Prosecution sanction in alleged extra-judicial executions in Manipur

N Brajakanta Singh (Guest Faculty, Department of Law, MU)
Contd from previous issue
The Sessions Court also opined that the CJM/IW has not committed any patent error while issuing notice to EEVFAM As EEVFAM is an association of victims’ families whose father, husband, son or brother have been killed in alleged fake encounters at the hand of State as well as Central security forces, in the present case, EEVFAM is an informant and also an association of victims, it is held that EEVFAM as an association of victims will fall within the ambit of ‘victim’ as defined under Section 2(wa) CrPC.
It was also held that the Magistrate has jurisdiction and competence to make reference under Section 395(1) CrPC, when the CJM/IW made reference, the FR case was pending before it. The Court, thus, has rightly rejected the application filed by UOI challenging the jurisdiction and procedure adopted by the CJM/IW.
The Constitutional validity of the Armed Forces (Special Powers) Act, 1958 enacted by Indian Parliament has been upheld by the Supreme Court of India in Naga People’s Movement of Human Rights vs Union of India, (1998) 2 SCC 109. The Apex Court of the country held that Parliament was competent to enact the Central Act in exercise of the legislative power conferred on it under Entry 2 of List I and Article 248 read with Entry 97 of List I. It reasoned that after the insertion of Entry 2A in List I by the Forty-Second Amendment to the Constitution, the legislative power of Parliament to enact the Central Act flows from Entry 2A of List I. It was not a law in respect of maintenance of public order falling under Entry I of list II, the Court opined. The most contentious provision of the Act is section 4 which vested special powers to the armed forces. It reads as follows: “Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,- (a) If he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;…”.While the armed forces personnel are protected from prosecution, for their actions in aid to civil power, by Section 132 of the CrPC, the AFSPA under section 6 further provides immunity to persons operating under the AFSPA from prosecution, without prior sanction of the Central Government. Under Section 6 protection has been given to the persons acting under the Central Act and it has been prescribed that no prosecution, suit or other legal proceeding shall be instituted against any person in respect of anything done or purported to be done in exercise of the powers conferred by the said Act except with the previous sanction of the Central Government. It virtually provides immunity to persons exercising the powers conferred under Section 4 in as much as it extends the protection also to anything purported to be done in exercise of the powers conferred by this Act.
There are many landmark cases wherein the Supreme Court has unmistakably held that wrongdoer personnel of the armed forces can be prosecuted for violation of right to life as guaranteed under Article 21 of the Constitution of India. The Apex Court in the case of Naga People’s Movement of Human Rights vs. Union of India (supra) ruled that the protection given under Section 6 cannot be regarded as conferment of immunity on the persons exercising the powers under the AFSPA. It ruled that Section 6 only gives protection in the form of previous sanction of the Central Government before a criminal prosecution of a suit or other civil proceeding is instituted against such person. It was held that Section 6 only extends the protection in the matter of institution of a suit or other legal proceeding. The Apex Court also ruled that “In order that the people may feel assured that there is an effective check against misuse or abuse of powers by the members of the armed forces it is necessary that a complaint containing an allegation about misuse or abuse of the powers conferred under the Central Act should be thoroughly inquired into and, if it is found that there is substance in the allegation, the victim should be suitably compensated by the state and the requisite sanction under Section 6 of the Central Act should be granted for institution of prosecution and/or a civil suit or other proceeding against the person/persons responsible for such violation”.
It is worthwhile to refer to a decision of the Supreme Court in General Officer Commanding, Rashtriya Rifles vs. Central Bureau of Investigation, (2012) 6 SCC 228 . This was a case of alleged encounter killing in the State of Jammu and Kashmir declared as a disturbed area where the provisions of the Armed Forces (Jammu & Kashmir) Special Powers Act, 1990 read with the Armed Forces (Special Powers) Act,1958 were in operation enabling the deployment of army. In this case the Supreme Court had made a comprehensive analysis of the law relating to grant of prosecution sanction to prosecute army personnel charged with committing criminal offences. It was held that the competent army authority has to exercise his discretion to opt as to whether the trial would be by a Court-Martial or criminal Court after filing of the charge sheet and not after the cognizance of the offence is taken by the Court. The Court held that facts of this case require sanction of the Central Government to proceed with the criminal prosecution/ trial, and in case an option is made to try the accused by a Court-Martial, sanction of the Central Government is not required.
It can be concluded that the competent army authority is now required to exercise its discretion as to whether the trial arising out of extra-judicial killing of Sanajit would be conducted by a Court martial or by a criminal Court. The gravity of the acts of fake encounters is very serious to be ignored by any democracy and its rule of law. General public wishes the Courts in the country shall deliver justice to the victims of injustices. The SIT should complete its honourable task to find out the truth in each case entrusted to investigate by the highest Court of the country.