The intention of Major Kumar was to save Army personnel and property
Supreme Court
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The Supreme Court on Monday restrained the Jammu and Kashmir Police from carrying out any investigation in pursuance to an FIR filed against Major Aditya Kumar following the death of three civilians as Army tried to disperse a stone-pelting mob in Shopian district.
Directing the listing of the matter for "final disposal" on April 24, a bench of Chief Justice Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud said: "There shall be no investigation on the basis of the FIR lodged till then."
Lt. Col. Karamveer Singh -- a serving officer and father of Major Aditya Kumar -- is seeking the quashing of the FIR against his son.
At the outset of the hearing, Attorney General K.K. Venugopal said the mere filing of the complaint against an Army personnel serving in the disturbed area was barred under Section 7 of Armed Forces Special Powers Act (AFSPA) without the prior sanction of the central government.
He cited top court judgements of 2006 and 2014 in support of his contention that without the Centre's sanction even a complaint against a serving army officer operating in disturbed area was prohibited under the law.
This was opposed by senior counsel Shekhar Naphade, appearing for Jammu and Kashmir, saying that the registration of FIR and even filing of chargesheet did not amount to taking cognisance of the offence and thus no prior permission of the Centre was required.
He too cited the top court judgements to back his contention.
"Is there a licence to kill under Section 4 and Section 7 of the (Armed Forces Disturbed Area) Act," Naphade said, with the Attorney General taking exception to the words "licence to kill" saying many soldiers are being killed.
As Naphade reiterated the stand of the J&K government, Chief Justice Misra said: "Major Aditya Kumar is an Army officer and not an ordinary criminal."
Naphade said Major Kumar has not even been named as an accused in the FIR.
In the last hearing of the matter on February 12, the court had restrained Jammu and Kashmir Police from taking any coercive action against Major Kumar.
The petitioner father has contended that registration of FIR and the consequent proceedings would adversely impact the morale of the armed forces fighting militancy in the trouble-torn states.
Major Kumar and other soldiers of 10 Garhwal Rifles have been accused of opening fire on a stone-pelting mob which had attacked an Army convoy near Ganowpora village on January 27. The firing resulted in the death of three persons.
"The manner in which the lodging of the FIR has been portrayed and projected by the political leadership and administrative higher-ups of the state, it reflects the extremely hostile atmosphere in the state," reads the petition.
"In these circumstances, the petitioner is left with no other viable option but to approach this Court under Article 32 of the Constitution for protection of valuable fundamental rights of his son and himself, enshrined under the Constitution's Article 14 and 21."
It said that Major Kumar was wrongly and arbitrarily named as the incident relates to an Army convoy on bonafide military duty in an area under the AFSPA which was isolated by an "unruly and deranged" stone-pelting mob.
The intention of Major Kumar was to save Army personnel and property, and the fire was inflicted only to impair and provide a safe escape. "The unruly mob was requested to disperse and not to obstruct military persons in the performance of their duties and not to damage government property....
"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... which as per the said terms of engagement is the last resort to be taken," the plea said.
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