[S.7 Armed Forces Special Powers Act] Sanction To Prosecute Required If Action, No Matter How Illegal, Is In Discharge Of Duty: JKL High Court
The Jammu and Kashmir and Ladakh High Court recently observed that to prosecute an Armed Forces personnel for an alleged illegal act committed in connected with the discharge of official duty, sanction to prosecute under Section 7 of the Armed Forces (Jammu and Kashmir) Special Powers Act is required, no matter how illegal the act may be.Justice Sanjay Dhar observed,"if an act is connected...
The Jammu and Kashmir and Ladakh High Court recently observed that to prosecute an Armed Forces personnel for an alleged illegal act committed in connected with the discharge of official duty, sanction to prosecute under Section 7 of the Armed Forces (Jammu and Kashmir) Special Powers Act is required, no matter how illegal the act may be.
Justice Sanjay Dhar observed,
"if an act is connected with the discharge of official duty of an accused, the said act is certainly under the colour of his duty, no matter how illegal the act may be, but if the offence is committed entirely outside the scope of the duty of police officer/official, there is no requirement of previous sanction. In short, in order to attract the provisions of Section 7 of AFSP Act, it has to be shown that there is a reasonable connection between the act and performance of duty in execution of powers under the Act."
In this case, the complainant alleged that an Army Party led by petitioner attacked his house without any rhyme and reason, ransacked the place and stolen the articles lying over there. Offences under Sections 454, 392, 379/34 Ranbir Penal Code were invoked against the petitioner. The Magistrate was not satisfied with the report of Investigating Officer who submitted that the allegations made in the complaint are absolutely false and concocted.
The Magistrate recorded preliminary statements of some more witnesses of the complainant and issued process.
This order was under challenge in the present proceedings.
After hearing the rival contentions, Justice Dhar observed that Section 4 of the AFSP Act gives special powers to the Armed Forces, whereby Armed Forces are empowered to enter and search, without warrant, any premises to make any such arrest or to recover any person believed to be wrongfully restrained or confined or to recover any arms, ammunition or explosive substances believed to be unlawfully kept in such premises and for this purpose. The Armed Forces are also authorised to use such force as may be necessary and seize such property arms, ammunition and explosive substances, the court added.
"Thus, the actions taken by a member of the Armed forces in an area which has been declared as disturbed area under section 3 of the AFSP Act, for the purpose of recovery of arms, ammunition or explosive etc. from the premises, is protected from prosecution or any other legal proceeding in terms of the Section 7 of the AFSP Act", the bench explained.
Dealing with the contention of the respondents that that ransacking the house or stealing articles there from cannot be termed as lawful duty, to be protected by the Section 7 of the AFSP Act, the court said if an act is connected with the discharge of official duty of an accused, the said act is certainly under the colour of his duty, no matter how illegal the act may be, but if the offence is committed entirely outside the scope of the duty of police officer/official, there is no requirement of previous sanction.
Elaborating further on the matter Justice Dhar said that the petitioners were certainly under a legal duty to conduct search operation in the village, in which the complainant was residing so as to track down and apprehend the militants, regarding which they had credible inputs. In doing so, the petitioners may have exceeded their powers by ransacking the articles lying in the house of the complainant and by breaking open the locks of doors, boxes and other receptacles so as to look for hidden militants, arms and ammunition, but in no case can these acts of the petitioners be said to be outside the scope of their duties, the court added.
"What the petitioners are alleged to have done is that they have exceeded their powers by committing the aforesaid alleged acts. Thus, their acts definitely come within the scope of acts purported to be done in exercise of the powers conferred by the Act and hence protected by the Section 7 of the AFSP Act", the court maintained.
Observing that the question whether the acts alleged to have been committed by the petitioners were in exercise of their duties or purported exercise of their duty or the same fell outside the scope of their duty, the court said that the same had to be determined by the Competent Authority i.e. by the Central Government and not by the trial Magistrate.
While quashing the complaint, the court kept a window for Central Government to consider the material on record collected during investigation and take a decision as to whether or not the petitioners were required to be prosecuted.
Case Title: Santosh Kumar & Ors Vs Kuldeep Singh and another.
Citation: 2023 LiveLaw (JKL) 27