Alleged extra-judicial killing of Sanajit : Centre's review petition disposed
Source: The Sangai Express

Imphal, July 04 2022: The Session Court Imphal West has on Monday disposed the criminal revision petition filed by the Union of India against Central Bureau of Investigation (CBI) and Extrajudicial Execution Victim Family Association Manipur (EEVFAM) on alleged extrajudicial killing of Pheiroijam Sanajit in May 2004 .

The revision petition was filed by the Ministry of Defence represented by a Captain of 13 Dogra presently stationed at 57 Mountain Division Leimakhong Headquarters against the order passed by CJM Imphal West which raised 10 points for reference to the High Court of Manipur to enable the Court to take appropriate decisions in the alleged fake encounter cases where prosecution sanction is being denied against defence/paramilitary personnel by the Union of India.

Members of EEVFAM attended the hearing of the revision petition as a respondent of the case along with CBI officials.

The Union of India has also filed a revision petition under Section 397 CrPC read with Section 399 CrPC challenging the order dated February 22, 2022 passed by the Chief Judicial Magistrate, Imphal West with a reference to the High Court with respect to 10 questions for clarification as the questions are involved in similar cases pending before other Courts too.

During the hearing, the Court observed that the CBI registered FIRs in connection with the cases of alleged fake encounters as per the directions of the Supreme Court and submitted the Final Reports under Section 173 CrPC to the Courts concerned.

The present case of the death of "Pheiroijam Sanajit" in an alleged encounter with the personnel of Rajputana Rifles is one of the cases which was directed by the Supreme Court for investigation by CBI.

As per the final report submitted by CBI, the case was earlier registered at Sekmai Police Station under different Sections and Arms Act based on the complaint lodged by then Subedar Surender Pal Singh of 19 Rajput (Bikaner) who claimed that an ambush was carried out in the general area of Senjam Chirang on Khurkhul-Phumlao Road on the intervening night of May 30 and 31, 2004 .

In the exchange of fire, one unidentified underground cadre was killed at the spot and one carbine, eight live rounds and one fired case were recovered from the spot.

The deceased was later identified as Pheiroijam Sanajit, as per the complainant.

The submitted final report also mentioned that during their investigation another FIR was registered at Lamlai Police Station on the basis of a complaint by Ph Itocha Singh (elder brother of Pheiroijam Sanajit).

It was alleged in the FIR that Sanajit was picked up from his residence in Imphal East while he was sleeping at his residence by 19 Rajputana Rifles personnel at around 1 am of May 31, 2004 and on the next day he (Sanajit) was found dead.

Phijam (Ningol) Pheiroijam (Ongbi) Rita Chanu (wife of deceased Pheiroijam Sanajit) filed a writ petition before the Gauhati High Court (Imphal Bench, now High Court of Manipur) in connection with the 'abduction and murder' of Sanajit and on the direction of the High Court, District Judge, Imphal 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.

During the investigation, CBI registered FIR against 10 personnel of 19 Rajputana (Bikaner) out of which two of them had expired and no sufficient evidence was found against four personnel while four personnel were listed as accused - retired Major, retired Captain Rahul Bal Mishra, Ranbeer Singh (then Havaldar) Abhay Pratap (then Sepoy) .

The final report submitted by CBI mentioned that the Central Government denied to accord prosecution sanction against the four accused, following which CJM Imphal West issued a notice on October 7, 2020 to the Under Secretary (AG/DV/HRC), Ministry of Defence to appear in person or send a pleader on October 16, 2020 and explain why prosecution sanction shall not be granted to the accused.

During the hearing of the criminal revision petition, Counsel of Union of India submitted that once the sanction to prosecute under Section 6 of AFSPA is denied, the criminal Court lacks competence to deal with the case and should have dropped and closed the proceeding.

It was further submitted that the procedure adopted by CJM Imphal West in issuing notice to the victim family, EEVFAM and others in spite of denial of prosecution sanction amount to reopening of the case and the same is impermissible and without jurisdiction.

In response to the criminal revision petitions, a written submission was filed by EEVFAM and the victim's family/informant claiming that there is no bar for taking cognizance against the accused persons and act of the accused army personnel are not protected by the provisions of Section 197 CrPC and Section 6 of AFSPA.

Union of India replied to the EEVFAM and victim's family that Bhagwant Singh's case does not postulate for the victim's family to persuade the Court to take cognizance when the prosecution sanction has been denied and prior sanction is prerequisite for prosecuting Army personnel for acts done in discharge of their official duty.

On May 17, 2022, the Court made a query to CBI as to why it has not challenged the denial of prosecution sanction by the Central Government, following which the PP of CBI submitted that they cannot challenge the denial of sanction and it has to be done by the victim's family/EEVFAM.

Further on May 30, 2022, PP of CBI submitted that EEVFAM is not a victim of the case as defined under Section 2(wa) CrPC and they cannot be counted as a necessary party and as such only the victim's family will have to file a protest petition.

After hearing the parties at length, the Court observed that the CBI never asked for closing the main case, but in view of denial of the prosecution sanction by the Central Government, the final report, by implication, became a closure report.

It has been held that in such a situation, hearing the parties, particularly the victim side/EEVFAM and the stakeholders with a view to pass an appropriate order is a natural process.

The victim's family/EEVFAM can file a protest petition in the spirit of natural justice.

The Court observed that the Magistrate has jurisdiction and competence to make reference under Section 395(1) CrPC and it is under Sub Clause (2) that only Sessions and Metropolitan Magistrate are empowered to make reference not covered by Sub Clause (1) .

It is also clarified that when CJM Imphal West made reference via second order dated February 22, 2022, the FR case was pending before it and after making reference to the High Court, CJM Imphal West inadvertently disposed of the final report.

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