in Section 7 of the Act 1990, involves taking cognizance of the matter. Mere filing, presenting, receiving the chargesheet does not mean taking cognizance of the offence. It has to be understood in the context of the scheme of the Act in a particular case.
2. Requirement of sanction of the central government is considered at the time of taking cognizance of the offense for which distinction is to be made between investigation and prosecution. Facts of this case require prior sanction of the central government in order to proceed with the criminal trial.
3. The option for opting competent trial authority is available with the Army i.e. whether the proceedings would be conducted before the Criminal Court or the Court Martial.
4. In case the accused is decided to be tried by the Court Martial, proceedings of the Criminal Court shall be stayed and the sanction of the Central government is not required.
5. If the Magistrate is informed and the option is made to try the case in the Criminal court, the CBI shall make an application to the Central Government for grant of sanctions.

REASONS FOR THE JUDGEMENT:

1. The interpretation of the term “institution”: It has to be done by taking into account the provisions of the Act/Statute applicable and the facts and circumstances of the particular case. The act of filing, presenting or receiving the chargesheet accompanied by application of mind is said to “take cognizance” of the offense. In this case the court has paid reliance on the rulings of Jamuna Singh and Ors. v. Bhadai Shah (i) and Satyavir Singh Rathi, ACP and Ors. v. State through CBI (ii)
2. Grant of sanction: The intent of the statute is to offer protection to public servants who act in good faith while discharging the official duty from unnecessary harassment in the form of reprobate complaints.
   1. “There must be a discernible connection between the act complained of and the powers and duties of the public servant”. Thus, the promised protection comes with certain limits and is available only when the alleged act done by a public servant is reasonably connected with the discharge of his official duty and “is not merely a cloak for doing the objectionable act”. It also confers the right on a public servant to raise objection against the jurisdiction in case prior sanction is not taken, which would render the entire case void ab initio which is the same in the present case
   1. There lies no role of the Court in granting the sanction or withholding it. The legislature has conferred absolute power on the Central government in this matter. In the present case, the Court has come to the conclusion that the Court concerned lacks the jurisdiction to take cognizance of the offense unless prior sanction is taken.
3. Trial by the competent authority: The Court relied on the decision in Ram Sarup v. Union of India and Anr(iii), once the option of trial by a court-martial is made, further proceedings would be in accordance with the provisions of Section 70 of the Army Act and for that matter, sanction of the Central Government is not required. Since, The Army Act does not provide for sanction of the Central Government thus in the present case, the contention raised by the Appellant that a prior sanction is mandatory even when the matter is to be adjudged by a Court Martial stands rejected.

CRITIQUE:

In the general sense, the term “institution” indicates the initiation of something. Framing of chargesheet is the initial step in any proceeding, this might even include the act of filing, presenting or receiving. The Court has interpreted the term institution as taking cognizance which may not necessarily be the literal meaning and also might change depending on the facts and circumstances of any other case.

Regarding the issue of sanction for prosecution, the intent of statute to protect the officers engaged in good conduct is not given justice.The court fails to provide reasoning for not making sanctions mandatory before the presentation of the chargesheet when it is already discussed that the sanction is of paramount importance and offers protection against harassment.

Footnotes:

• AIR 1964 SC 1541
• 6 SCC 1: 2011 (6) SCR 138
• AIR 1965 SC 247

WRITTEN BY Divyanshi bais INTERN UNDER LEGAL VIDHIYA

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