The Centre has in an application filed in the Supreme Court questioned the FIR filed by the Jammu and Kashmir police against Major Aditya Kumar relating to the killing of two stone pelters in Shopian on January 27 saying it could not have been done without the prior sanction of the union of India.
“The union of India has considered the matter extensively and is of the view that there is a total bar to the institution of a legal proceeding in the present case, except with the previous sanction of the Central government. The consequence is that the registration of the FIR in question by the state police registered at police station Shopian under section 336, 307, 302 of the Ranbir Penal Code 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”, said the application for directions filed on behalf of the union of India
“In this regard, the kind attention of this honorable court is invited to Section 7 of the Armed Forces (Jammu and Kashmir) Special Power’s Act, 1990 which deals with protection of persons acting in good faith. According to which 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 have been done in exercise of the powers conferred by this act”, it said.
A bench of Chief Justice Dipak Misra and justices D Y Chandrachud and A M Khanwilkar has kept the petition filed by Major Aditya’s father Lt Col Karamveer Singh challenging the FIR for final disposal on April 24.
The Centre also cited an earlier notification of J & K home department itself which stated that when the state is in such a disturbed condition the use of Armed Forces in the aid of civil power is necessary to prevent terror activities against the citizens.
“It is a well-known fact that in the state of J& K, anti-national elements and terrorists indulge in serious violations of law, affecting the security of the state itself. These elements possess sophisticated arms and weaponry and even have cross-border support from countries inimical to the interests of our country”, it said.
The Centre also said that a 5 judge bench of the Andhra Pradesh HC had held that where a police officer causes death of a person acting or purporting to act in discharge of official duties or in self-defence, the circumstance under which it happened has to be written down but was not done so in Major Aditya’s case.
On March 6, acting on a petition filed by Karamveer Singh, the Supreme Court had questioned how J and K government could treat Army officers like ordinary criminals.
SC prima-facie held that the Mehbooba Mufti government was not justified in initiating criminal proceedings against any Army personnel for bona fide action in the discharge of their duties or in self-defence.
The bench had on February 23 already directed that no coercive action, like arrest or detention, shall be taken against Major Aditya till the case was pending in the apex court.
The stinging remarks from the CJI came on a day when in a big U-turn, the Jammu and Kashmir government told SC that Major Kumar’s name was not mentioned in the FIR.
The state’s status report said that the Army officer had not been named when the police lodged an FIR to investigate the firing incident, rendering his petition to quash the FIR meaningless and so it deserved to be dismissed.
But the bench said since his name is mentioned in the narrative of the FIR, he could be roped in any time. In its report, the Mufti government complained that the Army does not respond to its letters and asked "Are they above the law?" and "does the Army has a license to kill?"
Attorney General K K Venugopal responded: “hundreds of army men are killed protecting us. The state shouldn’t be making such arguments.
Venugopal relied on Section 7 of the Armed Forces (J&K) Special Powers Act of 1990, which provides 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 exercise of the powers conferred by the said Act.