“His Son Is An Army Official, Not A Common Criminal", SC Stays Probe Against Major Aditya Singh On His Father’s Plea

“The petitioner’s son is an Army official, not a common criminal”, said CJI

The Supreme Court bench of Chief Justice Dipak Misra, Justice DY Chandrachud and Justice AM Khanwilkar, on Monday, hearing the writ petition by Lt Col Karamveer Singh, father of Major Aditya Singh, who was allegedly involved in Shopian firing on January 27 causing the death of three civilians, directed that no investigation may be proceeded with against the petitioner’s son until the next hearing of the matter on April 24.

Attorney General KK Venugopal relied on Section 7 of the Armed Forces (J&K) Special Powers Act of 1990, which provides that 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 the said Act.

He also cited the judgment of 5-judge bench of the apex court in Sara Mathew v Institute, Cardio Vascular Diseases [(2014) 2 SCC 62], dealing with the concept of ‘cognizance’ and ‘institution of prosecution’.

He further referred to the 2012 Supreme Court judgment in General Officer Commanding (Army) v. CBI, wherein it was observed that “so far as the criminal proceedings are concerned, “Institution” does not mean filing; presenting or initiating the proceedings, rather it means taking cognizance as per the provisions contained in the CrPC.”

In response to a question by the Chief Justice as to what the allegation in the FIR against the petitioner’s son is, the senior counsel appearing on behalf of the Jammu & Kashmir government submitted that the impugned FIR does not mention the name of Major Aditya Singh as an accused and that the column headed ‘accused’ is empty in the FIR.

Relying on the recent judgment in Extrajudicial Execution Victims [2016) 14 SCC 578], he quoted, “... and so far as criminal proceedings are concerned institution does not mean filing, presenting or initiating proceedings but it means taking cognizance of the offence as per the provisions of the CrPC and that cognizance means taking judicial notice of an offence by an application of mind to the complaint or police report and thereafter proceeding under the provisions of the CrPC”.

“Right from investigation till the filing of charge sheet, there is no institution,” he advanced.

Restraining any investigation until April 24, Chief Justice Misra remarked, “The petitioner’s son is an Army official, not a common criminal.”