Hear all states on cops’ power to book Army men, J&K urges SC

NEW DELHI:At loggerheads with the Centre on the Shopian firing incident, Jammu and Kashmir on Monday requested the Supreme Court to hear all states and Union Territories (UTs) to decide whether a state police can register an FIR against an Army man without prior sanction or no.

Satya Prakash

Tribune News Service

New Delhi, July 16

At loggerheads with the Centre on the Shopian firing incident, Jammu and Kashmir on Monday requested the Supreme Court to hear all states and Union Territories (UTs) to decide whether a state police can register an FIR against an Army man without prior sanction or no.

In an interim application filed in the Supreme Court, the state asserted that in terms of a 2014 Constitution Bench ruling, the police were obliged to register an FIR in incidents of cognisable nature and the Army men could not be exempted from it.

“Since the Union of India has taken a stand that is in conflict with the view taken by the Constitution Bench of this court and the Union de facto seeks to exclude the application of the judgment in the case of a specific class of persons (Army personnel in this regard), it is imperative that all state governments in the Union of India be heard before the matter is decided,” the application filed through its standing counsel M Shoeb Alam said.

Accepting the plea of the Centre will directly affect the statutory powers of the police in all states across India with regard to the registration of FIRs against the Army personnel involved in cognisable offences, senior counsel Shekhar Nafade told a bench headed by Chief Justice of India Dipak Misra on behalf of the state.

The bench said it would take up the matter on July 30.

“The Criminal Procedure Code mandates compulsory registration of an FIR in a case where a cognisable offence is disclosed. No person-specific or class-specific exception is carved out in this principle to exclude any individual or class of persons against whom an FIR should not be registered in a case where information of a cognisable offence is prima facie disclosed. The police officer concerned is duty-bound to register the FIR,” the application read.

Contradicting New Delhi’s stand on the Shopian firing incident, the state has maintained that there was no need for sanction from the Central government to register a criminal case against the Army personnel.

“… even under the AFSPA, the Army Act or under any other law in force, there is no prohibition of registration of an FIR against an Army man,” the J&K Police had said in its affidavit filed last week.

The affidavit was filed in response to a petition by Lt Col Karamveer Singh, father of Major Aditya Kumar of 10 Garhwal Rifles, for quashing of an FIR registered against the latter in connection with the death of three civilians in the alleged Army firing in Shopian on January 27. It had said sanction would be required only at the stage of taking cognisance by a court.

Three civilians were killed on January 27 when the Army personnel fired at a stone-throwing mob in Ganovpora village in Shopian, prompting the Chief Minister to order an inquiry into the incident. An FIR was registered against the personnel of 10 Garhwal unit of the Army, including Major Kumar, under Sections 302 (murder) and 307 (attempt to murder) of the Ranbir Penal Code.

The affidavit, however, said the FIR “does not arraign” Major Kumar “as an accused”. Clarifying that “he is also not mentioned in the column of the accused persons”, it said no specific role had been attributed to Major Kumar in the FIR.

The SC had earlier stayed all proceedings against Major Kumar and said, “He is an Army officer and not an ordinary criminal.”

The affidavit was at variance with the stand of the Centre as Attorney General KK Venugopal had in March supported the petitioner and criticised the state of J&K for registering a criminal case against a serving Army officer without sanction from the Union government.

State petition reads...

The application filed through state's standing counsel M Shoeb Alam states: "Since the Union of India has taken a stand that is in conflict with the view taken by the Constitution Bench of this court and the Union de facto seeks to exclude the application of the judgment in the case of a specific class of persons (Army personnel in this regard), it is imperative that all state governments in the Union of India be heard before the matter is decided."