The Supreme Court has observed that Army Men can’t be prosecuted for Murder unless Sanction is obtained under AFSP.
The Division Bench of Justice Indira Banerjee and Justice V. Rama subramanina was dealin with Writ Petition under Article 32 of the Constitution of India, filed by the wives of officers of the Indian Army for quashing of Suo Moto FIR against the personnel of 21 PARA(SF), Unit of the Indian Army including the respective husbands of the Writ Petitioners under Sections 302, 307, 326, 201, 34 read with Section 120-B of the Indian Penal Code, 1860 (IPC).
An incident happened in December 2021 which led to a firing in which 6 persons were killed. The incident flared up leading to more killings and also killing of one of the Army personnel. It is also stated that a finger of the husband of one of the wives, the writ petitioner in writ Petition was also chopped off. Suo moto FIR was filed against the personnel of 21 PARA(SF), including the respective husbands of the Writ Petitioners
The learned counsel for the petitioner contended that as per Section 6 of the Armed Forces (Special Powers) Act, 1958. Reads as under :-
“Protection to persons acting under Act.- 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 this Act.”
No prosecution, suit or other legal proceedings shall be instituted without the previous sanction of the Central Government against any person of the Armed Forces. It also appeared that the sanction
of prosecution is to be obtained under Section 197(2) of the Code of Criminal Procedure.
Section 197(2) of the Cr.P.C. applies to taking cognizance by the Court. However, Section 6 of the Armed Forces (Special Powers) Act, 1958 clearly provides, no prosecution, suit or other legal proceedings shall be instituted except with the previous sanction of the Central Government.
On the query of this Court, the learned Additional Solicitor General submitted that no previous sanction has been granted by the Central Government. The question of sanction is awaiting consideration at the appropriate level.
The court observed that in the view of the mandatory previous sanction as required under Section 6 of the Armed Forces (Special 4 Powers) Act, 1958 has not been obtained, they are constrained to
pass an interim order staying further proceedings pursuant to FIR of the Special Investigation Team/Chargesheet.
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