SHOPIAN KILLINGS Centre’s sanction is ‘not needed’ for FIR against Army: JKP tells SC

TNN Bureau. Updated: 7/15/2018 11:05:25 AM Front Page

JAMMU: In an interesting development in the January Shopian Civilian Killings, the state police have told the Supreme Court that the prior sanction of the Centre government was not necessary for registering a FIR against Army personnel, which are protected under the Armed Forces Special Powers Act (AFSPA) in Jammu and Kashmir.

The police, while contesting the registration of FIR against Indian Army Major Aditya Kumar and his colleagues, however, submitted that the FIR does not prove Major Aditya “as an accused”.

The FIR was lodged by the Jammu and Kashmir Police after three stone-pelting civilians were killed in Army firing in Ganovpora village in Shopian. Major Kumar and his colleagues from 10 Garhwal Rifles were booked under sections 302 (murder) and 307 (attempt to murder) of the Ranbir Penal Code, to which Major’s father had moved the top court seeking quashing of the FIR.

The top court, acting on the petition, had on March 5 stayed investigation in the matter after the Centre said that its sanction was not taken before registering the FIR.

On Friday, the state police in an affidavit told the apex court that the prior approval of the Centre was not necessary for registering FIR against Army personnel, thus countering the Centre’s stand that such permission was needed to institute legal proceedings against the men in uniform.

“It is thus evident that, even under the AFSPA, The Army Act or under any other law in force, there is no prohibition of registration of FIR against an Army personnel,” an affidavit by Anuj Gupta, senior prosecuting officer, Police Headquarter, Srinagar said.


The affidavit was filed in response to a plea by Lieutenant Colonel Karamveer Singh, father of Major Aditya Kumar, seeking quashing of an FIR registered by the state police.

The Centre told the court that “there is a total bar to the institution of legal proceeding in the present case, except with the previous sanction of the Central government. The consequence is that the FIR against Major Aditya Kumar is a nullity, as no previous sanction was applied for or obtained by the police prior to registration of the FIR”.

The Centre cited Section 7 of the AFSPA, which says that “no prosecution, suit or other legal proceedings shall be instituted, except with the previous sanction of the central government, against any person in respect of anything done or purported to be done in in exercise of powers conferred by this Act” to buttress its case.

Responding to this, the J&K Police affidavit said the apex court had interpreted this and ruled in 2012 that the question of sanction will arise only at the stage of cognizance by the magistrate and not at the stage of filing of FIR. However, the Centre’s affidavit had said that this ruling was by a two-judge bench while a Constitution bench had in 2014 held that “the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the magistrate takes congnizance”.

The J&K Police affidavit also said that the FIR “does not arraign” Major Aditya “as an accused”.
The Centre, it may be mentioned here, had decided to take up an 'uncompromising' stand.

The centre decided to remind the apex court on the primacy of winning the war against terror in its reply, as on the advice on top legal officer- Attorney General K K Venugopal.

The centre in its affidavit resolved to ‘not compromise’ in contesting the FIR as it decided to deal with those baying for action against Major Aditya ‘with an iron fist.’

These developments, it may be mentioned here, are coming after the Supreme Court on February 12 had restrained the state Police from taking any “coercive steps” against Army officers and asked Centre and State to file its replies.


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