IMPORTANT POINTS
Criminal court lacks jurisdiction to take cognizance unless sanction is granted by the Central Government.
The protection and immunity granted to an official particularly in provisions of the Act 1990 or like Acts has to be widely construed.

Headnote:(a) Words and Phrases – Judicial and Legal Proceedings – Every judicial proceeding is a legal proceeding but not vice-versa – Also, legal proceedings do not include departmental or administrative proceedings – Once the act is found to have been performed in discharge of official duty, then the protection given under Section 7 must be construed liberally. (Para 12)
        AIR 1991 SC 506; (1993) 2 SCC 144; AIR 1972 SC 878; AIR 1982 SC 818; AIR 1987 SC 1739 – Relied upon
        (b) Armed Forces J & K (Special Powers) Act, 1990 – Section 7 – Prohibition against institution of legal proceedings without prior sanction of the Central Government – Therefore charge-sheet cannot be filed without sanction of the Central Government.
        (c) Armed Forces J & K (Special Powers) Act, 1990 – Section 7 r/w section 190, Code of Criminal Procedure, 1973 – “Institution” of a criminal case does not mean filing; presenting or initiating the proceedings – Rather it means taking cognizance as per the provisions contained in the Cr.P.C. (Para 21)
        AIR 1968 SC 488; AIR 1970 SC 1093; AIR 1970 SC 1384; AIR 1998 SC 492; AIR 1964 SC 1541; (2011) 6 SCC 1; AIR 1979 SC 777; AIR 1976 SC 1672; AIR 2000 SC 2946 – Relied upon
        (d) Code of Criminal Procedure, 1973 – Section 197 – If the act or omission for which the accused was charged is prima facie found to have reasonable connection with discharge of his duty, then it is official – Section 197 gets attracted. (Para 22)
        AIR 1996 SC 901; AIR 2004 SC 4174; AIR 2005 SC 4413; AIR 2006 SC 820; AIR 2008 SC 1992; (2009) 8 SCC 617; (2009) 17 SCC 92 – Relied upon
        (e) Code of Criminal Procedure, 1973 – Section 197 – Requirement of sanction has to be considered at the time of taking cognizance of the offence and not during enquiry or investigation. (Para 23)
        AIR 1968 SC 1323; AIR 1978 SC 1568; (1993) 3 SCC 339; AIR 1996 SC 204; AIR 1997 SC 2102; AIR 2009 SC 1404; AIR 1998 SC 431; (2009) 6 SCC 316; (2007) 13 SCC 387; AIR 1997 SC 3475; (2004) 2 SCC 349; AIR 1951 SC 207; (1995) 1 SCC 684; AIR 2012 SC 1185; (2012) 4 SCALE 191; (2009) 6 SCC 372 – Relied upon
        (f) Code of Criminal Procedure, 1973 – Section 197 – Requirement of sanction may arise at any stage of the proceedings – Necessity for sanction may surface during the course of trial – Accused may then show that the acts complained of were inter-related or inseparably connected with his official duty so as to attract the protection. (Para 28)
        (2011) 6 SCC 1; AIR 1964 SC 1541; AIR 1964 SC 33; AIR 1966 SC 1783; AIR 1966 SC 1786; (1994) 1 SCC 64; AIR 2004 SC 2179; AIR 1967 SC 776; AIR 1998 SC 1524; AIR 1956 SC 44 – Relied upon
        (g) Code of Criminal procedure, 1973 – Section 197 – Official duty – An act even though constituting an offence, if directly and reasonably connected with official duty; will require sanction for prosecution. (Para 31)
        AIR 2006 SC 1599; AIR 2001 SC 2198; AIR 1979 SC 1841; AIR 2007 SC 1274 – Relied upon
        Army Act – Section 125 – If competent authority decides that the accused has to be tried by ordinary criminal court, provisions of Cr.P.C. would apply including limitation. (Para 32)
        (2008) 13 SCC 229 – Relied upon
        (h) Code of Criminal Procedure, 1973 – Section 132 – Bar of jurisdiction – If a case is covered u/s 132, the trial court would be at liberty to reject the complaint. (Para 33)
        AIR 1964 SC 269 – Relied upon
        (i) Words and Phrases – ‘Except’, ‘good faith’ and ‘purported’ – Import of these words discussed with reference to section 7, Armed Forces J & K (Special Powers) Act, 1990. (Para 43)
        AIR 1961 SC 365; AIR 1983 SC 259 – Relied upon
        (j) Words and Phrases – Good faith – Section 3(22), General Clauses Act, 1897 – Means a thing which done honestly – Anything done with due care and attention, without malafide would be in good faith is presumed to have been done in good faith – In acts of good faith there is no personal ill-will or malice, no intention to malign and scandalize – Being a question of fact, it needs to be proved by adducing evidence. (Para 44)
        AIR 1958 SC 767; AIR 1971 SC 530; AIR 1981 SC 1514; AIR 1985 SC 1669; (2002) 6 SCC 336; (2008) 9 SCC 613; AIR 1981 SC 636 – Relied upon
        (k) Code of Criminal Procedure, 1973 – Section 197 – An act has to be official in order to attract the protection – The presumption of good faith can be dislodged only by cogent and clinching material (Paras 46 and 50)
        (l) Armed Forces J & K (Special Powers) Act, 1990 – Section 7 – Sanction of the Central Government is required in the facts and circumstances of the case – The court concerned lacks jurisdiction to take cognizance unless sanction is granted by the Central Government. (Para 56)
        (m) Armed Forces J & K (Special Powers) Act, 1990 – Section 126 r/w section 475, Cr.P.C. and rules 6 and 7, J & K Criminal Courts and court-martial (Adjustment of Jurisdiction) Rules, 1983 – If the criminal court asks the Military authority to make the option, the authority either has to comply with it or to make a reference to the Central Govt. (Para 57)
        (1995) 1 SCC 90; AIR 1965 SC 247 – Relied upon
        (n) Armed Forces J & K (Special Powers) Act, 1990 – Section 7 – Despite the court-martial proceedings being akin to criminal prosecution, once the proceeding is transferred to Court-martial, proceedings will be conducted in accordance with section 70 of the Army Act – No sanction will be required. (Para 64)
        AIR 1998 SC 577 – Referred
       Facts of the case:
        The whole issue in these appeals is regarding the interpretation of Section 7 of the Armed Forces J & K (Special Powers) Act, 1990, as to whether the term ‘institution’ used therein means filing/ presenting/submitting the chargesheet in the court or taking cognizance and whether the court can proceed with the trial without previous sanction of the Central Government.
       Finding of the Court:
        The protection and immunity granted to an official particularly in provisions of the Act 1990 or like Acts has to be widely construed.

JUDGMENT

Dr. B.S. Chauhan, J.- Criminal Appeal No. 257 of 2011 has been preferred against the impugned judgment and order dated 10.7.2007 passed by the High Court of Jammu and Kashmir in Petition Nos. 78 and 80 of 2006 under Section 561- A of the Code of Criminal Procedure, (J&K) (hereinafter called as ‘Code’) by which the High Court upheld the order dated 30.11.2006 passed by the Additional Sessions Judge, Srinagar in File No. 16/Revision of 2006, and by the Chief Judicial Magistrate, Srinagar dated 24.8.2006, rejecting the appellant’s application for not entertaining the chargesheet filed by the Central Bureau of Investigation (hereinafter called ‘CBI’).

2. Brief facts relevant to the disposal of this appeal are as under:

A. In Village Chittising Pora, District Anantnag, J&K, 36 Sikhs were killed by terrorists on 20.3.2000. Immediately thereafter, search for the terrorists started in the entire area and 5 persons, purported to be terrorists, were killed at village Pathribal Punchalthan, District Anantnag, J & K by 7 Rashtriya Rifles (hereinafter called as ‘RR’) Personnel on 25.3.2000 in an encounter.

B. In respect of killing of 5 persons by 7 RR on 25.3.2000 at Pathribal claiming them to be responsible for Sikhs massacre at Chittising Pora, a complaint bearing No. 241/GS(Ops.) dated 25.3.2000 was sent to Police Station Achchabal, District Anantnag, J&K by Major Amit Saxena, the then Adjutant, 7 RR, for lodging FIR stating that during a special cordon and search operation in the forests of Panchalthan from 0515 hr. to 1500 hrs. on 25.3.2000, an encounter took place between terrorists and troops of that unit and in that operation, 5 unidentified terrorists were killed in the said operation. On the receipt of the complaint, FIR No. 15/2000 under Section 307 of Ranbir Penal Code (hereinafter called ‘RPC’) and Sections 7/25 Arms Act, 1959 was registered against unknown persons. A seizure memo was prepared by Major Amit Saxena (Adjutant) on 25.3.2000 showing seizure of arms and ammunition from all the 5 unidentified terrorists killed in the aforesaid operation which included AK-47 rifles (5), AK-47 Magazine rifles (12), radio sets (2), AK-48 ammunition (44 rounds), hand grenades (2) detonators (4) and detonator time devices (2). The said seizure memo was signed by the witnesses Farooq Ahmad Gujjar and Mohd. Ayub Gujjar, residents of Wuzukhan, Panchalthan, J & K.

C. The 7 RR deposited the said recovered weapons and ammunition with 2 Field Ordnance Depot. However, the local police insisted that the Army failed to hand over the arms and ammunition allegedly recovered from the terrorists killed in the encounter, which tantamounts to causing of disappearance of the evidence, constituting an offence under Section 201 RPC. In this regard, there had been correspondence and a Special Situation Report dated 25.3.2000 was sent by Major Amit Saxena, the then Adjutant, to Head Quarter–I, Sector RR stating that, based on police inputs, a joint operation with STF was launched in the forest of Pathribal valley on 25.3.2000, as a consequence, the said incident occurred. However, it was added that ammunition allegedly recovered from the killed militants had been taken away by the STF.

D. There had been long processions in the valley in protest of killing of these 5 persons on 25.3.2000 by 7 RR alleging that they were civilians and had been killed by the Army personnel in a fake encounter. The local population treated it to be a barbaric act of violence and there had been a demand of independent inquiry into the whole incident. Thus, in view thereof, on the request of Government of J & K, a Notification dated 19.12.2000 under Section 6 of Delhi Police Special Establishment Act, 1946 (hereinafter called as ‘Act 1946’) was issued. In pursuance thereof, Ministry of Personnel, Government of India, also issued Notification dated 22.1.2003 under Section 5 of the Act 1946 asking the CBI to investigate four cases including the alleged encounter at Pathriba

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2012 Supreme(SC) 339

IMPORTANT POINTS Criminal court lacks jurisdiction to take cognizance unless sanction is granted by the Central Government. The protection and immunity granted to an official particularly in provisions of the Act 1990 or like Acts has to be widely construed.

Cases Referred (60)

IMPORTANT POINTS
Criminal court lacks jurisdiction to take cognizance unless sanction is granted by the Central Government.
The protection and immunity granted to an official particularly in provisions of the Act 1990 or like Acts has to be widely construed.