The unfortunate case of FIR lodging against Major Aditya

Lodging of FIR against Major Aditya and other members of 10 Garhwal Rifles under sections 302, 307 and 336 of the Ranbir Penal Code (RPC) at the behest of the Chief Minister of Jammu & Kashmir (J&K) is most unfortunate. In Ganowpora village in South Kashmir, on  January 27, around 150-200 stone-pelters had attacked a military convoy and were trying to lynch a junior commissioned officer. Three stone-palters were killed when the troops fired in self-defence. It is not clear what action the J&K government has initiated against the stone-pelters who had attacked a military convoy.

This is not the first time that an FIR has been lodged against military personnel engaged in the aid to civil power. In 2006, Central Bureau of Investigation (CBI) had filed an FIR under IPC sections 302, 342, and 364 against five army officers in connection with the Pathribal killings. It was alleged by the CBI that the Army officers had staged fake encounters and moved the court to initiate prosecution against the accused officers. The CBI has filed a charge-sheet in the case. However, the Chief Judicial Magistrate (CJM) Srinagar could not proceed in the matter since Armed Forces Special Powers Act (AFSPA) offered protection to a person acting under the said Act. The CJM granted opportunity to the army to exercise the option of trial by court-martial under the provision of section 125 of the Army Act. The CBI was of the opinion that since this was not a genuine encounter, “the acts of the accused do not come under the preview of discharge of official duties as provided under the AFSPA”.

Finally, the Supreme Court passed its judgment in General Officer Commanding vs CBI on  May 1, 2012. It held that the AFSPA empowers the Central Government to ascertain if an action is ‘reasonably connected with the discharge of official duty’ and is not a misuse of authority. The court ruled that under the AFSPA, the sanction of the Central government to prosecute military personnel is mandatory, but that the need to seek sanction would only arise at the time of cognizance of the offence. Cognizance is the stage when the prosecution begins. Sanction is therefore not required during the investigation.

The Supreme Court directed that the competent authority in the Army to take a decision as to whether the trial would be by the criminal court or by a court-martial and communicate the same to the CJM concerned. The Army opted for a court-martial. After the recording of evidence was concluded, the officer with the power to convene the court-martial did not find enough evidence to initiate the prosecution of the military officers. The charges were therefore dismissed under the provisions of the Army Rules. In the present case also the final decision for prosecution would rest with the central government.

The right of private defence is a very valuable right recognised in all democratic and civilised societies. It says that every person has a right to defend himself and his property against any threat, danger or violence. The law does not expect a person to behave like a coward when confronted with dangerous situations. Law requires people to rise to the occasion in such situations. It is perfectly justifiable to use force, if it is needed, to protect oneself or others from an unlawful attack. While it is true that law does not expect from the person, whose life is placed in danger, to weigh, with precision, the extent and the degrees of the force which he employs in his defence; the Penal Code section 100 justifies the killing of an assailant in the case of apprehension of death or grievous hurt as consequence of assault.  

It is a fallacy to think that India’s Constitution confers only rights and imposes no duties. Article 51A provides that the citizens have certain constitutional duties towards the state. They are to defend the country and are bound to uphold its sovereignty, unity, and integrity. They are also to safeguard public property and abjure violence. Many legal luminaries, human rights organisations and activists grant rights to militants, stone-pelters or to a fleeing robber than to soldiers who are trying to do their assigned task.

Our soldiers are human beings. Few understand their loyalty to the country. A retired officer aptly expresses his anguish “the loneliness of being away for long periods of duty in counter-insurgency areas, coupled with a growing sense of dismay at the callousness of the civilian administration and political authority, produces a frustration that is virtually complete. While trying to clean up the mess created by bureaucratic and political ineptitude, the soldier is also putting his neck on the line. The sense of honour that has been instilled in soldiering prevents him from walking away and leaving the mess as it was.”

The author is a retired Wing Commander. Views expressed are personal