Supreme Court of India
Rabina Ghale vs Union Of India on 17 September, 2024
Author: Vikram Nath
Bench: Vikram Nath
2024 INSC 698
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 265 OF 2022
RABINA GHALE & ANR. …PETITIONER(S)
VERSUS
UNION OF INDIA & ORS. …RESPONDENT(S)
WITH
WRIT PETITION (CRIMINAL) NO. 250 OF 2022
ANJALI GUPTA …PETITIONER(S)
VERSUS
UNION OF INDIA & ORS. …RESPONDENT(S)
JUDGMENT
VIKRAM NATH, J.
1. The Writ Petition (Criminal) No. 265 of 2022
and Writ Petition (Criminal) No. 250 of 2022
have been filed with the following prayers:
Signature Not Verified
“(i) Issue a writ of certiorari or any other
Digitally signed by
Neetu Khajuria
Date: 2024.09.17appropriate writ quashing the Suo moto FIR
17:33:04 IST
Reason:
bearing State Crime Police Station (SCPS) Case
WRIT PETITION (CRL) NOS. 265 & 250 OF 2022 Page 1 of 10
No. 07/2021 registered by Respondent No.2,
Complaint dated 07.12.2021 by the Respondent
No.3, the Findings and recommendations of the
SIT constituted by the Respondent No.2 dated
24.03.2022 seeking sanction to prosecute the
husbands of the Petitioners along with 28 other
Team members u/s 302, 307, 326, 201, 34 IPC
r/w 120-B IPC and for initiating disciplinary
action against the entire team as per the
provisions of the Army Act and Rules, and all
other ancillary proceedings emanating out of the
said FIR and/or in furtherance of the incident
dated 04.12.2021, being against the mandate of
law and being solely targeted at attacking
soldiers in exercise of their bona fide 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
bona fide 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 bona fide
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 mala fide criminal
proceedings in discharge of their bona fide
duties;
(v) Issue a writ of mandamus or any other
appropriate writ directing the local Police
authorities to investigate and file Charge-sheet
WRIT PETITION (CRL) NOS. 265 & 250 OF 2022 Page 2 of 10
in the FIR No. 27/2021, instituted by 21 PARA
(SF) and prosecute the perpetrators for Terrorist
Activities against the unruly, violent and armed
mob led to the martyrdom of Paratrooper
Gautam Lal, grievous injuries to the entire
Operations team and the four civilian drivers, the
loss of property by burning the four civil pattern
vehicles which had come to extricate the team
from the site of the incident, the loss of weapons
and ammunitions snatched away from the team
and which were burned once the vehicles were
set on fire, while discharging duties as ordered
by the Central Government; Alternatively,
(vi) Issue a writ of mandamus or any other
appropriate writ directing that investigation of
the said FIR No. 28/2021 to be carried out in
another state with independent and unbiased
investigating agencies;
(vii) Pass any other appropriate
writ/order/direction as this Hon’ble Court may
deem fit and proper in the facts and
circumstances of the case.”
2. Without going into detailed facts, it would be
relevant to quote an order dated 19.07.2022
passed by this Court in the above two writ
petitions, as the said order incorporates the
crux of the matter:
“Issue notice.
Mr. Arvind Kumar Sharma, learned Advocate-
on-Record accepts notice on behalf of the Union
of India and Ministry of Defence.
These Writ Petitions under Article 32 of the
Constitution of India, have been filed by theWRIT PETITION (CRL) NOS. 265 & 250 OF 2022 Page 3 of 10
wives of officers of the Indian Army for quashing
of Suo Moto FIR, bearing State Crime Police
Station (SCPS) Case No.07/2021 registered
against the personnel of 21 PARA(SF), Unit of the
Indian Army including the respective husbands
of the Writ Petitioners under Sections 302, 307,
326, 201, 34 read with Section 120-B of the
Indian Penal Code, 1860 (IPC) the findings and
recommendations of the Special Investigation
Team (SIT) dated 24th March 2022 constituted
by Respondent No.2. The proceedings in this
case emanate out of an incident dated 4th
December 2021 which led to a firing in which 6
persons were killed. The incident flared up
leading to more killings and also killing of one of
the Army personnel. It is stated that a finger of
the husband of Anjali Gupta, the Writ Petitioner
in Writ Petition (Crl.) No. 250 of 2022, was also
chopped off.
The Armed Forces (Special Powers) Act, 1958
is applicable to the place in Nagaland where the
incident took place, as stated by the learned
Additional Solicitor General.
Section 6 of the Armed Forces
(Special Powers) Act, 1958 reads as
under:- “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.”From the report bearing No.
PHQ/IGP/CID/SCPS/CN0/07/2021/25 dated
Kohima, 24th March 2022 of the Chief
Investigation Officer being the range IGP, it
appears that sanction of prosecution is to be
obtained under Section 197(2) of the Code of
Criminal Procedure, 1973 (Cr.P.C.) and SectionWRIT PETITION (CRL) NOS. 265 & 250 OF 2022 Page 4 of 10
6 of the Armed Forces (Special Powers) Act, 1958.
The Section 197(2) of the Cr.P.C. has
inadvertently been typed as Section 197(2) of the
IPC in the said report of the Chief Investigation
Officer.
Section 197(2) of the Cr.P.C. applies to taking
cognizance by the Court. However, Section 6 of
the Armed Forces (Special Powers) Act, 1958
clearly provides, no prosecution, suit or other
legal proceedings shall be instituted except with
the previous sanction of the Central
Government.
On the query of this Court, the learned
Additional Solicitor General submitted that no
previous sanction has been granted by the
Central Government. The question of sanction is
awaiting consideration at the appropriate level.
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.
In the past, this Court has entertained similar
Writ Petitions filed by close family members of
officers of the Indian Army including Writ
Petition (Crl.) No. 36/2018 (Vineet Dhanda vs.
Union of India & Ors.) and Writ Petitioner (Crl.)
No.42 of 2018 (Lt. Col. Karamveer Singh vs. The
State of Jammu and Kashmir & Others). The
copies of the orders in the aforesaid writ petitions
are annexed to the writ petition.
List the matters after eight weeks.”
WRIT PETITION (CRL) NOS. 265 & 250 OF 2022 Page 5 of 10
3. Thereafter, on 07.03.2024, Ms. Aishwarya
Bhati, learner Additional Solicitor General,
informed this Court that the sanction under
Section 6 of the Armed Forces (Special Powers)
Act, 19581 has since been declined by
competent authority, vide order dated
28.02.2023. When this Court expressed its view
that it was quashing the FIRs in view of the
rejection of the sanction, the learned Advocate
General for the State of Nagaland, Mr. K.N.
Balgopal insisted on filing an affidavit and
praying for time to do the needful. With
hesitation, this Court granted time to the
Advocate General. The order dated 07.03.2024
is reproduced hereunder:
“There is already an interim order operating in
favour of the petitioners. Ms. Bhati, learned ASG,
upon instructions, states that the sanction has
since been rejected by the competent authority
on 28th February, 2023. As such we were
inclined to close these matters.
However, learned counsel appearing for the
State of Nagaland insisted that he has to file an
affidavit and has prayed for three weeks’ time.
Time, as prayed for, is granted.
1
In short, the AFSP Act, 1958
WRIT PETITION (CRL) NOS. 265 & 250 OF 2022 Page 6 of 10
The affidavit may be served upon the learned
counsel for the petitioners as well as on the
Union of India by 1st April, 2024.
List these matters on 5th April, 2024.”
4. The matter has since remained pending, and
arguments were heard on 6th August, 2024. The
learned Senior Counsels and counsels for the
parties had made submissions making
allegations and counter-allegations. However,
we are not inclined to go into those
submissions, as in our view, in view of the
specific bar contained in Section 6 of the AFSP
Act, 1958 which provides that no prosecution,
suit, or other legal proceedings can be instituted
except with the previous sanction of the Central
Government with respect to the exercise of any
power conferred under the said Act, the
proceedings based on the impugned FIRs
cannot continue any further. The interim order,
granted by the order dated 19.07.2022,
deserves to be made absolute, and the
proceedings arising from the impugned FIRs
deserve to be quashed.
5. However, there is one aspect of the matter that
needs consideration. The learned AdvocateWRIT PETITION (CRL) NOS. 265 & 250 OF 2022 Page 7 of 10
General for the State of Nagaland, Mr. K.N.
Balgopal submitted that the State has already
assailed the correctness of the order dated 28th
February, 2023, passed by the competent
authority, declining sanction under Section 6 of
the AFSP Act, 1958, by way of filing Writ Petition
(Criminal) Diary No. 17297 of 2024, titled The
State of Nagaland vs. Ministry of Defence &
Anr., instituted before this Court on
16.04.2024. He submitted that if the said writ
petition is allowed, and the rejection of sanction
is set aside and this Court either grants
sanction or for fresh decision by the competent
authority, which may ultimately result into a
sanction under Section 6 of the AFSP Act, 1958
for continuing the proceedings, then the
proceedings pursuant to the impugned FIRs
may proceed in accordance with law and may be
carried to their logical conclusion. We have no
manner of doubt that, in case, if ultimately at
some stage, sanction is granted under Section 6
of the AFSP Act, 1958, the proceedings
pursuant to the impugned FIRs are liable to be
continued.
WRIT PETITION (CRL) NOS. 265 & 250 OF 2022 Page 8 of 10
6. 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.
7. Mr. K.N. Balgopal had also placed heavy
reliance on the affidavit filed on behalf of the
Armed Forces before the Chief Judicial
Magistrate, in which observations were made
that they were likely to proceed on the
departmental side administratively, and as
such, directions may be issued to the Armed
Forces to carry on the said exercise. The said
submission does not merit consideration by this
Court as that would be at the sole discretion of
the Armed Forces whether or not to carry on
disciplinary proceedings against its officers. As
such, we are not inclined to issue any such
directions. The concerned wing of the Armed
Forces would be at liberty to take or not to take
any disciplinary proceedings against its officers.
8. In view of the aforesaid discussions, the Writ
Petition (Criminal) Nos. 265 of 2022 and 250 ofWRIT PETITION (CRL) NOS. 265 & 250 OF 2022 Page 9 of 10
2022 are allowed. The proceedings pursuant to
the impugned FIRs shall remain closed.
However, in case 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.
…………………………………………………J.
(VIKRAM NATH)
…………………………………………………J.
(PRASANNA BHALACHANDRA VARALE)
NEW DELHI
SEPTEMBER 17, 2024
WRIT PETITION (CRL) NOS. 265 & 250 OF 2022 Page 10 of 10