PRIOR SANCTION of the Centre was not necessary for registering FIR against Army personnel, the Jammu and Kashmir Police told the Supreme Court on Friday, 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 in response to a plea by Lieutenant Colonel Karamveer Singh, father of Major Aditya Kumar of 10 Garhwal Rifles, seeking quashing of an FIR registered by the state police in connection with the death of three civilians in alleged Army firing in Shopian on January 27.
The police had registered the FIR under sections 302 (murder) and 307 (attempt to murder) of Ranbir Penal Code following uproar over the deaths at Ganawpora village in Shopian. The deceased were identified as Javaid Ahmad, Suhail Ahmad and Rayees Ahmad.
Acting on the petition, the apex court had on March 5 stayed investigation in the matter after the Centre said that its sanction was not taken before registering the FIR.
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”.