LexGENERAL OFFICER COMMANDING versus CBI AND ANR
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2012] 5 S.C.R. 599 GENERAL OFFICER COMMANDING v. CBI AND ANR. (Criminal Appeal No. 257 of 2011) MAY 1, 2012 [DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.] ARMED FORCES J & K (SPECIAL POWERS) ACT, 1990: ss.4, 6 - Powers conferred on the officers of Armed forces - Scope of. A B c s. 7 - Interpretation of - Held: The scheme of the Act provides protection to- Army personnel in respect of anything done or purported to be done in exercise of powers conferred D by the Act - s. 7 prohibits institution of legal proceedings against any Army personnel without prior sanction of the Central Government - The term "institution" contained in s. 7 means taking cognizance of the offence and not mere presentation of chargesheet by the investigating agency - E Therefore, chargesheet against the army personnel cannot be filed without prior sanction of the Central Government - This protection is available only when the alleged act done by the army personnel is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the F objectionable act - The question to examine as to whether the sanction is required or not under a statute has to be considered at the time of taking cognizance of the offence and not during enquiry or investigation - The Legislature has conferred "absolute power" on the statutory authority to accord G 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 - Code 599 H 600 SUPREME COURT REPORTS [2012] 5 S.C.R. A of Criminal Procedure, 1973 - s.197 - General Clauses Act, 1897 - s.3(22) -Army Act, 1950. CODE OF CRIMINAL PROCEDURE, 1973: Institution of a case - Meaning of - Neid: The term 'institution' has to be 8 ascertained taking into consideration the scheme of the Act/ Statute applicable - So far as the criminal proceedings are concerned, "Institution" does not mean filing; presenting or initiating the proceedings, rather it means taking cognizance as per the provisions contained in the Cr.P. C. C GENERAL CLAUSES ACT, 1897: s.3(22) - Good faith - Held: A public servant i.s under a moral and legal obligation to perform his duty with truth, honesty, honour, loyality and faith etc. - He is to perform his duty according to the expectation of the officEi and the nature of the post for the D reason that he is to have a respectful obedience to the law and authority in order to accomplish the duty assigned to him - Good faith is defined in s. 3(22) to mean a thing which is, in ·fact, done honestly, whether it is done negligently or not - Anything done with due care and attention, which is not E malafide, is presumed to have been done in good faith - Good faith and public good are though questions of fact, are required to be proved by adducing evidence. ARMY ACT, 1950: s.125 - Exercise of option under - Held: The stage of making option to try an accused by a court- F martial and not by the criminal court is after filing of the chargesheet and before taking cognizance or framing of the charges - If the Army chooses, it can prosecute the accused through court-martial instead of going through the criminal court - Once the option is made that accused is to be tried by G a court-martial, further proceedings would be in accordance with the provisions .of s. 70 of the Army Act and for that purpose, sanction of the Central Government is not required. WORDS AND PHRASES: H GENERAL OFFICER COMMANDING v. CBI AND 601 ANR. 'Cognizance', 'prosecution', 'suit', 'legal proceedings', and A expression 'institution of case' - Meaning of Except', 'purport', 'good faith' - Meaning of. "Legal proceedings" and ''judicial proceedings" - Distinction between. B The prosecution case was that in fake encounters, few civilians were killed by the army officers. The CBI was asked to conduct the investigation. The CBI conducted the investigation and filed charge-sheet against the army c officers. The Magistrate granted opportunity to Army to exercise the option as to whether the competent authority would prefer to try the case by way of court martial by taking over the case under the provisions of Section 125 of the Army Act, 1950. The Army officers filed D an application before the Magistrate that no prosecution could be instituted except with the previous sanction of the Central Government in view of the provisi
Excerpt shown. Read the full judgment & AI analysis in Lexace.