Hear all states, UTs on power of police to register FIR against Army men: J&K to SC

Satya Prakash
Tribune News Service
New Delhi, July 16

At loggerheads with the Centre on the Shopian firing incident, the Jammu and Kashmir Government on Monday requested the Supreme Court to hear all states and union territories to decide whether a state police can register an FIR against an Army man without prior sanction of the central government.

In an interim application filed in the Supreme Court, the Jammu and Kashmir Government asserted that in terms of a 2014 Constitution Bench ruling police were obliged to register an FIR in incidents of cognisable nature and 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 hard before the matter is decided,” the application filed through its standing counsel M Shoeb Alam stated.

Since law and order was a state subject, accepting the Centre's plea would directly affect the statutory powers of the police in all states across India with regard to registration of FIRs against Army personnel involved in cognisable offences, senior counsel Shekhar Naphade told a Bench headed by Chief Justice of India Dipak Misra behalf of the state.

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

“The CrPC (Criminal Procedure Code) mandates compulsory registration of FIR in a case where a cognizable 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 FIR should not be registered in a case where information of a cognizable 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 Shopian firing, the State of Jammu and Kashmir has maintained that there was no need for sanction from the central government to register a criminal case against Army personnel.

“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”, the Jammu and Kashmir Police had said in its affidavit filed last week. 

The affidavit was filed in response to a petition by Lt Colonel 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 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 Army personnel fired at a stone-pelting 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 the Sections 302 (murder) and 307 (attempt to murder) of the Ranbir Penal Code. 

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

The Supreme Court had earlier stayed all proceedings against Major Aditya 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 Jammu and Kashmir for registering a criminal case against a serving Army officer without sanction from the central government.