Denial of prosecution sanction by Ministry of Defence
CJM seeks guidance from High Court of Manipur
Source: The Sangai Express

Imphal, February 23 2021: The Court of Chief Judicial Magistrate (CJM), Imphal West has sought clarification and guidance from the High Court of Manipur regarding fake encounter killings involving defence personnel and denial of prosecution sanction against the accused by the Ministry of Defence.

As per a directive of the Supreme Court, CBI has been investigating the alleged fake encounter killing of one Pheiroijam Sanajit in the intervening night of May 30 and 31, 2004 at Khurkhul Phumlou.

After investigation, the CBI found some material evidence against four personnel of 19 Rajput Regiment (Bikaner) namely Girish Nair (then Major, now retired), Rahul Bal Mishra (then Captain), Ranbeer Singh (then Havildar) and Abhay Pratap Singh (then Sepoy), according to an order passed by the CJM on February 22 .

Denial of prosecution sanction by Ministry of Defence

The CBI further submitted that some other accused persons namely Dalchand, (then Subedar) and Rohitash Verma (then Subedar) had already expired and therefore no action was recommended against them.

However, when the CBI approached the Ministry of Defence for grant of prosecution sanction against the four living accused persons, the Ministry of Defence denied grant of prosecution sanction by taking refuge under Section 6 of the Armed Forces (Special Powers) Act, 1958 .

Even though the CBI submitted a final report on June 30, 2020, the investigation case never asked the CJM Court to close the case and specifically pleaded that there is no point of proceeding the case in the light of denial of prosecution sanction against the accused persons.

The CBI never treated the final report as closure report and instead prayed this Court to pass an appropriate order as deemed fit in the given fact situation which seemingly involves a conflict of law, said the order.

The CBI in its finding demands legal action against the accused persons for commission of offences punishable under Section 302/342/201 read with Section 34 IPC by the accused persons.

The Ministry of Defence, Govt.of India, on the other hand, desires to drop/discontinue the trial proceedings against the accused persons by flatly denying the grant of prosecution sanction against accused persons by taking the refuge of Section 6 of AFSPA, 1958 .

The Ministry of Defence, by an order dated December 2, 2019 projected a situation stating that the prima facie findings of CBI against the accused persons are all wrong and that the accused persons killed the victim Pheiroijam Sanajit in an ambush during the course of official duty in lawful exercise of the powers conferred by law.

The order passed by the Court of CJM, Imphal West then pointed out that there are substantial number of similar cases pending before this Court and other Courts wherein prosecution sanction were denied against the respective accused defence personnel even in the presence of prima facie material evidence against the accused persons.

In other words, denial of prosecution sanction by the competent authority has become a routine matter in most of the cases where defence/paramilitary personnel are involved in alleged fake encounter cases.

Stating that some important and seminal questions have arisen, the CJM Court sought clarification and guidance from the High Court of Manipur.

The questions listed by the CJM Court are as follows;
(1) Whether the Ministry of Defence, GoI can deny the grant of prosecution sanction against the accused persons (who are defence personnel) despite the fact that CBI found a strong prima facie material evidence for commission of serious offences punishable under Section 302/342/201 read with Section 34 IPC by the accused persons or not ? .

(2) Whether, at this stage, the Ministry of Defence is empowered to project a fact situation contrary to the prima facie findings of the CBI (which is the investigating agency specially entrusted by the Supreme Court in this regard) or not ? In other words, can Ministry of Defence, GoI at this stage, project a fact situation thereby indicating that the prima facie findings of CBI against the accused persons are all wrong and that the victim namely Pheiroijam Sanajit was killed by the accused persons in an ambush during the course of official duty in lawful exercise of the powers conferred by law or not ? .

Can the Ministry of Defence take the role of investigating agency in the present case at the present stage of the case ? .

(3) Whether the detailed and reasoned order dated 2nd December, 2019 passed by the Ministry of Defence asserting that the victim namely Pheiroijam Sanajit was killed by the accused persons in an ambush during the course of official duty in lawful exercise of the powers conferred by law, is legally tenable or not ? .

(4) Whether the benefit/protection of Section 6 of AFSPA can be extended in all given situations including blatant abuse or misuse of official position by defence personnel or not ? .

Will a defence personnel get the protection of Section 6 of AFSPA even in such a given situation, for instance, where he (defence personnel) keeps on firing/killing all passers-by without any reason while he (defence personnel) is on patrolling/during official duty or not ? .

(5) Whether the act of killing the victim Pheiroijam Sanajit by the accused persons be considered as act done during the course of official duty in lawful exercise of the powers conferred by law in the light of the prima facie findings of the CBI or not ? .

(6) Whether the accused persons be given protection under Section 6 of AFSPA even in cases where re-investigation was done by the CBI on the specific instruction/direction of Supreme Court of India ? .

(7) Whether prosecution sanction is required, as per law, in case of the Accused No.1 namely Girish Nair, the then Major, 19 Rajput (Bikaner) who is now retired from service or not ? .

(8) Whether the victim's family/EEVFAM has a right to file protest petition in the given fact situation of denial of prosecution sanction by the Ministry of Defence, GoI or not ? .

(9) It is revealed that the then District & Session, Manipur East submitted the Judicial Enquiry Report (JER), dated 31.07.2010 to the Hon'ble Gauhati High Court (Imphal Bench) in connection with killing of the present victim P Sanajit by the accused persons and the Hon'ble High Court (then Gauhati High Court, Imphal Bench) on finding material substance against the accused persons passed an order dated 29.07.2011 thereby awarded a sum of Rs 5 lakh as compensation to the wife of deceased P Sanajit.

Now the question is "Will the proceeding of the present case remain stagnant or futile exercise/empty formality even after aforesaid finding of the Judicial Enquiry and subsequent award by the Hon'ble High Court on the ground of denial of prosecution sanction against the accused persons? .

(10) Whether this Court will have the power to take cognizance of the present case even in the face of denial of prosecution sanction by the competent authority or not? .