Inspite of AFSPA

Even as successive state governments have been accusing New Delhi of denying sanction to prosecute the men in uniform, legal experts believe no sanction from government of India is needed for filing challans against them. 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 withholding sanction to prosecution.” Sanction is not needed for filing the charge sheet.  AFSPA, by the way, is not the only legislation that shields the personnel of the armed forces. Section 197 CrPC (Section 549 in CrPC applicable to Jammu Kashmir) performs a similar function. 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 judgment, 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 AFSPA and Section 197 CrPC. The police have to file the challan without delay. Whether sanction is needed or not is to be decided by the court.   The failure of the state government to initiate criminal proceedings against the men in uniform, therefore, makes no sense. There is no denying the fact that the state government has sought sanction to prosecute erring soldiers/officers of various armed forces. But that was supposed to be done after filing the challans in the civil courts. However, it is never too late to act. The challans can be filed even now even as the sanction for prosecution remains awaited.