No Prosecution Without Previous Sanction Of Central Govt. Under AFSPA: SC Quashes FIRs Against Indian Army Officers In 2021 Nagaland Civilians Killings Case

The Court reiterated the specific bar contained in Section 6 of the Armed Forces (Special Powers) Act, 1958 (AFSPA) 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.

A Bench of Justice Vikram Nath and Justice Prasanna Bhalachandra Varale observed, “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.”

Senior Advocate Huzefa Ahmadi represented the petitioners, while Advocate General K.N. Balgopal appeared for the respondents.

In 2022, the Apex Court passed an interim order in Writ Petitions filed under Article 32 of the Constitution by the wives of officers of the Indian Army for quashing of Suo Moto FIR against their respective husbands under Sections 302, 307, 326, 201, 34 read with Section 120-B of the IPC.

In view of the admitted position that mandatory previous sanction as required under Section 6 of the AFSPA was not obtained, the Apex Court had passed the said interim order staying further proceedings pursuant to FIR/Final Report of the Special Investigation Team/Chargesheet.

Thereafter, Additional Solicitor General Aishwarya Bhati informed the Court that the sanction under Section 6 of the AFSPA had since been declined by the competent authority in 2023.

In the present case, the writ petition was filed before the Supreme Court praying for the Issue of 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.

The petition also sought the issue of 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.”

The Supreme Court noted that the Advocate General for the State of Nagaland submitted that the State had already assailed the correctness of the 2023 order passed by the competent authority, declining sanction under Section 6 of the AFSPA.

“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,” the Court clarified.

Consequently, the Court observed, “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.”

Accordingly, the Supreme Court disposed of the appeal.

Cause Title: Rabina Ghale & Anr. v. Union Of India & Ors. (Neutral Citation: 2024 INSC 698)

Appearance:

Petitioners: Senior Advocate Huzefa Ahmadi; AOR Astha Sharma and Ajit Sharma; Advocates Nipun Saxena, Sanjeev Kaushik, Mantika Haryani, Simranjeet Singh Rekhi, Rashmi Singh, Muskan Surana, Mehreen Garg and Aadya Pandey

Respondents: Advocate General K.N. Balgopal; Advocates Visto Rio, Meena K Poulose and Ankeeta Appanna; AOR C. K. Sasi, Vanshaja Shukla and Mukesh Kumar Maroria

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