Bar & Bench ()images.assettype.com/barandbench/import/2018/02/... · 336 of Ranbir Penal Code ii). Sections 1, 149, 151, 152 & 197 of the Code of Criminal Procedure Svt, 1989 iii)

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (Crl.) No. OF 2018

(Under Article 32 of the Constitution of India)

IN THE MATTER OF:

Lt Col Karamveer Singh ... Petitioner

VERSUS

State of Jammu & Kashmir & Ors ... Respondents

WITH

[Crl. M.P. No. OF 2018] APPLICATION FOR SEEKING PERMISSION TO FILE WRIT PETITION BY THE PETITIONER ON BEHALF OF HIS SON

AND

[Crl. M.P. No. OF 2018]

APPLICATION FOR EX-PARTE AD-INTERIM STAY

AND

[Crl. M.P. No. OF 2018] APPLICATION FOR SEEKING EXEMPTION FROM FILING

OFFICIAL TRANSLATION

PAPER: BOOK

[FOR INDEX :: KINDLY SEE INSIDE]

ADVOCATE FOR THE PETITIONER: MS AISHWARYA BHATI

Bar & Bench (www.barandbench.com)

INDEX

S.No. Particulars of Document Page I of part to

which it belongs

Remarks

Part 1

(Contents

of Paper

Book)

Part II

(Contents

of file

alone)

(i) (ii) (iii) (iv) (v)

Court Fees

1) Listing Proforma A-A1 A-A1

2) Cover Page of Paper Book A2

3) Index of Record of Proceedings A-3

4) Defect List A-4

5) Note Sheet NS1 to

6) Synopsis & List of Dates

7) Writ Petition with affidavit

8) APPENDIX: i). Sections 21, 52, 302, 307 &

336 of Ranbir Penal Code

ii). Sections 1, 149, 151, 152 & 197 of the Code of Criminal

Procedure Svt, 1989

iii). Sections 2(b), 3, 4 & 7 of the Armed Forces (Jammu &

Kashmir) Special Powers Act,

1990

iv). Article 310 of the Constitution of India

v). Section 5 & 45 of the Code of Criminal Procedure, 1973

vi). Section 1, 2, 18 & 70 of the Army Act, 1950

vii). Sections 2(k) & 15 of the Unlawful Activities

(Prevention) Act, 1967


9) ANNEXURE P-1: Xerox copy alongwith true

translated copy of FIR No.26/2018

dated 27.01.2018, P.S. Shopian

under sections 336, 307, 302 of

Ranbir Penal Code

10) ANNEXURE P-2: True typed copy of the News

Article dated 28.01.2018 published

in Greater Kashmir


Article dated 30.01.2018, titled as

“Army not to set up any inquiry

against Major Aditya” published in

Greater Jammu



“Major was not at Shopian firing

spot: Army sources on FIR”

published in rediff.com



“Army gives its version of Shopian

firing to J&K Police, files Counter

FIR” published in The Wire



“Army files its version of Shopian

firing that killed 3 civilians”

published in Hindustan Times

15) ANNEXURE P-7: True typed copy of the News Article

dated 06.02.2017, titled as “DGP

downplayed FIR against Army to

please political executives”

published in State Times

16) Application for seeking permission to file Writ Petition by the

Petitioner on behalf of his son


17) Application for ex-parte ad-interim stay

18) Application for exemption from filing official translation

19) Filing Memo

20) Vakalatnama with memo of appearance


SYNOPSIS

The present Writ Petition (alongwith Application for permission

to file) is filed by a decorated Army Officer, on behalf of his son,

for protecting the morale of the soldiers of Indian Army, who are

facing all odds in performance of their bonafide duties and

laying their lives in the line of duty, to uphold the dignity of the

Indian Flag.

The Petitioner is constrained to file the present Writ Petition for

quashing of the FIR, directly before this Hon‘ble Court in view of

the extremely hostile situation on the ground, whereby an FIR

has been registered by the local police against the son of the

Petitioner, who is a service Army Officer and was performing his

bonafide duties as directed by the Union of India. The manner

in which the lodging of the FIR has been portrayed and

projected by the political leadership and administrative higher-

ups of the State, reflects the extremely hostile atmosphere in

the State. In these circumstances, the Petitioner is left with no

other viable option but to approach this Hon‘ble Court under

Article 32 of the Constitution of India for protection of valuable

Fundamental Rights of his son and himself, enshrined under

Article 14 & 21 of the Constitution of India.


The Petitioner is the father of Major Aditya Kumar of 10

Garhwal Rifles, who was wrongly named in FIR No.26/2018

dated 27.01.2018, P.S. Shopian under sections 336, 307, 302

of Ranbir Penal Code. The incident reported in the said FIR

relates to an Army convoy on bonafide military duty in an area

under the AFSPA which was isolated by an unruly and

deranged mob who were pelting the said vehicles with stones

causing damage to the military vehicles which are the property

of the Government of India as well as placing the lives of the

military personnel and military property within the vehicles in

grave peril. Army authorities were under orders from their

superiors who in turn receive orders from the Government of

India as by law established. The military duties being carried

out were routine in nature and were being carried out in

accordance with the law of the land. Yet, they were made

targets of the unlawful assembly's rage and lack of basic

human morality. The unruly mob was requested to disperse and

not to obstruct military persons in performance of their duties

and not to damage government property. When the situation

had reached the extent beyond control, a warning was issued

to the unlawful assembly to disperse in strict compliance with

the established terms of engagement as are employed in such

situations.


Pursuant to the said warning, the unlawful assembly refused to

disperse and increased their unlawful activities of stoning the

vehicles. The unruly behaviour of the unlawful assembly

reached its peak when they got hold of a Junior Commissioned

Officer and was in the process of lynching him to death. It was

at this moment that warning shots were fired at the unlawful

assembly which as per the said terms of engagement is the last

resort to be taken before opening fire. The unlawful assembly

again refused to spare the life of the Junior Commissioned

Officer and, therefore, fire was lawfully opened on the unlawful

assembly with an aim to disperse the violent mob and protect

Govt Servants and property. It may please be recollected that

such violent mobs in Kashmir area have frequently obstructed

bonafide Govt duties and even resorted to lynching and killing

of Govt Officials on duty. The brutal and senseless mob

lynching of JKP DSP, Sh Mohd Ayub Pandith on 23 Jun 2017 in

Srinagar is a sad but true reminder of the nature of uncontrolled

mob in these areas.

Further to this incident, an FIR No.26/2018 dated 27.01.2018,

P.S. Shopian under sections 336, 307, 302 of Ranbir Penal

Code was registered. The said police authorities in an arbitrary

exercise of power named Petitioner‘s son as an accused


therein knowing fully well that he was not present at the place

of the incident and that the personnel so acting were doing

lawful military duty peacefully and who, by violent actions of the

mob, were forced to take lawful actions for protection of Govt

property without any excessive use of force.

Preamble of Indian Constitution has, without any discrimination,

confirmed the security of living creature as very basic

requirement of society. It is the obligation of the State to ensure

the basic security to its citizen and non-citizen living in territory

of State.

Lodging of the FIR naming the son of the Petitioner, who was

leading the Army Convoy, which was on movement under

directions from Union of India and were discharging their

bonafide duties, without any FIR being lodged against the

scores of specific people, who were not only lynching stones on

the Armed Convoy but were even trying to lynch some of the

soldiers to stop them from discharge of their duties and

indulging in terrorist and anti-national activities, exposes the

extremely sinister design, by which the entire effort is to

somehow attack and breakdown the morale of the forces, who

are in anyways operating in extremely hostile and hard

circumstances.


It is respectfully submitted that different and diverse versions of

the incident, as published is various newspapers/magazines,

show the volatility of the situation and make it writ large that

Justice will not be meted out to the Petitioner and his son,

which will not only be in grave violation of valuable fundamental

rights guaranteed under Articles 14 & 21 of the Constitution of

India but will also have a numbing effect on the morale of the

extremely courageous and professional Armed Forces of the

Nation, having the potential of jeopardizing the security,

sovereignty and integrity of India.

LIST OF DATES

27.01.2018 The Petitioner is the father of Major Aditya

Kumar of 10 Garhwal Rifles, who was wrongly

named in FIR No.26/2018 dated 27.01.2018,

P.S. Shopian under sections 336, 307, 302 of

Ranbir Penal Code. The incident reported in

the said FIR relates to an Army convoy on

bonafide military duty in an area under the

AFSPA which was isolated by an unruly and

deranged mob who were pelting the said

vehicles with stones causing damage to the

military vehicles which are the property of the


Government of India as well as placing the

lives of the military personnel and military

property within the vehicles in grave peril.

Army authorities were under orders from their

superiors who in turn receive orders from the

Government of India as by law established.

The military duties being carried out were

routine in nature and were being carried out in

accordance with the law of the land. Yet, they

were made targets of the unlawful assembly's

rage and lack of basic human morality. The

unruly mob was requested to disperse and not

to obstruct military persons in performance of

their duties and not to damage government

property. When the situation had reached the

extent beyond control, a warning was issued

to the unlawful assembly to disperse in strict

compliance with the established terms of

engagement as are employed in such

situations.

Pursuant to the said warning, the unlawful

assembly refused to disperse and increased


their unlawful activities of stoning the vehicles.

The unruly behaviour of the unlawful

assembly reached its peak when they got hold

of a Junior Commissioned Officer and was in

the process of lynching him to death. It was at

this moment that warning shots were fired at

the unlawful assembly which as per the said

terms of engagement is the last resort to be

taken before opening fire. The unlawful

assembly again refused to spare the life of the

Junior Commissioned Officer and, therefore,

fire was lawfully opened on the unlawful

assembly with an aim to disperse the violent

mob and protect Govt Servants and property.

It may please be recollected that such violent

mobs in Kashmir area have frequently

obstructed bonafide Govt duties and even

resorted to lynching and killing of Govt

Officials on duty. The brutal and senseless

mob lynching of JKP DSP, Sh Mohd Ayub

Pandith on 23 Jun 2017 in Srinagar is a sad

but true reminder of the nature of uncontrolled

mob in these areas.


Further to this incident, an FIR No.26/2018

dated 27.01.2018, P.S. Shopian under

sections 336, 307, 302 of Ranbir Penal Code

was registered. The said police authorities in

an arbitrary exercise of power named

Petitioner‘s son as an accused therein

knowing fully well that he was not present at

the place of the incident and that the

personnel so acting were doing lawful military

duty peacefully and who, by violent actions of

the mob, were forced to take lawful actions for

protection of Govt property without any

excessive use of force.

It is respectfully submitted that different and

diverse versions of the incident, as published

is various newspapers/magazines, show the

volatility of the situation and make it writ large

that Justice will not be meted out to the

Petitioner and his son, which will not only be

in grave violation of valuable fundamental

rights guaranteed under Articles 14 & 21 of

the Constitution of India but will also have a


numbing effect on the morale of the extremely

courageous and professional Armed Forces of

the Nation, having the potential of jeopardizing

the security, sovereignty and integrity of India.

.02.2018 Hence this Writ Petition before this Hon‘ble

Court.


IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION NO. OF 2018

(Under Article 32 of the Constitution of India)

IN THE MATTER OF:

Lt Col Karamveer Singh S/o Shyam Singh R/o HQ 261, Artillery Brigade, C/o 56 APO … Petitioner

VERSUS

1. State of Jammu & Kashmir Through Secretary, Home Department Civil Secretariat, Jammu/Srinagar 2. Director General of Police, State of Jammu and Kashmir, Police Headquarter Airport Road, Peer Bagh, Srinagar, Jammu and Kashmir 3. Union of India, Through Secretary, Ministry of Home Affairs, Government of India, North Block, Cabinet Secretariat, Raisina Hill, New Delhi … Respondents

WRIT PETITION UNDER ARTICLE 32 OF THE

CONSTITUTION OF INDIA

TO

THE HON‘BLE THE CHIEF JUSTICE OF INDIA AND HIS

HON‘BLE COMPANION JUSTICES OF THE SUPREME

COURT OF INDIA

THE HUMBLE PETITION OF THE

PETITIONER ABOVE NAMED:


MOST RESPECTFULLY SHOWETH:

1. By way of this Writ Petition under Article 32 of the

Constitution of India, the Petitioner prays for quashing of

the FIR No.26/2018 dated 27.01.2018, P.S. Shopian

under sections 336, 307, 302 of Ranbir Penal Code

registered by the local police against the son of the

Petitioner, who is a service Army Officer and was

performing his bonafide duties as directed by the Union of

India.

2. The present Writ Petition (alongwith Application for

permission to file) is filed by a decorated Army Officer, on

behalf of his son, for protecting the morale of the soldiers

of Indian Army, who are facing all odds in performance of

their bonafide duties and laying their lives in the line of

duty, to uphold the dignity of the Indian Flag.

3. The Petitioner is constrained to file the present Writ

Petition for quashing of the FIR, directly before this

Hon‘ble Court in view of the extremely hostile situation on

the ground, whereby an FIR has been registered by the

local police against the son of the Petitioner, who is a

service Army Officer and was performing his bonafide

duties as directed by the Union of India. The manner in


which the lodging of the FIR has been portrayed and

projected by the political leadership and administrative

higher-ups of the State, reflects the extremely hostile

atmosphere in the State. In these circumstances, the

Petitioner is left with no other viable option but to

approach this Hon‘ble Court under Article 32 of the

Constitution of India for protection of valuable

Fundamental Rights of his son and himself.

4. The Petitioner is the father of Major Aditya Kumar of 10

Garhwal Rifles, who was wrongly named in FIR

No.26/2018 dated 27.01.2018, P.S. Shopian under

sections 336, 307, 302 of Ranbir Penal Code. The

incident reported in the said FIR relates to an Army

convoy on bonafide military duty in an area under the

AFSPA which was isolated by an unruly and deranged

mob who were pelting the said vehicles with stones

causing damage to the military vehicles which are the

property of the Government of India as well as placing the

lives of the military personnel and military property within

the vehicles in grave peril. Xerox copy alongwith true

translated copy of FIR No.26/2018 dated 27.01.2018, P.S.

Shopian under sections 336, 307, 302 of Ranbir Penal


Code is annexed herewith and marked as ANNEXURE P-

1 [Pages

5. Army authorities were under orders from their superiors

who in turn receive orders from the Government of India

as by law established. The military duties being carried

out were routine in nature and were being carried out in

accordance with the law of the land. Yet, they were made

targets of the unlawful assembly's rage and lack of basic

human morality. The unruly mob was requested to

disperse and not to obstruct military persons in

performance of their duties and not to damage

government property. When the situation had reached the

extent beyond control, a warning was issued to the

unlawful assembly to disperse in strict compliance with

the established terms of engagement as are employed in

such situations.

6. Pursuant to the said warning, the unlawful assembly

refused to disperse and increased their unlawful activities

of stoning the vehicles. The unruly behaviour of the

unlawful assembly reached its peak when they got hold of

a Junior Commissioned Officer and was in the process of

lynching him to death. It was at this moment that warning


shots were fired at the unlawful assembly which as per

the said terms of engagement is the last resort to be

taken before opening fire. The unlawful assembly again

refused to spare the life of the Junior Commissioned

Officer and, therefore, fire was lawfully opened on the

unlawful assembly with an aim to disperse the violent

mob and protect Govt Servants and property. It may

please be recollected that such violent mobs in Kashmir

area have frequently obstructed bonafide Govt duties and

even resorted to lynching and killing of Govt Officials on

duty. The brutal and senseless mob lynching of JKP DSP,

Sh Mohd Ayub Pandith on 23 Jun 2017 in Srinagar is a

sad but true reminder of the nature of uncontrolled mob in

these areas.

7. Further to this incident, an FIR No.26/2018 dated

27.01.2018, P.S. Shopian under sections 336, 307, 302 of

Ranbir Penal Code was registered. The said police

authorities in an arbitrary exercise of power named

Petitioner‘s son as an accused therein knowing fully well

that he was not present at the place of the incident and

that the personnel so acting were doing lawful military

duty peacefully and who, by violent actions of the mob,


were forced to take lawful actions for protection of Govt

property without any excessive use of force.

8. It is respectfully submitted that different and diverse

versions of the incident, as published is various

newspapers/magazines, show the volatility of the situation

and make it writ large that Justice will not be meted out to

the Petitioner and his son, which will not only be in grave

violation of valuable fundamental rights guaranteed under

Articles 14 & 21 of the Constitution of India but will also

have a numbing effect on the morale of the extremely

courageous and professional Armed Forces of the Nation,

having the potential of jeopardizing the security,

sovereignty and integrity of India.

i). True typed copy of the News Article dated

28.01.2018 published in Greater Kashmir is

annexed herewith and marked as ANNEXURE P-2

[Pages

ii). True typed copy of the News Article dated

30.01.2018, titled as ―Army not to set up any inquiry

against Major Aditya‖ published in Greater Jammu

is annexed herewith and marked as ANNEXURE P-

3 [Pages


iii). True typed copy of the News Article dated

30.01.2018, titled as ―Major was not at Shopian

firing spot: Army sources on FIR‖ published in

rediff.com is annexed herewith and marked as

ANNEXURE P-4 [Pages

iv). True typed copy of the News Article dated

31.01.2018, titled as ―Army gives its version of

Shopian firing to J&K Police, files Counter FIR‖

published in The Wire is annexed herewith and

marked as ANNEXURE P-5 [Pages

v). True typed copy of the News Article dated

01.02.2017, titled as ―Army files its version of

Shopian firing that killed 3 civilians‖ published in

Hindustan Times is annexed herewith and marked

as ANNEXURE P-6 [Pages

vi). True typed copy of the News Article dated

06.02.2017, titled as ―DGP downplayed FIR against

Army to please political executives‖ published in

State Times is annexed herewith and marked as

ANNEXURE P-7 [Pages


9. It is most humbly submitted that preamble of Indian

constitution has, without any discrimination, confirmed the

security of living creature as very basic requirement of

society. It is the obligation of the State to ensure the basic

security to its citizen and non-citizen living in territory of

State. The said obligation of state can be seen from

Article 38 of Indian Constitution which reads as follows:

“Article 38: Sate to secure a social order for the

promotion of welfare of the people -

(1) The State shall strive to promote the welfare

of the people by securing and protecting as

effectively as it may a social order in which justice,

social, economic and political, shall inform all the

institutions of the national life.

(2) The State shall, in particular, strive to

minimise the inequalities in income, and endeavour

to eliminate inequalities in status, facilities and

opportunities, not only amongst individuals but also

amongst groups of people residing in different areas

or engaged in different vocations.”

It is further added that State, while achieving the goals set

out under said Article, delegates the authority to various

organisation for fulfilling and performing the duty in a

manner authorised by government. In this respect, role of

the all forces which are created, constituted and


composed for the said purpose becomes very crucial.

There have been numerous situations when requirements

of trained soldier or specific situations have been felt at

various places. In other words, it will be right to regard

these statutory forces as one of the tools of government

to maintain the public order and sense of security

amongst its subjects. It will be right to contend that

anything done by the person who is constituting even a

smallest unit of government represents that government

in given capacity and thus, actions or decisions taken for

the performance of task will not be attributed towards

individual or said to be his personal act.

10. In the present matter, since involved personnel were

moving from one place to another place under the

authority of government or by the order of government,

they will be said to be performing the bonafide duty on

behalf of the government and the said move can be

categorised as a small action of the official discharge of

their duty. It cannot be said that while in the line of march

or in the process of joining, they were not under the

obligation of duty and thus, any action to complete his

voyage or journey be said to be well within the ambit of

bonafide duty of individual. In addition to this, any


legitimate method of removing any obstacle or

impediment for completing the authorised task can be

defined as a part of charter of duty for which one should

be allowed to enjoy the same immunity which is enjoyed

by others while doing other official tasks. Furthermore, it

is reiterated that Petitioner‘s son, and other military

personnel in the convoy, were operating in an area

covered under the provisions of AFSPA. Thus, applying

this principle, it is contended that the individuals were

discharging the bonafide official duty and thus, should be

given absolute immunity against the act done for the said

purpose.

11. It is put forward before this Hon'ble Court that the

Petitioner is aggrieved that his son was named in the said

FIR, when in fact he was nowhere connected with the

incident. Notwithstanding the above fact, due importance

should be given to the fact that while performing the task

of handling the situation detrimental to social peace and

security, commander has to analyse the requirement of

force, and thus, based on the said fact, necessary degree

of force is accordingly, employed for the situation. It is

respectfully submitted that the Petitioner has been serving

in Indian Army for more than 20 years and during his


service, he has served in the State of J&K for more than

six years in difficulty counter insurgency environment. The

Petitioner is proud to have participated in Kargil War,

1999 and for his outstanding contribution, he was

awarded by Northern Army Commander GOC-in-C

Commendation. The Petitioner has also rendered his

services in United Nations Peace keeping operations in

the year 2000. Having served for so long, framing of his

son is extremely painful to him personally, as a serving

soldier. It is, therefore, very clear that where one small

team of soldiers is assigned the responsibility to handle

disturbed and unfavourable situations, power to take

prudent decision and getting them executed by trained

soldier absolutely devolves upon local commander

commanding the team. In this situation, it is his sense of

judgment which plays an important role and accordingly,

various legitimate methods of resolving the dispute or

completing the task is carried out. His wisdom and sense

of making balance between rights of innocent and right

action on delinquents must be measured considering the

situations of scenario and thus, application of free mind

and absence of duress becomes subject of vital

importance. However, individual's prudence is subject to


requirement of fact which is a substantial issue in this

matter but restraining the same by imposing unwarranted

boundaries will produce extremely unseen restrictions in

exercising the powers of commander. It will not only

compel them to put the life of his soldier at stake but also

lower down the confidence and decisive ability to control

the situation. This fact has to be understood in light of the

fact that there was clear absence of any malafide

intention or recklessness on the part of trained soldier and

the same can be observed from the fact that had the

intention of the personnel been otherwise, then none of

the persons so fired upon would have lived to tell the tale.

Since, the intention was to save the Army personnel and

property, the fire was inflicted only to impair and provide a

safe escape from a savage and violent mob engaged in

terrorist activity.

12. It is most humbly submitted that the Army Act 1950 is a

special act governing the Person subject to the said Act

for the maintenance of Discipline of Armed Forces.

Section 1 of Army Act when read with Section 1 of The

Code of Criminal Procedure St 1989, it is amply clear that

the provisions of Army Act 1950 has an overriding effect

over the provisions of Code of Criminal Procedure in


respect of persons subject to Army Act. Such subjection

to the Army Act is given under Section 2 of the Army Act

Section 1950. Therefore, it is amply clear that whenever,

there is a conflict between provisions of Army Act and

Code of Criminal Procedure St 1989 with respect to the

person subject to Army Act 1950, the provisions of Army

Act 1950 shall prevail. The Courts have held that all

offences, whether under the Penal Code or under any

other law, have to be invariably, inquired into, tried and

dealt with according to the provisions of the Criminal

Procedure Code. This rule is subject to the qualification

that in respect of offences under other laws, that is say,

under laws other than the Penal Code, it there be an

enactment regulating the manner or place of

investigation, inquiring into, trying or otherwise dealing

with such offences, such a special enactment will prevail

over the code of criminal procedure, unless there is a

specific provision to the contrary. (Ursola Municipality v.

REV. Relekar AIR 1970 Bom. 333 (DB); S.P.

Thiruvengadasami Naidu vs Municipal Health Office; In re

Guruviah Naidu & CO. AIR 1954 Mad. 833(DB)). Further,

Section 1 of the CrPC, makes the provision of the Code,

subject to the provisions of any special law and since the


Army Act is a special law, it is the Code which is subject

to the provisions of the Army Act. The phrase, subject to

subjects the provisions of one statute to the provisions of

another. Where there is no clash, the phrase does

nothing. If there is collision, the phrase shows what is to

prevail. The words "subject to the provisions of the special

law" in Section 1 would mean that if there is an

irreconcilable conflict between the provisions of the CrPC

and the provisions of the Special Law, the later shall

prevail to the extent of the inconsistency. A provision of a

Special law, by its express terms, may come into conflict

with a provision of the CrPC wholly or in part; the said

provision in a special law may also be necessary

implication, come into direct conflict with the provisions of

the CrPC. Whatever it may be, once inconsistency is spelt

out, the provisions of the Special Law shall prevail as has

been held by this Hon'ble Court in South India

Corporation (P) Ltd. V. Secretary. Board of Revenue,

Trivandrum, AIR 1964 SC 207. As decided by this Hon‘ble

Court in the case of Major EG Barsay V. State of Bombay,

AIR 1961 SC 1762 that the provisions of the Army Act

apply to offences committed by Army personnel described

in Section 2 of the Act; it creates new offences with


specified punishments, imposes higher punishments to

pre-existing offences, and enables civil offences by fiction

to be created as offences under the Act. Further, in Ajmer

Singh v Union of India AIR 1987 SC 1646, this Hon‘ble

Court has held that the relevant chapters of the Army Act

embody a self contained comprehensive code specifying

the various offences under the Act and prescribing the

procedure for detention and custody of offenders,

investigation and trial of offenders by Court Martial, the

punishment to be awarded for various offences,

confirmation and revision of sentences imposed by Court

Martial etc. The Army Act is, therefore, a special law

conferring special jurisdiction and powers on Court Martial

and prescribes a special form of procedure for the trial of

offences under the Army Act. The effect of Section 5 of

CrPC is to render the provisions of CrPC inapplicable in

respect of all matters covered by such special law.

13. Thus having established that the Army Act is a special law

and, therefore, would invariably prevail over all others, let

us now examine the provisions of law as applicable to the

Armed Forces serving in the State of Jammu and

Kashmir:-


Section 70 Army Act, 1950:

―Civil offence not triable by court-martial:

A person subject to this Act who commits an offence

of murder against a person not subject to

military, naval or air force law, or of culpable

homicide not amounting to murder against such a

person or of rape in relation to such a person, shall

not be deemed to be guilty of an offence against this

Act and shall not be tried by a court-martial, unless

he commits any of the said offences-

(a) while on active service, or

(b) at any place outside India, or

(c) at a frontier post specified by the Central

Government by notification in this behalf."

14. In the instant case, the army personnel concerned was

accused for an offence triable under the Army Act that is

committing culpable homicide amounting to murder of a

person not subject to military, naval or air force law while

on active service. Therefore, the offence that is alleged to

have been committed is not a civil offence but is clearly,

an offence triable under the Army Act. It is, therefore, very

alarming and incomprehensible as to how the name of

Petitioner‘s son or for that matter the name of any serving

personnel can be so expressly cited in First Information

Report recording an incident in which the Army as an

instrument of the Central Government was lawfully


conducting itself. Does this act of the police authorities

symbolise their loss of faith in the legitimacy of the

activities carried out by the Armed Forces? Have they

forgotten that the orders so received by the Army stem

from the same source from which they receive theirs? (i.e.

the Constitution of India).

15. In furtherance to above, it is also submitted before

Hon'ble Court that legislature has enacted various

provisions under general procedural codes which lay

down the necessary provisions for investigating and

apprehending the accused or person against whom

credible information of commission of offense is received.

In this respect it is submitted that Chapter XIV of the

Code of Criminal Procedure, Svt. contains all the

provisions where information about commission on

offense is communicated to the local police authority who

in turn will take appropriate action against the person

involved or suspected to be involved in the commission

on offense. In this respect, it is respectfully mentioned

that police authority has shown extremely biasness while

registering the FIR against the person specific and

absolutely ignored the requirement of carrying out basic

investigation of the complaint. Additionally, no action


against all those persons who were forming the part of

unruly mob was taken by the authority and thus,

conducted on spot adjudication of matter without taking

any cognisance against the action of mob. Hence this

petition against the biased approach and irresponsible

action of police authority towards military forces.

16. In the case at hand, as already brought out above, the

Army personnel upon being attacked by the unlawful

assembly retaliated for the protection of themselves as

well as property of the Government of India (the military

vehicles) which resulted in the death of two civilians. As

per Armed Forces (Jammu and Kashmir) Special Powers

Act 1990, the said personnel are empowered under the

said enactment to use appropriate force for the purpose

of dispersal of unruly mobs in disturbed areas and are in

turn protected from prosecution under Section 6 for acting

in Good Faith. However, important point which requires

consideration is whether the armed forces can use given

power under the act only in the places which have been

declared to be "Disturbed Place" as defined under

Section 03. In order to find logical answer of the question,

said provision of the Act is reproduced and examined as

below:-


Armed Forces (Jammu & Kashmir) Special Powers

Act, 1990:

Section 2 (b). "disturbed area" means "an area

which is for the time being declared by notification

under section 3 to be a disturbed area by the

Central Government or the Governor of the State by

notification in the official Gazette."

Section 3. Power to declare areas to be disturbed

areas:- If, in relation to the State of Jammu and

Kashmir, the Governor of the State or the Central

Government, is of the opinion that the whole or any

part of the State is in such a disturbed and

dangerous condition that the use of armed forces in

aid of civil power is necessary to prevent –

(a) activities involving terrorist acts directed

towards overawing the Government as by law

established or striking terror in the people or

any section of the people, of alienating any

section of the people or adversely affecting

the harmony among different sections of the

people;

(b) activities directed towards disclaiming,

questioning or disrupting the sovereign and

territorial integrity of India or bringing about

cession of a part of the territory of India or

secession of a part of the territory of India

from the Union or causing insult to the Indian

National Flag, Indian National Anthem and the


Constitution of India, the Governor of the

State or the Central Government, may, by

notification in the Official Gazette, declare the

whole or any part of the State to be a

disturbed Area.

Explanation— In this section, "terrorist act"

has the same meaning as in Explanation to

article 248 of the Constitution of India as

applicable to the State of Jammu and

Kashmir.‖

Here, it is very humbly submitted to this Hon'ble Court

that the provision has laid down the circumstances in the

presence of which appropriate authority declares the

whole or part of the state to be disturbed area. It is also

observed from the language that the provision has not

provided any specific kind of act to be terrorist act against

which the said power can be exercised. In the absence of

such definition, one can resort upon the definition of

"Terrorist act" as provided under Section 2(k) and Section

15 of The Unlawful Activities (Prevention) Act, 1967. Said

provisions are mentioned as follows:-

Section 2. Definitions — (1) In this Act, unless the

context otherwise requires,—


(k) "terrorist act" has the meaning assigned to it

in section 15, and the expressions "terrorism" and

"terrorist" shall be construed accordingly;

Section 15. Terrorist act –

(1) Whoever does any act with intent to threaten

or likely to threaten the unity, integrity, security,

economic security, or sovereignty of India or with

intent to strike terror or likely to strike terror in the

people or any section of the people in India or in

any foreign country, —

(a) by using bombs, dynamite or other

explosive substances or inflammable

substances or firearms or other lethal

weapons or poisonous or noxious gases or

other chemicals or by any other substances

(whether biological radioactive, nuclear or

otherwise) of a hazardous nature or by any

other means of whatever nature to cause or

likely to cause — (i) death of or injuries to, any

person or persons; or (ii) loss of or damage to,

or destruction of property; or (iii) disruption of

any supplies or services essential to the life of

the community in India or in any foreign

country; or (iiia) damage to, the monetary

stability of India by way of production or

smuggling or circulation of high quality

counterfeit Indian paper currency, coin or of

any other material; or (iv) damage or

destruction of any property in India or in a

foreign country used or intended to be used


for the defence of India or in connection with

any other purposes of the Government of

India, any State Government or any of their

agencies; or

(b) overawes by means of criminal force or

the show of criminal force or attempts to do so

or causes death of any public functionary or

attempts to cause death of any public

functionary; or

(c) detains, kidnaps or abducts any person

and threatens to kill or injure such person or

does any other act in order to compel the

Government of India, any State Government

or the Government of a foreign country or an

international or inter-governmental organisation

or any other person to do or abstain from

doing any act; or commits a terrorist act.

Explanation.—For the purpose of this sub-

section,— (a) "public functionary" means the

constitutional authorities or any other

functionary notified in the Official Gazette by

the Central Government as public functionary;

(c) "high quality counterfeit Indian currency"

means the counterfeit currency as may be

declared after examination by an authorised

or notified forensic authority that such

currency imitates or compromises with the key


security features as specified in the Third

Schedule.

(2) The terrorist act includes an act which

constitutes an offence within the scope of and as

defined in any of the treaties specified in the

Second Schedule.

Thus, it is to be perceived from the above definition that

any act which is done with intent to threaten or likely to

threaten the unity, integrity, security, economic security, or

sovereignty of India by any means or substances of a

hazardous nature or by any other means of whatever

nature which tends to cause or likely to cause death of, or

injuries to, any person or persons or loss of, or damage

to, or destruction of, property or causes the death of any

public functionary or attempts to cause death of any

public functionary will be said to be terrorist activity.

Reading the language of said provision alongwith

provisions of Armed Forces (Jammu and Kashmir)

Special Powers Act 1990 gives absolute idea of what

amounts to terrorist act and thus, validates the action

taken by Armed forces under the Section 04 of the Armed

Forces (Jammu and Kashmir) Special Powers Act 1990.

In this regard, powers given under Section 04 of Armed

Forces (Jammu and Kashmir) Special Powers Act 1990


can be analysed and the same can be reproduced as

follows:

Section 4. Special powers of the armed forces:-

Any commissioned officer, warrant officer, non-

commissioned officer or any other person of

equivalent rank in the armed forces may, in a

disturbed area, —

(a) if he is of opinion that it is necessary so to do

for the maintenance of public order, after

giving such due warning as he may consider

necessary, fire upon or otherwise use force,

even to the causing of death, against any

person who is acting in contravention of any

law or order for the time being in force in the

disturbed area prohibiting the assembly of five

or more persons or the carrying of weapons or

of things capable of being used as weapons

or of fire-arms, ammunition or explosive

substances;

(b) if he is of opinion that it is necessary so to do,

destroy any arms dump, prepared or fortified

position or shelter from which armed attacks

are made or are likely to be made or are

attempted to be made, or any structure used

as a training camp for armed volunteers or

utilised as a hide-out by armed gangs or

absconders wanted for any;


(c) arrest, without warrant, any person who has

committed a cognizable or against whom a

reasonable suspicion exists that he has

committed or is about to commit a cognizable

and may use such force as may be necessary

to effect the arrest;

(d) enter and search, without warrant, any

premises to make any such arrest as

aforesaid or to recover any person believed to

be wrongfully restrained or confined or any

property reasonably suspected to be stolen

property or any arms, ammunition or explosive

substances believed to be unlawfully kept in

such premises, and may for that purpose use

such force as may be necessary, and seize

any such property, arms, ammunition or

explosive substances;

(e) stop, search and seize any vehicle or vessel

reasonably suspected to be carrying any

person who is a proclaimed offender, or any

person who has committed a non-cognizable ,

or against whom a reasonable suspicion

exists that he has committed or is about to

commit a non-cognizable , or any person who

is carrying any arms, ammunition or explosive

substance believed to be unlawfully held by

him, and may, for that purpose, use such force

as may be necessary to effect such stoppage,

search or seizure, as the case may be.


Here expression ―against any person who is acting

in contravention of any law or order for the time

being in force" is required to be examined

considering the facts of present case. It appears

from reading of this expression that Section 04

Clause (a) enables specific category of persons to

use such degree of forces against those persons

only who are observed or involved in the activity

which is either in contravention of law or order for

the time being in force. Now, it becomes subjective

fact to give specific definition of ibid expression and

thus, any action which causes or likely to cause any

kind of illegitimate injury to person, property or both

must be construed as action in contravention of law

or order. Giving further extension to above

definition, it can also be said that an act of the

individual which is inconsistent with established

procedure of law must be taken as action in

contravention of law and thus, remedial measures

adopted to curb such action by statutorily

constituted forces must be regarded in consonance

with law. In addition to this it is also equally

important to read the said interpretation alongwith


term ―for the time being in force‖ which authorises

the person in specific to apply its prudence as per

the situation and to issue necessary orders to

suppress the act done in contravention of order for

the time being in force. Important fact which needs

to be considered in these circumstances is that

there is no specific laid down parameters when an

action of individual will be regarded as action in

contravention of law and order and thus, intention of

legislature becomes very apparent so far as it

warrants the employment of degree and amount of

force. It has given absolute discretion to the person

who is in charge of or commanding the group of

statutory force who is expected to employ that much

degree of means and force which is sufficient

enough to lower down the action in question. Since

rational employment of force can be determined

only after considering the true scenario of

disturbance and thus, the fact that how much

amount of force should be used can be said to be at

the discretion of commander on ground.

17. Thus, form the above it is clear that the Army personnel

so acting and the manner in which they so acted are


within the confines of the protection available under the

Armed Forces (Jammu and Kashmir) Special Powers Act

1990. The military vehicles formed part of a convoy which

was on lawfully military duty. The said vehicles were

isolated by an unruly and unlawful assembly of people

within the State of Jammu and Kashmir, which is declared

as a disturbed area for the purpose of applicability of the

provisions of the Armed Forces (Jammu and Kashmir)

Special Powers Act 1990. When it was deemed essential

to disperse the said unlawful assembly which was

engaged in criminal activities of causing damage to

property of the Government of India as well as causing

apprehension of grievous hurt and murder to Army

personnel, a warning to the effect that fire will be opened

was issued to the unlawful assembly. When they refused

to disperse rather increased their violence, and began

lynching the Junior Commissioned Officer, warning shots

were fired. These were followed by effective fire when the

unlawful assembly reached a level of criminality beyond

basic human reason and were incapable of arriving at an

understanding with. It is important to note that neither the

police agencies on ground nor the local governing

authorities made any attempts to pacify the unlawful


assembly or disperse them. The Army was left to fend for

itself without any assistance from neither the said police

agencies on ground nor the local governing authorities.

18. That in spite of clear laws on the subject the police

authorities for whatever reasons have still yet not taken

cognizance of these heinous s committed by the civilian

population of Shopian. These heinous s were targeted to

the functionaries of the Central Government performing

lawful orders conferred upon them by law by the Central

Government. It is very disturbing to note that in spite of

being servants of the Union, our Armed Forces Personnel

get no protection and safeguards to which they are

rightfully entitled to. Time and again the personnel of the

Armed Forces of India have to carry out various

operations in inhospitable terrain, weather and within

hostile local populations. The errant behavior on the part

of the people of the State of Jammu and Kashmir is

directly proportional to the lawlessness and absolute

disregard to the safety and protection of the Armed

Forces functioning in the State.

19. In Naga People’s Movement of Human Rights v. Union of

India AIR 1998 SC 431, this Hon‘ble Court analysed the


provisions relating to the activities of Armed Forces in

disturbed areas as under:-

The term ―disturbed area‖ defies any definition. A

disturbed area has to be adjudged according to

location, situation and circumstances of particular

case. As the term implies, only such area would be

disturbed area where there is absence of peace and

tranquillity. A disturbed area is such in which

disorder of such a type is in existence that it may be

regarded as a public order problem. Also, the extent

of the disturbed area is confined to the area in which

the situation is such that it cannot be handled

without seeking the aid of the armed forces. For an

area to be declared as ‗disturbed area‘ there must

exist a grave situation of law and order on the basis

of which the Governor/Administrator of the State/

Union Territory or the Central Government can form

an opinion that area is in such a disturbed or

dangerous condition that the use of armed forces in

aid of the civil power is necessary. Therefore it

cannot, therefore, be said that an arbitrary and

unguided power has been conferred in the matter of

declaring an area as disturbed area. The Act in

question the said case law is in pari material to the

provisions of Armed Forces (Jammu and Kashmir)

Special Powers Act 1990.

20. Further in General Officer Commanding v. CBI (Criminal

Appeal No.257 of 2011), this Hon‘ble Court held that the


question of sanction is of paramount importance for

protecting a public servant who has acted in good faith

while performing his duty. In order that the public servant

may not be unnecessarily harassed on a complaint of an

unscrupulous person, it is obligatory on the part of the

executive authority to protect him. However, there must

be a discernible connection between the act complained

of and the powers and duties of the public servant. The

act complained of may fall within the description of the

action purported to have been done in performing the

official duty. Therefore, if the alleged act or omission of

the public servant can be shown to have reasonable

connection inter-relationship or inseparably connected

with discharge of his duty, he becomes entitled for

protection of sanction. If the law requires sanction, and

the court proceeds against a public servant without

sanction, the public servant has a right to raise the issue

of jurisdiction as the entire action may be rendered void

ab initio for want of sanction which is the same as the

condition in the present case where prior sanction was

not obtained by the CBI. The Legislature has conferred

―absolute power‖ on the statutory authority to accord

sanction or withhold the same and the court has no role in


this subject. In such a situation the court would not

proceed without sanction of the competent statutory

authority. Thus, stating the above reasons, the Court has

come to the conclusion that the sanction of the Central

Government is required in the facts and circumstances of

the case and the court concerned lacks jurisdiction to take

cognizance unless sanction is granted by the Central

Government.

21. It is respectfully further submitted to Hon‘ble Court that

that all personnel who are commissioned or enrolled

under the regular or other forces holds their office under

the pleasure of president and thus, they will be said to be

commissioned and enrolled for serving to the well-

established government in public servant capacity. Same

can be seen from Section 18 of the Army Act, 1950 as

well as Article 310 of Indian Constitution. The said

provisions read as follows:-

Section 18 Army Act, 1950:

Tenure of service under the Act—

Every person subject to this Act shall hold office

during the pleasure of the President.

Article 310 of Indian Constitution:


(1) Except as expressly provided by this

Constitution, every person who is a member of a

defence service or of a civil service of the Union or

of an all-India service or holds any post connected

with defence or any civil post under the Union holds

office during the pleasure of the President, and

every person who is a member of a civil service of a

State or holds any civil post under a State holds

office during the pleasure of the Governor of the

State.

(2) Notwithstanding that a person holding a civil

post under the Union or a State holds office during

the pleasure of the President or, as the case may

be, of the Governor 1 *** of the State, any contract

under which a person, not being a member of a

defence service or of an all-India service or of a civil

service of the Union or a State, is appointed under

this Constitution to hold such a post may, if the

President or the Governor 2 ***, as the case may

be, deems it necessary in order to secure the

services of a person having special qualifications,

provide for the payment to him of compensation, if

before the expiration of an agreed period that post is

abolished or he is, for reasons not connected with

any misconduct on his part, required to vacate that

post.

It is most humbly submitted that since the personnel holds

their office during the pleasure of president for rendering

necessary military services to the union, they will be said


to be holding the designation under the authority of

government and thus said to be public servant for

discharging all official responsibility. In this respect

Section 21 of Indian Penal Code and corresponding

section of Ranbir Penal Code has to be seen which read

as follows:

Section 21. Ranbir Penal Code:

Public Servant:

The words "public servant" denote a person falling

under any of the descriptions hereinafter following

namely:-

First.- Every Civil servant of the State;

Second.- Every Commissioned officer in the military,

naval or airforce of India;

Third.- Every Judge including any person

empowered by law to discharge, whether by himself

or as a member of any body of persons, any ad

judicatory functions;

Fourth.- Every officer of a Court of Justice (including

a liquidator, receiver of commissioner) whose duty it

is, as such officer, to investigate or report on any

matter of law or fact, or to make, authenticate, or

keep any document, or to take charge or dispose of

any property, or to execute any judicial process, or

to administer any oath, or to interpret, or to preserve

order in the Court; and every person specially


authorized by a Court of Justice to prefer any of

such duties;

Fifth.- Every juryman, assessor or member of a

panchayat assisting a Court of Justice or public

servant;

Sixth.- Every arbitrator or other person to whom any

cause or matter has been referred for decision or

report by any Court of Justice, or by any other

competent public authority;

Seventh.- Every person who holds any office by

virtue of which he is empowered to place or keep

any person in confinement;

Eighth.- Every officer of Government whose duty it

is, as such officer, to prevent s, to give information

of s, to bring offenders to justice, or to protect the

public health, safety or convenience;

Ninth.- Every officer whose duty it is, as such officer,

to take, receive, keep or expend any property on

behalf of the Government or to make any survey,

assessment or contract on behalf of the

Government or to execute any revenue-process, or

to investigate or to report on any matter affecting the

pecuniary interests of the Government or to make,

authenticate or keep any document relating to the

pecuniary interests of the Government, or to prevent

the infraction of any law for the protection of the

pecuniary interests of the Government, and every

officer in the service or pay of the Government, or


remunerated by fees or commission for the

performance of any public duty;

Tenth.- Every officer whose duty it is, as such officer,

to take, receive, keep or expend any property, to

make any survey or assessment or to levy any rate

or tax for any secular common purpose of any

village, town or district, or to make, authenticate or

keep any document for the ascertaining of the rights

of the people of any village, town or district;

Eleventh.- Every servant under the Government of

India who is posted, and when he is performing his

legitimate duties, within the State;

Twelfth.- Every servant of the Department of

Devasthan;

Thirteenth.- Every person who holds any office in

virtue of which he is empowered to prepare, publish,

maintain or revise an electoral roll or to conduct an

election or part of an election;

Fourteenth.- Every officer or servant employed by a

Municipal Committee, Town Area Committee,

Notified Area Committee, Panchayat, Cooperative

Society or Co-operative Bank whether for the whole

or part of his time, and every member of such

committee, society or bank;

Fifteenth.- Every officer or servant, and every

member (Joy whatever name called) of a

corporation engaged in trade or industry or of any


other autonomous body which is established by an

Act of the State Legislature or of a Government

company as defined in any law for the time being in

force in the State.

Sixteenth.- Every Officer or servant including

medical or Para-medical staff of the Sher-i-Kashmir

institute of Medical Sciences, Srinagar.

Explanation 1.- Persons falling under any of the

above descriptions are public servants, whether

appointed by the Government or not.

Explanation 2.- Wherever the words "public servant"

occur, they shall be understood of every person who

is in actual possession of the situation of a public

servant whatever legal defect there may be in his

right to hold that situation.

Explanation 3.- The word "election" denotes an

election for the purpose of selecting members of any

legislative, municipal or other public authority, of

whatever character, the method of selection to

which is by, or under, any law prescribed as by

election.

Explanation 4.- The expression 'Corporation

engaged in any trade or industry includes a banking,

insurance or financial corporation.

It has to be observed in light of the above provisions that

all commissioned officers of the Indian armed forces fall


within the definition of public servant and thus provision

and immunity related and provided to public servant

against criminal proceedings will be equally available to

them. In this respect it is also important to look into all the

provisions under general criminal code which lays down

the various privileges enjoyed by public servant and thus,

be liable to be extended to the commissioned officer of

Armed forces. Relevant provisions for the same are as

follows:-

Section 45 of Code of Criminal Procedure, 1973:

Protection of members of the Armed Forces from

arrest-

(1) Notwithstanding anything contained in

sections 41 to 44 (both inclusive), no member of the

Armed Forces of the Union shall be arrested for

anything done or purported to be done by him in the

discharge of his official duties except after obtaining

the consent of the Central Government (2) The

State Government may, by notification, direct that

the provisions of sub-section (1) shall apply to such

class or category of the members of the Force

charged with the maintenance of public order as

may be specified therein, wherever they may be

serving, and thereupon the provisions of that sub-

section shall apply as if for the expression "Central

Government" occurring therein, the expression

"State Government" were substituted.


Section 197 of Code of Criminal Procedure. Svt

1989:

Prosecution of Judges and public servants:

(1) When any person who is Judge within the

meaning of section 19 of the Ranbir Penal Code or

when any Magistrate, or when any public servant

who is not removable from his office save by or with

the sanction of the State Government or the

Government of India, is accused of any alleged to

have been committed by him while acting or

purporting to act in the discharge of his official

duties, no Court shall take cognizance of such

except with the previous sanction—(a)in the case of

persons employed in connection with the affairs of

the Union, of the Government of India; and(b)in the

case of persons employed in connection with the

affairs of the State, of the Government.

(2) The Government of India or the State

Government, as the case may be, may determine

the person by whom, the manner in which, the or s

for which, the prosecution of such Judge, Magistrate

or public servant is to be conducted, and may

specify the Court before which the trial is to be held.

It is to be observed from above laid provisions that every

commissioned officer by his commissioning holds the duty

of public servant and thus, all immunities provided under

Section 197 of both the codes will also be extended to the

armed forces personnel. Thus, it will be apt to put forward


that taking the sanction before initiating the criminal

proceedings or any prosecution is sine qua non which

cannot be dispensed by giving any lame excuse at all. In

this respect it is also submitted that well established

statute has catered for all kinds of contingencies and

thus, excuse of existence of emergence situation created

by local people in agitation should not compel the civil

authority to deviate from the rules. It will not be legal to

confine or take action against a public servant without

following the due process of law just to avoid the heat of

the situation as the same will cause more detrimental

effect upon the moral and efficiency of the organization in

whole.

22. In the instant case, the Army personnel involved were

performing a bonafide military duty in Jammu and

Kashmir which, as already stated, amounts to active

service. In this regards, wording of apex court in the case

of R. Balakrishna Pillai v. State of Kerala & Anr. AIR 1996

SC 901 has to be considered which while defined the

word official duty, said that expression ―official duty‖

implies that the act or omission must have been done by

the public servant in the course of his service and that it

should have been done in discharge of his duty. The


section does not extend its protective cover to every act

or omission done by a public servant in service but

restricts its scope of operation to only those acts or

omissions which are done by a public servant in

discharge of official duty. If on facts, therefore, it is prima

facie found that the act or omission for which the accused

was charged had reasonable connection with discharge

of his duty...‖ Thus, the civil authorities if they are desirous

of prosecuting the said individual, would require the

sanction of the Central Government and such sanction

was ruled in State of Punjab & Anr. v. Mohammed labal

Bhatti. (2009) 17 SCC to be required in the following

circumstance, ―In fact, the issue of sanction becomes a

question of paramount importance when a public servant

is alleged to have acted beyond his authority or his acts

complained of are in dereliction of the duty. In such an

eventuality, if the is alleged to have been committed by

him while acting or purporting to act in discharge of his

official duty, grant of prior sanction becomes imperative.‖

23. It is humbly added to above that similar provisions is also

provided under Armed Forces (Jammu and Kashmir)

Special Power Act, 1990 which is found to be special

enactment on the subject and thus have overriding effect


upon other general codes and laws of land. Similar

provision under the act is as follows:-

Section 07, Armed Forces (Jammu and Kashmir)

Special Power Act, 1990:

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.

Here, terms ―Prosecution‖ and ―other legal proceeding‖

must be analysed in light of general procedure of criminal

proceeding. It is found that when any crime is committed,

it is committed against the society and thus it is the first

day when an individual becomes liable for his action. In

other words, it is contended that person becomes partially

liable from the date of commission of offence and then

criminal proceedings such as filing of FIR under Section

154 and investigation takes place subsequently under

Chapter-XIV under Cr. P.C. Svt, 1989 and Chapter-XII

under Cr. P.C., 1973. Thus, it is to be considered that

criminal proceeding is said to begin from the time when

an information about commission of offence is received

by proper authority and accordingly, pre-requisite of


making the case for titling as other legal proceeding is

fulfilled.

24. In furtherance to above, another important fact which has

already been relied upon and mentioned in preceding

paragraph is that Section 07 gives absolute immunity to

action or act which is done under good faith. Although this

enactment has not provided the real meaning of term

good faith and thus definition can be borrowed from

Section 52 of Indian Penal Code which reads out as

follows:

Section 52: Indian Penal Code/Ranbir Penal Code:

Nothing is said to be done or believed in good faith

which is done or believed without due care and

attention"

If we examine the intention of the legislature reflected

from this provision, we find that the legislature has

expected from the doer to adopt and ensure the required

degree of care and attention while performing the duty or

carrying out the action. Thus, any act which was done

after ensuring all aspects of care and attention for the

work which is or may be proportionate to the situation will

be sufficient enough to afford good ground of defense to

the person. However, it is also observed from the


language of this provision that in order to prosecute the

doer of any action which is within the ambit of this act,

prior permission of central government is mandatory and

thus, clear intention of legislature has to be inferred from

the language of the provision which mandates it to be one

of the pre-requisite for prosecution of person. It provides a

compulsion factor to all authority to be bound by statutory

language of act and thus any deviation from the said

requirement will amount to illegal method of causing

mental and psychological harassment to individuals.

25. It is of paramount importance as from the current

happenings it is becoming more and more evident that

the police agencies are influenced by a host of

extraneous agencies. This influence is damaging and is

rising at an alarming level. The frequencies of such

atrocities against serving personnel of the Armed Forces

of India operating in the State of Jammu and Kashmir are

increasing day by day. The important fact of consideration

is that there has been voluntarily omission on the part of

state civil authorities who were present on spot and did

not take any interest in controlling or handling the

situation and thus, allowed the situation to become worst.

Pro-active participation in regulating the crowd could have


been adopted by the local authorities, however no heed

towards this was paid by police and other civil authority.

This has also compelled the army authorities to take the

proper recourse of law and thus, after having given

sufficient warning to crowd, necessary measures were

adopted. Mentioned incident confirms the fact of non-

functioning of local police authorities which not only gives

an impression of poor law and order situation in state but

also increases the frequency of such kind of incident in

near future. The same must be brought within the

knowledge of appropriate authority. Hence this petition. In

this respect kind attention of this Hon‘ble Court has to be

drawn on various provision given under Chapter XIII of

Criminal Procedure Code, Svt. 1989 which are as follows:

Section 149. Police to prevent cognizable offences:

Every police officer may interpose for the purpose of

preventing, and shall, to the best of his ability,

prevent, the commission of any cognizable.

Section 151. Arrest to prevent such offences:

A police officer knowing of a design to commit any

cognizable may arrest, without orders from a

Magistrate and without a warrant, the person so

designing, if it appears to such officer that the

commission of the cannot be otherwise prevented.


Section 152. Prevention of injury to public property:

A police officer may of his own authority interpose to

prevent any injury attempted to be committed in his

view to any public property, movable, or immovable,

or the removal or injury of any public landmark or

other mark used for navigation.

It is considerable fact that the police authority is always

under obligation to respond and take necessary means to

prevent the commission of offence which is either taking

pace or about to take place in close vicinity. However, in

the present matter, no action was taken by the local

authorities inspite of knowing the high degree of

probability of occurrence of such incidents. However,

police authority did not pay any heed towards the gradual

gathering of crowd and thus, unjustified the passive role

of their organization in ensuring and maintain the law and

order.

26. That in spite of clear laws and judicial pronouncements,

the name of Petitioner‘s son was wrongly entered into the

said FIR with neither any legal basis nor any justification.

It is perfectly justifiable therefore, for the Army as a whole

as well as the families of each and every serving soldier

to feel that they are being treated as dispensable pawns

in the game played by the various political entities


operating in the State of Jammu and Kashmir who in turn

are influencing the police agencies to issue such arbitrary

First Information Reports against serving personnel of the

Armed Forces of India operating in the State of Jammu

and Kashmir.

27. That the said local police/civil authorities have still not

taken cognizance of the criminal activities of the public

when they were stone pelting the Army vehicle and

attempting to take the life of a Serving Junior

Commissioned Officer. Such criminal activities when not

taken cognizance of is an indication to the subversive

elements within the State of Jammu and Kashmir that

their atrocities against the Army will not only go

unpunished but will not even be taken cognizance of. It is

common knowledge that the Army during OP MEGH

RAHAT i.e. during the Poonch floods when the Army was

the sole agency rescuing people affected and bringing

them to safety faced stone pelting, anti national

sloganeering and other terrorist activity from the general

public. It is also evident that any activity taken on by the

Army for the good and betterment of the common man of

the State of Jammu and Kashmir gets the worst form of

abuse and terrorism from the public in the State. This is in


direct consequence to the lackadaisical approach taken

on by the civilian authorities against the terrorists and

unruly elements who go scot free and face no

ramifications. The Petitioner submits that for the past

twenty years he has remained a passive observer of the

happenings in the State of Jammu and Kashmir vis-à-vis

actions taken by the State Government. For the past

twenty years there has been a complete disregard of the

efforts taken by the Armed Forces in the State by the

political set up in an attempt to please the greater public.

For far too long we have watched helplessly as the

deaths of countless of young brave soldiers have gone in

vain because of the weak stance taken by the local

Government. Now, when the wound has hit the Petitioner

so close to his heart in the form of his own son, the

Petitioner feels that the time has come to seek a remedy

to this gross injustice.

28. It is towards this very end that the Petitioner seeks that

the following questions be put to the competent

authorities and a clarification may be issued in this

behalf:-


I. Whether serving personnel of the Armed Forces of

India operating in the State of Jammu and Kashmir

can be held individually for acts done in good faith

in pursuance to orders passed by the Central

Government?

II. Whether serving personnel of the Armed Forces of


warrant no protection from the terrorist atrocities

committed against them by the people of Jammu

and Kashmir?

III. Whether serving personnel of the Armed Forces of


are perceived as enemies of State agencies and

therefore will always be regard as villains and not

given any protection?

IV. Whether serving personnel of the Armed Forces of


do not deserve the same dignity and respect

commanded by other belted officials of both Central

and State agencies operating in the State of Jammu

and Kashmir?


V. Whether the terms of engagement followed by

serving personnel of the Armed Forces of India

operating in the State of Jammu and Kashmir in

dealing with unlawful assemblies and other terrorist

organizations towards the protection and reverence

of the sovereignty and integrity of India is not

perceived to be justified by law and therefore

individual personnel will find their names individually

figuring in First Information Reports filed by the

unlawful elements themselves?

VI. Whether the life, limb and property of serving

personnel of the Armed Forces of India operating in

the State of Jammu and Kashmir are of no value to

the State agencies?

VII. Whether the Arbitrary exercise of executive power

in the State of Jammu and Kashmir against serving

personnel of the Armed Forces of India operating

therein warrants no separate investigation?

VIII. Why the State Govt till date not lodged FIR against

them unruly and violent mob under Sec 2K read

with Sec 15 of the unlawful activity (prevention)Act

when this Act is well defined in the ibid Sec as an


offence. Whether the terrorist activity committed by

the civilian population of Shopian will not be duly

registered as a First information Report and be duly

investigated ensuring that the terrorists involved are

brought to justice?

29. That the Petitioner has not filed any other petition before

this Hon‘ble Court or any other Court of Law with regard

to the subject matter of this petition.

30. That there is no other alternative and equally efficacious

remedy available to the Petitioner, except approaching

this Hon‘ble Court, by way of this Writ Petition to meet the

ends of justice.

PRAYER

In light of the submissions made above, the Petitioner prays

that this Hon‘ble Court may be pleased to:

(i) issue a writ of certiorari or any other appropriate writ

quashing the FIR No.26/2018 dated 27.01.2018,

P.S. Shopian under sections 336, 307, 302 of

Ranbir Penal Code, being against the mandate of

law and being solely targeted at attacking soldiers in


exercise of their bonafide duties of upholding the

dignity of Indian Flag;

(ii) issue a writ of mandamus or any other appropriate

writ directing the Respondents to desist from

engaging in such arbitrary exercises of executive

power which impairs the normal and bonafide

functioning of the Army in the area;

(iii) issue a writ of mandamus or any other appropriate

writ directing the Respondent authorities to issue

guidelines to protect the rights of soldiers so that no

soldier is harassed by initiation of criminal

proceedings for bonafide actions in exercise of their

duties, as mandated by the Union of India, in

protection of sovereignty, integrity and dignity of the

Country;

(iv) issue a writ of mandamus or any other appropriate

writ directing that adequate compensation is

provided to the effected serving personnel and their

families, who have been unnecessarily embroiled in

malafide criminal proceedings in discharge of their

bonafide duties;


(v) issue a writ of mandamus or any other appropriate

writ directing the local Police authorities to register a

First Information Report against the persons

involved in the terrorist activities which had caused

damage to property of the Government of India and

placed the lives of functionaries of the Central

Government in grave peril while discharging duties

as ordered by the Central Government;

Alternatively,

issue a writ of mandamus or any other appropriate

writ directing that investigation be carried out in

another state with independent and unbiased

investigating agencies;

(vi) any other appropriate writ/order/direction as this

Hon‘ble Court may deem fit and proper in the facts

and circumstances of the case.

AND FOR THIS ACT OF KINDNESS PETITIONER, AS IN

DUTY BOUND, SHALL EVER PRAY.

DRAWN & FILED BY: DRAWN ON: .02.2

Documents

Bar & Bench ()images.assettype.com/barandbench/import/2018/02/... · 336 of Ranbir Penal Code ii). Sections 1, 149, 151, 152 & 197 of the Code of Criminal Procedure Svt, 1989 iii)