General Officer Commanding vs CBI and Others

H. Imtiyaz Hussain, J.—Through the medium of present petitions u/s 561-A of the Code of Criminal Procedure, General Officer

Commanding 15 corps C/o 56 APO and accused-Army Officers challenges the order dated 30.11.2006 passed by Additional Sessiosn Judge,

Srinagar in File No. 16/Revision of 2006.

Brief facts, relevant for the disposal of this petition, are as under:

On 11th May 2006, CBI (Special Crime Branch), Chandigarh filed a charge sheet against five army officers and Ors. including petitioner Brig.

Ajay Saxena, under Sections 302, 307, 364, 201, 120B RPC and 25 Arms Act, before the Court of Chief Judicial Magistrate, Srinagar. The

incident related to the 'Pathirbal killings ""which took place in District Anantnag on 25th March, 2000, in which about five persons were killed. On

the allegations that the army has killed the civilians of the area and claimed they were the terrorist, the Government had assigned the investigation to

CBI vide Government SRO No. 301 dated 13.8.2002. The CBI on completion of the investigation found the accused were involved in

commission of the crime. The CBI have concluded as under:

Investigation has, thus, established that it was not a genuine encounter. Col. Ajay Saxena, Commanding Officer of 7 RR (now Brigadier) (A-1)

along with Major B.P. Singh (Now Lt. Col.) (A2) Major Sourabh Sharma (A-3)), Subedar Idrees Khan (A-4) and othet troops of 7 RR (whose

identity could not be established during investigation) entered into a criminal conspiracy during 21.3.2000 and 25.3.2000 to abduct some persons

and kill them in a fake encounter and project that the militants responsible for the Chittisingh Pora massacre had been killed and in furtherance of

the said criminal conspiracy, they abducted, Jumma Khan S/o Amirullah Khamn, Jumma Khan S/o Faqirullah Khan, Zahoor Ahmad Dalai, Bashir

Ahmad Bhat and Mohd. Yousuf Malik and killed them in a fake encounter in Panchalthan forests claiming that they were militants involved in the

Chittisingh Pora Massacre. After abduction, wrongful confinement and killing of the aforesaid 5 civilians, accused Col. Ajay Saxena (A-1), Maj.

B.P. Sing (A-2), Maj. Sourabh Sharma (A-3) and Subedar Idrees Khan (A-4) in furtherance of the said criminal conspiracy and in connivance

with accused Maj. (Adj.) Amit Saxena of 7 RR (A-5) prepared false 'Seizure Memo' showing recovery farms and ammunition from the 5 civilians

so skilled, gave false complaint to the police station for registration of the case against the said 5 civilians showing some of them as foreign militants

and also passed on false information to the senior officers to create an impression that the encounter was genuine and, thereby, caused

disappearance of the evidence of the commission of the aforesaid offences, knowing or having reasons to believe that the offences had been

committed, with the intention of screening the offenders from legal punishment and with that intention gave such information respecting the offence

which they knew or believe to be false.

The above facts and circumstances, thus, establish that accused Brig. Ajay Saxena IC 34544F (A-1) Ltd. Col. Brajendra Paratap Singh IC

4777731, (A-2) Major Sourabh Sharma (A-3), Subedar Idrees Khan JC 115929P (A-4) and Ors. unknown committed offences punishable u/s

120B r/w 342, 364, 302, 201 RPC and substantive offences thereof. Accused Major (Adj) Amit Saxena IC 51321A (A-5) committed offence

punishable u/s 120B r/w 201 RPC and substantive offence u/s 201 RPC with regard to the aforesaid offences.

Accordingly the charge sheet. Since the accused involved in the case are army officer, ld. Chief Judicial Magistrate informed the concerned

army authority about the presentation of the charge sheet and asked to intimate whether they wanted to try the accused in Court Martial. On

24.5.2006, when the hearing in the case was fixed, two applications were filed, one on behalf of lt. Gen. GOC 15 Corps, the competent authority

in the matter and another on behalf of the accused person praying for return of the challan to the Investigation Officer as the same has been filed

without the sanction as required under the Jammu & Kashmir Armed Forces Special Powers Act, 1990.

Learned Chief Judicial Magistrate on consideration of the matter found that veracity of the allegations made in the charge sheet and the analysis

of the evidences cannot be gone into as this would tantamount to assuming jurisdiction not vested m him. He, therefore, rejected the petitions, while

doing so he observed:

It is therefore clear that anything done or purported to be done in exercise of powers conferred under the Act has to be integrally connected with

and inseparable form the object and purpose professed to be achieved thereof. This, therefore, makes it necessary to look into the whole case and

analyze the evidence that has surfaced against the accused who are alleged to have committed heinous offences while on active service in the State

of JK in district Anantnag which exercise cannot be made at this preliminary stage of the proceedings. This Court has a limited jurisdiction in the

matter. Veracity of the allegations made in the charge sheet and the analysis of the evidences and the other material produced with the charge sheet

cannot be gone into as this would tantamount to assuming jurisdiction not vested in this Court in as much as the case has to be committed for trial

to the Court of Sessions in view of the nature of offences alleged to have been committed by the accused in case the Army competent authority

does not take over the case to try the accused in Court martial or opts that the accused should be tried by a criminal Court in terms of Section 125

of the Army Act. The claim of each side in the facts and circumstances of the case has to be tested at the trial by giving full opportunity to both the

sides to establish its case. Whether the accused have acted in exercise of the powers as conferred under the Jammu and Kashmir Armed Forces

Special Powers Act, 1990 or not shall have to be examined at the trial and whether the CBI was under obligation to obtain sanction of the central

government before launching or instituting the prosecution against the accused has also to be looked into at the same time during the course of the

trial or even at the stage of framing of charge or even at the conclusion of the trial.

Therefore, In these circumstances these questions are left to be decided before the appropriate forum i.e. either during Court marital proceedings

or in absence of exercise of the option for trying the accused under Court martial in the Court of Sessions to which the case has to be committed in

such eventuality.

For all what has been discussed above, the applications filed by the competent authority, GOC 15 Corps and by the accused, Army officers are

hereby dismissed. An opportunity once more is given to the competent authority GOC 15 Corps to intimate within a period of three weeks from

now whether it wants to take over the case for trial of the accused in Court martial. The case shall now come up for further hearing on 15.9.2006.

Aggrieved of the order of the Chief Judicial Magistrate, the petitioners filed a revision against it which was heard and disposed of by the Ld.

Additional Sessions Judge, by order dated 30.11.2006, which is impugned in the present petition. The Addl; Sessions Judge agreed with the

observations made by the Chief Judicial Magistrate and dismissed the revision petition by holding as under:

Admittedly the offences against the accused in the charge sheet are exclusively triable by Court of Sessions. The Court of CJM has to commit the

case either to the Court of Sessions or if the competent authority exercise the option, to Court Martial. At this preliminary stage having limited

jurisdiction obviously the CJM, Srinagar cannot analyze the evidence and other material produced with the charge sheet for considering the fact, as

to whether the official have committed the act in good faith in discharge of their official duties or otherwise the duty of such official was illegal un-

lawful or in the nature of the offence.

Considering thus the order impugned, the learned CJM, Srinagar has rightly dismissed the application as the question of sanction can be looked

into at any stage even at framing of the charge, during the course of trial or even at the conclusion of the trial. The question has been left open by

the learned CJM, Srinagar to be decided in the facts and circumstances of the case.

Viewed that, the order impugned does not suffer from any illegality or irregularity and need no interference. The revision petitions are dismissed

accordingly. The counsels for the petitioners are directed to appear before the Court of CJM, Srinagar on 20.12.2006 and the learned CJM

Srinagar, is directed to afford one more opportunity to the competent authority, GOC 15 Corps for exercise of option.

Petitioners are aggrieved of the said order of the Ld. Addl; Sessions Judge, and have challenged it through the medium of present petition. They

pray for setting aside the same as well as the order of the ld. Chief Judicial Magistrate dated 24.8.2006, with the prayer to direct the ld. Magistrate

to return the challan dated 9.5.2006 to the CBI for want of prior sanction.

Heard. I have considered the matter. The main plea raised by the petitioners in the present petitions and Mr. Sharma. ld. Counsel for G.O.C.

during arguments, is that the charge sheet against the accused has been filed without a sanction. It is alleged that the accused being army officers,

no prosecution against them can lie in view of the provisions of the Armed Forces (Jammu & Kashmir) Special Power Act, 1990 (for short the

Act).

Mr. Sharma has in support of the pleas taken relied on B. Saha and Others Vs. M.S. Kochar, (1845-46-paras 18-21), State v. B.L. Verma

1997 SCC 1037 Abdul Wahab Ansari Vs. State of Bihar Another, , AIR 1939 43 (Federal Court) , Asok Sahu v. Gokul Saikia 1990 SCC

(Supp) 41 and Sankaran Moitra Vs. Sadhna Das and Another, .

Section 7 of the Act provides as under:

Protection of persons acting in good faith under this Act._ No prosecution, suit or other legal proceeding 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.

Whether an Army Officer should be protected u/s 7 depends upon the fact whether the alleged act was committed while acting or purporting

to act in the discharge of his official duty. The question is therefore not a pure question of law but a mixed question of fact and law and has to be

decided on consideration of the relevant facts which emerge from the material collected during investigation. It cannot be short circuited by

summarily throwing out the challan.

It is argued by the ld. Counsel for the petitioner that Section 7 of the Act puts a complete bar to the very institution of the case. No doubt the

section provides that no prosecution can lie, except with the previous sanction, against any person, it does not mean that the Court should refuse to

entertain a case without affording the parties concerned (i.e. the prosecution and the defence) opportunity to present their respective case. The

section is not intended to put a wall round an army officers so as to protect them from prosecution from criminal offences committed by them. The

object of the section is to enable the army officers to perform their duties fearlessly by protecting them from vexatious, malafide or false

prosecutions for acts done in the performance of their duties. What the Court has therefore, to see is whether it can proceed with the case without

previous sanction under the section. For this purpose the Court has to find out if the alleged act is committed by the accused while acting or

purporting to act in the discharge of his official duties. Thus the Court has to give due consideration to the facts of the case and material on file.

It is well settled law now that the scope of the enquiry u/s 205D of the Code of Criminal Procedure is very limited confining only to matters in

the section. Enquiry under the section shall confine only with regard to production or appearance of the accused, furnishing documents to the

accused and committing the case to the Court of Sessions. The Magistrate has got no powers to shift and weigh the evidence recorded by the

investigating agency to see whether the act alleged was done by the accused while acting or purporting to act in the discharge of his official. This

falls exclusively within the domain of the trial court.

In the circumstance I find a committing magistrate is not competent to look into all these aspects and the Chief Judicial Magistrate has, in the

present case, rightly refused to enter upon this area and has wisely left it to the trial Court to decide the issue.

For the reasons I find no ground to interfere with the orders impugned in the present case and no ground to impugned the inherent powers of

the Court u/s 561-A Cr.P.C.

Petition dismissed.