Happy Independence Day-How Soldiers Hounded by Human Rights Vultures and Lawyers

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (Crl.) No. OF 2018

(Under Article 32 of the Constitution of India)

IN THE MATTER OF:

Col Amit Kumar & Ors. ... Petitioners

VERSUS

Union of India & Ors. … Respondents

WITH

[Crl.M.P. No. of 2018]

APPLICATION FOR EX-PARTE AD-INTERIM STAY

AND

[Crl.M.P. No. of 2018]

APPLICATION FOR EXEMPTION FROM FILING ORIGINAL SIGNED COPIES OF VAKALATNAMAS OF

PETITIONER NOS.198 to 356

AND

[Crl.M.P. No. of 2018]

APPLICATION FOR SEEKING PERMISSION TO FILE LENGTHY LIST OF DATES

PAPER: BOOK

[FOR INDEX : KINDLY SEE INSIDE]

ADVOCATE FOR THE PETITIONERS:

MS AISHWARYA BHATI

INDEX

S.No.	Particulars of Document	Page I of part to which it belongs		Remarks
S.No.	Particulars of Document	Part 1 (Contents of Paper Book)	Part II (Contents of file alone)	Remarks
(i)	(ii)	(iii)	(iv)	(v)
	Court Fees
1)	Listing Proforma	A-A1	A-A1
2)	Cover Page of Paper Book		A2
3)	Index of Record of Proceedings		A-3
4)	Defect List		A-4
5)	Note Sheet		NS1 to
6)	Synopsis & List of Dates
7)	Writ Petition with affidavit
8)	APPENDIX: i). Armed Forces Special Powers (Assam and Manipur) Act, 1958 ii). Armed Forces Special Powers (Jammu and Kashmir) Act, 1990
9)	ANNEXURE P-1: The copy of FIR No.16(2)/2009 dated 04.03.2009, P.S. Mayang, Imphal
10)	ANNEXURE P-2: The copy of the Order dated 12.02.2018 passed by this Hon’ble Court in WP (Crl.) No.42/2018
11)	ANNEXURE P-3: The copy of the Order dated 05.03.2018 passed by this Hon’ble Court in WP (Crl.) No.42/2018
12)	ANNEXURE P-4: The copy of the Order dated 16.07.2018 passed by this Hon’ble Court in WP (Crl.) No.42/2018
13)	ANNEXURE P-5: The copy of the Order dated 30.07.2018 passed by this Hon’ble Court in WP (Crl.) No.129/2012
14)	ANNEXURE P-6: The copy of the Article published on 31.07.2018 in ‘The Hindu’ newspaper titled as ‘Supreme Court raps CBI on Manipur Killings’
15)	ANNEXURE P-7: The copy of the CBI FIR No. RC/DST/2018/S/0032 dated 31.07.2018, P.S. STF, District New Delhi under sections 302 r/w 34 of IPC
16)	Application for ex-parte ad-interim stay
17)	Application for exemption from filing original signed copies ofVakalatnamas of Petitioner Nos.198 to 356
18)	Application for seeking permission to file lengthy list of dates
19)	Filing Memo
20)	Vakalatnamas with memo of appearance

SYNOPSIS

The present Writ Petition is filed collectively by the Soldiers and serving Officers of Indian Army for protecting the Sovereignty, Integrity, Security and Dignity of the Nation and restore the confidence and morale of the soldiers of Indian Army, who are facing insurmountable difficulties and odds in performance of theirbonafide duties of protecting the Sovereignty, Integrity, Security and Dignity of the Nation. These Soldiers never hesitate to lay down their lives in the line of duty in order to uphold the dignity of the Indian Flag, however, the extraordinary circumstances in which their colleagues are being persecuted and prosecuted for carrying out there bonafide duties, without making any distinction or determination with regard to act having been done in good faith, without any criminal intent or mens rea, has compelled them to approach this Hon’ble Court.

It is submitted that specific Constitutional provisions make it writ large and crystal clear that Sovereignty and Integrity of the nation is the basis of our existence as a Constitutional, Sovereign, Democratic, Republic. If our Armed Forces are not given the protection they required to engage with the enemies at our frontiers and within, persecuted and prosecuted to carry out their bonafide duties, which includes laying down their lives in the line of duty, it will cause grave peril to our sovereignty and indignity, thereby endangering our very existence as a Constitutional Sovereign Democratic Republic.

It is submitted that the Petitioners believe that Sovereignty, Security and Integrity of the nation is at higher pedestal than even the Constitution of India and is actually the foundation on which we exist, survive, sustain and prosper as a nation. All of our hallowed Constitutional Principals including the precious fundamental rights and the very Basic Structure of the Constitution cannot exist, if the Sovereignty and Integrity of the nation is endangered in any way. Even the three pillars of Democracy, namely, the Legislature, the Executive and the Judiciary, and all aspects of Citizenry function, thrive and flourish because the Soldier zealously guards the frontiers and along with it, the Freedoms, Rights and Liberties, without caring for his own comfort, wellbeing, his family, his social responsibilities and even his own life. The ultimate sacrifice required/expected/given from a soldier, cannot be sustained under a state of confusion or cloud as to the Bonafide Duty itself.

The present petition is filed not merely for protection of fundamental rights of Soldiers and their families but for protection of fundamental rights of each and every Citizen of India, all of which are bound to be violated, infringed and trampled upon with impunity if the Sovereignty and Integrity of the nation is imperiled.

The Petitioners, all of them being from the level of Section Commanders to Commanding Officers of the Section/ Platoon/ Company/ Battalion, leading 10 to 1000 men each, are now facing confusion and countering questions from the soldiers under their command, as to whether they are supposed to continue to engage the proxy war and insurgency with their military training, principals, standard operating procedures, operational realities, valor and courage or act and operate as per the yardsticks of Peace time operations, law and order issues and CrPC. An extraordinary situation of confusion has arisen with respect to their protection from prosecution as defined under Section 6 and 7 of AFSPA (Assam & Manipur) and AFSPA (J&K). This protection doesn't give any blanket prohibition or any special right to the Soldier for himself, but facilitates his functioning and operations in extraordinary circumstances of proxy war, insurgency, armed hostility, ambushes, covert and overt operations. Such operations are materially and substantially different from Law and Order situations. Absolute protection for bonafide actions of soldiers in this extraordinary situation is imperative to enable the soldier to carry out his duty effectively and efficiently, which in turn is the sine-qua-non for protection of Nation's Sovereignty and Integrity.

Any criminality, misuse, abuse, negligence, excessive power, judgment error, mistake, bonafide, malafide, good faith or mens rea has to be questioned, considered, assessed, investigated or adjudged only with respect to the peculiar facts and circumstances of insurgency and proxy war, taking into regard the Standard Operating Procedures of Indian Army and operational realities. Any such exercise can only be conducted with aid, advise, involvement and guidance of persons who understand full dynamics of such military operations. Civil Police or even CBI can't even be expected to be in the knowhow of the complete picture.

It is submitted that the instant petition, inter-alia, raises extremely grave question of law of public importance which require consideration and determination by this Hon’ble Court;

A. Whether, given the hostility at various borders of India, Rule of Law, Democracy and the Constitution of India would be able to survive and prosper if the Armed Forces are not given the protection they require to engage the enemies at the frontiers and within?

B. Whether the Security and Sovereignty of India, including the rights of all her citizens enshrined in the Constitution including Right to Life, not be impaired by exposing the Armed Personnel, deployed to guard and protect the Security, Sovereignty and Dignity of the Indian Flag, to face motivated and indiscriminate FIRs for exercise of their bonafide duties and for acting in good faith?

C. Whether subjecting of Professional Army Personnel guarding the frontiers/borders of India and engaged in anti-terrorist operation, to the process of CrPC, like any other individual, without any safeguards, as held in Extra Judicial Execution victim Families association (EEVFAM) & Anr. v. UOI & Anr. [2016 (14) SCC 536 and 2017 (8) SCC 417] and General Officers Commanding, Rashtriya Rifles v. CBI [2012 (6) SCC 228], not be violative of their rights under Art 21 and contrary to the ratio and conclusions of Constitution Bench Judgment reported in 1998 (2) SCC 109 – Naga People’s Movement of Human Rights Vs Union of India?

D. Whether the view expressed in Extra Judicial Execution Victim Families association (EEVFAM) & Anr. v. UOI & Anr. [2016 (14) SCC 536 and 2017 (8) SCC 417 which follows General Officers Commanding, Rashtriya Rifles v. CBI [2012 (6) SCC 228] that even under AFSPA, “institution” would be the date of taking cognizance post filing of the charge sheet, will jeopardize the sovereignty, integrity and security of the nation, therefore eroding the very edifice and foundation of our existence as a Constitutional Sovereign Democratic Republic?

E. Whether, the judgment of this Hon’ble Court rendered in Extra Judicial Execution victim Families association (EEVFAM) & Anr. v. UOI & Anr. [2016 (14) SCC 536 and 2017 (8) SCC 417] and General Officers Commanding, Rashtriya Rifles v. CBI [2012 (6) SCC 228], doesn’t amount legislation and or supplanting ASFPA with the directions contained in the judgment and the same is impermissible?

F. Whether the view expressed in General Officers Commanding, Rashtriya Rifles v. CBI [2012 (6) SCC 228], that “institution” in the scheme ofCrPC, would be the date of taking cognizance post filing of the charge sheet, is in conflict with the Constitution Bench judgment of Sarah Matthew v. Institute of cardio vascular diseases [2014 (2) SCC 62] in so far as it holds that “institution” would be date of lodging of FIR for the purpose of calculation of the limitation period under CrPC?

It is submitted that following provisions of the Constitution of India expressly enunciate the Sovereignty and Integrity of our country to be of paramount consideration and significance:

1. Preamble

“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;”

2. Article 19

“Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(f) omitted

(g) to practice any profession, or to carry on any occupation, trade or business

(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

(3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub clause

(4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause…………"

3. “Article 51A. Fundamental duties

It shall be the duty of every citizen of India-

(a) to abide by the Constitution and respect its ideals and institutions, the national Flag and the National Anthem;”

…………………..

4. THIRD SCHEDULE

[Articles 75(4), 99, 124(6), 148(2), 164(3), 188 and 219]*

Forms of Oaths or Affirmations

I. Form of oath of office for a Minister for the Union:-

"I, A.B., do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, _439 [that I will uphold the sovereignty and integrity of India,] that I will faithfully and conscientiously discharge my duties as a Minister for the Union and that I will do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will."

………………………………

III.A. Form of oath or affirmation to be made by a candidate for election to Parliament:-

"I, A.B., having been nominated as a candidate to fill a seat in the council of States (or the House of the People) do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established and that I will uphold the sovereignty and integrity of India."

III.B. Form of oath or affirmation to be made by a member of Parliament:-

"I, A.B., having been elected (or nominated) a member of the Council of States (or the House of the People) do swear in the name of God/solmnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter."]

IV Form of oath or affirmation to be made by the Judges of the Supreme Court and the Comptroller and Auditor-General of India:-

"I, A.B., having been appointed Chief Justice (or a Judge) of the Supreme Court of India (or Comptroller and Auditor-General of India) do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, 439[that I will uphold the sovereignty and integrity of India,] that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws."

V Form of oath of office for a Minister for a State:-

"I, A.B., do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, 439[that I will uphold the sovereignty and integrity of India,] that I will faithfully and conscientiously discharge my duties as a Minister for the State of............ and that I will do right to all manner of people in accordance with the Constitution and the law without fear or favour, affection or ill-will."

…………………………….

VIIA Form of oath or affirmation to be made by a candidate for election to the Legislature of a State:-

"I, A.B., having been nominated as a candidate to fill a seat in the Legislative Assembly (or Legislative Council), do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established and that I will uphold the sovereignty and integrity of India."

VIIB Form of oath or affirmation to be made by a member of the Legislature of a State:-

"I, A.B., having been elected (or nominated) a member of the Legislative Assembly (or Legislative Council), do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter."]

VIII Form of oath or affirmation to be made by the Judges of a High Court:-

"I, A.B., having been appointed Chief Justice (or a Judge) of the High Court at (or of) ........................... do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, 439 [that I will uphold the sovereignty and integrity of India,] that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws."

It is submitted that India Army is amongst the most respected professional armies in the world. The fundamental features of Indian Army as an Apolitical, Secular, Professional organization are hallmarks and pride of its existence. An officer before being commissioned takes an oath that he will follow the orders of his senior even to the peril of his life. These Commanding Officers on whose orders the subordinates do not even think twice before giving their lives now feel handicapped at the hands of their men and families who are made to suffer constant embarrassment in society related to their justified and bonafide acts done in good faith.

The concept of excessive fire by the Armed Force personnel has to be understood by going through the authorised strength, sophisticated weapons, ammunitions issued to these personnel and training manuals of these individuals. The initiative in an operation protects the nation and that is why the Army is last resort. Internal disturbances are caused by the outsiders and anti-national elements who are residing with their families and the aid of the family members and locals in their conduct cannot be ruled out. It has become difficult for the Petitioners to operate in a dilemma and in a confused state of mind as they are responsible for their subordinates following the Military Ethos. The Commanders in Armed Forces follow the ‘Chetwood Credo’ which is quintessential for the working of the said organisation. The three principles in the said Credo guides an officer of the Indian Army the Petitioners wish to bring out the Military Ethos under which they serve the mother land:

“The safety honour and welfare of the Country come first always and Every time.

The honour, welfare and comfort of the men you command come next.

Your own ease and comforts come last always and Every time.”

Today with the present circumstances arisen by the direction of Supreme Court in WP 129/2012 has put the Petitioners relationship with their men on stake.

The Petitioners, who are the serving Army Officers and have been performing their bonafide duties as directed by the Union of India, are constrained to file the present Writ Petition, directly before this Hon’ble Court in view of the extremely hostile situation on the ground, whereby the said ongoing situation is demoralizing the officers and troops deployed in field areas and fighting in counter terrorism and counter insurgency operations in J&K and North Eastern States. The manner in which the ongoing enquiry is being forced to speed up by the court and charge sheets to be filed up in a time bound manner without following the prescribed procedure as per the CBI manual, reflects the extremely vulnerable state for the officers and troops who were engaged in these operations. The garb of protection of human rights should not be taken as a shield to protect the persons involved in the terrorist act. A soldier understands the importance of human rights and the rule of law as essential tools in the effort to combat terrorism. The Army Act along with the Military Ethos puts a duty on a soldier of military response to terrorism based on minimal use of force within the framework of rule of law. This duty gives birth to a right to protection against prosecution as entrusted by the virtue of Sec 6 of AFSPA by the Constitution of India and the said investigation by the court violates the same. The Country which doubts its Soldiers and their martyrdom is bound to lead to collapse of its sovereignty and integrity. In these circumstances, the Petitioners are left with no other viable option but to approach this Hon’ble Court under Article 32 of the Constitution of India for protection of valuable Fundamental Rights of the Petitioners and all others troops who are under investigation.

The Petitioners are the serving officers who were involved in various counter terrorism operations and wherein some of them are under investigation by the CBI. The matter under investigation relates to Army Operations wherein these officers and troops were on bonafide military duties in areas under the AFSPA and acted to safeguard the interest of Government of India against the anti national activities. Army authorities were under orders from their superiors who in turn receive orders from the Government of India as established by law. The military duties being carried out were military operations peculiar to counter terrorism/ counter insurgency in nature and were being carried out in accordance with the law of the land. Yet, these cases were selected arbitrarily and the officers and troops were being targeted for fake encounters without taking opinion and findings of the Commanders-in-chain of Army which have been monitoring all operations in all parts of the Country and has a detailed know how of the modus operandi, terrain and hostile situation being faced by these soldiers on the ground.

The act of the officers who are involved in any type of Counter Insurgency operations are to be adjudicated within the thin line of distinction between intention and the error of judgment when discharge of their duties has been established. Thus the lodging of FIR directly under the direction of Supreme Court without ordering a preliminary inquiry to ascertain the facts related to intention, error of judgment or the circumstances which are committed during line of duties without giving a fair chance to those personnel are against the principles of natural justice and scope of Section 4 of AFSPA which gives any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces a discretion of operating in their respective Counter Insurgency Operations. In the same line when a soldier dies while safeguarding a nation, his family never lodges a complaint for death to be put to a test of criminal judicial system and the same is given the status of Martyrdom. Any soldier discharging his duties in the active area would be under a legal quandary as to whether he should let the terrorist kill him or kill the terrorists and later on be prosecuted for the same.

Preamble of Indian Constitution has, without any discrimination, confirmed the security of living creature as very basic requirement of society. It is the obligation of the State to ensure the basic security to its citizens and non-citizens living in territory of State.

The institutions of criminal proceedings can be done only after the preliminary inquiry has ruled out the protection under Sec 4 of AFSPA. Therefore, the officers and men aggrieved by the manner updates are being taken by this Court as the same in resulting in indirect influence to the investigating agencies. This is imperative to mention that the cases are very old and intention of the family member of the declared militant as a partisan witness may result into a wrong conclusion of the investigating agencies. Thus, the direction and pressure resulted in CBI filing an FIR in the name of an officer of Army (Col VijayBalhara), after the directions of the Court on 30 July 2018. This has severely affected the morale of many officers and troops who are presently operating in these areas. Such acts against the person serving the motherland are creating hurdles in the discharge of duty as the individual is feeling reluctant and a common feeling is sinking amongst the officers and men that any individual can be targeted individually, though he has acted as a part of a team and has not done any act individually as per his own wish and plan. The Petitioners have come to this court to get a determination and clarification on the issues mentioned herein which has direct effect on their day to day operations and sovereignty, integrity & safety of nation. FIRs have been lodged against individual soldiers contrary to all the basic inquiry parameters, manuals of investigation and departmental inquiries, without taking sanction of UOI, which ought to have been done before ordering the registration of FIR, in complete violation of the provisions of AFSPA.

The Armed Forces have a special act and a different charter which is followed by men to the peril of their lives. The Armed Forces have various rules and regulations which make this special Act unique in nature. The Army Act strikes a balance between the needs of justice and needs of discipline. Civil Police and CBI being a civil authority would not be in a position to understand the nuances of the working of this organisation and as a result the investigation by an agency outside the military would be prejudicial to the interests of the persons being investigated and would in all likelihood result in a miscarriage of Justice.

In 2005 (6) SCC 1 - Jacob Mathew Vs State of Punjab & Anr, a Three-Judge-Bench of this Hon’ble Court laid down detailed guidelines to be followed before any FIR/Criminal complaint is lodged against a Doctor in exercise of his professional duties. This Hon’ble Court, on a consideration of professionals like doctors to be a separate category and the applicability of negligence to the extent of criminality, specifically found that doctors cannot be treated like other individuals for bonafide acts done in exercise of their professional duties in good faith and deserve to be protected from malicious and vexatious FIRs.

The present Petitioners are respectfully urging this Hon’ble Court to lay down similar guidelines to protect soldiers operating in insurgency, militancy and proxy war situations, which have been identified by the State/Union Government to be a disturbed area, where it is imperative for Army to act in aid of the civilian authorities, from malicious, frivolous, vexatious and motivated FIRs. The intention of the Petitioners is only to protect bonafide action done in good faith strictly in accordance with the provisions of AFSPA and are not even for a moment seeking to protect any criminal activity, which may be carried out by anyone, including the soldiers.

In any case, protection under AFSPA from institution of proceedings is not a blanket protection and has to be exercised strictly in terms of the directions of Constitution Bench in Naga People’s Movement of Human Rights (supra). Further, as noted by the Constitution Bench, the Order of the Central Government refusing or granting the sanction under AFSPA is subject to judicial review.

Therefore, the Petitioners are approaching this Hon’ble Court under Article 32 of the Constitution of India through the present Writ Petition to get an immediate and appropriate relief to the Petitioners commanding troops serving in the active areas and involved in the counter insurgency operations on day to day basis. Exposing them and their men to persecution and prosecution for their bonafide actions carried out in good faith, is bound to strengthen the sinister designs of Anti National forces and be detrimental to the Security of the Nation. Some of the directions given by a Bench of 2 Hon'ble Judges of this Hon'ble Court inGeneral Officers Commanding, Rashtriya Rifles v. CBI [2012 (6) SCC 228] and Extra Judicial Execution victim Families association (EEVFAM) & anr. v. UOI &anr. [2016 (14) SCC 536 and 2017 (8) SCC 417], amount to legislation and/or supplanting ASFPA and even run contrary to Constitution Bench Judgements of this Hon'ble Court and therefore require to be revisited and corrected by the larger bench of this Hon'ble Court. The Petitioners are beseeching this Hon'ble Court to take cognizance of the chilling and numbing impact it is likely to have on military operations in insurgency and proxy war situations and consequently on the security of our nation.

LIST OF DATES

15.08.1942 Armed Forces Special Powers Ordinance of 1942 was promulgated by the British on 15.08.1942 to suppress the Quit India Movement.

1948 Armed Forces (Special Powers) Acts (AFSPA), 1948 was promulgated to deal with extraordinary situation of genocide during partition and repealed in 1957.

1958 Armed Forces (Assam and Manipur) Special Powers Act, 1958, was promulgated in the wake of Naga Rebellion and insurgency. The Act was extended and removed from different areas in the North Eastern states from time to time, on the basis of its requirement.

1983 The Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983 was promulgated during the strife relating to the demand of Khalistan as a separate State. The Act was withdrawn in 1997, after peace was restored.

1990 Armed Forces (Jammu & Kashmir) Special Power Act, 1990 (No. 21 of 1990) was enacted to enable certain special powers to be conferred upon members of the armed forces in the disturbed areas in the State of Jammu and Kashmir, in the background of insurgency, militancy and proxy war, disturbing the peace in the State.

It is submitted that under the provisions of AFSPA, the civilian government of the State/ Union proclaims a particular area as disturbed area and calls in the Army to act in aid of the civilian authorities.

1998 A challenge to AFSPA 1958 was heard and rejected by a Constitution Bench of this Hon’ble Court in 1998 (2) SCC 109 – Naga People’s Movement of Human Rights Vs Union of India. This Hon’ble Court specifically upheld all the provisions of AFSPA Act 1958, including special powers of the Armed Forces, as defined in section 4 and protection of persons acting under the Act, as provided in section 6. This Hon’ble Court specifically noted the “Does and Don’ts” issued by Army headquarters from time to time, which are binding and must be followed while acting under AFSPA, in paras 53 to 58 of the judgment. This Hon’ble Court deducted its conclusions in para 74 of the judgment, specifically holding in para 74(18), (19) & (21), which are as under:-

“74(18) Section 6 of the Central Act in so far as it confers a discretion on the Central Government to grant or refuse sanction for instituting prosecution or a suit or proceeding against any person in respect of anything done or purported to be done in exercise of the powers conferred by the Act does not suffer from the vice of arbitrariness. Since the order of the Central Government refusing or granting the sanction under Section 6 is subject to judicial review, the Central Government shall pass an order giving reasons.

(19) While exercising the powers conferred under clauses (a) to (d) of Section 4 the officers of the armed forces shall strictly follow the instructions contained in the list of "Do's and Don'ts" issued by the army authorities which are binding and any dis- ragard to the said instructions would entail suitable action under the Army Act, 1950.

(21) A complaint containing an allegation about misuse or abuse of the powers conferred under the Central Act shall be thoroughly inquired into and, if on enquiry it is found that the allegations are correct, the victim should be suitably compensated and the necessary sanction for institution of prosecution and/or a suit or other proceeding should be granted under Section 6 of the Central Act.”

2005 In 2005 (6) SCC 1 - Jacob Mathew Vs State of Punjab & Anr, a Three-Judge-Bench of this Hon’ble Court laid down detailed guidelines to be followed before any FIR/Criminal complaint is lodged against a Doctor in exercise of his professional duties. This Hon’ble Court, on a consideration of professionals like doctors to be a separate category and the applicability of negligence to the extent of criminality, specifically found that doctors cannot be treated like other individuals for bonafide acts done in exercise of their professional duties in good faith and deserve to be protected from malicious and vexatious FIRs.

This Hon’ble Court held as follows:-

“48. We sum up our conclusions as under:-

(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.

(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

……………………….

(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.

…………………..

(7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.

Guidelines - Re: prosecuting medical professionals

50. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards.

51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.

52. Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.

04.03.2009 FIR No. 16(2)/2009 dated 04.03.2009 was lodged with P.S. Mayang, Imphal under sections 307, 384 and 400 r/w Section 34 of IPC by Hav. D Bronson.

2012 In 2012 (6) SCC 228 – General Officer Commanding Rashtriya Rifles Vs Central Bureau of Investigation & Anr, a Two-Judge-Bench of this Hon’ble Court while considering Appeals against orders of Trial Court rejecting Appellant’s application for not entertaining charge sheet filed by the CBI, held that the term “institution” contained in Section 7 of AFSPA (J&K), 1990 means taking cognizance of the offence and not mere presentation of charge sheet by investigating agencies in para 95.1 of the judgment. It is pertinent to mention here that in this case, challenge to institution was not mounted at the stage of lodging of FIR but only after the charge sheet was filed by the CBI before the learned CJM, Srinagar.

2016 In 2016 (14) SCC 536 – Extra Judicial Executive Victim Family Association Vs Union of India - Writ Petition (Crl.) No.129/2012, a Two-Judge-Bench of this Hon’ble Court took cognizance of Petitions raising issues of human right violations of the victims and their families and claiming a large number of police and military operations to be fake encounters or extra judicial executions. This Hon’ble Court considered at length the contentions of the Petitioners, of the Amicus Curiae, report of the Hedge Commission, appointed by this Hon’ble Court, Union of India and State and passed detailed directions directing enquiry into the alleged cases of fake encounters. Significantly, this Hon’ble Court reiterated the views expressed by the Constitution Bench in Naga People’s Movement of Human Rights 1998 (2) SCC 109 and reiterated in para 255 as follows:-

“255. On an overall consideration of the submissions made and the material before us, we conclude:

255.1 This writ petition alleging gross violations of human rights is maintainable in this Court under Article 32 of the Constitution.

255.2 We respectfully follow and reiterate the view expressed by the Constitution Bench of this Court in Naga People's Movement of Human Rights that the use of excessive force or retaliatory force by the Manipur Police or the armed forces of the Union is not permissible. As is evident from the Dos and Don'ts and the Ten Commandments of the Chief of Army Staff, the Army believes in this ethos and accepts that this principle would apply even in an area declared as a disturbed area under AFSPA and against militants, insurgents and terrorists. There is no reason why this principle should not apply to the other armed forces of the Union and the Manipur Police.

255.3 We respectfully follow and reiterate the view expressed by the Constitution Bench of this Court in Naga People's Movement of Human Rights that an allegation of excessive force resulting in the death of any person by the Manipur Police or the armed forces in Manipur must be thoroughly enquired into. For the time being, we leave it open for decision on who should conduct the inquiry and appropriate directions in this regard will be given after the exercise mentioned below is conducted.

255.4 We respectfully follow and reiterate the view expressed by this Court that in the event of an offence having been committed by any person in the Manipur Police or the armed forces through the use of excessive force or retaliatory force, resulting in the death of any person, the proceedings in respect thereof can be instituted in a criminal court subject to the appropriate procedure being followed.”

2017 2017 (8) SCC 417 - Extra Judicial Executive Victim Family Association Vs Union of India - Writ Petition (Crl.) No.129/2012, while continuing to monitor the writ petition, this Hon’ble Court constituted a Special Investigation Team (SIT) and directed CBI to investigate into allegations of fake encounters or use of excessive/ retaliatory force and also inter alia directed lodging of FIRs in six cases enquired by Justice Santosh Hedge Commission.

12.02.2018 A Writ Petition bearing WP (Crl.) No.42/2018 titled as “Lt Col Karamveer Singh Vs State of Jammu & Kashmir & Ors” was filed before this Hon’ble Court by a decorated Army Officer, on behalf of his son, in similar circumstances, where his son Major Aditya was booked in an FIR by J&K Police at the behest of stone pelters under sections 302, 307 & 336 of Ranbir Penal Code, while he was exercisingbonafide military duty in AFSPA area. The Writ Petition had to be filed to protect the bonafide action of the soldier from prosecution and persecution and for protecting the morale of the soldiers of Indian Army, who are facing all odds in performance of their bonafide duties and laying their lives in the line of duty, to uphold the dignity of the Indian Flag. Vide Order dated 12.02.2018, this Hon’ble Court was pleased to issue notice and directed that no coercive steps shall be taken on the basis of the FIR.

05.03.2018 Vide Order dated 05.03.2018 in WP (Crl.) No.42/2018, this Hon’ble Court was pleased to direct no investigation on the basis of the FIR and continued the interim order in subsequent hearing.

16.07.2018 Vide Order dated 16.07.2018 in WP (Crl.) No.42/2018, this Hon’ble Court was pleased to note the question of law in the following terms:-

“It is submitted by Mr. Shekhar Naphade, learned senior counsel appearing for the State Jammu & Kashmir that the controversy raised in this matter is covered with all force by the Constitution Bench decisions in Naga People’s Movement of Human Rights vs. Union of India, (1998) 2 SCC 109 and Lalita Kumari vs. Government of Uttar Pradesh & Ors., (2014) 2 SCC 1. The said position is disputed by Mr. K.K. Venugopal, learned Attorney General for India on the ground that the decisions rendered by the Constitution Benches would not be applicable in view of the language employed in Section 7 of the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990.

As a pure question of law emerges, learned counsel for the parties shall restrict their arguments exclusively to this aspect.”

The aforesaid matter is still pending before this Hon’ble Court and the next date of hearing is 21.08.2018.

30.07.2018 This Hon’ble Court has continued to monitor the aforesaid Writ Petition (Crl.) No.129/2012 and on 30.07.2018 after directing the personal presence of Director CBI, directing them to expedite filing of charge sheets, by fast tracking the investigation process.

31.07.2018 It is pertinent to mention here that the reporting of this particular hearing before the Hon’ble Supreme Court in the media was extremely disturbing and troublesome and the Petitioners crave leave to place an Article published on 31.07.2018 in ‘The Hindu’ newspaper titled as ‘Supreme Court raps CBI on Manipur Killings’.

31.07.2018 On the very next day, an FIR was lodged by CBI under section 302 r/w 34 of IPC against a serving officer of the Indian Army viz. Major Vijay Singh Balhara (now Col), alongwith seven other persons of Manipur Police, arrayed as accused.

It is pertinent to mention here that an FIR with regard to the same incident was lodged by Hav. D Bronson in P.S. Mayang,Imphal on 04.03.2009 (vide Annexure P-1).

.08.2018 Therefore, the Petitioners are approaching this Hon’ble Court under Article 32 of the Constitution of India through the present Writ Petition.

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (Crl.) NO. OF 2018

(Under Article 32 of the Constitution of India)

IN THE MATTER OF:

1. COL AMIT KUMAR, S/o LATE S. NATH, HQ 16 Corps, C/o 56 APO

2. COL VIPUL HARSH SISODIA, S/o LATE DR KRISHNA RAJ SINGH, 31 Fd Regt. C/o 56 APO

3. COL INDERJIT SINGH DHILLON, S/o SS DHILLON, 6 AR, C/o 99 APO

4. BRIG SATISH RATNAPARKHI, S/o R PARKHI, HQ 16 Corps, C/o 56 APO

5. COL S MUKERJI, S/o KK MUKERJI, 12 RR, C/o 56 APO

6. MAJ ASHISH KUMAR SINGH, S/o UMA SHANKAR SINGH, 12 RR, C/o 56 APO

7. MAJ RAJNEESH MEHTA, S/o MADAN SINGH MEHAT, 12 RR, C/o 56 APO

8. MAJ KARAMVIR SINGH, S/o RAJ KUMAR, 12 RR, C/o 56 APO

9. CAPT ANKIT SINGH BHADUARIA, S/o G S BHADURIA, 12 RR, C/o 56 APO

10. SUB MAJ AJEET SINGH, S/o BAJRANG SINGH, 12 RR, C/o 56 APO

11. SUB AJAY SINGH, S/o LATE SHIV SHARAN SINGH, 12 RR, C/o 56 APO

12. SUB MADHUSUDAN SAMANTA, S/o BECHARAM SAMANTA, 12 RR, C/o 56 APO

13. SUB KR CHAUDHARY, S/o KANWARA RAM, 12 RR, C/o 56 APO

14. HAV RAJESH KUMAR, S/o KARTAR CHAND, 12 RR, C/o 56 APO

15. NK SULTAN MOHD, S/o UMED ALI KHAN, 12 RR, C/o 56 APO

16. HAV BRAJ RAJ SINGH, S/o LATE BACHCHU SINGH CHAHAR, 12 RR, C/o 56 APO

17. HAV RKS CHAUDHARY, S/o BL CHAUDHARY, 12 RR, C/o 56 APO

18. SEP GYARSI LAL GURJAR, S/o PRAHLAD GURJAR, 12 RR, C/o 56 APO

19. HAV KRISHAN KUMAR, S/o TANA RAM, 12 RR, C/o 56 APO

20. NK MAHIPAL SINGH, S/o ARJUN SINGH, 12 RR, C/o 56 APO

21. HAV BS YADAV, S/o NANHAKU SINGH YADAV, 12 RR, C/o 56 APO

22. NK LEKHRAJ SINGH, S/o MAHENDER SINGH, 12 RR, C/o 56 APO

23. NK LAXMAN SINGH, S/o JALAM SINGH, 12 RR, C/o 56 APO

24. HAV SHANMUKHA RAO, S/o APPALASWAMY, 12 RR, C/o 56 APO

25. HAV PRATEE PAL SINGH, S/o GAJENDRA SINGH, 12 RR, C/o 56 APO

26. HAV RAJA RAM, S/o FAQUIR CHAND, 12 RR, C/o 56 APO

27. HAV ANISH KUMAR R, S/o RAGHAVAN PILLAI N, 12 RR, C/o 56 APO

28. NB SUB SATYAWAN, S/o MALDEV, 12 RR, C/o 56 APO

29. SUB MAG SINGH, S/o HUKAM SINGH, 58 RR, C/o 56 APO

30. SUB RANJIT SINGH, S/o DARSHAN SINGH, 58 RR, C/o 56 APO

31. NK PANKAJ KUMAR, S/o ARBIND KUMAR, 12 RR, C/o 56 APO

32. Sub SHYJU CM, S/o GANGHADRAN NAIR, 12 RR, C/o 56 APO

33. NK SATYANARAYAN MEENA, S/O RAMDEV MEENA, 12 RR, C/o 56 APO

34. LT COL GOPAL ARJYAL, S/o LATE BR ARJYAL, 26 Mech. C/o 56 APO

35. CAPT TUSHAR SHARMA, S/o ARVIND SHARMA, 26 Mech. C/o 56 APO

36. CAPT VANSHAY KAPOOR, S/o CHANDER KAPOOR, 26 Mech. C/o 56 APO

37. CAPT ROUBLE MUDGAL, S/o SURENDER KUMAR, 26 Mech. C/o 56 APO

38. SUB MAJ DJ TIWARI, S/o SHOSHANKAR TIWARI, 26 Mech. C/o 56 APO

39. SUB G RAMESH, S/o LATE RG GOVINDASAMY, 26 Mech. C/o 56 APO

40. SUB BALJIT SINGH, S/o SARDAR KUNDAN SINGH, 26 Mech. C/o 56 APO

41. SUB SUNIL KUMAR, S/o DHOOM SINGH, 26 Mech. C/o 56 APO

42. SUB PREM PAL SINGH, S/o KHARAK KALAN, 26 Mech. C/o 56 APO

43. SUB DK PANDEY, S/o BHADRI NARAYAN PANDEY, 26 Mech. C/o 56 APO

44. SUB STEPHEN KENNEDY, S/o FRANCIS, 26 Mech. C/o 56 APO

45. SUB DINA NATH, S/o SHIV RAM, 26 Mech. C/o 56 APO

46. SUB ALOK GHOSH, S/o S GHOSH, 26 Mech. C/o 56 APO

47. SUB BAGUL PANKAJ, S/o BAGUL SUBHASH RAO RAMDAS, 26 Mech. C/o 56 APO

48. SUB MAHESH KUMAR, S/o KEDAR LAL JATAV, 26 Mech. C/o 56 APO

49. SUB RAM CHANDER, S/o HAR LAL, 26 Mech. C/o 56 APO

50. NB SUB PC BHATT, S/o JEET RAM BHATT, 26 Mech. C/o 56 APO

51. NB SUB HARKESH SINGH, S/o ROOP CHAND, 26 Mech. C/o 56 APO

52. NB SUB HEMA RAM, S/o MANGU RAM, 26 Mech. C/o 56 APO

53. NB SUB HARI SHANKER SINGH, S/o LATTHI RAM SINGH, 26 Mech. C/o 56 APO

54. NB SUB NAKUL KUMAR, S/o RAM NANDAN SHARMA, 26 Mech. C/o 56 APO

55. NB SUB K MOGULAIAH, S/o ADIVAIAH, 26 Mech. C/o 56 APO

56. NB SUB JAI PRAKASH, S/o DEEWAN SINGH TOMAR, 26 Mech. C/o 56 APO

57. NB SUB KK RAO, S/o APPALA SWAMY, 26 Mech. C/o 56 APO

58. NB SUB D GOPALAKRISHNAN, S/o G DHAKSHA MOORTHY, 26 Mech. C/o 56 APO

59. NB SUB AJENDRA KUMAR, S/o SRI PAL SINGH, 26 Mech. C/o 56 APO

60. NB SUB LR VISHWAKARMA, S/o GANESH PRASAD VISHWAKARMA, 26 Mech. C/o 56 APO

61. NB SUB DHOLE ASHOK, S/o DHOLE KUNDALIK, 26 Mech. C/o 56 APO

62. HAV SANDEEP KUMAR, S/o SARDAR SINGH, 26 Mech. C/o 56 APO

63. HAV SUJAY BANERJEE, S/o BIDYUT BANERJEE, 26 Mech. C/o 56 APO

64. HAV RAJESH TIMUNG, S/o SAR ET TIMUNG, 26 Mech. C/o 56 APO

65. HAV SKC RAY, S/o DIBYA SINGH CHAMPATHY, 26 Mech. C/o 56 APO

66. HAV M AKBAR ALI, S/o MIRZA BASIR BAIG, 26 Mech. C/o 56 APO

67. HAV RK JHA, S/o RAJENDRA JHA, 26 Mech. C/o 56 APO

68. HAV GOBINDA SAHU, S/o TRIPUR SAHU, 26 Mech. C/o 56 APO

69. HAV SURENDRA SINGH, S/o HUKAM SINGH, 26 Mech. C/o 56 APO

70. HAV GV REDDY, S/o G GOPAL REDDY, 26 Mech. C/o 56 APO

71. HAV RAJESH MISHRA, S/o HARI PRASAD, 26 Mech. C/o 56 APO

72. HAV KAMLESH KUMAR, S/o RAMJI YADAWA, 26 Mech. C/o 56 APO

73. HAV MANJEET SINGH, S/o GAJPAL SINGH, 26 Mech. C/o 56 APO

74. HAV RADHEY SHYAM, S/o DEVNATH SINGH, 26 Mech. C/o 56 APO

75. CHM PARDEEP KUMAR, S/o SHEO RAM, 26 Mech. C/o 56 APO

76. HAV T JENA, S/o NARAYAN CHANDRA JENA, 26 Mech. C/o 56 APO

77. HAV HEMKANTA BORA, S/o LATE DULASWAR BORA, 26 Mech. C/o 56 APO

78. HAV KULBIR SINGH, S/o DARBAR SINGH, 26 Mech. C/o 56 APO

79. HAV TEJPAL, S/o BHOLA RAM, 26 Mech. C/o 56 APO

80. HAV SARNAPPA, S/o BASAPPA, 26 Mech. C/o 56 APO

81. HAV YOGENDRA KUMAR, S/o ROOP SINGH, 26 Mech. C/o 56 APO

82. HAV LI SINGH, S/o L BIDHUR SINGH, 26 Mech. C/o 56 APO

83. HAV SURESH, S/o RAJENDER KUMAR, 26 Mech. C/o 56 APO

84. HAV RAMENDER SINGH, S/o BRAJ BHUSHAN BHADRIA, 26 Mech. C/o 56 APO

85. HAV SATENDER SINGH, S/o SAMAY SINGH, 26 Mech. C/o 56 APO

86. HAV AJAY KUMAR, S/o ROSHAN LAL, 26 Mech. C/o 56 APO

87. HAV SUBHASH GURJAR, S/o RAMESHWAR LAL, 26 Mech. C/o 56 APO

88. HAV SHIV SHANKER SHUKLA, S/o RAJ KISHORE SHUKLA, 26 Mech. C/o 56 APO

89. HAV SARAN RAI, S/o PADAMIHOJ RAI, 26 Mech. C/o 56 APO

90. HAV MANJEET SINGH, S/o GAJPAL SINGH, 26 Mech. C/o 56 APO

91. HAV RAHUL ANAND, S/o RAMBILASH SAH, 26 Mech. C/o 56 APO

92. HAV BABUL CHANDA, S/o BHAJAN CHANDA, 26 Mech. C/o 56 APO

93. CHM KM SOORI, S/o M SOORI, 26 Mech. C/o 56 APO

94. HAV MAGAR SACHIN, S/o MAGAR SHANKAR, 26 Mech. C/o 56 APO

95. HAV KALI DASS, S/o LATE ROSHAN LAL, 26 Mech. C/o 56 APO

96. HAV MAHESH KARI, S/o BHUPANNA KARI, 26 Mech. C/o 56 APO

97. HAV SANDEEP SINGH, S/o NAHAR SINGH, 26 Mech. C/o 56 APO

98. HAV BABU RAM, S/o ROSHAN LAL, 26 Mech. C/o 56 APO

99. HAV AK SHEIKH, S/o ABDUL HAMID, 26 Mech. C/o 56 APO

100. HAV BIRENDER SINGH, S/o NAGENDRA SINGH, 26 Mech. C/o 56 APO

101. HAV SURENDRA SINGH, S/o ISHWAR SINGH, 26 Mech. C/o 56 APO

102. HAV VINOD KUMAR, S/o RAGHUBAR, 26 Mech. C/o 56 APO

103. HAV DILIP KUMAR, S/o VINAY KUMAR, 26 Mech. C/o 56 APO

104. HAV RADHEY SHYAM, S/o DEV NATH, 26 Mech. C/o 56 APO

105. HAV X ANTONY ASHA, S/o D XAVIER, 26 Mech. C/o 56 APO

106. HAV RAM CHARAN, S/o RAMAL SINGH, 26 Mech. C/o 56 APO

107. HAV RAVINDER KUMAR, S/o VENKAIAH N, 26 Mech. C/o 56 APO

108. L/HAV PUSHPRAJ SINGH, S/o KAMBABU SINGH, 26 Mech. C/o 56 APO

109. L/HAV PATIL VILAS RAO, S/o AKRAM, 26 Mech. C/o 56 APO

110. NK SANDEEP SINGH, S/o MAJOR SINGH, 26 Mech. C/o 56 APO

111. NK VINOD KUMAR, S/o HARI LAL, 26 Mech. C/o 56 APO

112. NK SANJAY KUMAR, S/o PRAKASH CHAND, 26 Mech. C/o 56 APO

113. NK KAMLESH KUMAR, S/o DAMRU RAM, 26 Mech. C/o 56 APO

114. NK SOREN DASS, S/o S DAS, 26 Mech. C/o 56 APO

115. NK RANJAN KUMAR, S/o ASHOK KUMAR, 26 Mech. C/o 56 APO

116. NK MANOJ GHADI, S/o HANUMANT GHADI, 26 Mech. C/o 56 APO

117. NK SUNEEL KUMAR, S/o VIJAY SINGH, 26 Mech. C/o 56 APO

118. NK DAMANJIT SINGH, S/o MOHANJIT SINGH, 26 Mech. C/o 56 APO

119. NK KAPADE RAJENDRA, S/o MARUTI DATLU KAPADE, 26 Mech. C/o 56 APO

120. NK SHUBHASHU SEKHAR, S/o KRISHNA NAND MISHRA, 26 Mech. C/o 56 APO

121. NK GAIKWAD VIJAY, S/o SHANTA RAM, 26 Mech. C/o 56 APO

122. NK VINOD KUMAR, S/o JAGVIR SINGH, 26 Mech. C/o 56 APO

123. NK PATIL JAGDISH VANJI, S/o BANJI, 26 Mech. C/o 56 APO

124. NK SHIV KUMAR GIRI, S/o ROOPAN GIRI, 26 Mech. C/o 56 APO

125. NK JUNDRE DNYANESHWAR, S/o JUNDRA PARSARAM, 26 Mech. C/o 56 APO

126. NK AMIT, S/o DHARAM CHAND, 26 Mech. C/o 56 APO

127. NK BALWANT SINGH, S/o PREM SINGH, 26 Mech. C/o 56 APO

128. NK RAM KUMAR VERMA, S/o SHAMBHU DAYAL VERMA, 26 Mech. C/o 56 APO

129. NK C DON BASS, S/o CHINNAPAN, 26 Mech. C/o 56 APO

130. NK VARUN KUMAR, S/o SISPAL SINGH, 26 Mech. C/o 56 APO

131. NK BABU KUMAR P, S/o RAMESH P, 26 Mech. C/o 56 APO

132. NK SANTOSH KUMAR, S/o RAJVEER, 26 Mech. C/o 56 APO

133. NK RAVINDER KUMAR, S/o SATYAVEER, 26 Mech. C/o 56 APO

134. NK SUREN DAS, S/o SURJYA KANTA DAS, 26 Mech. C/o 56 APO

135. NK KULDEEP SINGH, S/o BALVEER SINGH, 26 Mech. C/o 56 APO

136. NK SANDEEP SINGH, S/o SARDAR SINGH, 26 Mech. C/o 56 APO

137. NK VICKY KUMAR, S/o LATE PARSON LAL, 26 Mech. C/o 56 APO

138. NK SHIV PAUL, S/o PADAMJIT SHARMA, 26 Mech. C/o 56 APO

139. NK KUSHAL BHAI, S/o LAXMAN BHAI, 26 Mech. C/o 56 APO

140. NK BIJENDER RAI, S/o BALDHOJ RAI, 26 Mech. C/o 56 APO

141. LT COL SANJEEV YADAV, S/o PR YADAV, HQ 16 Corps, C/o 56 APO

142. LT COL SHUBHANKAR MISHRA, S/o Padamshree Dr BHARAT MISHRA, 5221 ASC Bn, C/o 56 APO

143. COL DHARMENDRA GUPTA, S/o Shri Gupta, HQ 16 Corps, C/o 56 APO

144. SUB PRAHLAD SINGH, S/o LATE UJJWAL SINGH, 1 J&K LI, C/o 56 APO

145. NK JS GURJAR, S/o SHRIKISHAN GURJAR, 1 J&K LI, C/o 56 APO

146. NK YOGESH YADAV, S/o RAVI KUMAR, 1 J&K LI, C/o 56 APO

147. MAJ SAMBA SIVA RAO KORRAPATI, S/o K HANUMANTHA RAO, 1 J&K LI, C/o 56 APO

148. CAPT SOUMITRA DEY, S/o Late DEBA PRASAD DEY, 1 J&K LI, C/o 56 APO

149. HAV GULSHAN BADGAL, S/o JAGGU RAM, 1 J&K LI, C/o 56 APO

150. HAV MAKHAN KUMAR, S/O ISHER DASS, 1 J&K LI, C/o 56 APO

151. L/HAV WAZAR HUSSAIN, S/O MAHBOOB HUSSAIN, 1 J&K LI, C/o 56 APO

152. L/HAV VIJAY KUMAR, S/O PURAN CHAND, 1 J&K LI, C/o 56 APO

153. HAV UMMAR JAN KOKA, S/O GH MOHD KOKA, 1 J&K LI, C/o 56 APO

154. HAV MOHD REYAZ BHAT, S/O MAJI KHAZIR MOHD BHAT, 1 J&K LI, C/o 56 APO

155. HAV RIAZ KHAN S/O FAYAZ MOHD, 1 J&K LI, C/o 56 APO

156. HAV MAREED HUSSAIN S/O SHRI ANWAR HUSSAIN, 1 J&K LI, C/o 56 APO

157. NK BALVINDER KUMAR, S/O SHIV RAM CHOUDHARY, 1 J&K LI, C/o 56 APO

158. L/HAV OMPARKASH, S/O SHRI MILKHI RAM, 1 J&K LI, C/o 56 APO

159. L/HAV SHABIR AHMED, S/O MIR AHMED MALIK, 1 J&K LI, C/o 56 APO

160. HAV SATISH KUMAR S/O KARTAR CHAND, 1 J&K LI, C/o 56 APO

161. HAV MOHD. IQBAL, S/O MIR MOHD, 1 J&K LI, C/o 56 APO

162. HAV MOHD ZABAIR, S/O ALTAF HUSSAIN, 1 J&K LI, C/o 56 APO

163. HAV DILAWAR SINGH, S/O KARTAR SINGH, 1 J&K LI, C/o 56 APO

164. HAV MOHD IMTIYAZ, S/O MOHD ABDULLAH THKAR, 1 J&K LI, C/o 56 APO

165. LT COL GAURAV NARANG, S/o A.S. NARANG, Project Manager MAP Mhow

166. COL KC JODH, S/o CHANDRA KANT JAIN, 341 Med Regt. C/o 56 APO

167. LT COL SAIF NASEEM, S/o Mohd. NARSIMUDDIN, 219 Med Regt. C/o 56 APO

168. COL BPS TOMAR, S/o Mr. TOMAR, HQ 16 Corps, C/o 56 APO

169. COL PRASHANT MISHRA, S/o R. MISHRA, 58 RR, C/o 56 APO

170. SUB PARVEEN KUMAR RANA, S/o JOGINDER SINGH RANA, 58 RR, C/o 56 APO

171. MAJ G VARUN, S/o K S GOPALKRISHNAN, 58 RR, C/o 56 APO

172. NK SHIVA RAI, S/o SANTOSH RAI, 58 RR, C/o 56 APO

173. SEP AJEET SINGH SIKARWAR, S/o OM PRAKASH SINGH SIKARWAR, 58 RR, C/o 56 APO

174. CAPT KUNAL, S/o ASHOK KUMAR, 58 RR, C/o 56 APO

175. MAJ SANTOSH KUMAR SINGH, S/o AB SINGH, 58 RR, C/o 56 APO

176. NK AMAL A, S/o ANANTHAN K, 58 RR, C/o 56 APO

177. HAV SATISH CHANDRA PAL, S/o JILEDAR SINGH, 58 RR, C/o 56 APO

178. NB SUB/LLK MANOJ KUMAR SINGH, S/o LATE SANT LAL BHATI, 58 RR, C/o 56 APO

179. SEP DATARAM GURJAR, S/o DHARM SINGH, 58 RR, C/o 56 APO

180. HAV JASHMER SHARMA, S/o NIWASH, 58 RR, C/o 56 APO

181. SEP DEVENDRA CHAUDHARY, S/o SANTOSH KUMAR, 58 RR, C/o 56 APO

182. SEP RAKESH KUMAR, S/o RAJ SINGH, 58 RR, C/o 56 APO

183. SUB BIJENDER KUMAR, S/o CHOKHRAJ SHARMA, 58 RR, C/o 56 APO

184. SEP AFSAL P, S/o NASAR P, 58 RR, C/o 56 APO

185. MAJ PRITTAM SINGH, S/o NAND LAL, 58 RR, C/o 56 APO

186. HAV SK SHARMA, S/o SHIV KUMAR SHARMA, 58 RR, C/o 56 APO

187. SEP RAJ KUMAR, S/o OM PRAKASH, 58 RR, C/o 56 APO

188. SEP SALMAN KHAN, S/o RAJE KHAN, 58 RR, C/o 56 APO

189. SEP SAYALI IMRAN, S/o KALU BHAI, 58 RR, C/o 56 APO

190. SUB MAJ VIJAY SINGH, S/o LATE KEDARNATH, 58 RR, C/o 56 APO

191. SEP GIRIRAJ GURJAR, S/o BANWARI LAL, 58 RR, C/o 56 APO

192. SEP YOGENDER SINGH, S/o GUGAN SINGH, 58 RR, C/o 56 APO

193. SEP RANSHID UA, S/o ABDUL MAJEED, 58 RR, C/o 56 APO

194. SEP HARIHAR SHARMA, S/o KRISHNA KANTA SHARMA, 58 RR, C/o 56 APO

195. HAV PRAKASH KUMAR DUBEY, S/o SN DUBEY, 58 RR, C/o 56 APO

196. NB SUB SR DASHARATH, S/o DASHARATH YADAV, 58 RR, C/o 56 APO

197. SEP JASRAM, S/o SURJA SINGH, 58 RR, C/o 56 APO

198. COL SUSHANT GOVIL, S/o JAGDAMBA PRASAD BARANWAL, NCC Directorate, C/o 56 APO

199. COL ASHUSTOSH SAHAI, S/o VIKAS SAHAI, HQ 16 Corps, C/o 56 APO

200. COL VISHAL CHAUDHARY, S/o Mr. CHAUDHARY, HQ 16 Corps, C/o 56 APO

201. COL VINOD KUMAR SHEROAN, S/o ROOP CHAND SHEROAN, 1 Chandigarh, NCC Battalion, C/o 56 APO

202. COL SP SINGH, S/o B.R. SINGH, 59 IDSR, C/o 99 APO

203. COL GURKIRPAL SINGH BAJAJ, S/o COL GULSHAN SINGH BAJAJ (Retd), HQ 16 Corps, C/o 56 APO

204. LT COL NIRPENDER SINGH PARMAR, S/o T.S. PARMAR, 5221 ASC Bn, C/o 56 APO

205. LT COL AMIT RANA, S/o Dr. A.S. RANA, 11 Armd Regt., C/o 56 APO

206. LT COL SUNDEEP SINGH WALAI, S/o SURENDRA SINGH WALIA, HQ 23 (I), Armd Bde, C/o 56 APO

207. COL DINESH KUMAR, S/o BALBIR SINGH, HQ 16 Corps, C/o 56 APO

208. COL VIRENDER SIDHU, S/o H.S. SIDHU, Col Veteran, 21 Sub Area, C/o 56 APO

209. LT COL DK CHAUDHARY, S/o K. CHAUDHARY, 39 R&O, C/O 56 APO

210. COL SAURABH CHAUDHARY, S/o H.P. SINGH, HQ 16 Corps, C/o 56 APO

211. COL GAURAV MEHRA, S/o H.S. MEHRA, 7 Mech, C/o 56 APO

212. LT COL DIGAMBER SINGH, S/o G.S. DEORI, HQ 60 Infantry Bde, C/o 56 APO

213. COL HIMMAT SINGH DHILLON, S/o BRIG AIS DHILLON, 8 Garhwal Rifles, C/o 56 APO

214. LT COL RP SINGH, S/o P.S. YADAV, HQ 16 Corps, C/o 56 APO

215. LT COL LEKHRAJ, S/o RAJ KUMAR, HQ Delhi Area, C/o 56 APO

216. COL GS JUNEJA, S/o HUKUM JEET LAL, 191 Field Regt.

217. COL NUNGLEPPAM BUDDHIMANTA SINGH, S/o N SHAYAMANANDA SINGH, 20 Assam Rifles, C/o 99 APO

218. LT COL ANIMESH BHADOLA, S/o ASHOK BHADOLA, 2/1 Gurkha Rifles, C/o 56 APO

219. MAJ SV NAIR, S/o V NAIR, 2/1 Gurkha Rifles, C/o 56 APO

220. SUB LOK BAHADUR THAPA, S/o NAR BAHADUR THAPA, 2/1 Gurkha Rifles, C/o 56 APO

221. SUB NAMGYAL BHUTIA, S/o S T LAMA, 2/1 Gurkha Rifles, C/o 56 APO

222. SUB NARVIR SINGH, S/o MULAYAM SINGH, 2/1 Gurkha Rifles, C/o 56 APO

223. NB SUB/CLK RAJPAL PAL, S/o LATE MERA LAL PAL, 2/1 Gurkha Rifles, C/o 56 APO

224. NK KEERTHAN KM, S/o MAHANE ACHARYA KM, 2/1 Gurkha Rifles, C/o 56 APO

225. HAV NAR BDR GURUNG, S/o RUK BDR GURUNG, 2/1 Gurkha Rifles, C/o 56 APO

226. HAV GOPAL KUMAR GURUNG, S/o DHEEN BDR GURUNG, 2/1 Gurkha Rifles, C/o 56 APO

227. CHM PURAN SINGH THAPA, S/o PADAM SINGH THAPA, 2/1 Gurkha Rifles, C/o 56 APO

228. NK SOUROV ROY, S/o SAROJENDU ROY, 2/1 Gurkha Rifles, C/o 56 APO

229. HAV INDRA KUMAR GURUNG, S/o DUT BDR GURUNG, 2/1 Gurkha Rifles, C/o 56 APO

230. NK NEERAJ RANA, S/o I S RANA, 2/1 Gurkha Rifles, C/o 56 APO

231. HAV ARVIND KUMAR SINGH, S/o R.K. SINGH, 2/1 Gurkha Rifles, C/o 56 APO

232. HAV ATUL THAPA, S/o JIT SARAN THAPA, 2/1 Gurkha Rifles, C/o 56 APO

233. COL ROHIT MUKHERJEE, S/o R K MUKHERJEE, 10 Guards, C/o 56 APO

234. MAJ ANKITH SRIVASTAVA, S/o COL PRADEEP SRIVASTAVA, 10 Guards, C/o 56 APO

235. CAPT VIVEK RATHEE, S/o RAM NIWAS RATHEE, 10 Guards, C/o 56 APO

236. LT COL BIBEK CHAKROBARTY, S/o B CHAKROBARTY, 10 Guards, C/o 56 APO

237. CAPT VAIBHAV THATE, S/o NURSING THATE, 10 Guards, C/o 56 APO

238. CAPT KARTIK SHARMA, S/o SUDESH KUMAR SHARMA, 10 Guards, C/o 56 APO

239. MAJ DHEEPU KUMAR SANAPALA, S/o KAMESWARA RAO, 10 Guards, C/o 56 APO

240. COL BS CHHIKARA, S/o SURENDER SINGH, 3 Sikh LI, C/o 99 APO

241. MAJ RANJEET SINGH PANWAR, S/o RS PANWAR, 3 Sikh LI, C/o 99 APO

242. NK DALJEET SINGH, S/o SHINGARA SINGH, 3 Sikh LI, C/o 99 APO

243. SEP BACHITTAR SINGH, S/o SUCHA SINGH, 3 Sikh LI, C/o 99 APO

244. SEP VIJAY KUMAR SINGH, S/o SURESH SINGH, 3 Sikh LI, C/o 99 APO

245. SUB KULDEEP SINGH, S/o LATE GURMUKH SINGH, 3 Sikh LI, C/o 99 APO

246. SEP BHARTHA SINGH, S/o MAKHAN SINGH, 3 Sikh LI, C/o 99 APO

247. LNK AMIT KUMAR, S/o SURO YADAV, 3 Sikh LI, C/o 99 APO

248. NK RAVI, S/o JAGDISH, 3 Sikh LI, C/o 99 APO

249. HAV PARMINDER SINGH, S/o BANA SINGH, 3 Sikh LI, C/o 99 APO

250. NK GURWINDER SINGH, S/o HARNEK SINGH, 3 Sikh LI, C/o 99 APO

251. MAJ AMITAV RAHA, S/o SUBRATA SAHA, 3 Sikh LI, C/o 99 APO

252. SEP SANJEEV SINGH, S/o HANSRAJ SINGH, 3 Sikh LI, C/o 99 APO

253. SEP GURMUKH SINGH, S/o RAM SINGH, 3 Sikh LI, C/o 99 APO

254. SEP JOLLY SINGH, S/o LABH SINGH, 3 Sikh LI, C/o 99 APO

255. SEP SUKHCHAIN SINGH, S/o GULZAR SINGH, 3 Sikh LI, C/o 99 APO

256. NK RAJEEV KUMAR, S/o BRIJ ANAND CHAUHAN, 3 Sikh LI, C/o 99 APO

257. LNK AMANDEEP SINGH, S/o MOHINDER SINGH, 3 Sikh LI, C/o 99 APO

258. NK BALDEV SINGH, S/o CHARAN SINGH, 3 Sikh LI, C/o 99 APO

259. HAV CHARANJIT SINGH, S/o AYA SINGH, 3 Sikh LI, C/o 99 APO

260. SEP HAKAM SINGH, S/o BANT SINGH, 3 Sikh LI, C/o 99 APO

261. HAV DILBAG SINGH, S/o BIR SINGH, 3 Sikh LI, C/o 99 APO

262. NK MD HARIS, S/o MAMMI KUTTY, 3 Sikh LI, C/o 99 APO

263. SUB HARJINDER SINGH, S/o LATE JIT SINGH, 3 Sikh LI, C/o 99 APO

264. HAV VIKRAM SINGH, S/o KULDEEP SINGH, 3 Sikh LI, C/o 99 APO

265. SEP JASVIR SINGH, S/o BHOLA SINGH, 3 Sikh LI, C/o 99 APO

266. SEP AVTAR SINGH, S/o GURMIT SINGH, 3 Sikh LI, C/o 99 APO

267. HAV CHARANJIT SINGH, S/o BALVIR SINGH, 3 Sikh LI, C/o 99 APO

268. HAV HARISH SINGH, S/o BABBAN SINGH, 3 Sikh LI, C/o 99 APO

269. SEP JASWINDER SINGH, S/o DARSHAN SINGH, 3 Sikh LI, C/o 99 APO

270. SEP GURPREET SINGH, S/o KULDIP SINGH, 3 Sikh LI, C/o 99 APO

271. NK NAVDEEP SINGH, S/o MOHINDER SINGH, 3 Sikh LI, C/o 99 APO

272. SEP AJEET SINGH, S/o MAHIPAL SINGH, 3 Sikh LI, C/o 99 APO

273. LNK SARIN, S/o VN KAMLASANAN, 58 RR, C/o 56 APO

274. LT COL SUBHASH CHAND PUNIA, S/o SOHAN LAL PUNIA, 21 Para (SF), C/o 99 APO

275. MAJ AMITANSU BHUYAN, S/o ASHOK BHUYAN, 21 Para (SF), C/o 99 APO

276. MAJ CVS NIKHIL, S/o LATE CV VIJAY KUMAR, 21 Para (SF), C/o 99 APO

277. SUB MAJ MOHARE BALU PANDURANG, S/o MOHARE PANDURI BABU, 21 Para (SF), C/o 99 APO

278. SUB BHAIRAMADGI MALLAPA, S/o LATE BHAIRAMADGI BHIMASHA, 21 Para (SF), C/o 99 APO

279. NB SUB JITENDER KUMAR, S/o MAHENDER SINGH, 21 Para (SF), C/o 99 APO

280. NB SUB KALLAPA LAD, S/o MARUTI LAD, 21 Para (SF), C/o 99 APO

281. NB SUB DUT RAM GHALE, S/o DAL BAHADUR GHALE, 21 Para (SF), C/o 99 APO

282. NB SUB SATE SINGH, S/o GANPAT SINGH, 21 Para (SF), C/o 99 APO

283. HAV TARSEM LAL, S/o LATE INDERJEET, 21 Para (SF), C/o 99 APO

284. HAV AMAR SINGH, S/o RAM SINGH, 21 Para (SF), C/o 99 APO

285. HAV SANJAY KUMAR, S/o LATE AMIR CHAND KHANTWAL, 21 Para (SF), C/o 99 APO

286. HAV BHIM SINGH, S/o DEVI RAM, 21 Para (SF), C/o 99 APO

287. HAV CHATAR SINGH GURJAR, S/o LAKHAN SINGH, 21 Para (SF), C/o 99 APO

288. HAV RANJAY KUMAR, S/o RAM SHEKHAR SINGH, 21 Para (SF), C/o 99 APO

289. NK PROVARAJ DEORI, S/o BILPOSHINL DEORI, 21 Para (SF), C/o 99 APO

290. SUB M RUPACHANDRA SINGH, S/o BIREN SINGH, 20 Assam Rifles, C/o 99 APO

291. RFN HANGSING, S/o H GINKHAN THANG, 20 Assam Rifles, C/o 99 APO

292. RFN BK RAI, S/o CHANDRAMA RAI, 20 Assam Rifles, C/o 99 APO

293. SUB BIR BAHADUR SUBBA, S/o LATE ABHIR HANG SUBBA, 20 Assam Rifles, C/o 99 APO

294. HAV RAJESH KUMAR, S/o JAI CHAND, 20 Assam Rifles, C/o 99 APO

295. RFN RANJEET SINGH, S/o CHAIN SINGH, 20 Assam Rifles, C/o 99 APO

296. RFN N NABA CHANDRA SINGH, S/o N MANI SINGH, 20 Assam Rifles, C/o 99 APO

297. HAV RAVENDRA SINGH, S/o DHARAMVEER SINGH, 20 Assam Rifles, C/o 99 APO

298. HAV MD JAHANGIR RAZA, S/o QWASIM RAZA, 20 Assam Rifles, C/o 99 APO

299. HAV SANTA BHADUR, S/o LAL BAHADUR CHETRI, 20 Assam Rifles, C/o 99 APO

300. RFN PRITAM PANWAR, S/o PANWAR MANOHAR, 20 Assam Rifles, C/o 99 APO

301. RFN GULSHAN SHARMA, S/o SUBHASH CHANDRA, 20 Assam Rifles, C/o 99 APO

302. RFN MANOJ KUMAR BALMIKI, S/o KISHAN LAL BALMIKI, 20 Assam Rifles, C/o 99 APO

303. HAV TEJ SINGH, S/o UTTAM SINGH, 20 Assam Rifles, C/o 99 APO

304. HAV DASHARATH KISHAN, S/o LATE BHOLA NATH KISHAN, 20 Assam Rifles, C/o 99 APO

305. HAV RAJENDRA KUMAR RAUT, S/o RAMA CHANDRA RAUT, 20 Assam Rifles, C/o 99 APO

306. HAV SIBE MP, S/o PAULASE, 20 Assam Rifles, C/o 99 APO

307. HAV MURALEEDHARAN NAIR, S/o K MADHANAN NAIR, 20 Assam Rifles, C/o 99 APO

308. NB SUB RAMESH ASHURAN, S/o LATE BIKRAM SINGH, 20 Assam Rifles, C/o 99 APO

309. RFN K MARK, S/o KIRAN CH SANGMA, 20 Assam Rifles, C/o 99 APO

310. RFN SAKTI SINGH, S/o LATE BHAGWAN SINGH, 20 Assam Rifles, C/o 99 APO

311. RFN SUNIL VENGRA, S/o LAZRUS VENGRA, 20 Assam Rifles, C/o 99 APO

312. RFN D KARRUPPIAAH, S/o DURAI RAJ, 20 Assam Rifles, C/o 99 APO

313. RFN SHASHI BHUSAN SINGH, S/o KRISHAN KUMAR SINGH, 20 Assam Rifles, C/o 99 APO

314. HAV ANIL KUMAR, S/o PRAYYAPAM PILLAI, 20 Assam Rifles, C/o 99 APO

315. CAPT VISHAL KUMAR, S/o MUNINDRA PRASAD, 20 Assam Rifles, C/o 99 APO

316. MAJ VINAY KUMAR, S/o TEJ RAM SHARMA, 20 Assam Rifles, C/o 99 APO

317. MAJ EL THONGNI, S/o R THONGNI, 20 Assam Rifles, C/o 99 APO

318. HAV AMARJEET SINGH ELANGBAM, S/o KUMAR SINGH ELANGBAM, 20 Assam Rifles, C/o 99 APO

319. DY COMMDT NIHAL SINGH, S/o KARAN SINGH, 20 Assam Rifles, C/o 99 APO

320. MAJ VISHNU NAIR, S/o TR VIJAYAM NAIR, 20 Assam Rifles, C/o 99 APO

321. MAJ MANISH MOHAN TIWARI, S/o HARI NANDAN TIWARI, 20 Assam Rifles, C/o 99 APO

322. HAV BALDEV SINGH, S/o RAJ KUMAR, 20 Assam Rifles, C/o 99 APO

323. HAV MANOJ KUMAR CHHETTRI, S/o R.B. CHHETTRI, 20 Assam Rifles, C/o 99 APO

324. HAV THANGPA, S/o T BIJOY MEITEI, 20 Assam Rifles, C/o 99 APO

325. HAV L RUPACHANDRA SINGH, S/o L SURENDRO SINGH, 20 Assam Rifles, C/o 99 APO

326. HAV CHANNAN CHHETRI, S/o B. CHHETRI, 20 Assam Rifles, C/o 99 APO

327. HAV KERLARN SALT, S/o SALT J, 20 Assam Rifles, C/o 99 APO

328. HAV NKD BARMAN, S/o S. BARMAN, 20 Assam Rifles, C/o 99 APO

329. HAV GOVIND KUMAR, S/o BACHU SINGH, 20 Assam Rifles, C/o 99 APO

330. RFN MRITUNJOY DEBNATH, S/o RAMENDRA DEBNATH, 20 Assam Rifles, C/o 99 APO

331. HAV RAMJI SINGH, S/o KEDAR SINGH, 20 Assam Rifles, C/o 99 APO

332. HAV BB TAMANG, S/o DHAN BAHADUR TAMANG, 20 Assam Rifles, C/o 99 APO

333. HAV MUKESH KUMAR, S/o RAJESH KUMAR, 20 Assam Rifles, C/o 99 APO

334. RFN O TOMBA SINGH, S/o OINAM IBOMCHA SINGH, 20 Assam Rifles, C/o 99 APO

335. RFN NILAMANI DASS, S/o DEBA KANTH DAS, 20 Assam Rifles, C/o 99 APO

336. HAV AJMER SINGH, S/o MANI SINGH, 20 Assam Rifles, C/o 99 APO

337. HAV RAJENDER RABHA, S/o LATE JIANDRA RABHA, 20 Assam Rifles, C/o 99 APO

338. HAV RAMACHANDER, S/o RAJ KISHORE, 20 Assam Rifles, C/o 99 APO

339. COL HARI KRISHNAN, S/O NARAYANAN NAIR, 17 RR, C/o 56 APO

340. MAJOR ROBY JOSEPH, S/O JOSEPH KURIAN, 17 RR, C/o 56 APO

341. MAJ ANSHU KUWAR, S/O ANIL KUWAR, 17 RR, C/o 56 APO

342. CAPT MANOON AL RASHID, S/O HARUN ALI RASHID, 17 RR, C/o 56 APO

343. HAV SANJEEV KUMAR, S/O RAM ASRA, 17 RR, C/o 56 APO

344. SUB RaJEEV KUMAR, S/O RAM ITRA SINGH, 17 RR, C/o 56 APO

345. SEP SHINDE PRETASH, S/O MARUTI SHINDE, 17 RR, C/o 56 APO

346. SEP PAWAR KIRAN, S/O WAMAN PAWAR, 17 RR, C/o 56 APO

347. SEP BAJRANGI UPADHYAY, S/O JHINNU UPADHYAY, 17 RR, C/o 56 APO

348. SEP JAGDISH PATIL, S/O BABANRAO PATIL, 17 RR, C/o 56 APO

349. SEP BISHNU CHARAN P, S/O NILAMANI PRUSTY, 17 RR, C/o 56 APO

350. SEP. BORHADE GANESH, S/O BORHADE SHIVAJI, 17 RR, C/o 56 APO

351. LT. COL. SANDESH KUMAR, S/O HONY LT. HOSHIAR SINGH (RETD.), HQ 16 Corps, C/o 56 APO

352. COL SP PRADHAN, S/O PRASAD PRADHAN, HQ SWC, C/o 56 APO

353. COL SAMRIDH CHHIBBER, S/O J.B. CHHIBBER, HQ 16 Corps, C/o 56 APO

354. COL MOHIT SINGH, S/O JP SINGH, 45 Assam Rifles, C/o 99 APO

355. COL RK SHARMA, S/O LATE MADAN LAL SHARMA, HQ 16 Corps, C/o 56 APO

356. SATVIR SINGH, S/O ANJI SINGH, 34 Assam Rifles, C/o 99 APO

VERSUS

1. Union of India, through Secretary, Ministry of Home Affairs, Government of India, North Block, Cabinet Secretariat, Raisina Hill, New Delhi

2. Ministry of Defence, through Secretary, South Block, Central Secretariat, Rajpath Marg, New Delhi

3. Central Bureau of Investigation, through its Director, Plot No.5-B, CGO Complex, Lodhi Road, New Delhi

… Respondents

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

THE HON’BLE THE CHIEF JUSTICE OF INDIA AND HIS HON’BLE COMPANION JUSTICES OF THE SUPREME COURT OF INDIA

THE HUMBLE PETITION OF THE PETITIONERS ABOVE NAMED:

MOST RESPECTFULLY SHOWETH:

1) By way of this Writ Petition under Article 32 of the Constitution of India, the Petitioners pray for reconsideration of procedure being followed with regard to the ongoing CBI enquiry, to complete the enquiry in a hasty manner without following the prescribed procedure of CBI manual as per the direction of the Court and lodging of FIR in the name of individual officers rather than the unit.

2) The present Writ Petition is filed by aggrieved Army Officers, on behalf of themselves and all the officers and troops presently operating in the areas, for protecting the morale of the soldiers of Indian Army, who are facing all odds in performance of their bonafide military duties and laying their lives in the line of duty, to uphold the dignity of the Indian Flag.

3) The Petitioners, who are the serving Army Officers and have been performing their bonafide duties as directed by the Union of India are constrained to file the present Writ directly before this Hon’ble Court in view of the extremely hostile situation on the ground, whereby the ongoing situation is demoralizing the officers and troops deployed in field areas and fighting in counter terrorism and counter insurgency operations in J&K and NE States. The manner in which the ongoing enquiry is being forced to speed up by the court and charge sheets to be filed up in a time bound manner without following the prescribed procedure as per the CBI manual reflects the extremely vulnerable state for the officers and troops who were engaged in these operations. In these circumstances, the Petitioners are left with no other viable option but to approach this Hon’ble Court under Article 32 of the Constitution of India for protection of their valuable Fundamental Rights.

4) The Petitioners are the serving officers who were involved in various counter terrorism operations some of which are under investigation by the CBI. The matter under investigation relates to Army Operations wherein these officers and troops were on bonafide military duties in areas under the AFSPA and acted to safeguard the interest of India against the anti national activities to uphold the territorial integrity of the country and established the law and order in the civil administration. Army authorities were under orders from their superiors who in turn receive orders from the Government of India as established by law. The military duties being carried out were military operations peculiar to counter terrorism/ counter insurgency in nature and were being carried out in accordance with the law of the land. Yet, these cases were selected arbitrarily and the officers and troops were being targeted for fake encounters without taking opinion and findings of the hierarchy of Army which has been monitoring all operations in all parts of the Country and has a detailed know how of the modus operandi, terrain and hostile situation being faced by these soldiers on the ground.

5) Carrying out enquiry in a hasty manner by the CBI as per the directions of the Supreme Court Bench not only violates the basic right applicable to all citizens for a fair trial, it also sends a message of court being biased to one side. This direction and pressure resulted in CBI filing an FIR in the name of an officer of Army rather than the complete team or the unit on 31 July 2018, after the directions of the Court on 30 July 2018. This has severely affected the morale of many officers and troops who are presently operating in these areas. Such acts against the person serving the motherland are creating hurdle in the discharge of duty as the individual is feeling reluctant and a common feeling is sinking amongst the officers and men that that any individual can be targeted individually, though he has acted as part of a team and has not done any act individually as per his own wish and plan.

6) It is most humbly submitted that Preamble of Indian Constitution has, without any discrimination, confirmed the security of living creature as very basic requirement of society. It is the obligation of the State to ensure the basic security to its citizens and non-citizens living in territory of the State. The said obligation of State can be seen from Article 38 of Indian Constitution which reads as follows:

“Article 38: State to secure a social order for the promotion and welfare of the people -

(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.

(2) The State shall, in particular, strive to minimise the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.”

It is further added that State, while achieving the goals set out under the said Article, delegates the authority to various organisations for fulfilling and performing the duty in a manner authorised by government. In this respect, role of all the forces which are created, constituted and composed for the said purpose becomes very crucial. There have been numerous instances when requirements of trained soldier or specific situations have been felt at various places. In other words, it will be right to regard these Statutory Forces as one of the tools of government to maintain public order and sense of security amongst its subjects. It will be right to contend that anything done by the person who is constituting even a smallest unit of government represents that government in given capacity and thus, actions or decisions taken for the performance of task cannot be attributed towards individual or said to be his personal act.

7) In the present matter, since the involved personnel carried out the counter insurgency operations under the authority of government or by the order of government, they will be said to be performing the bonafide duty on behalf of the government and the said operations can be categorised as military actions in official discharge of their duty. It cannot be said that while operating in these areas either individually or with police forces or any other paramilitary forces of Union of India, they were not under the obligation of duty. Thus, any action to complete their task is well within the ambit ofbonafide duty of individuals. In addition to this, any legitimate method of restoring the faith of civil governance and writ of government of India can be defined as a part of the charter of duty for which one should be allowed to enjoy the same immunity which is legislated in the Constitution of India. Furthermore, it is reiterated that Petitioners and other military personnel, were operating in an area covered under the provisions of AFSPA. Thus, applying this principle, it is contended that the individuals were discharging the bonafide official duty and thus, should be given absolute immunity against the acts done in good faith for the said purpose.

8) It is put forward before this Hon'ble Court that the Petitioners are aggrieved that whether the discretion of an officer and Non Commissioned officer while discharging their duties and granted by the law under section 4 of AFSPA is absolute and grants protection for prosecution for those actions and they are subject to legal scrutiny even when the Army Act and Rules are very strict and those actions were established through enquiries to be done in discharge of their duties. Thus the Petitioners feel that the rights of a soldiers has been violated vide an order passed in a Writ Petition No.129/2012 without giving fair chance to the personnel involved in the operations to represent on the orders to institute prosecution against them when Govt. of India has justified their stand and vicarious liability. It is submitted that the same will not only affect the national security but such legal harassments will also demoralize the officers and men operating in the Counter Insurgency area.

9) The Indian Army has never failed the country and having a long history of sacrifices and martyrdom. The Petitioners feels that they have been left alone with their men in the areas under AFSPA in a confused state of mind that if they do not follow the orders they will be tried by Court Martial and if they do they will be prosecuted by criminal judicial system and to face legal harassment with their families who also make sacrifices and live in separation.

10) It is most humbly submitted that the Army Act 1950 is a special act governing the Persons subject to the said Act for the maintenance of Discipline of Armed Forces. Section 1 of Army Act when read with Section 1 of The Code of Criminal Procedure Sanvat 1989, it is amply clear that the provisions of Army Act 1950 has an overriding effect over the provisions of Code of Criminal Procedure in respect of persons subject to Army Act. Such subjection to the Army Act is given under Section 2 of the Army Act Section 1950. Therefore, it is amply clear that whenever, there is a conflict between provisions of Army Act and Code of Criminal Procedure, 1989 with respect to the person subject to Army Act 1950, the provisions of Army Act 1950 shall prevail. The Courts have held that all offences, whether under the Penal Code or under any other law, have to be invariably, inquired into, tried and dealt with according to the provisions of the Criminal Procedure Code. This rule is subject to the qualification that in respect of offences under other laws, that is say, under laws other than the Penal Code, if there be an enactment regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences, such a special enactment will prevail over the code of criminal procedure, unless there is a specific provision to the contrary.(Ursola Municipality v. REV. Relekar AIR 1970 Bom. 333 (DB); S.P. Thiruvengadasami Naidu vs Municipal Health Office; In re Guruviah Naidu & CO. AIR 1954 Mad. 833(DB)). Further, Section 1 of the CrPC, makes the provision of the Code, subject to the provisions of any special law and since the Army Act is a special law, it is the Code which is subject to the provisions of the Army Act. The phrase ‘subject to’ subjects the provisions of one statute to the provisions of another. Where there is no clash, the phrase does nothing. If there is collision, the phrase shows what is to prevail. The words "subject to the provisions of the special law" in Section 1 would mean that if there is an irreconcilable conflict between the provisions of the CrPC and the provisions of the Special Law, the later shall prevail to the extent of the inconsistency. A provision of a Special law, by its express terms, may come into conflict with a provision of the CrPC wholly or in part; the said provision in a special law may also be necessary implication, come into direct conflict with the provisions of the CrPC. Whatever it may be, once inconsistency is spelt out, the provisions of the Special Law shall prevail as has been held by this Hon'ble Court in South India Corporation (P) Ltd. V. Secretary. Board of Revenue, Trivandrum, AIR 1964 SC 207. As decided by this Hon’ble Court in the case of Major EG Barsay V. State of Bombay, AIR 1961 SC 1762 that the provisions of the Army Act apply to offences committed by Army personnel described in Section 2 of the Act; it creates new offences with specified punishments, imposes higher punishments to pre-existing offences, and enables civil offences by fiction to be created as offences under the Act. Further, in Ajmer Singh v Union of India AIR 1987 SC 1646, this Hon’ble Court has held that the relevant chapters of the Army Act embody a self-contained comprehensive code specifying the various offences under the Act and prescribing the procedure for detention and custody of offenders, investigation and trial of offenders by Court Martial, the punishment to be awarded for various offences, confirmation and revision of sentences imposed by Court Martial etc. The Army Act is, therefore, a special law conferring special jurisdiction and powers on Court Martial and prescribes a special form of procedure for the trial of offences under the Army Act. The effect of Section 5 of CrPC is to render the provisions of CrPC inapplicable in respect of all matters covered by such special law.

11) Thus having established that the Army Act is a special law and, therefore, would invariably prevail over all others, let us now examine the provisions of law as applicable to the Armed Forces serving in the Manipur:-

Section 70 Army Act, 1950:

“Civil offence not triable by court-martial:

A person subject to this Act who commits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be tried by a court-martial, unless he commits any of the said offences-

(a) while on active service, or

(b) at any place outside India, or

12) In the instant case, the army personnel concerned were accused for an offence triable under the Army Act that is committing culpable homicide amounting to murder of a person not subject to military, naval or air force law while on active service. Therefore, the offence that is alleged to have been committed is not a civil offence but is clearly, an offence triable under the Army Act. It is, therefore, very alarming and incomprehensible as to how the name of one officer can be so expressly cited in First Information Report recording an incident in which the Army as an instrument of the Central Government was lawfully conducting itself. Does this act of the CBI authorities symbolize their loss of faith in the legitimacy of the activities carried out by the Armed Forces? Have they forgotten that the orders so received by the Army stem from the same source from which they receive theirs i.e. the Constitution of India?

13) In furtherance to above, it is also submitted before Hon'ble Court that legislature has enacted various provisions under general procedural codes which lay down the necessary provisions for investigating and apprehending the accused or person against whom credible information of commission of offence is received. In this respect it is submitted that Chapter XIV of the Code of Criminal Procedure, Svt. contains all the provisions where information about commission of an offence is communicated to the local police authority who in turn will take appropriate action against the person involved or suspected to be involved in the commission of on offence. In this respect, it is respectfully mentioned that CBI has shown extreme biasness while registering the FIR against the person specific and absolutely ignored the requirement of carrying out basic investigation of the complaint. Hence this petition is also against the biased approach and irresponsible action of CBI towards military forces.

14) In the case at hand, as already brought out above, the Army personnel upon being called for carrying out counter insurgency operations were faced by hostile situation in which they would have had a loss of life in the operating team. As per Armed Forces Special Powers Act 1958, the said personnel are empowered under the said enactment to use appropriate force for the purpose of dealing with a hostile situation leading to loss of life and disturbing peace in disturbed areas and are in turn protected from prosecution under Section 6 for acting in Good Faith. However, an important point which requires consideration is whether the armed forces can use given power under the act only in the places which have been declared to be "Disturbed Place" as defined under Section 3. In order to find logical answer of the question, said provision of the Act is reproduced and examined as below:-

Armed Forces Special Powers Act, 1958:

Section 2 (b). "disturbed area" means "an area which is for the time being declared by notification under section 3 to be a disturbed area by the Central Government or the Governor of the State by notification in the official Gazette."

Section 3. Power to declare areas to be disturbed areas:- If, in relation to the State of Manipur, the Governor of the State or the Central Government, is of the opinion that the whole or any part of the State is in such a disturbed and dangerous condition that the use of armed forces in aid of civil power is necessary to prevent –

(a) activities involving terrorist acts directed towards overawing the Government as by law established or striking terror in the people or any section of the people, of alienating any section of the people or adversely affecting the harmony among different sections of the people;

(b) activities directed towards disclaiming, questioning or disrupting the sovereign and territorial integrity of India or bringing about cession of a part of the territory of India or secession of a part of the territory of India from the Union or causing insult to the Indian National Flag, Indian National Anthem and the Constitution of India, the Governor of the State or the Central Government, may, by notification in the Official Gazette, declare the whole or any part of the State to be a disturbed Area.

Explanation— In this section, "terrorist act" has the same meaning as in Explanation to article 248 of the Constitution of India as applicable to the State of Jammu and Kashmir.”

Here, it is very humbly submitted before this Hon'ble Court that the provision has laid down the circumstances in the presence of which appropriate authority declares the whole or part of the state to be disturbed area. It is also observed from the language that the provision has not provided any specific kind of act to be terrorist act against which the said power can be exercised. In the absence of such definition, one can resort upon the definition of "Terrorist act" as provided under Section 2(k) and Section 15 of The Unlawful Activities (Prevention) Act, 1967. Said provisions are mentioned as follows:-

Section 2. Definitions — (1) In this Act, unless the context otherwise requires,—

(k) "terrorist act" has the meaning assigned to it in section 15, and the expressions "terrorism" and "terrorist" shall be construed accordingly;

Section 15. Terrorist act –

(1) Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country, —

(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause —

(i) death of or injuries to, any person or persons; or

(ii) loss of or damage to, or destruction of property; or

(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or

(iiia) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material; or

(iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or

(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or

(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or an international or inter-governmental organisation or any other person to do or abstain from doing any act; or commits a terrorist act.

Explanation.—For the purpose of this sub-section,— (a) "public functionary" means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary;

(c) "high quality counterfeit Indian currency" means the counterfeit currency as may be declared after examination by an authorised or notified forensic authority that such currency imitates or compromises with the key security features as specified in the Third Schedule.

(2) The terrorist act includes an act which constitutes an offence within the scope of and as defined in any of the treaties specified in the Second Schedule.

Thus, it is to be perceived from the above definition that any act which is done with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India by any means or substances of a hazardous nature or by any other means of whatever nature which tends to cause or likely to cause death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or causes the death of any public functionary or attempts to cause death of any public functionary will be said to be terrorist activity. Reading the language of said provisionalongwith provisions of Armed Forces Special Powers Act 1958 gives absolute idea of what amounts to terrorist act and thus, validates the action taken by Armed forces under the Section 04 of the Armed Forces Special Powers Act 1958. In this regard, powers given under Section 04 of Armed Forces Special Powers Act 1958 can be analyzed and the same can be reproduced as follows:

Section 4. Special powers of the armed forces:-

Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area, —

(a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;

(b) if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as a training camp for armed volunteers or utilized as a hide-out by armed gangs or absconders wanted for any;

(c) arrest, without warrant, any person who has committed a cognizable or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable and may use such force as may be necessary to effect the arrest;

(d) enter and search, without warrant, any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises, and may for that purpose use such force as may be necessary, and seize any such property, arms, ammunition or explosive substances;

(e) stop, search and seize any vehicle or vessel reasonably suspected to be carrying any person who is a proclaimed offender, or any person who has committed a non-cognizable, or against whom a reasonable suspicion exists that he has committed or is about to commit a non-cognizable , or any person who is carrying any arms, ammunition or explosive substance believed to be unlawfully held by him, and may, for that purpose, use such force as may be necessary to effect such stoppage, search or seizure, as the case may be.

Here expression “against any person who is acting in contravention of any law or order for the time being in force" is required to be examined considering the facts of present case. It appears from reading of this expression that Section 04 Clause (a) enables specific category of persons to use such degree of forces against those persons only who are observed or involved in the activity which is either in contravention of law or order for the time being in force. Now, it becomes subjective fact to give specific definition of ibid expression and thus, any action which causes or likely to cause any kind of illegitimate injury to person, property or both must be construed as action in contravention of law or order. Giving further extension to above definition, it can also be said that an act of the individual which is inconsistent with established procedure of law must be taken as action in contravention of law and thus, remedial measures adopted to curb such action by statutorily constituted forces must be regarded in consonance with law. In addition to this it is also equally important to read the said interpretation alongwith term “for the time being in force” which authorises the person in specific to apply its prudence as per the situation and to issue necessary orders to suppress the act done in contravention of order for the time being in force. Important fact which needs to be considered in these circumstances is that there is no specific laid down parameters when an action of individual will be regarded as action in contravention of law and order and thus, intention of legislature becomes very apparent so far as it warrants the employment of degree and amount of force. It has given absolute discretion to the person who is in charge of or commanding the group of statutory force who is expected to employ that much degree of means and force which is sufficient enough to lower down the action in question. Since rational employment of force can be determined only after considering the true scenario of disturbance and thus, the fact that how much amount of force should be used can be said to be at the discretion of commander on ground.

15) Thus, from the above it is clear that the Army personnel so acting and the manner in which they so acted are within the confines of the protection available under the Armed Forces Special Powers Act 1958. The military personals involved in these counter insurgency operations were on lawful military duty. The said situation were isolated by a hostile condition on ground where anti national elements within the State of Manipur, which is declared as a disturbed area for the purpose of applicability of the provisions of the Armed Forces Special Powers Act 1958. When it was deemed essential to control the said anti national elements which were engaged in anti national activities of causing damage to property of the Government of India as well as causing apprehension of grievous hurt and murder to Civilians and Army personnel.

16) It is very disturbing to note that in spite of being servants of the Union, our Armed Forces Personnel get no protection and safeguards to which they are rightfully entitled to. Time and again the personnel of the Armed Forces of India have to carry out various operations in inhospitable terrain, weather and within hostile local population. The errant behavior on the part of the people of the State of Manipur is directly proportional to the lawlessness and absolute disregard to the safety and protection of the Armed Forces functioning in the State.

17) In Naga People’s Movement of Human Rights v. Union of India AIR 1998 SC 431, this Hon’ble Court analysed the provisions relating to the activities of Armed Forces in disturbed areas as under:-

The term “disturbed area” defies any definition. A disturbed area has to be adjudged according to location, situation and circumstances of particular case. As the term implies, only such area would be disturbed area where there is absence of peace and tranquility. A disturbed area is such in which disorder of such a type is in existence that it may be regarded as a public order problem. Also, the extent of the disturbed area is confined to the area in which the situation is such that it cannot be handled without seeking the aid of the armed forces. For an area to be declared as ‘disturbed area’ there must exist a grave situation of law and order on the basis of which the Governor/Administrator of the State/ Union Territory or the Central Government can form an opinion that area is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary. Therefore it cannot, therefore, be said that an arbitrary and unguided power has been conferred in the matter of declaring an area as disturbed area. The Act in question the said case law is in part material to the provisions of Armed Forces (Jammu and Kashmir) Special Powers Act 1990.

18) Further in General Officer Commanding v. CBI (Criminal Appeal No.257 of 2011), this Hon’ble Court held that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him. However, there must be a discernible connection between the act complained of and the powers and duties of the public servant. The act complained of may fall within the description of the action purported to have been done in performing the official duty. Therefore, if the alleged act or omission of the public servant can be shown to have reasonable connection inter-relationship or inseparably connected with discharge of his duty, he becomes entitled for protection of sanction. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab initio for want of sanction which is the same as the condition in the present case where prior sanction was not obtained by the CBI. The Legislature has conferred “absolute power” on the statutory authority to accord sanction or withhold the same and the court has no role in this subject. In such a situation the court would not proceed without sanction of the competent statutory authority. Thus, stating the above reasons, the Court has come to the conclusion that the sanction of the Central Government is required in the facts and circumstances of the case and the court concerned lacks jurisdiction to take cognizance unless sanction is granted by the Central Government.

19) It is respectfully further submitted to Hon’ble Court that that all personnel who are commissioned or enrolled under the regular or other forces holds their office under the pleasure of president and thus, they will be said to be commissioned and enrolled for serving to the well-established government in public servant capacity. Same can be seen from Section 18 of the Army Act, 1950 as well as Article 310 of Indian Constitution. The said provisions read as follows:-

Section 18 Army Act, 1950:

Tenure of service under the Act—

Every person subject to this Act shall hold office during the pleasure of the President.

Article 310 of Indian Constitution:

(1) Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all-India service or holds any post connected with defence or any civil post under the Union holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State.

(2) Notwithstanding that a person holding a civil post under the Union or a State holds office during the pleasure of the President or, as the case may be, of the Governor 1 *** of the State, any contract under which a person, not being a member of a defence service or of an all-India service or of a civil service of the Union or a State, is appointed under this Constitution to hold such a post may, if the President or the Governor 2 ***, as the case may be, deems it necessary in order to secure the services of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post.

It is most humbly submitted that since the personnel hold their office during the pleasure of President for rendering necessary military services to the union, they will be said to be holding the designation under the authority of Government and thus said to be public servant for discharging all official responsibility. In this respect Section 21 of Indian Penal Code has to be seen which read as follows:

Section 21. Indian Penal Code:

Public Servant:

The words "public servant" denote a person falling under any of the descriptions hereinafter following namely:-

First.- Every Civil servant of the State;

Second.- Every Commissioned officer in the military, naval or airforce of India;

Third.- Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any ad judicatory functions;

Fourth.- Every officer of a Court of Justice (including a liquidator, receiver of commissioner) whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court; and every person specially authorized by a Court of Justice to prefer any of such duties;

Fifth.- Every juryman, assessor or member of a panchayat assisting a Court of Justice or public servant;

Sixth.- Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority;

Seventh.- Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

Eighth.- Every officer of Government whose duty it is, as such officer, to prevent s, to give information of s, to bring offenders to justice, or to protect the public health, safety or convenience;

Ninth.- Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government or to make any survey, assessment or contract on behalf of the Government or to execute any revenue-process, or to investigate or to report on any matter affecting the pecuniary interests of the Government or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government, and every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty;

Tenth.- Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;

Eleventh.- Every servant under the Government of India who is posted, and when he is performing his legitimate duties, within the State;

Twelfth.- Every servant of the Department of Devasthan;

Thirteenth.- Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;

Fourteenth.- Every officer or servant employed by a Municipal Committee, Town Area Committee, Notified Area Committee, Panchayat, Cooperative Society or Co-operative Bank whether for the whole or part of his time, and every member of such committee, society or bank;

Fifteenth.- Every officer or servant, and every member (Joy whatever name called) of a corporation engaged in trade or industry or of any other autonomous body which is established by an Act of the State Legislature or of a Government company as defined in any law for the time being in force in the State.

Sixteenth.- Every Officer or servant including medical or Para-medical staff of the Sher-i-Kashmir institute of Medical Sciences, Srinagar.

Explanation 1.- Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not.

Explanation 2.- Wherever the words "public servant" occur, they shall be understood of every person who is in actual possession of the situation of a public servant whatever legal defect there may be in his right to hold that situation.

Explanation 3.- The word "election" denotes an election for the purpose of selecting members of any legislative, municipal or other public authority, of whatever character, the method of selection to which is by, or under, any law prescribed as by election.

Explanation 4.- The expression 'Corporation engaged in any trade or industry includes a banking, insurance or financial corporation.

It has to be observed in light of the above provisions that all commissioned officers of the Indian armed forces fall within the definition of public servant and thus provision and immunity related and provided to public servant against criminal proceedings will be equally available to them. In this respect it is also important to look into all the provisions under general criminal code which lays down the various privileges enjoyed by public servant and thus, be liable to be extended to the commissioned officer of Armed forces. Relevant provisions for the same are as follows:-

Section 45 of Code of Criminal Procedure, 1973:

Protection of members of the Armed Forces from arrest-

(1) Notwithstanding anything contained in sections 41 to 44 (both inclusive), no member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government (2) The State Government may, by notification, direct that the provisions of sub-section (1) shall apply to such class or category of the members of the Force charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that subsection shall apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.

Section 197 of Code of Criminal Procedure. Svt 1989:

Prosecution of Judges and public servants:

(1) When any person who is Judge within the meaning of section 19 of the Ranbir Penal Code or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of the State Government or the Government of India, is accused of any alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, no Court shall take cognizance of such except with the previous sanction—

(a) in the case of persons employed in connection with the affairs of the Union, of the Government of India; and

(b) in the case of persons employed in connection with the affairs of the State, of the Government.

(2) The Government of India or the State Government, as the case may be, may determine the person by whom, the manner in which, the or s for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.

It is to be observed from above laid provisions that every commissioned officer by his commissioning holds the duty of public servant and thus, all immunities provided under Section 197 of both the codes will also be extended to the armed forces personnel. Thus, it will be apt to put forward that taking the sanction before initiating the criminal proceedings or any prosecution is sine qua non which cannot be dispensed by giving any lame excuse at all. In this respect it is also submitted that well established statute has catered for all kinds of contingencies and thus, excuse of existence of emergence situation created by local people in agitation should not compel the civil authority to deviate from the rules. It will not be legal to confine or take action against a public servant without following the due process of law just to avoid the heat of the situation as the same will cause more detrimental effect upon the moral and efficiency of the organization in whole.

20) In the instant case, the Army personnel involved were performing a bonafide military duty in Manipur which, as already stated, amounts to active service. In this regards, wording of apex court in the case of R. Balakrishna Pillai v. State of Kerala & Anr. AIR 1996 SC 901 has to be considered which while defined the word official duty, said that expression “official duty” implies that the act or omission must have been done by the public servant in the course of his service and that it should have been done in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty...” Thus, the civil authorities if they are desirous of prosecuting the said individual, would require the sanction of the Central Government and such sanction was ruled in State of Punjab & Anr. v. Mohammed Labal Bhatti. (2009) 17 SCC to be required in the following circumstance, “In fact, the issue of sanction becomes a question of paramount importance when a public servant is alleged to have acted beyond his authority or his acts complained of are in dereliction of the duty. In such an eventuality, if the act is alleged to have been committed by him while acting or purporting to act in discharge of his official duty, grant of prior sanction becomes imperative.”

21) It is humbly added to above that similar provisions are also provided under Armed Forces Special Power Act, 1958 which is found to be special enactment on the subject and thus have overriding effect upon other general codes and laws of land. Similar provision under the act is as follows:-

Section 06, Armed Forces Special Power Act, 1958:

Protection of persons acting in good faith under this Act. — No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.

Here, terms “Prosecution” and “other legal proceeding” must be analysed in light of general procedure of criminal proceeding. It is found that when any crime is committed, it is committed against the society and thus it is the first day when an individual becomes liable for his action and accordingly. In other words, it is contended that person becomes partially liable from the date of commission of offence and then criminal proceedings such as filing of FIR under Section 154 and investigation takes place subsequently under Chapter-XIV under Cr. P.C. Svt, 1989 and Chapter-XII under Cr. P.C., 1973. Thus, it is to be considered that criminal proceeding is said to begin from the time when an information about commission of offence is received by proper authority and accordingly, pre-requisite of making the case for titling as other legal proceeding is fulfilled.

22) In furtherance to above, another important fact which has already been relied upon and mentioned in preceding paragraph is that Section 6 of AFSPA gives absolute immunity to action or act which is done under good faith. Although this enactment has not provided the real meaning of term good faith and thus definition can be borrowed from Section 52 of Indian Penal Code which reads out as follows:

Section 52: Indian Penal Code:

Nothing is said to be done or believed in good faith which is done or believed without due care and attention"

If we examine the intention of the legislature reflected from this provision, we find that the legislature has expected from the doer to adopt and ensure the required degree of care and attention while performing the duty or carrying out the action. Thus, any act which was done after ensuring all aspects of care and attention for the work which is or may be proportionate to the situation will be sufficient enough to afford good ground of defense to the person. However, it is also observed from the language of this provision that in order to prosecute the doer of any action which is within the ambit of this act, prior permission of Central Government is mandatory and thus, clear intention of legislature has to be inferred from the language of the provision which mandates it to be one of the pre-requisite for prosecution of person. It provides a compulsion factor to all authority to be bound by statutory language of act and thus any deviation from the said requirement will amount to illegal method of causing mental and psychological harassment to individuals.

23) It is of paramount importance as from the current happenings it is becoming more and more evident that the CBI is influenced by a host of extraneous directions. This influence is damaging and is rising at an alarming level. The frequencies of such actions against serving personnel of the Armed Forces of India operating in the State of Jammu and Kashmir and Manipur will lead to demoralizing the troops on ground the Petitioners feel aggrieved with the direction of the SC in WP (129/2012) as to following.

(a) Whether it was correct to establish SIT when a fair judicial system already exists with the military carrying out its enquiry in case of slightest doubt with adequate checks and balance ensured by way of the existence of military hierarchy to prevent miscarriage of justice at any level?

(b) Whether it was correct to believe that military operation are compared with the police operation without even going into the details of circumstances under which these operations are conducted which is very difficult for officers and men having no knowledge of the facts while on move on day to day basis as to whether or not they will come back together and also to the facts that the direction of the Court was based on the report of the Hegde commission who has no such member with an experience of military operations in such tactical environment?

24) That in spite of clear laws and judicial pronouncements, the name of one of the Officers was entered into the FIR filed by the CBI without any preliminary enquiry. It is perfectly justifiable therefore, for the Army as a whole as well as the families of each and every serving soldier to feel that they are being treated as dispensable pawns in the game played by the various entities operating in the State of Manipur and outside who in turn are influencing the CBI to issue such arbitrary First Information Reports against serving personnel of the Armed Forces of India.

25) It is towards this very end that the Petitioners seek that the following questions be put to the competent authorities and a mandamus be issued after considering the present facts and circumstances under which the Armed forces personnel are serving for adjudication of this Court to remove all doubts and confusion arising in the mind of the soldiers during active participation in counter insurgency operations.

A. Whether the rights of soldiers have been violated vide an order passed in Writ Petition No 129/2012 without giving fair chance to the personnel involved in the operations to represent on the orders to institute prosecution against them when Govt. of India has justified their stand and vicarious liability?

B. Whether the officers who lead their men in extremely difficult environment and trying circumstances be given clear directions and so as to enable them rather than chastise them at a later stage while operating in such areas. Superseding or editing the army manuals and précis be done with respect to the initiative taking qualities and tactics that have been carefully thought of and carved to guide them in their selfless aim to curb the militancy or terrorism for protecting the sole interests of the country?

C. Whether the Indian Army which has never failed their country having past glorious history of sacrifices and martyrdom find themselves standing alone and helpless with their men in the areas under AFSPA in a confused state of mind that if they don’t follow the orders they will be tried by Court Martial and if they do they will be prosecuted by criminal judicial system and legal harassment to their families who also make sacrifices and live in separation?

D. Whether this is not the question of national security when the soldiers are put into such legal harassments which would lead to their eventual loss of morale or motivation for endeavours that were aimed for protection and selfless service to the motherland based upon an act passed by the parliament of India which assures adequate legal and physical safeguards?

E. Whether the action in good faith of an officer and Non commissioned officer while discharging their duties granted by the law under section 4 of AFSPA is absolute and grants protection from prosecution or subject to legal scrutiny even when those actions were established through enquiries to be done in discharge of their duties?

F. Whether it was correct to believe that military operations are comparable with the police operations or urban mafia without even going into the details of circumstances under which these operations are conducted which are very difficult with respect to the jungle and hilly terrain on a daily basis with no guarantee of returning alive or together in one shape and also to the fact that the Hegde commission has no such member with an experience of such operations in such a tactically challenging environment?

G. Whether it was correct by the court to conclude and call the soldiers 'murderers' even when the investigations were not concluded during updates presented by Director CBI indirectly suggesting an ab initio prejudice against the soldiers?

H. Whether such an act will not amount to creating indirect influence in the mind of investigating agencies to act fairly during investigations of these old cases?

I. Whether serving personnel of the Armed Forces of India operating in the State of Manipur and J&K can be held individually for acts done in good faith in pursuance to orders passed by the Central Government?

J. Whether serving personnel of the Armed Forces of India operating in the State of Manipur and J&K warrant no protection from the legal harassment committed against them by the people backing these anti national elements?

K. Whether serving personnel of the Armed Forces of India operating in the State of Manipur and J&K are perceived as enemies of State agencies and therefore dispensable pawns and not given any protection?

L. Whether serving personnel of the Armed Forces of India operating in the State of Manipur and J&K do not deserve the same dignity and respect commanded by other belted officials of both Central and State agencies operating in the other parts of India?

M. Whether the terms of engagement followed by serving personnel of the Armed Forces of India operating in the State of Manipur and J&K in dealing with unlawful assemblies and other terrorist organizations towards the protection and reverence of the sovereignty and integrity of India is not perceived to be justified by law and therefore individual personnel will find their names individually figuring in First Information Reports?

N. Whether the life, limb and property of serving personnel of the Armed Forces of India operating in the State of Manipur and J&K are of no value to the State agencies?

O. Whether the Arbitrary exercise of executive power in the State of Manipur and J&K against serving personnel of the Armed Forces of India operating therein warrants no separate investigation?

P. Whether this is not the question of national security when these serving army officers who has acted in good faith to establish the writ of government in their past are being put into such legal harassments to demoralise our officers and men?

Q. Whether the rights of a soldiers has not been violated vide an order passed in a writ petition no 129/2012 without giving fair chance to the personal involved in the operations to represent on the orders to institute prosecution against them when Govt of India has justified their stand and vicarious liability?

R. Whether the officers who lead their men in such circumstances should not be crystal clear as to whether or not they should take risk while operating in such areas and pass clear order with respect to the initiative taken by them in advance to curb the militancy and any untoward incident at later stage or compromise with the safety and security of country?

S. Whether the discretion of an officer and Non commissioned officer while discharging their duties as granted by the law under section 4 of AFSPA is absolute and grants protection for prosecution of those actions and are treated to be absolute or subject to legal scrutiny even when those actions were established as to be in performance of discharge of their duties by the competent authorities?

26) That the brief facts of the case are as under:-

BRIEF FACTS

i). Armed Forces Special Powers Ordinance of 1942 was promulgated by the British on 15.08.1942 to suppress the Quit India Movement.

ii). Armed Forces (Special Powers) Acts (AFSPA), 1948 was promulgated to deal with extraordinary situation of genocide during partition and repealed in 1957.

iii). Armed Forces (Assam and Manipur) Special Powers Act, 1958, was promulgated in the wake of Naga Rebellion and insurgency. The Act was extended and removed from different areas in the North Eastern states from time to time, on the basis of its requirement.

iv). The Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983 was promulgated during the strife relating to the demand of Khalistan as a separate State. The Act was withdrawn in 1997, after peace was restored.

v). Armed Forces (Jammu & Kashmir) Special Power Act, 1990 (No. 21 of 1990) was enacted to enable certain special powers to be conferred upon members of the armed forces in the disturbed areas in the State of Jammu and Kashmir, in the background of insurgency, militancy and proxy war, disturbing the peace in the State.

vi). A challenge to AFSPA 1958 was heard and rejected by a Constitution Bench of this Hon’ble Court in 1998 (2) SCC 109 – Naga People’s Movement of Human Rights Vs Union of India. This Hon’ble Court specifically upheld all the provisions of AFSPA Act 1958, including special powers of the Armed Forces, as defined in section 4 and protection of persons acting under the Act, as provided in section 6. This Hon’ble Court specifically noted the “Does and Don’ts” issued by Army headquarters from time to time, which are binding and must be followed while acting under AFSPA, in paras 53 to 58 of the judgment. This Hon’ble Court deducted its conclusions in para 74 of the judgment, specifically holding in para 74(18), (19) & (21), which are as under:-

vii). In 2005 (6) SCC 1 - Jacob Mathew Vs State of Punjab & Anr, a Three-Judge-Bench of this Hon’ble Court laid down detailed guidelines to be followed before any FIR/Criminal complaint is lodged against a Doctor in exercise of his professional duties. This Hon’ble Court, on a consideration of professionals like doctors to be a separate category and the applicability of negligence to the extent of criminality, specifically found that doctors cannot be treated like other individuals for bonafide acts done in exercise of their professional duties in good faith and deserve to be protected from malicious and vexatious FIRs.

viii). The present Petitioners are respectfully urging this Hon’ble Court to lay down similar guidelines to protect soldiers operating in insurgency, militancy and proxy war situations, which have been identified by the State/Union Government to be a disturbed area, where it is imperative for Army to act in aid of the civilian authorities, from malicious, frivolous, vexatious and motivated FIRs. The intention of the Petitioners is only to protect bonafideaction done in good faith strictly in accordance with the provisions of AFSPA and are not even for a moment seeking to protect any criminal activity, which may be carried out by anyone, including the soldiers.

This Hon’ble Court held as follows:-

“48. We sum up our conclusions as under:-

……………………….

…………………..

Guidelines - Re: prosecuting medical professionals

50. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law underSection 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards.

ix). FIR No. 16(2)/2009 dated 04.03.2009 was lodged with P.S. Mayang, Imphal under sections 307, 384 and 400 r/w Section 34 of IPC by Hav. D Bronson. The copy of FIR No.16(2)/2009 dated 04.03.2009, P.S. Mayang, Imphal is annexed herewith and marked as ANNEXURE P-1 [Pages

x). In 2012 (6) SCC 228 – General Officer Commanding Rashtriya Rifles Vs Central Bureau of Investigation & Anr, a Two-Judge-Bench of this Hon’ble Court while considering Appeals against orders of Trial Court rejecting Appellant’s application for not entertaining charge sheet filed by the CBI, held that the term “institution” contained in Section 7 of AFSPA (J&K), 1990 means taking cognizance of the offence and not mere presentation of charge sheet by investigating agencies in para 95.1 of the judgment. It is pertinent to mention here that in this case, challenge to institution was not mounted at the stage of lodging of FIR but only after the charge sheet was filed by the CBI before the learned CJM, Srinagar.

xi). In 2016 (14) SCC 536 – Extra Judicial Executive Victim Family Association Vs Union of India - Writ Petition (Crl.) No.129/2012, a Two-Judge-Bench of this Hon’ble Court took cognizance of Petitions raising issues of human right violations of the victims and their families and claiming a large number of police and military operations to be fake encounters or extra judicial executions. This Hon’ble Court considered at length the contentions of the Petitioners, of the Amicus Curiae, report of the Hedge Commission, appointed by this Hon’ble Court, Union of India and State and passed detailed directions directing enquiry into the alleged cases of fake encounters. Significantly, this Hon’ble Court reiterated the views expressed by the Constitution Bench in Naga People’s Movement of Human Rights 1998 (2) SCC 109 and reiterated in para 255 as follows:-

“255. On an overall consideration of the submissions made and the material before us, we conclude:

255.1 This writ petition alleging gross violations of human rights is maintainable in this Court under Article 32 of the Constitution.

xii). 2017 (8) SCC 417 - Extra Judicial Executive Victim Family Association Vs Union of India - Writ Petition (Crl.) No.129/2012, while continuing to monitor the writ petition, this Hon’ble Court constituted a Special Investigation Team (SIT) and directed CBI to investigate into allegations of fake encounters or use of excessive/ retaliatory force and also inter alia directed lodging of FIRs in six cases enquired by Justice Santosh Hedge Commission.

xiii). A Writ Petition bearing WP (Crl.) No.42/2018 titled as “Lt Col Karamveer Singh Vs State of Jammu & Kashmir & Ors” was filed before this Hon’ble Court by a decorated Army Officer, on behalf of his son, in similar circumstances, where his son Major Aditya was booked in an FIR by J&K Police at the behest of stone pelters under sections 302, 307 & 336 of Ranbir Penal Code, while he was exercising bonafide military duty in AFSPA area. The Writ Petition had to be filed to protect the bonafide action of the soldier from prosecution and persecution and for protecting the morale of the soldiers of Indian Army, who are facing all odds in performance of their bonafide duties and laying their lives in the line of duty, to uphold the dignity of the Indian Flag. Vide Order dated 12.02.2018, this Hon’ble Court was pleased to issue notice and directed that no coercive steps shall be taken on the basis of the FIR. The copy of the Order dated 12.02.2018 passed by this Hon’ble Court in WP (Crl.) No.42/2018 is annexed herewith and marked as ANNEXURE P-2 [Pages

xiv). Vide Order dated 05.03.2018 in WP (Crl.) No.42/2018, this Hon’ble Court was pleased to direct no investigation on the basis of the FIR and continued the interim order in subsequent hearing. The copy of the Order dated 05.03.2018 passed by this Hon’ble Court in WP (Crl.) No.42/2018 is annexed herewith and marked as ANNEXURE P-3 [Pages

xv). Vide Order dated 16.07.2018 in WP (Crl.) No.42/2018, this Hon’ble Court was pleased to note the question of law in the following terms:-

As a pure question of law emerges, learned counsel for the parties shall restrict their arguments exclusively to this aspect.”

The copy of the Order dated 16.07.2018 passed by this Hon’ble Court in WP (Crl.) No.42/2018 is annexed herewith and marked as ANNEXURE P-4 [Pages

The aforesaid matter is still pending before this Hon’ble Court and the next date of hearing is 21.08.2018.

xvi). This Hon’ble Court has continued to monitor the aforesaid Writ Petition (Crl.) No.129/2012 and on 30.07.2018 after directing the personal presence of Director CBI, directing them to expedite filing of charge sheets, by fast tracking the investigation process. The copy of the Order dated 30.07.2018 passed by this Hon’ble Court in WP (Crl.) No.129/2012 is annexed herewith and marked as ANNEXURE P-5 [Pages

xvii). It is pertinent to mention here that the reporting of this particular hearing before the Hon’ble Supreme Court in the media was extremely disturbing and troublesome and the Petitioners crave leave to place an Article published on 31.07.2018 in ‘The Hindu’ newspaper titled as ‘Supreme Court raps CBI on Manipur Killings’. The copy of the Article published on 31.07.2018 in ‘The Hindu’ newspaper titled as ‘Supreme Court raps CBI on Manipur Killings’ is annexed herewith and marked as ANNEXURE P-6 [Pages

xviii). On the very next day, an FIR was lodged by CBI under section 302 r/w 34 of IPC against a serving officer of the Indian Army viz. Major Vijay SinghBalhara (now Col), alongwith seven other persons of Manipur Police, arrayed as accused. The copy of the CBI Fir no. RC/DST/2018/S/0032 dated 31.07.2018, P.S. STF, District New Delhi under sections 302 r/w 34 of IPC is annexed herewith and marked as ANNEXURE P-7 [Pages

xix). It is pertinent to mention here that an FIR with regard to the same incident was lodged by Hav. D Bronson in P.S. Mayang, Imphal on 04.03.2009 (vide Annexure P-1).

27) That the Petitioners are constrained to file this petition under Article 32 of the Constitution of India on the following grounds:

GROUNDS

I. It is respectfully submitted that the present Writ Petition is filed collectively by the Soldiers and serving Officers of Indian Army for protecting the Sovereignty, Integrity, Security and Dignity of the Nation and restore the confidence and morale of the soldiers of Indian Army, who are facing insurmountable difficulties and odds in performance of their bonafide duties of protecting the Sovereignty, Integrity, Security and Dignity of the Nation. These Soldiers never hesitate to lay down their lives in the line of duty in order to uphold the dignity of the Indian Flag, however, the extraordinary circumstances in which their colleagues are being persecuted and prosecuted for carrying out there bonafide duties, without making any distinction or determination with regard to act having been done in good faith, without any criminal intent or mens rea, has compelled them to approach this Hon’ble Court.

II. It is respectfully submitted that specific Constitutional provisions make it writ large and crystal clear that Sovereignty and Integrity of the nation is the basis of our existence as a Constitutional, Sovereign, Democratic, Republic. If our Armed Forces are not given the protection they required to engage with the enemies at our frontiers and within, persecuted and prosecuted to carry out their bonafide duties, which includes laying down their lives in the line of duty, it will cause grave peril to our sovereignty and indignity, thereby endangering our very existence as a Constitutional Sovereign Democratic Republic.

III. It is respectfully submitted that the Petitioners believe that Sovereignty, Security and Integrity of the nation is at higher pedestal than even the Constitution of India and is actually the foundation on which we exist, survive, sustain and prosper as a nation. All of our hallowed Constitutional Principals including the precious fundamental rights and the very Basic Structure of the Constitution cannot exist, if the Sovereignty and Integrity of the nation is endangered in any way. Even the three pillars of Democracy, namely, the Legislature, the Executive and the Judiciary, and all aspects of Citizenry function, thrive and flourish because the Soldier zealously guards the frontiers and along with it, the Freedoms, Rights and Liberties, without caring for his own comfort, wellbeing, his family, his social responsibilities and even his own life. The ultimate sacrifice required/expected/given from a soldier, cannot be sustained under a state of confusion or cloud as to the Bonafide Duty itself.

IV. It is respectfully submitted that the present petition is filed not merely for protection of fundamental rights of Soldiers and their families but for protection of fundamental rights of each and every Citizen of India, all of which are bound to be violated, infringed and trampled upon with impunity if the Sovereignty and Integrity of the nation is imperiled.

V. It is respectfully submitted that the Petitioners, all of them being from the level of Section Commanders to Commanding Officers of the Section/ Platoon/ Company/ Battalion, leading 10 to 1000 men each, are now facing confusion and countering questions from the soldiers under their command, as to whether they are supposed to continue to engage the proxy war and insurgency with their military training, principals, standard operating procedures, operational realities, valor and courage or act and operate as per the yardsticks of Peace time operations, law and order issues and CrPC. An extraordinary situation of confusion has arisen with respect to their protection from prosecution as defined under Section 6 and 7 of AFSPA (Assam & Manipur) and AFSPA (J&K). This protection doesn't give any blanket prohibition or any special right to the Soldier for himself, but facilitates his functioning and operations in extraordinary circumstances of proxy war, insurgency, armed hostility, ambushes, covert and overt operations. Such operations are materially and substantially different from Law and Order situations. Absolute protection for bonafide actions of soldiers in this extraordinary situation is imperative to enable the soldier to carry out his duty effectively and efficiently, which in turn is the sine-qua-non for protection of Nation's Sovereignty and Integrity.

VI. It is respectfully submitted that any criminality, misuse, abuse, negligence, excessive power, judgment error, mistake, bonafide,malafide, good faith or mens rea has to be questioned, considered, assessed, investigated or adjudged only with respect to the peculiar facts and circumstances of insurgency and proxy war, taking into regard the Standard Operating Procedures of Indian Army and operational realities. Any such exercise can only be conducted with aid, advise, involvement and guidance of persons who understand full dynamics of such military operations. Civil Police or even CBI can't even be expected to be in the knowhow of the complete picture.

VII. It is respectfully submitted that the instant petition, inter-alia, raises extremely grave question of law of public importance which require consideration and determination by this Hon’ble Court;

F. Whether the view expressed in General Officers Commanding, Rashtriya Rifles v. CBI [2012 (6) SCC 228], that “institution” in the scheme of CrPC, would be the date of taking cognizance post filing of the charge sheet, is in conflict with the Constitution Bench judgment ofSarah Matthew v. Institute of cardio vascular diseases [2014 (2) SCC 62] in so far as it holds that “institution” would be date of lodging of FIR for the purpose of calculation of the limitation period under CrPC?

VIII. It is submitted that following provisions of the Constitution of India expressly enunciate the Sovereignty and Integrity of our country to be of paramount consideration and significance:

1. Preamble

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;”

2. Article 19

“Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(f) omitted

(g) to practice any profession, or to carry on any occupation, trade or business

3. “Article 51A. Fundamental duties

It shall be the duty of every citizen of India-

(a) to abide by the Constitution and respect its ideals and institutions, the national Flag and the National Anthem;”

…………………..

4. THIRD SCHEDULE

[Articles 75(4), 99, 124(6), 148(2), 164(3), 188 and 219]*

Forms of Oaths or Affirmations

I. Form of oath of office for a Minister for the Union:-

………………………………

III.A. Form of oath or affirmation to be made by a candidate for election to Parliament:-

III.B. Form of oath or affirmation to be made by a member of Parliament:-

IV Form of oath or affirmation to be made by the Judges of the Supreme Court and the Comptroller and Auditor-General of India:-

V Form of oath of office for a Minister for a State:-

"I, A.B., do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, 439 [that I will uphold the sovereignty and integrity of India,] that I will faithfully and conscientiously discharge my duties as a Minister for the State of............ and that I will do right to all manner of people in accordance with the Constitution and the law without fear or favour, affection or ill-will."

…………………………….

VIIA Form of oath or affirmation to be made by a candidate for election to the Legislature of a State:-

VIIB Form of oath or affirmation to be made by a member of the Legislature of a State:-

VIII Form of oath or affirmation to be made by the Judges of a High Court:-

IX. It is respectfully submitted that India Army is amongst the most respected professional armies in the world. The fundamental features of Indian Army as an Apolitical, Secular, Professional organization are hallmarks and pride of its existence. An officer before being commissioned takes an oath that he will follow the orders of his senior even to the peril of his life. These Commanding Officers on whose orders the subordinates do not even think twice before giving their lives now feel handicapped at the hands of their men and families who are made to suffer constant embarrassment in society related to their justified and bonafide acts done in good faith.

X. It is respectfully submitted that the concept of excessive fire by the Armed Force personnel has to be understood by going through the authorised strength, sophisticated weapons, ammunitions issued to these personnel and training manuals of these individuals. The initiative in an operation protects the nation and that is why the Army is last resort. Internal disturbances are caused by the outsiders and anti-national elements who are residing with their families and the aid of the family members and locals in their conduct cannot be ruled out. It has become difficult for the Petitioners to operate in a dilemma and in a confused state of mind as they are responsible for their subordinates following the Military Ethos. The Commanders in Armed Forces follow the ‘Chetwood Credo’ which is quintessential for the working of the said organisation. The three principles in the said Credo guides an officer of the Indian Army the Petitioners wish to bring out the Military Ethos under which they serve the mother land:

“The safety honour and welfare of the Country come first always and Every time.

The honour, welfare and comfort of the men you command come next.

Your own ease and comforts come last always and Every time.”

Today with the present circumstances arisen by the direction of Supreme Court in WP 129/2012 has put the Petitioners relationship with their men on stake.

XI. It is respectfully submitted that the Petitioners, who are the serving Army Officers and have been performing their bonafide duties as directed by the Union of India, are constrained to file the present Writ Petition, directly before this Hon’ble Court in view of the extremely hostile situation on the ground, whereby the said ongoing situation is demoralizing the officers and troops deployed in field areas and fighting in counter terrorism and counter insurgency operations in J&K and North Eastern States. The manner in which the ongoing enquiry is being forced to speed up by the court and charge sheets to be filed up in a time bound manner without following the prescribed procedure as per the CBI manual, reflects the extremely vulnerable state for the officers and troops who were engaged in these operations. The garb of protection of human rights should not be taken as a shield to protect the persons involved in the terrorist act. A soldier understands the importance of human rights and the rule of law as essential tools in the effort to combat terrorism. The Army Act along with the Military Ethos puts a duty on a soldier of military response to terrorism based on minimal use of force within the framework of rule of law. This duty gives birth to a right to protection against prosecution as entrusted by the virtue of Sec 6 of AFSPA by the Constitution of India and the said investigation by the court violates the same. The Country which doubts its Soldiers and their martyrdom is bound to lead to collapse of its sovereignty and integrity. In these circumstances, the Petitioners are left with no other viable option but to approach this Hon’ble Court under Article 32 of the Constitution of India for protection of valuable Fundamental Rights of the Petitioners and all others troops who are under investigation.

XII. It is respectfully submitted that the Petitioners are the serving officers who were involved in various counter terrorism operations and wherein some of them are under investigation by the CBI. The matter under investigation relates to Army Operations wherein these officers and troops were on bonafide military duties in areas under the AFSPA and acted to safeguard the interest of Government of India against the anti national activities. Army authorities were under orders from their superiors who in turn receive orders from the Government of India as established by law. The military duties being carried out were military operations peculiar to counter terrorism/ counter insurgency in nature and were being carried out in accordance with the law of the land. Yet, these cases were selected arbitrarily and the officers and troops were being targeted for fake encounters without taking opinion and findings of the Commanders-in-chain of Army which have been monitoring all operations in all parts of the Country and has a detailed know how of the modus operandi, terrain and hostile situation being faced by these soldiers on the ground.

XIII. It is respectfully submitted that the act of the officers who are involved in any type of Counter Insurgency operations are to be adjudicated within the thin line of distinction between intention and the error of judgment when discharge of their duties has been established. Thus the lodging of FIR directly under the direction of Supreme Court without ordering a preliminary inquiry to ascertain the facts related to intention, error of judgment or the circumstances which are committed during line of duties without giving a fair chance to those personnel are against the principles of natural justice and scope of Section 4 of AFSPA which gives any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces a discretion of operating in their respective Counter Insurgency Operations. In the same line when a soldier dies while safeguarding a nation, his family never lodges a complaint for death to be put to a test of criminal judicial system and the same is given the status of Martyrdom. Any soldier discharging his duties in the active area would be under a legal quandary as to whether he should let the terrorist kill him or kill the terrorists and later on be prosecuted for the same.

XIV. It is respectfully submitted that Preamble of Indian Constitution has, without any discrimination, confirmed the security of living creature as very basic requirement of society. It is the obligation of the State to ensure the basic security to its citizens and non-citizens living in territory of State.

XV. It is respectfully submitted that the institutions of criminal proceedings can be done only after the preliminary inquiry has ruled out the protection under Sec 4 of AFSPA. Therefore, the officers and men aggrieved by the manner updates are being taken by this Court as the same in resulting in indirect influence to the investigating agencies. This is imperative to mention that the cases are very old and intention of the family member of the declared militant as a partisan witness may result into a wrong conclusion of the investigating agencies. Thus, the direction and pressure resulted in CBI filing an FIR in the name of an officer of Army (Col Vijay Balhara), after the directions of the Court on 30 July 2018. This has severely affected the morale of many officers and troops who are presently operating in these areas. Such acts against the person serving the motherland are creating hurdles in the discharge of duty as the individual is feeling reluctant and a common feeling is sinking amongst the officers and men that any individual can be targeted individually, though he has acted as a part of a team and has not done any act individually as per his own wish and plan. The Petitioners have come to this court to get a determination and clarification on the issues mentioned herein which has direct effect on their day to day operations and sovereignty, integrity & safety of nation. FIRs have been lodged against individual soldiers contrary to all the basic inquiry parameters, manuals of investigation and departmental inquiries, without taking sanction of UOI, which ought to have been done before ordering the registration of FIR, in complete violation of the provisions of AFSPA.

XVI. It is respectfully submitted that the Armed Forces have a special act and a different charter which is followed by men to the peril of their lives. The Armed Forces have various rules and regulations which make this special Act unique in nature. The Army Act strikes a balance between the needs of justice and needs of discipline. Civil Police and CBI being a civil authority would not be in a position to understand the nuances of the working of this organisation and as a result the investigation by an agency outside the military would be prejudicial to the interests of the persons being investigated and would in all likelihood result in a miscarriage of Justice.

XVII. It is respectfully submitted that in 2005 (6) SCC 1 - Jacob Mathew Vs State of Punjab & Anr, a Three-Judge-Bench of this Hon’ble Court laid down detailed guidelines to be followed before any FIR/Criminal complaint is lodged against a Doctor in exercise of his professional duties. This Hon’ble Court, on a consideration of professionals like doctors to be a separate category and the applicability of negligence to the extent of criminality, specifically found that doctors cannot be treated like other individuals for bonafide acts done in exercise of their professional duties in good faith and deserve to be protected from malicious and vexatious FIRs.

XVIII. It is respectfully submitted that the present Petitioners are respectfully urging this Hon’ble Court to lay down similar guidelines to protect soldiers operating in insurgency, militancy and proxy war situations, which have been identified by the State/Union Government to be a disturbed area, where it is imperative for Army to act in aid of the civilian authorities, from malicious, frivolous, vexatious and motivated FIRs. The intention of the Petitioners is only to protect bonafide action done in good faith strictly in accordance with the provisions of AFSPA and are not even for a moment seeking to protect any criminal activity, which may be carried out by anyone, including the soldiers.

XIX. It is respectfully submitted that therefore, the Petitioners are approaching this Hon’ble Court under Article 32 of the Constitution of India through the present Writ Petition to get an immediate and appropriate relief to the Petitioners commanding troops serving in the active areas and involved in the counter insurgency operations on day to day basis. Exposing them and their men to persecution and prosecution for theirbonafide actions carried out in good faith, is bound to strengthen the sinister designs of Anti National forces and be detrimental to the Security of the Nation. Some of the directions given by a Bench of 2 Hon'ble Judges of this Hon'ble Court in General Officers Commanding, Rashtriya Rifles v. CBI [2012 (6) SCC 228] and Extra Judicial Execution victim Families association (EEVFAM) & anr. v. UOI & anr. [2016 (14) SCC 536 and 2017 (8) SCC 417], amount to legislation and/or supplanting ASFPA and even run contrary to Constitution Bench Judgements of this Hon'ble Court and therefore require to be revisited and corrected by the larger bench of this Hon'ble Court. The Petitioners are beseeching this Hon'ble Court to take cognizance of the chilling and numbing impact it is likely to have on military operations in insurgency and proxy war situations and consequently on the security of our nation.

28) That the Petitioners have not filed any other petition before this Hon’ble Court or any other Court of Law with regard to the subject matter of this petition.

29) That there is no other alternative and equally efficacious remedy available to the Petitioners except approaching this Hon’ble Court, by way of this Writ Petition to meet the ends of justice.

PRAYER

In light of the submissions made above, the Petitioners pray that this Hon’ble Court may be pleased to:

a) issue a writ of mandamus or any other appropriate writ laying down specific guidelines to protect the bonafide action of soldiers under AFSPA, so that no soldier is harassed by initiation of criminal proceedings for actions done in good faith in exercise of their duties, as mandated by the Union of India, in protection of sovereignty, integrity and dignity of the Country;

b) issue a writ of mandamus or any other appropriate writ directing the Respondents to take all steps to protect the soldiers protecting the Integrity and Sovereignty of the nation from persecution and prosecution by motivated and indiscriminate FIR’s against the mandate of law;

c) issue a writ of mandamus directing that protection of Soldiers acting in good faith under AFSPA is imperative to protect the soldiers engaged with direct and proxy enemy and insurgency and cannot be diluted without a specific and categoric amendment in law;

d) issue a writ of mandamus or any other appropriate writ directing that protection of persons acting in good faith under AFSPA is sacrosanct with the Sovereignty and Integrity of the Nation and that in accordance with the mandate of the Act, no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by AFSPA;

e) issue a writ of mandamus or any other appropriate writ directing that any investigation, assessment or adjudication qua the criminality, misuse, abuse, negligence, excessive power, judgment error, mistake, bonafide or malafide, of actions done in good faith by Soldiers operating in AFSPA areas, in disregard to the peculiar facts and circumstances of insurgency and proxy war, without taking into consideration the Standard Operating Procedures of Indian Army and operational realities, without the aid, advise, involvement and guidance of persons who understand full dynamics of such military operations, is illegal, unconstitutional and non-est;

f) issue a writ of mandamus directing the respondent to carry out a comprehensive investigation into acts of individuals/ organizations to target and attack soldiers in exercise of their bonafide duties of upholding the dignity of Indian Flag, by launching mischievous complaints against them;

g) issue a writ of mandamus or any other appropriate writ directing the Respondents to desist from engaging in arbitrary exercises of executive power which impairs the normal and bonafide functioning of the Army in the AFSPA areas;

h) issue a writ of mandamus or any other appropriate writ directing that adequate compensation is provided to the effected serving personnel and their families, who have been unnecessarily embroiled in malafide criminal proceedings in discharge of their bonafide duties; and/or

i) any other appropriate writ/order/direction as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS PETITIONERS, AS IN DUTY BOUND, SHALL EVER PRAY.

DRAWN & FILED BY:

DRAWN ON: .08.2018

FILED ON: .08.2018

[MS AISHWARYA BHATI]

Advocate for the Petitioners

Settled by:

MR. MUKUL ROHTAGI,

Senior Advocate

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