Court can’t direct GoI for sanction to prosecute armed forces: HC

SRINAGAR: Observing that it is the choice and privilege of the Government to grant sanction for prosecution of erring officials in armed forces, the High Court has said that no such direction can be issued to the Government of India on the issue.
Justice Rajnesh Oswal dismissed the petition filed by the wife of a cop seeking direction to the J&K Government to forward the case to the Union Government for grant of sanction for prosecution of the accused BSF personnel in connection with her husband’s killing way back in the year 1993.
Justice Oswal ruled that no direction can be issued to the Union of India, Ministry of Home Affairs, to grant sanction to prosecute the accused persons under Armed Forces Special Powers Act (AFSPA).
Court dismissed the plea of one Munawara Sultan as ‘misconceived’ with the observation that it is and was the sole prerogative of the Union Government to grant or refuse the sanction for prosecution.
The Government of J&K while filing its response to the Sultan’s plea stated that the investigation has been closed as challan against some officials of 4th Bn but as the AFSPA is in vogue in J&K and the sanction for launching prosecution against the officials is mandatory, as such, the case has been submitted to the Home Department for taking up the matter with the Ministry of Defence, Government of India for accord of sanction for launching the prosecution against the accused persons.
It is further stated that the case diary was submitted several times for accord of sanction to higher authorities and was received back with the observations “whether the BSF personnel have superannuated or still in service” and in order to respond to the said observation, the matter has been taken up with the concerned authorities.
Court after hearing both the parties said that no direction can be issued to grant sanction to prosecute the accused persons and it is the sole prerogative of GoI to grant or refuse the sanction.
“Any direction by this court would amount to interference in the decision to be arrived at by the Ministry of Home Affairs on the basis of record placed before him”, read the judgment. (DE)

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