SC agrees to examine J&K plea on cops power to lodge FIR against Armymen

New Delhi: The Supreme Court on Monday agreed examine a plea of the Jammu and Kashmir government that the police does not require prior sanction before lodging an FIR against army personnel, as was done in the January 27 Shopian firing case involving a senior army officer.

A bench headed by Chief Justice Dipak Misra, however, did not agree to the J and K government's contention that either all states, or states like Assam and Mizoram where Armed Forces (Special Powers) Act (AFSPA) is in force, be made parties, since the police's powers to register FIRs against army personnel involved in cognisable offences, would be directly affected.

"No, no. Why should we make all of them (states) as parties," the bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, said.

The fresh plea of the state government assumes significance as the apex court had on March 5 halted its probe into the Shopian firing incident, involving a senior army officer, Major Aditya Kumar, in which three civilians were killed.

Attorney General K K Venugopal, representing the Centre, said there was "a total bar" on such legal proceedings against army personnel under the AFSPA and such FIRs can be lodged in exceptional circumstances with the prior sanction only from the Centre.

Senior advocate Shekhar Naphade and lawyer Shoeb Alam, appearing for the state government, referred to two apex court judgements and said there was no bar on the police from registering an FIR and investigating a case against Army personnel, if a cognisable offence was brought to light.

The AFSPA provision does not put any bar in this regard, he added.

"The police has all the powers when a complaint discloses cognisable offences. The constitution bench judgement in the Lalita Kumari case says so. The state government is bound by this judgement," Naphade said, adding that the stand of the Centre that there can be no FIR without the Centre's prior sanction was legally untenable.

"How can investigation be stayed in a case like this," the senior lawyer said.