No absolute immunity to armed forces from criminal court trial: Supreme Court

The Supreme Court on Friday said there was no "absolute immunity" to an army personnel from trial by criminal courts for committing an offence as citizens living under the shadow of a gun that can be wielded with impunity was equally "unsettling and demoralising".

A bench of justices Madan B Lokur and U U Lalit clarified that even if armed forces decides to take action and inquire into the allegations at their own level, it would not preclude any other inquiry or investigation into the allegations. "The law is therefore very clear that if an offence is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court constituted under the CrPC," the bench said.

"To contend that this would have a deleterious and demoralising impact on the security forces is certainly one way of looking at it, but from the point of view of a citizen, living under the shadow of a gun that can be wielded with impunity, outright acceptance of the proposition advanced is equally unsettling and demoralising, particularly in a constitutional democracy like ours," it noted in its verdict.

The apex court said that decision to try a person who has committed an offence punishable under the Army Act does not always or necessarily lie only with the Army and the criminal courts could also prosecute them for alleged crime in certain circumstances in accordance with the CrPC. "Therefore, we make it clear that even if the state government decides to hold magisterial enquiries and take suitable action on the report given, it would not preclude any other inquiry or investigation into the allegations made.

"In situations of the kind that we are dealing with, there can be no substitute for a judicial inquiry or an inquiry by the NHRC or an inquiry under the Commissions of Inquiry Act, 1952," it said.