Prosecution sanction in alleged extra-judicial executions in Manipur

N Brajakanta Singh *

 11th Foundation day of Extra-judicial Execution Victim Families Association, Manipur (EEVFAM) :: July 12 2020
11th Foundation day of EEVFAM, Manipur on July 12 2020 :: Pix - Sh Ajit

Extra Judicial Execution Victim Families Association, Manipur (EEVFAM) filed a PIL before the Supreme Court in connection with killing of 1528 people in encounters by security forces under the protective regime of the Armed Forces Special Powers Act, 1958 (AFSPA) in the State of Manipur between 1979 and 2012. The Supreme Court, in an extraordinary verdict, pronounced that the armed forces could not claim blanket immunity from prosecution and ordered an inquiry to be conducted into the killings by Special Investigation Team of CBI vide order dated 14.07.2017.

Later, Army personnel and police officers filed separate petitions praying for immunity for soldiers and police personnel for their actions carried out in good faith, but the Supreme Court dismissed the petitions. The long pendency of fake encounter cases before different Courts has caused anxiety to a large number of justice seeking people including the families of victims.

For the central investigating agency, the investigation of numerous such cases is still a daunting task. Very recently, we came to know that on October 20, 2022, a division bench of the Supreme Court of India under the leadership of the Chief Justice of India, Mr Justice UU Lalit, one of the Justices of the division bench which delivered the landmark judgment in Extra-Judicial Execution Victims’ Families of Manipur v. Union of India, (2017) 8 SCC 417 which stops fake-encounters in the State of Manipur, has requested the High Court of Manipur to dispose of a reference made by the Chief Judicial Magistrate, Imphal West on the issue of prosecution sanction against some armed forces personnel involved in a case within six months’ time.

The Supreme Court also ordered the case to be listed before an appropriate bench on November 15, 2022. This piece examines the case and also analyses the issue of prosecution sanction of armed forces personnel involved in illegal encounters in the state.


As directed by the Supreme Court, the CBI investigated the death of one Pheiroijam Sanajit of Lamlai, Imphal East. Family members claimed that Sanajit was picked up from his residence while he was sleeping by 19 Rajput Rifles located at Leimakhong, Imphal West at about 1 am of 31.05.2004 and taken away. On next day, his dead body was found at Senjam Chirang in Imphal West.

The wife of the deceased filed a writ petition in 2005 before the Gauhati High Court (Imphal Bench) in connection with the abduction and murder of Sanajit. On the direction of the High Court, the District Judge, Manipur East conducted an enquiry and held that Pheiroijam Sanajit succumbed to bullet injuries fired by the personnel of 19 Rajput Rifles and the deceased did not die in the retaliatory fire at Senjam Chirang, Imphal West.

Forensic Sciences Laboratory report indicated that the empty cartridge was not fired from the firearm allegedly recovered from the deceased. The High Court upheld the findings of the District Judge, Manipur East and awarded compensation to the widow of the deceased.

In the FIR registered by CBI on the direction of the Supreme Court, ten officers and personnel of 19 Rajput (Bikaner) were named as accused. Out of these 10, two accused had expired. After thorough investigation, CBI submitted Final Report to the Court of CJM/IW stating that there are sufficient materials to prosecute four accused personnel under different sections of the Indian Penal Code including for murder.

As two of the accused had already expired, no action is suggested against them. As no sufficient evidences are found against three named accused and other unnamed personnel of 19 Rajput Rifles, they are dropped from prosecution. It was reported that vide order dated 02.12.2019, the Central Government denied to accord prosecution sanction u/s 197 CrPC and u/s 6 AFSPA against four accused persons. In the circumstances, Final Report has been submitted by the CBI to the Court of CJM/IW for passing such orders as deemed fit in the interest of justice.

The CJM/IW issued notice to the Under Secretary (AG/DV/HRC), Ministry of Defence to appear in person or by a pleader before it to show cause why prosecution sanction shall not be granted when the CBI found enough evidence against the accused army personnel. It was observed that denial of prosecution sanction in such situation involved a question of law. The CJM/IW observed that denial of prosecution sanction has become a routine matter by the Central Government in most of the alleged fake encounter cases investigated in pursuance of the directions of the Supreme Court by taking refuge under Section 6 of AFSPA.

He also framed 10 substantial questions for reference to the High Court of Manipur mainly on as to whether Government of India can deny the grant of prosecution cases against the accused army personnel when the CBI has found sufficient materials against them for prosecution.

It may be pertinent to point out here that during the pendency of the reference case before the High Court, Union of India approached the Sessions Court against the order of the CJM/IW. The High Court of Manipur also directed the Sessions Court, Imphal West to dispose of the pending criminal revision cases filed by Union of India challenging the order passed by the CJM/IW expeditiously.


It is apposite to reiterate that the Final Report submitted by CBI has arisen out of the FIR registered by CBI in pursuance to the directions issued by Supreme Court in WP (Crl.) No. 129 of 2012 filed by EEVFAM and HRA praying for investigation and prosecution of security personnel involved in fake encounters. The Sessions Judge, Imphal West delivered his judgment on July 4, 2022.

The Judge observed that since the writ petition has been filed by EEVFAM to the Supreme Court informing the factum of 1528 fake encounter cases in Manipur, EEVFAM can be considered as the first informant of the case and as such, EEVFAM is entitled to receive notice from ld. CJM/IW for considering the Final Report/Closure Report submitted by CBI.

The Sessions Court also opined that the CJM/IW has not committed any patent error while issuing notice to EEVFAM As EEVFAM is an association of victims’ families whose father, husband, son or brother have been killed in alleged fake encounters at the hand of State as well as Central security forces, in the present case, EEVFAM is an informant and also an association of victims, it is held that EEVFAM as an association of victims will fall within the ambit of ‘victim’ as defined under Section 2(wa) CrPC.

It was also held that the Magistrate has jurisdiction and competence to make reference under Section 395(1) CrPC, when the CJM/IW made reference, the FR case was pending before it. The Court, thus, has rightly rejected the application filed by UOI challenging the jurisdiction and procedure adopted by the CJM/IW.


The Constitutional validity of the Armed Forces (Special Powers) Act, 1958 enacted by Indian Parliament has been upheld by the Supreme Court of India in Naga People’s Movement of Human Rights vs Union of India, (1998) 2 SCC 109. The Apex Court of the country held that Parliament was competent to enact the Central Act in exercise of the legislative power conferred on it under Entry 2 of List I and Article 248 read with Entry 97 of List I.

It reasoned that after the insertion of Entry 2A in List I by the Forty-Second Amendment to the Constitution, the legislative power of Parliament to enact the Central Act flows from Entry 2A of List I. It was not a law in respect of maintenance of public order falling under Entry I of list II, the Court opined. The most contentious provision of the Act is section 4 which vested special powers to the armed forces.

It reads as follows: “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;…”.

While the armed forces personnel are protected from prosecution, for their actions in aid to civil power, by Section 132 of the CrPC, the AFSPA under section 6 further provides immunity to persons operating under the AFSPA from prosecution, without prior sanction of the Central Government.

Under Section 6 protection has been given to the persons acting under the Central Act and it has been prescribed that no prosecution, suit or other legal proceeding shall be instituted against any person in respect of anything done or purported to be done in exercise of the powers conferred by the said Act except with the previous sanction of the Central Government. It virtually provides immunity to persons exercising the powers conferred under Section 4 in as much as it extends the protection also to anything purported to be done in exercise of the powers conferred by this Act.


There are many landmark cases wherein the Supreme Court has unmistakably held that wrongdoer personnel of the armed forces can be prosecuted for violation of right to life as guaranteed under Article 21 of the Constitution of India. The Apex Court in the case of Naga People’s Movement of Human Rights vs. Union of India (supra) ruled that the protection given under Section 6 cannot be regarded as conferment of immunity on the persons exercising the powers under the AFSPA.

It ruled that Section 6 only gives protection in the form of previous sanction of the Central Government before a criminal prosecution of a suit or other civil proceeding is instituted against such person. It was held that Section 6 only extends the protection in the matter of institution of a suit or other legal proceeding.

The Apex Court also ruled that “In order that the people may feel assured that there is an effective check against misuse or abuse of powers by the members of the armed forces it is necessary that a complaint containing an allegation about misuse or abuse of the powers conferred under the Central Act should be thoroughly inquired into and, if it is found that there is substance in the allegation, the victim should be suitably compensated by the state and the requisite sanction under Section 6 of the Central Act should be granted for institution of prosecution and/or a civil suit or other proceeding against the person/persons responsible for such violation”.

It is worthwhile to refer to a decision of the Supreme Court in General Officer Commanding, Rashtriya Rifles vs. Central Bureau of Investigation, (2012) 6 SCC 228 . This was a case of alleged encounter killing in the State of Jammu and Kashmir declared as a disturbed area where the provisions of the Armed Forces (Jammu & Kashmir) Special Powers Act, 1990 read with the Armed Forces (Special Powers) Act,1958 were in operation enabling the deployment of army. In this case the Supreme Court had made a comprehensive analysis of the law relating to grant of prosecution sanction to prosecute army personnel charged with committing criminal offences.

It was held that the competent army authority has to exercise his discretion to opt as to whether the trial would be by a Court-Martial or criminal Court after filing of the charge sheet and not after the cognizance of the offence is taken by the Court. The Court held that facts of this case require sanction of the Central Government to proceed with the criminal prosecution/ trial, and in case an option is made to try the accused by a Court-Martial, sanction of the Central Government is not required.

It can be concluded that the competent army authority is now required to exercise its discretion as to whether the trial arising out of extra-judicial killing of Sanajit would be conducted by a Court martial or by a criminal Court.

The gravity of the acts of fake encounters is very serious to be ignored by any democracy and its rule of law. General public wishes the Courts in the country shall deliver justice to the victims of injustices. The SIT should complete its honourable task to find out the truth in each case entrusted to investigate by the highest Court of the country.

* N Brajakanta Singh wrote this article for The Sangai Express
The writer is a Guest Faculty, Department of Law, Manipur University
This article was webcasted on December 08 2022.

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