In a major verdict on the controversial Armed Forces Special Power Act, the Supreme Court on Tuesday ruled that prior sanction from the Union government is must for prosecution of the Army officers and personnel for any alleged “excesses” by them in the area where the Act is in force if the cases go for trial to the normal criminal courts.
However, no such sanction was required if the Army officers or jawans were put to trial under the provisions of the “court martial” and it was entirely the description of the Army authorities to take a decision in this regard.
A bench of Justices B.S. Chauhan and Swatanter Kumar said that since the AFSPA is a special law like the “Prevention of Corruption Act”, under which prior sanction is a must for the prosecution of public servants, the same principle applies in the case of the AFSPA.
The top court said the AFSPA’s Section 7, which deals with taking cognisance of the chargesheet against any Army personnel, has a word “institution” for initiation of the proceedings, which has special meaning giving an option to the Army either to go for the court martial or file a chargesheet before the normal criminal court.
If the decision is taken by the Army authorities to file the chargesheet before the normal criminal court, then the “sanction of the Central government to proceed with the prosecution is required. But in case the option is made to try the accused by the court martial, the sanction of the Central government is not required,” the top court said.
The verdict came on an appeal by the General Officer Commanding of the Jammu and Kashmir area, questioning the trial court at Srinagar taking cognisance of the CBI chargesheet against some Army officers and personnel in Pathribal encounter case without prior sanction.
The CBI had alleged that the concerned officers and jawans of 7 Rashtriya Rifles had indulged in killing of five local youth on March 25, 2002 in the “fake” encounter to show the results in the massacre of 36 Sikhs in Chittisinghpora by terrorists, on the eve of the then US president Bill Clinton’s India visit.
After deciding the contentious issue of sanction, the top court gave the Army authorities eight weeks time to decide whether they would prefer to go for the court martial proceedings or continue with the case before Srinagar chief judicail magistrate (CJM).