The Armed Forces (Special Powers) Act, 1958 : A commentary
- Part 2 -

Col SS Khulem (Retd) *

Power of the Armed Forces

1. Any commissioned officer, warrant officer (JCOs), non- commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area exercise powers mentioned in Sec 4(a) to (d) of the Act. A Sepoy /Rifleman can not exercise these powers on his own but he will act on the orders of personnel mentioned above.

2. Though it has not been clarified in the Act, it is felt that the mere location of the above mentioned category of personnel in a disturbed area does not authorized them to use the powers mentioned in this Act (ie Officers and men posted in NCC Units) unless they are on duty in aid of the civil power or the unit to which the personnel belong, is deployed for the purpose.[to understand Duty see Darshan Kumar v Sushil Kumar Malhotra, 1980 Cr L.J. 154 (in Note to sec 6 of the Act)]

3. The idea behind empowering only certain category of personnel could be the responsibility and maturity supposed to be imbibed in these ranks.

4. Legally a L/Nk is an NCO but in reality he is a Sepoy/Rifleman. Therefore, exercise of these powers by a L/Nk needs deliberation.

5. In para 43 of A.I.R. 1998 SC 431(Naga People's Human Rights v Union of India) it was mentioned that an NCO is "a matured person with adequate experience and reasonably well versed with the legal provisions" In regard to the above statement following aspects needs deliberation:-
(a) An NCO, had led a regimented life for 10 to 15 years. He has very little exposure to civil life.
(b) His training and working has been oriented to only military operations and unit administration
(c) Legal provisions & legal requirements was not part of his training syllabus/ daily functioning
(d) The education level of the JCOs /NCOs are generally up to matriculate (now 12th standard) only. Therefore, it is unlikely that an NCO will have Knowledge of Law (ie cognizable / non cognizable offences, procedures for Arrest & search etc). He even may not have understood the provisions of Armed Forces (Special Power) Act, 1958.

6. After THE ARMED FORCES (SPECIAL POWERS) ACT, 1958 has been enacted, no corresponding special Rules/ Regulation/ Procedures have been made. ( No power has been conferred by the Act to any one to make Rules / regulations). Therefore, while exercising powers under the Act procedures laid down in CrPC 1973, IPC, Indian Evidence Act and other established laws on the exercise of powers have to be followed.

7. Hounorable Supreme Court had ruled "While exercising the powers conferred under clause (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 disregard to the said instruction would entail suitable action under the Army Act 1950". (A.I.R 1998 SC 431). In regard to the above statement following aspects needs deliberation:-
(a) Dos and Don'ts are generally not available. If anything on the subject is there, it is not known to the lower ranks.
(b) Dos and Don'ts are generally issued in the form of Guidelines. Disobedience of Guidelines will not be disobedience of Order.

Use of force Against Human Body [sec 4(a)].

Categories of Armed Forces personnel mentioned at Sec 4 as he may consider necessary, fire upon or use force, even to the causing of death Under following conditions :-
(i) if he is of that opinion it is necessary so to do for the maintenance of public order.
(ii) after giving such due warning
(iii) 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

Principles governing use of force. The following principles must govern the use of force.

(a) Necessity –
(i) There must be justification for each separate act;
(ii) Action should not be taken in one place with the object of creating effect in another place;
(iii) There should be no reprisals;
(iv) Action should be preventive and not punitive

(b) Minimum force-
No more force is to be used than is necessary to achieve the immediate object. This refers to the actual amount of force used and not to the number of troops employed.
Officers of Armed Forces should use minimal force required for effective action against person/persons acting in contravention of prohibitory order (A.I.R 1998 SC 431).

(c) Impartiality –
Officers and other persons must be impartial in communal disturbances. They should not accept gifts or show favours.

(d) Good faith –
Officers and other persons must act in good faith. Nothing is said to be done or believed in good faith, which is done or believed without due care and attention (IPC. s.52). To an observer the act should seem to have been done in good faith and just doing an act in good faith is not good enough.

Maintenance of Public Order. CrPC sections 129 to 148 deals with Maintenance of Public Order and Tranquility. It is covered under following four heads:-
A. Unlawful assemblies (Ss.129 – 132)
B. Public Nuisances (Ss. 133 – 143)
C. Urgent cases of nuisance or apprehended danger (S. 144)
D. Disputes as to immovable property (Ss. 145 – 148) Armed Forces may not have a role under this head.

Use of force against property [sec 4(b)].

Categories of Armed Forces personnel mentioned at Sec 4 may destroy any arms dump, prepared or fortified position or shelter or structure.

Conditions :-
(i) if he is of opinion that it is necessary so to do
(ii) the object property is from which armed attacks are made or are likely to be made or are attempted to be made or used as a training camp for armed volunteers or as a hideout by armed gangs or absconders wanted for any offence.

Arrest [sec 4(c)].

Categories of Armed Forces personnel mentioned at Sec 4 may arrest any person without warrant, and may use such force as may be necessary to effect the arrest.

Conditions :-

(i) A person who has committed a cognizable offence or
(ii) A person against whom a reasonable suspicion exist that he has committed a cognizable offence. or
(iii) A person is about to commit a cognizable offence.

The word "cognizable" stands for "a police officer may arrest without warrant" and the word "non-cognizable" stands for "a police officer shall not arrest without warrant".[s.2(c) CrPC]. Thirteen classes of persons can be arrested by Police without warrant (eleven under Sec 41 and one each under sec 123 (6) and sec 151(1) of the CrPC). However, this is not exhaustive, as there are other Acts, as for instance, the Explosive Act, the Arms Act, etc, which confer similar powers on Police Officers. If one ponders on the purpose of deploying the armed forces, armed forces personnel may not have any concern with any of the thirteen classes of persons mentioned above except the class of person described under section 41(1)(a) of the CrPC (in relevant context).

While making arrest it should be noted that "The Courts have cautioned that in cases where there is some personal enmity between the Police Officer and the arrested person, a very high standard of evidence would be required to prove that the Police Officer acted in good faith in arresting such a person." (Tribhawan,-Cr. L.J.578)

The First Schedule to CrPC 1973 "CLASSIFICATION OF OFFENCES" gives a long list of cognizable/non-cognizable offences. Scanning through the list of cognizable offences, it will be seen that involvement of the Armed Forces in many cognizable offences is not required. The provisions contained in Sec 43 of IPC (Arrest by private person and procedure on such arrest) can also be used effectively by the Armed Forces Personnel if necessary. However, Armed Forces Personnel may not like to exercise this provision since the act will not be protected under Sec 6 of the Act [AFSPA]

Sec 41 (1) CrPC lays down. When police may arrest without warrant. National Police Commission (NPC) report states "No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so."

Cr PC 1973, has been amended vide CrPC (Amdt) Act, 2008. A substantial change has been made in the arrest procedure.

This section does not give power to the Armed Forces to arrest any person for non-cognizable offences. Arrest how made. [CrPC, S.46]

(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to affect the arrest.

(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence, punishable with death or with imprisonment for life. ["accused" – A person against whom an allegation has been made that he has committed an offence, or who is charged with an offence ( ss. 212 and 216, IPC and s. 8, ill. To explain, IEvA]

Person arrested to be informed of grounds of arrest and of right to bail. [S.50, CrPC]

(1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

(2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

Search [sec 4(d)].

Categories of Armed Forces personnel mentioned at Sec 4 may search any premises without warrant, and may for that purpose use such force as may be necessary.

Conditions :-

(i) to make any such arrest as aforesaid [Sec 4 (c)]
or
(ii) to recover any person believed to be wrongfully restrained and 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.

To be continued....