Case Name: General Office Commanding v. CBI & Anr.
Equivalent Citation: AIR 2012 SC 1890
Date of Judgement: 1 May 2012
Court: Supreme Court of India
Case no.: Criminal Appeal no. 257 of 2011
Case Type: Criminal Appeal
Appellant: General Officer Commanding
Respondents: CBI & Anr.
Bench: B.S. Chauhan, Swatanter Kumar
Referred: The Army Act, 1950 – Section 7, Section 23, The Code of Criminal Procedure, 1973 – Section 197
FACTS OF THE CASE
- In a village in the Anantnag district of J&K, 36 Sikhs were killed by terrorists on 20.03.2000. Immediately after that, the search for terrorists started in the area and 5 persons, purported to be the terrorists, were killed in the same district by 7 Rashtriya Rifles (hereinafter called RR) Personnel on 25.03.2000 in an encounter.
- A complaint was sent to the police station by Major Amit Saxena, the then Adjutant, 7 RR, claiming the five persons who were killed were responsible for the Sikhs massacre. He sent the complaint to lodge an FIR stating that during a special cordon and search operation in the forests of Panchaltan on 25.03.2000, an encounter took place between terrorists and the troops of that unit and in that operation 5 unidentified terrorists were killed.
- Upon receiving the complaint an FIR was registered under Section 307 of Ranbir Penal Code and Sections 7 and 25 of the Arms Act, 1959 against unknown persons. A seizure memo was prepared and submitted by Major Amit Saxena on 25.03.2000 showing the seizure of arms and ammunition from all the five unidentified terrorists.
- The 7 RR deposited the said recovered weapons and ammunition. However, the local police insisted that the Army failed to hand over the arms and ammunition allegedly recovered from the terrorists killed in the encounter, which was tantamount to causing of the disappearance of the evidence, constituting an offence under Section 201 RPC. In this regard, there had been correspondence and a Special Situation Report dated 25.3.2000 was sent by Major Amit Saxena, the then Adjutant, to Head Quarter–I, Sector RR stating that, based on police inputs, a joint operation with STF was launched in the forest of Pathribal valley on 25.3.2000, as a consequence, the said incident occurred. However, it was added that ammunition allegedly recovered from the killed militants had been taken away by the STF.
- There were long processions in the valley in protest of the killing of the 5 persons alleging that they were civilians and were killed in a fake encounter. The local population treated it as a barbaric act of violence and they demanded an independent inquiry into the whole incident. In pursuance thereof, the Ministry of Personnel, Government of India, asked the CBI to investigate four cases including the alleged encounter.
- The CBI conducted the investigation and filed a chargesheet in the court of Chief Judicial Magistrate cum Special Magistrate, CBI, Srinagar, alleging that it was a fake encounter which was the outcome of a criminal conspiracy hatched by Col. Ajay Saxena ( A-1), Major Brajendra Pratap Singh (A-2), Major Sourabh Sharma (A-3), Subedar Idrees Khan (A-4) and some members of the troops of 7 RR were held responsible for killing innocent persons. The investigation found out that Major Ait Saxena (A-5) prepared a false seizure memo showing the recovery of arms and ammunition in the said incident, and also gave a false complaint to the police station for registration of the case against the said five civilians showing some of them as foreign militants and false information to the senior officers to create an impression that the encounter was genuine and, therefore, caused the disappearance of the evidence of the commission of the aforesaid offence under Section 120-B read with Sections 342, 304, 302, 201 RPC and substantive offences thereof.
- The CJM, Srinagar, granted an opportunity to Army to exercise the option as to whether the competent military authority would prefer to try the case by way of a court-martial by taking over the case under the provisions of Section 125 of the Army Act, 1950. On 24.5.2006, the Army officers filed an application before the court pointing out that no prosecution could be instituted except with the previous sanction of the Central Government in view of the provisions of Section 7 of the Army Act 1990 and, therefore, the proceedings be closed by returning the chargesheet to the CBI.
- The CJM dismissed the said application holding that the said court had no jurisdiction to go into the documents filed by the investigating agency and it was for the trial court to find out whether the action complained of falls within the ambit of the discharge of official duty or not. The CJM himself could not analyse the evidence and other material produced with the chargesheet for considering the fact, as to whether the officials had committed the act in good faith in the discharge of their official duty; otherwise, the act of such officials was illegal or unlawful in view of the nature of the offence.
- Aggrieved by the order of CJM dated 24.8.2006, the appellant filed a revision petition before the Sessions Court, Srinagar and the same stood dismissed vide order dated 30.11.2006. However, the revisional court directed the CJM to give one more opportunity to the Army officials for the exercise of option under Section 125 of the Army Act.
- The appellant approached the High Court under Section 561-A of the Code. The Court affirmed the orders of the courts below and held that the very objective of sanctions is to enable the Army officers to perform their duties fearlessly by protecting them from vexatious, malafide and false prosecution for the act done in the performance of their duties. However, it has to be examined as to whether their action falls under the Act 1990. The CJM does not have the power to examine such an issue at the time of committal of proceedings.
- The appellants brought a criminal appeal before the Supreme Court of India.
ISSUE RAISED
Whether prior sanction from the Government is required to prosecute army officers under the Armed Forces Special Powers Act?
CONTENTIONS OF THE PETITIONER
Shri Mohan Parasaran and Shri P.P. Malhotra learned Addl. Solicitor Generals appeared on behalf of the Army Personnel and contended that:
- The mandate of Section 7 of the Act of 1990 is clear and it clearly provides that no prosecution shall be instituted and therefore cannot be instituted without prior sanction of the Central government.
- The prosecution would have been deemed to institute/initiate at the moment the chargesheet is filed and received by the court and such an acceptance is without jurisdiction.
- The previous sanction of the competent authority is just a pre-condition for the court in taking the chargesheet on record if the offence alleged to have been committed while in the discharge of official duty and if such issue touches the jurisdiction of the court.
CONTENTIONS OF THE RESPONDENT
Shri H.P. Raval learned ASG, and Shri Ashok Bhan, learned senior counsel appeared on behalf of the CBI and contended that:
- The institution of a criminal case means taking cognizance of the case and mere presentation/filing of the chargesheet in the court does not amount to institution.
- The court of CJM has not taken cognizance of the offence, therefore, the appeals are premature. Even otherwise, killing innocent persons in a fake encounter in the execution of a conspiracy cannot be a part of official duty and thus, in view of the facts of the case, no sanction is required. The appeals are liable to be dismissed.
RATIO DECIDENDI
- Section 7 of the Act 1990 provides for umbrella protection to the Army personnel in respect of anything done or purported to be done in the exercise of powers conferred by the Act. The whole issue is regarding the interpretation of Section 7 of the Act 1990, as to whether the term ‘institution’ used therein means filing/presenting/submitting the chargesheet in the court or taking cognizance and whether the court can proceed with the trial without the previous sanction of the Central Government.
- The expression “Institution” has to be understood in the context of the scheme of the Act applicable in a particular case. So far as the criminal proceedings are concerned, “Institution” does not mean filing; presenting or initiating the proceedings, rather it means taking cognizance as per the provisions contained in the Cr.P.C.
- The protection given under Section 197 Cr.P.C. is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if a sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act.
- The question to examine as to whether the sanction is required or not under a statute has to be considered at the time of taking cognizance of the offence and not during enquiry or investigation. There is a marked distinction in the stage of investigation and prosecution. The prosecution starts when the cognizance of the offence is taken. It is also to be kept in mind that cognizance is taken of the offence and not of the offender.
- The sanction of the appropriate authority is necessary to protect a public servant from unnecessary harassment or prosecution. Such protection is necessary as an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralises the honest officer. However, the performance of public duty under the colour of duty cannot be camouflaged to commit a crime. The public duty may provide such a public servant an opportunity to commit a crime and such an issue is required to be examined by the sanctioning authority or by the court.
- It is quite possible that the official capacity may enable the pubic servant to fabricate the record or misappropriate public funds etc. Such activities definitely cannot be integrally connected or inseparably interlinked with the crime committed in the course of the same transaction. Thus, all acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of the requirement of sanction.
- The issue of sanction becomes a question of paramount importance when a public servant is alleged to have acted beyond his authority or his acts complained of are in dereliction of duty. In such an eventuality, if the offence is alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, the grant of prior sanction becomes imperative.
- In Matajog Dobey v. H.C. Bhari[1], the Constitution Bench of this court held that requirement of sanction may arise at any stage of the proceedings as the complaint may not disclose all the facts to decide the question of immunity, but facts subsequently coming either to notice of the police or in judicial inquiry or even in the course of prosecution evidence may establish the necessity for sanction.
- Constitution Bench of this Court in Som Datt Datta v. Union of India & Ors.[2] held that option as to whether the accused be tried by a criminal court or court-martial could be exercised after the police have completed the investigation and submitted the chargesheet. Therefore, for making such an option, the Army Authorities do not have to wait till the criminal court takes cognizance of the offence or frames the charges, which commences the trial.
JUDGEMENT
The appeals were disposed of. It was held that sanction of the Central Government is required in the facts and circumstances of the case and the court concerned lacks jurisdiction to take cognizance unless sanction is granted by the Central Government. The competent authority in the Army shall take the decision within a period of eight weeks from the date of the judgement of the Supreme Court of India as to whether the trial would be by the criminal court or by a court-martial and should communicate the same to the Chief Judicial Magistrate concerned immediately thereafter.
CONCLUSION
In this case, the Supreme Court of India gave a clear-cut answer to the question of the requirement of prior sanction when prosecuting Army officers. In a way, the decision also underscores the greater need for greater accountability and transparency in not just the Military’s operations but also the actions of police officers and the like as fake encounters are on a steady rise for the past 2 years in India.
Submitted by: Mahima Susan John, 6th Semester, Government Law College, Thiruvananthapuram.
[1] AIR 1956 SC 44
[2] AIR 1969 SC 414
