File challans

Even as the debate on Armed Forces Special Powers Act continues, the government, according to human rights defenders can file the charge sheets against erring men in uniform notwithstanding the section 6 of AFSPA which guarantees total impunity. The legal experts have exploded the myth that no charge sheets can be filed against erring men in uniform. It is not true. After the charge sheet is filed, the court has to see whether sanction under AFSPA or ordinary procedural law is needed or not. The state government tries to escape responsibility by accusing the federal government of withholding sanction to prosecution. But sanction is not needed for filing the charge sheet. The Supreme Court of India has clearly laid down guidelines in Bakhshish Singh Brar v Smt. Gurmej Kaur and Ors AIR 1998 SC 257. The apex court held:  “It is necessary to protect the public servants in discharge of their duties. But it is equally important to emphasize that rights of the citizens should be protected and no excess should be permitted. `Encounter death’ by the police has become too common. In the facts of circumstances of each case prosecution of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties and whether the public servant has exceeded his limits.” In the light of this judgement, the courts have to apply mind and see whether the official exceeded his limits and proceed accordingly. This means, the police cannot wait for sanction as provided by Section 6 of AFSPA and section 197 of CrPC. The police have to file the challan without any delay. Whether sanction is needed or not is to be decided by the court.  The prosecuting agency cannot decide it on its own. Once a crime is committed, the police are under a legal obligation to register a case and file a charge sheet in a court of law. But, in this neglected land, the police more often than not refuse to register a case. No law, not even AFSPA can restrain a police officer from registering a case. The process of miscarriage of justice starts from the police station. The failure of the state government to initiate criminal proceedings against the men in uniform is a serious breach of law and the erring officials can be taken to task for it.

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