NEW DELHI: The Supreme Court today agreed to examine a plea of the Jammu and Kashmir government that the police does not require prior sanction before lodging an FIR against army personnel, as was done in the January 27 Shopian firing case involving a senior army officer.
A bench headed by Chief Justice Dipak Misra, however, did not agree to the J and K government's contention that either all states, or states like Assam and Mizoram where Armed Forces (Special Powers) Act (AFSPA) is in force, be made parties, since the police's powers to register FIRs against army personnel involved in cognisable offences, would be directly affected.
"No, no. Why should we make all of them (states) as parties," the bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, said.
The fresh plea of the state government assumes significance as the apex court had on March 5 halted its probe into the Shopian firing incident, involving a senior army officer, Major Aditya Kumar, in which three civilians were killed.
Attorney General K K Venugopal, representing the Centre, said there was "a total bar" on such legal proceedings against army personnel under the AFSPA and such FIRs can be lodged in exceptional circumstances with the prior sanction only from the Centre.
Senior advocate Shekhar Naphade and lawyer Shoeb Alam, appearing for the state government, referred to two apex court judgements and said there was no bar on the police from registering an FIR and investigating a case against Army personnel, if a cognisable offence was brought to light.
The AFSPA provision does not put any bar in this regard, he added.
"The police has all the powers when a complaint discloses cognisable offences. The constitution bench judgement in the Lalita Kumari case says so. The state government is bound by this judgement," Naphade said, adding that the stand of the Centre that there can be no FIR without the Centre's prior sanction was legally untenable.
"How can the investigation be stayed in a case like this," the senior lawyer said.
The FIR in the present case was stayed by the top court, Venugopal said, adding that section 7 of the JKAFSPA clearly postulated that prior sanction was needed.
The civilian police cannot proceed with the investigation in such cases, he contended.
"If the issue concerns the Lalita Kumari judgement, then we will deal with that. This is a pure question of law," the bench said and fixed the plea of the state government for hearing on July 30.
The bench said it would also deal with the maintainability of the plea of the Jammu and Kashmir.
The state government, in its plea, said it has been alleged that once an area has been declared as disturbed under the Armed Forces (Jammu and Kashmir) Special Powers Act (JKAFSPA), police was not justified in registering an FIR against army personnel, even when a cognisable offence was disclosed, in the absence of a sanction from the competent authority.
"The action of the Police to register an FIR in a cognizable offence, without requiring a prior sanction, was absolutely legal and justified and was fully supported by the aforementioned Judgment and inter-alia also by the constitution bench judgment of this court in the matter of Lalita Kumari Vs. Govt of U.P," the plea said.
The apex court has been hearing two petitions -- one filed by the father of Major Aditya and a PIL filed by lawyer Vineet Dhanda.
It had earlier stayed further investigation in the Shopian firing incident while observing that Major Aditya "is an army officer and not an ordinary criminal".
Three civilians were killed when Army personnel had fired at a stone-pelting mob in Ganovpora village of Shopian on January 27 this year, prompting the Chief Minister to order an inquiry into the incident.
Section 7 of JKAFSPA says "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".
Naphade had said that Major Aditya did not even figure among the names of the accused in the FIR lodged on the allegation that army personnel had open fire in retaliation in which three persons were killed.