J&K disputes Centre’s claim on FIR against Armyman

New Delhi: In a major embarrassment to the Centre, the Jammu and Kashmir government, which is under Governor’s Rule, disputed in the Supreme Court the claim of the Union government that the state has no power to lodge FIR against Army personnel.

This view is in conflict with Centre’s stand on prosecution of Army personnel.

Senior counsel Shekar Naphade, appearing for J and K Government made this submission before a three judge Bench of Chief Justice Dipak Misra and Justices A.M. Kanwilkar and D.Y. Chandrachud which in February this year had stayed all further probe in the FIR against Army officer Adithya Kumar of 10 Garhwal Rifles in Shopian police station for quelling a violent mob. The court also restrained the State from taking coercive steps against the officer.

On Monday counsel Naphade urged the court to lift the stay and allow the State to conduct its probe. He said there couldn’t be an indefinite stay once the FIR has been registered. Further father of Army officer has no locus to file any petition against FIR. Citing an earlier Constitution Bench verdict, he asserted that once police gets a compliant.

He wanted issue of notice to all states to settle the on registration of FIR. to this case. He said since law and order is a state subject, accepting the plea of union of India will affect the statutory powers of police in all the states across country.

A-G K.K. Venugopal, however, opposed J and K Government’s affidavit filed last week and said army personnel are protected from prosecution as per Section 7 of AFSPA.  He said prior sanction from the Centre is required before registration of FIR as Army officers are immune from prosecution.

The petitioner said the incident reported in the FIR relates to an Army convoy on bonafide military duty in an area under the Armed Forces Special protection Act (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 in grave peril.

He said 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.

It may please be recollected that such violent mobs in Kashmir area have frequently obstructed bonafide Government duties and even resorted to lynching and killing of 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 Government property. The Bench directed the matter to be listedfor further hearing on July 30.