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| Can men in uniform be prosecuted inspite of AFSPA? | | | EARLY TIMES REPORT
JAMMU, Apr 22: Even as Armed Forces Special Powers Act (AFSPA), which confers total impunity to armed forces is seriously debated across the state, the legal experts believe the men in uniform can be prosecuted inspite of AFSPA.
Before going in to details, it is necessary to point out that AFSPA is not the only legislation that shields the personnel of the armed forces. Section 197 CrPC (Section 549 in CrPC applicable to Jammu Kashmir) performs a similar function. Surprisingly Section197 of the CrPC goes un-noticed. The CrPC was enacted way back in nineteenth century but till date a few people have commented on its deadly fangs. In actual practice, Section 6 of the AFSPA has been overtaken by Section 197 of the Criminal Procedure Code amended in 1991 to provide virtual impunity to the armed forces. Impunity has been made a feature of normal criminal jurisprudence. In fact Section 197 of CrPC has made section 6 of AFSPA redundant. If the Central Government were to give permission under section 197 of the CrPC, there is no reason as to why the same permission will not be granted under Section 6 of the AFSPA.
Fortunately the courts have dealt with the issue in detail. "The Section (197 CrPC) contemplates an act which is done by a public servant in his official capacity but which, at the same time, is neither his duty nor his right as such public servant to do as in that case he would not be committing an offence at all and there would be no question of prosecuting him or obtaining sanction for such prosecution." (AIR 1955 SC 287(292,293).
There is no denying the fact that the public servants cannot claim impunity under Section 6 AFSPA and Section 197 CrPC if they misuse their official position. But who can determine that. Of course the courts. But can the courts take cognizance without prior sanction?
The answer has been provided by the apex court in Bakhshish Singh Brar v Gurmej Kaur and Ors AIR 1998 SC 257. "It is necessary to protect the public servants in discharge of their duties. But it is equally important to emphasize that rights of the citizens should be protected and no excess should be permitted. `Encounter death' by the police has become too common. In the facts of circumstances of each case prosecution of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties and whether the public servant has exceeded his limits." Bakhshish Singh Brar v Smt. Gurmej Kaur and Ors AIR 1998 SC 257.
In the light of this judgement, the courts have to apply mind and see whether the official exceeded his limits and proceed accordingly. This means, the police cannot wait for sanction as provided by Section 6 AFSPA and Section197 CrPC. The police have to file the challan without delay. Whether sanction is needed or not is to be decided by the court.
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