The Supreme Court will examine if the Armed Forces Special Powers Act (AFSPA) requires the state government to seek prior sanction of the Centre before filing an FIR against Army personnel.
The question cropped up in the wake of a petition filed by Lieutenant Colonel Karamveer Singh, father of Major Aditya Kumar of 10 Garhwal Rifles, seeking quashing of an FIR registered by the Jammu and Kashmir Police in connection with the deaths of three civilians in alleged Army firing in Shopian on January 27.
A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud said it would examine the question of law. The court will hear the matter on July 30.
Singh had claimed that his son’s name was included in the FIR which was registered without the Centre’s sanction. He said the Centre’s sanction was needed as AFSPA was in force in the state.
The Centre backed him on the need for sanction to file an FIR. “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,” it said in an affidavit.
However, the J&K Police contended that prior sanction of the Centre was not necessary. The state police said it had registered the FIR under Sections 302 (murder) and 307 (attempt to murder) of the Ranbir Penal Code following uproar over the incident at Ganawpora village in Shopian.
Citing a 2012 ruling of the apex court, it said the question of sanction arises only at the stage of cognizance by the magistrate and not at the stage of filing of FIR. “It is thus evident that, even under the AFSPA, the Army Act or under any other law in force, there is no prohibition on registration of FIR against an Army personnel,” it said.
While the Centre, in its affidavit, had also referred to the 2012 decision, it said this ruling was given 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 cognizance”.
The Centre requested the court to clear the position. Acting on Karamveer Singh’s petition, the court had, on March 5, stayed investigation in the matter.