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| `Sanction is not needed for filing charge sheet’ | | | Early Times Report
Jammu, Nov 6: Can men in uniform be prosecuted inspite of Armed Forces Special Powers Act (AFSPA)? The legal experts say yes. “The proceedings in such cases begin with filing of challans in competent courts of law. Then the courts have to see whether the defense available under AFSPA or under the ordinary procedural law is available to the accused or not.”
The legal experts have exploded the myth that no charge sheets can be filed against erring men in uniform. “It is not true. After the charge sheet is filed, the court has to see whether sanction under AFSPA or ordinary procedural law is needed or not”, said Parvez Imroz, a senior lawyer.
According to Imroz, the state government tries to escape responsibility by accusing the federal government of withholding sanction to prosecution. “Sanction is not needed for filing the charge sheet”, he said.
AFSPA, by the way, 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.
The courts in India have dealt with the issue in detail. “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 Smt. 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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