IMPORTANT POINT
Public servants are protected from prosecution for acts done in official capacity only if there is a reasonable connection to their duties, necessitating prosecution sanction.

JUDGMENT :

SUSMITA PHUKAN KHAUND, J.

1. The petitioners have filed this petition under Section 482 of the Code of Criminal Procedure, 1973 (CrPC for short) with prayer for quashing and setting aside the order dated 18.09.2021 passed by the learned CJM in GR Case No. 1266/1998 registered under Sections 302/427/120(B)/201 of the Indian Penal Code, 1860 (the IPC for short) corresponding to Dibrugarh Police Station Case No. 410/1998.

2. The petitioners in this case are Major (now Lt. Col) Zameer Ahmed Khan, No. 3183065f Ex Nk Karan Singh, JC-490906X Sub Sahab Singh, JC- 315689M Sub Bhim Singh, No. 31895793A Ex Sep Alok Paul, No. 3187089H Ex Sep Sanjay Kumar, No. 3187176W Ex Hav Subash Chander Shivran, No. 3189242M Ex Hav Rakesh Kumar, No. 3189900N Ex Nk Bhup Singh, No. 3189972 Ex Nk Narender Singh. The respondents in this case are the State of Assam arrayed as respondent No. 1, the Sub-Inspector of Police (Anil Chutia, S.I.) arrayed as respondent No. 2. Smt. Polly Rajkhowa Gogoi and Smt. Dipa Das Phukan were later on arraigned as respondent Nos. 3 and 4 in this case. The petitioners are in service and retired armed forces personnel. The State of Assam was declared as disturbed area by the Government of India vide Notification dated 21.09.1990 and 17.09.1991, issued by the Ministry of Home Affairs and thus the provisions of the Armed Forces (Special Powers) Act, 1958 (the Act of 1958, for short) was applicable at that point of time. The army personnel were active in combating militant activities.

3. It is submitted that on 27.08.1998 during night time, an anonymous phone call was received by the Dibrugarh Police relating to three bullet riddled bodies inside a white Maruti car near the Chaulkhowa Kabarsthan. The Dibrugarh Police Station Case No. 410/1998 was registered on the basis of the FIR under Sections 302/427 of the Indian Penal Code, 1860 (IPC for short). Later on, one Raghu Gogoi lodged another FIR on 31.08.1998 which was taken as the Supplementary FIR (Annexure-A). It is further submitted that on 26.08.1998, a military operation was conducted and two hardcore ULFA militants who were controlling the finance of Dibrugarh and Tinsukia districts, were neutralized and huge cache of arms were recovered. It is submitted that surrendered militants are at times providers of secret information and they used to be in a precarious situation under the ire of the militant organization. As such, there is every possibility that the three bodies were of surrendered militants and could have been victims of such retaliatory actions of the militants.

4. As the public was outraged, the army authority conducted the enquiry but nothing incriminating could be garnered to hold the present petitioners complicit of having eliminated the deceased. It is contended that the learned Chief Judicial Magistrate, Dibrugarh (CJM for short) was bent upon proceeding against the petitioners, despite the fact that the army authorities have assured the investigating authority that the petitioners will appear before the Investigating Officer (IO for short) whenever called upon and supporting documents were also handed over to secure appearance of the petitioners before the IO. The petitioners appeared before the IO on 15.04.1999 and 19.04.1999 and, the statements of some of the petitioners were recorded. It is contended that the petitioner No. 1 appeared before the IO on 3rd and 4th of May, 1999 and he was interrogated for about 4 (Four) hours. Despite the fact that the petitioners were protected under the provisions of the Act of 1958, the petitioners appeared before the IO and have got their statements recorded. It is contended that the learned CJM however overstepped his jurisdiction as vested upon him at the incipient stage of the matter and had opined that prosecution sanction is not required as the incident was an act of cold-blooded murder suggesting that there was no necessity for trial of the petitioners who can be directly held guilty.

5. The petitioners have