New Delhi: The Supreme Court on Monday halted further investigation in the January 27 Shopian firing incident that left three civilians dead, and for which army officer Major Aditya Kumar was accused along with the 10th Garhwal unit that he led.
Observing that Major Aditya “is an army officer and not an ordinary criminal”, the top court directed the J&K government to carry out no further investigation in the case till April 24, when the final hearing would take place in the Supreme Court.
The Government of India contended that the J&K government cannot lodge an FIR against army personnel under Section 7 of the Jammu and Kashmir AFSPA, for an act done in discharge of duty, and because no prior sanction was taken from the Union of India.
The J&K government argued that army officials do not respond to communications sent by investigating officers and think that “they are above law”.
It said that army personnel do not have “any licence to kill” and the state government has the “right to investigate any cognisable offence and deaths of its own people”.
A bench comprising Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud said, “Let the matter be listed for final disposal on April 24. In the meantime, there shall be no further investigation on the basis of FIR till then.”
During the hearing, Attorney General KK Venugopal, appearing for the GoI, said that under provisions of Armed Forces Special Powers Act (AFSPA), no FIR can be lodged against army personnel for work done on duty and without the prior sanction of the central government.
Senior advocate Shekhar Naphade and advocate Shoeb Alam, appearing for J&K government, cited various verdicts of the Supreme Court and said that requirement of sanction comes at the time of cognisance taken by court, and not at the time of initiating a criminal action or filing of FIR.
Naphade said that Major Aditya does not even figure among the names of the accused in the FIR lodged on the allegation that army personnel opened fire in retaliation and in which three persons were killed.
“He (Major Aditya) has not been named as accused in the FIR. The column of accused in the FIR is left blank. His name also does not feature in the case diary as of now. He has just been named on the basis of allegations that he led the convoy which opened fire in retaliation. There is no specific allegation against him,” the senior advocate said, adding that the petition is infructuous.
To this, the court asked whether Major Aditya was the only person from the army whose names featured in the narrative of the FIR, and does the statement of Naphade mean that Major Aditya will not be named as an accused in future?
Naphade replied that the possibility of inclusion of Major Aditya’s name depends on further investigation in the case.
“Then we will say that no action will be taken against him till the matter is disposed of here,” the bench said.
The senior advocate said the court had already ordered that no coercive action be taken against Major Aditya. The bench said, “He is an army officer, not an ordinary criminal. You have to see the matter in a holistic way.”
To this, Naphade said “Army officers have no licence to kill and the state has the statuary right to investigate a cognisable offence and the deaths of its own people”.
Reacting immediately, Venugopal retorted: “Licence to kill? Many of our soldiers are being killed there.”
The FIR at Shopian police station was registered against personnel of 10 Garhwal Rifles under Sections 302 (murder) and 307 (attempt to murder) of the Ranbir Penal Code.
The apex court was hearing the plea of Lieutenant Colonel Karamveer Singh, the father of Major Aditya Kumar, seeking to quash the FIR against his son.
Singh had said in his petition that his son was “wrongly and arbitrarily” named in the FIR, as the incident related to an army convoy that was on military duty in an area under AFSPA and was isolated by an “unruly and deranged” mob pelting stones.