Supreme Court Quashes FIRs Against Army Personnel in Nagaland Incident Due to Lack of Sanction: Rabina Ghale & Anr. vs. Union of India & Ors. (2024)

Date of the Judgment: 17 September 2024

Citation: 2024 INSC 698

Judges: Vikram Nath, J. and Prasanna Bhalachandra Varale, J.

Can criminal proceedings be initiated against army personnel for actions taken in the course of their duties without prior sanction from the Central Government? The Supreme Court of India recently addressed this critical question in a case stemming from an incident in Nagaland. The court’s decision highlights the importance of adhering to the procedural safeguards provided under the Armed Forces (Special Powers) Act, 1958 (AFSPA), particularly concerning the protection of armed forces personnel from unwarranted legal actions. This judgment clarifies the mandatory nature of prior sanction for initiating any legal proceedings against army personnel acting under the powers conferred by the AFSPA.

The Supreme Court bench comprised of Justice Vikram Nath and Justice Prasanna Bhalachandra Varale.

Case Background

The case arose from an incident in Nagaland on December 4, 2021, which resulted in the death of six civilians and one army personnel. Following the incident, a suo moto FIR was registered against the personnel of 21 PARA (SF), a unit of the Indian Army, including the husbands of the petitioners, under Sections 302, 307, 326, 201, 34 read with Section 120-B of the Indian Penal Code, 1860 (IPC). A Special Investigation Team (SIT) was constituted, which recommended the prosecution of the army personnel involved. The petitioners, wives of the army officers, filed writ petitions seeking to quash the FIR and related proceedings, arguing that the actions of the army personnel were within their duties and that the mandatory sanction under Section 6 of the Armed Forces (Special Powers) Act, 1958 (AFSPA) had not been obtained.

Timeline

Course of Proceedings

The Supreme Court took cognizance of the matter after the filing of writ petitions by the wives of the army officers. The Court noted that the Armed Forces (Special Powers) Act, 1958 (AFSPA) was applicable to the area where the incident occurred. The Court highlighted Section 6 of the AFSPA, which mandates prior sanction from the Central Government for initiating any legal proceedings against persons acting under the powers conferred by the Act. The Court observed that the Chief Investigation Officer’s report mentioned the need for sanction under both Section 197(2) of the Code of Criminal Procedure, 1973 (Cr.P.C.) and Section 6 of the AFSPA, but the reference to Section 197(2) of the Cr.P.C. was an inadvertent error. The Supreme Court, in its interim order dated 19.07.2022, stayed further proceedings due to the absence of the mandatory prior sanction under Section 6 of the AFSPA. Subsequently, the competent authority declined the sanction on 28.02.2023. The State of Nagaland then challenged this rejection by filing a separate writ petition before the Supreme Court.

Legal Framework

The primary legal framework in this case revolves around the Armed Forces (Special Powers) Act, 1958 (AFSPA), particularly Section 6, which states: “Protection to persons acting under Act. – 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 this Act.” This section provides a protective shield to armed forces personnel acting under the AFSPA, requiring prior sanction from the Central Government before any legal action can be initiated against them. The Court also discussed Section 197(2) of the Code of Criminal Procedure, 1973 (Cr.P.C.), which applies to the taking of cognizance by the Court. However, the court clarified that the primary requirement for initiating proceedings in this case was the sanction under Section 6 of the AFSPA.

Arguments

The petitioners, wives of the army officers, argued that the FIRs and subsequent proceedings were illegal because the mandatory prior sanction under Section 6 of the AFSPA had not been obtained. They contended that the actions of the army personnel were within their duties and were aimed at upholding the dignity of the Indian Flag. They also sought directions for the protection of soldiers from harassment through criminal proceedings for bona fide actions in the course of their duties. The petitioners further requested compensation for the affected serving personnel and their families who were embroiled in mala fide criminal proceedings. Additionally, they sought directions for the investigation of FIR No. 27/2021, which was instituted by 21 PARA (SF) against the perpetrators of terrorist activities. Alternatively, they requested that the investigation of FIR No. 28/2021 be carried out by an independent and unbiased agency in another state.

The State of Nagaland, represented by the Advocate General, argued that the State had already challenged the correctness of the order dated 28th February, 2023, passed by the competent authority, declining sanction under Section 6 of the AFSPA, by way of filing Writ Petition (Criminal) Diary No. 17297 of 2024. They submitted that if the said writ petition is allowed, and the rejection of sanction is set aside, the proceedings pursuant to the impugned FIRs may proceed in accordance with law. The State also relied on an affidavit filed on behalf of the Armed Forces before the Chief Judicial Magistrate, indicating that they were likely to proceed on the departmental side administratively.

The Union of India, represented by the Additional Solicitor General, acknowledged that no prior sanction had been granted by the Central Government and that the matter was under consideration.

Innovativeness of the Argument: The petitioners innovatively argued for the protection of soldiers from harassment through criminal proceedings, highlighting the need for guidelines to safeguard their rights while performing their duties. This argument brought attention to the potential misuse of criminal proceedings against army personnel acting in good faith.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section but the core issue that the court addressed was:

• Whether the criminal proceedings against the army personnel could continue without the prior sanction of the Central Government as mandated by Section 6 of the Armed Forces (Special Powers) Act, 1958.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

• Armed Forces (Special Powers) Act, 1958: Specifically, Section 6, which mandates prior sanction from the Central Government for initiating any legal proceedings against persons acting under the powers conferred by the Act.
• Section 197(2) of the Code of Criminal Procedure, 1973 (Cr.P.C.): The Court noted that this provision applies to the taking of cognizance by the Court but clarified that the primary requirement for initiating proceedings was the sanction under Section 6 of the AFSPA.
• Vineet Dhanda vs. Union of India & Ors. (Writ Petition (Crl.) No. 36/2018) – The Court referred to this case as an example where similar writ petitions filed by close family members of officers of the Indian Army were entertained.
• Lt. Col. Karamveer Singh vs. The State of Jammu and Kashmir & Others (Writ Petitioner (Crl.) No.42 of 2018) – The Court referred to this case as an example where similar writ petitions filed by close family members of officers of the Indian Army were entertained.

Judgment

How each authority was viewed by the Court?

• The Court heavily relied on Section 6 of the Armed Forces (Special Powers) Act, 1958* to emphasize the mandatory requirement of prior sanction for initiating legal proceedings against army personnel acting under the powers conferred by the Act. The court held that without this sanction, the proceedings were illegal.
• The Court acknowledged Section 197(2) of the Code of Criminal Procedure, 1973* as relevant to the taking of cognizance by the court but clarified that the primary requirement for initiating proceedings in this case was the sanction under Section 6 of the AFSPA.
• The Court cited Vineet Dhanda vs. Union of India & Ors.* and Lt. Col. Karamveer Singh vs. The State of Jammu and Kashmir & Others* as precedents where similar writ petitions filed by close family members of army officers were entertained, indicating the Court’s willingness to address such issues.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the mandatory nature of the sanction required under Section 6 of the Armed Forces (Special Powers) Act, 1958. The Court emphasized that the absence of this sanction rendered the proceedings illegal and unsustainable. The Court also considered the need to protect army personnel from unwarranted legal actions while they are performing their duties under the powers conferred by the AFSPA. The Court acknowledged the State of Nagaland’s submission that the proceedings may continue if sanction is granted in the future, indicating a balanced approach that respects both the rights of the army personnel and the need for justice.

The court’s reasoning was heavily based on the legal requirement of prior sanction under Section 6 of the AFSPA, making the legal considerations a dominant factor in the decision.

The court considered the arguments of the parties, but the primary reason for the decision was the legal requirement of prior sanction under Section 6 of the AFSPA. The court did not delve into the factual aspects of the incident beyond what was necessary to understand the context of the case. The court did not discuss any alternative interpretations of Section 6 of the AFSPA. It relied on the plain language of the provision to conclude that the proceedings were illegal without prior sanction. The decision was reached by applying the clear and unambiguous language of Section 6 of the AFSPA to the facts of the case. The court emphasized the mandatory nature of the sanction and the protection it provides to army personnel acting under the powers conferred by the Act. The court also considered the State of Nagaland’s submission that the proceedings may continue if sanction is granted in the future, indicating a balanced approach that respects both the rights of the army personnel and the need for justice. The court’s decision was unanimous, with both judges agreeing on the outcome and the reasoning behind it.

The court quoted Section 6 of the AFSPA: “Protection to persons acting under Act. – 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 this Act.”

The court also stated: “In view of the admitted position that mandatory previous sanction as required under Section 6 of the Armed Forces (Special Powers) Act, 1958 has not been obtained, we are constrained to pass an interim order staying further proceedings pursuant to FIR No. 27 of 2021/Final Report of the Special Investigation Team/Chargesheet.”

Further, the court clarified: “As such, we make it clear that if such situation arises, at any stage of sanction being granted under Section 6 of the AFSP Act, 1958, the proceedings pursuant to the impugned FIRs would continue according to law and may take its own course as provided under law.”

Key Takeaways

• ✓ Prior sanction from the Central Government is mandatory under Section 6 of the Armed Forces (Special Powers) Act, 1958, before initiating any legal proceedings against army personnel acting under the powers conferred by the Act.
• ✓ The absence of such sanction renders the proceedings illegal and unsustainable.
• ✓ The judgment reinforces the protection provided to army personnel under the AFSPA, ensuring that they are not subjected to unwarranted legal actions while performing their duties.
• ✓ The decision clarifies the procedural safeguards that must be followed before initiating any legal action against army personnel in areas where the AFSPA is in force.
• ✓ The judgment also clarifies that if the sanction is granted at any future stage, the proceedings pursuant to the impugned FIRs may continue.

Directions

The Supreme Court did not give any specific directions but clarified that the proceedings pursuant to the impugned FIRs shall remain closed. However, the Court also clarified that if the sanction is granted at any stage under Section 6 of the AFSP Act, 1958, the proceedings pursuant to the impugned FIRs may continue and may proceed in accordance with law and be brought to a logical conclusion.

Development of Law

The ratio decidendi of this case is that prior sanction from the Central Government is a mandatory prerequisite under Section 6 of the Armed Forces (Special Powers) Act, 1958, before initiating any legal proceedings against army personnel acting under the powers conferred by the Act. This judgment reinforces the existing legal position and clarifies that any proceedings initiated without such sanction are illegal and unsustainable. There is no change in the previous position of law, but the judgment reiterates the importance of adhering to the procedural safeguards provided under the AFSPA.

Conclusion

The Supreme Court allowed the writ petitions filed by the wives of army officers, quashing the FIRs and related proceedings against the army personnel due to the absence of mandatory prior sanction under Section 6 of the Armed Forces (Special Powers) Act, 1958. The Court emphasized that such sanction is a prerequisite for initiating any legal proceedings against army personnel acting under the powers conferred by the Act. The Court clarified that if sanction is granted at any future stage, the proceedings may continue. This judgment underscores the importance of adhering to procedural safeguards and reinforces the protection provided to army personnel under the AFSPA.