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Judgment
Heard Mr. S. K. Medhi, learned Counsel for the petitioners. Also heard Mr. L. Kurdu, learned Special Public Prosecutor for the SIT, State of Arunachal Pradesh.
The instant Criminal Petition under Section 528 of the BNSS, 2023, has been filed by the petitioners, five in total, assailing the Charge-Sheet No. 54/2023 dated 04.12.2023 and the impugned order dated 05.06.2024, whereby the learned Judicial Magistrate First Class, Yupia, took cognizance against the petitioners as well as the impugned order dated 30.06.2025 whereby the learned Judicial Magistrate First Class, Yupia, committed/transferred the case to the Court of the Sessions Judge, Yupia, Papum Pare District.
The facts leading to the filing of the instant criminal petition are summarized herein below:
Petitioner No. 1, herein is a Major in the Indian Army and is presently posted at the Sikh Regiment Centre, Ramgarh, Jharkhand. Petitioner No. 2 is a Lance Havildar in the Indian Army, and Petitioner Nos. 3 to 5 are Sepoys in Indian Army. Petitioner Nos. 2 to 5 are presently posted at the 19 Sikh Regiment at Kupwara, Jammu and Kashmir. The petitioners were posted with the 19th Battalion of the Sikh Regiment at Longding, Arunachal Pradesh. In the year 2020, on 16.05.2020, after receipt of specific input, they conducted an operation at village Pumao District of Longding, Arunachal Pradesh against NSCN (IM) cadres. While the column of the 19 Sikh Regiment was in the vicinity of the village and was proceeding to the suspected hut, the column was attacked by a violent mob armed with sticks, dao(s) and stones. The NSCN (IM) cadres taking advantage of the situation fired upon the column and attempted to escape. Faced with the situation, the Army personnel were constrained to resort to controlled retaliatory fire towards the suspected hut from where the NSCN (IM) cadres were firing. After de-induction, it was learned that one civilian had died of gunshot wound and several others injured. Personnel of 19 Sikh Regiment were blamed for the death and injuries to the villagers whereas the 19 Sikh Regiment has consistently maintained that the death was likely due to the firing by the NSCN(IM) cadres and that the Unit’s own personnel received injuries due to the violence perpetrated by the villagers.
On 17.05.2020, an FIR was lodged by one Shri Akai Wangpan, Head Gaon Burah of Pumao village, which was registered as FIR No. 27/2020, under sections 304/326/323/34 of IPC, 1860. Vide communication dated 08.02.2021, the Government of Arunachal Pradesh transferred the case from Longding PS to Crime Branch Police Station(SIT), Police HQ, Itanagar. Subsequently, a Magisterial Inquiry (MI) was ordered on 27.05.2020 to investigate the incident and the concerned Magistrate submitted its report to the Deputy Commissioner, Longding, vide Letter No. DG/MI PUMAO/2020 dated 27.08.2020.
The case, having been referred to the SIT, was investigated by the Crime Branch Police Station (SIT Team), Police Headquarters, Itanagar, which filed the Charge Sheet dated 04.12.2023 against the petitioners. And the same was forwarded to the learned Chief Judicial Magistrate, First Class, Papum Pare District. The case was registered as G.R. Case No. 1066/2022, arising out of Longding Police Station Case No. 27/2020.The learned Judicial Magistrate First Class, Yupia, vide order dated 05.06.2024, took cognizance in the matter. Thereafter, the learned Judicial Magistrate First Class, Yupia, vide orders dated 13.08.2024 and 27.11.2024, issued summons to the petitioners. Subsequently, due to non appearance of the petitioners, the learned Judicial Magistrate First Class, Yupia, vide order dated 20.03.2025 issued bailable warrant of ₹ 2000/-each to the petitioners.
The petitioners filed Criminal Petition before this Court against FIR No. 27/2020 dated 17.05.2020, Charge-Sheet No. 54/2023 dated 04.12.2023, the impugned orders dated 05.06.2024, 13.08.2024, 27.11.2024 and 20.03.2025, passed in Longding P.S. Case No. 27/2020 (corresponding to G.R. Case No. 1066/2022), which was registered as Criminal Petition No. 126/2025. This Court, vide order dated 25.06.2025 modified the order of the Judicial Magistrate First Class, Yupia and directed the petitioners to appear before the Judicial Magistrate First Class, Yupia on 30.06.2025 instead of 26.06.2025. In compliance of the order dated 25.06.2025 passed by this Court, the petitioners appeared before the learned Judicial Magistrate First Class, Yupia on 30.06.2025, wherein the Learned Judicial Magistrate First Class granted bails to the petitioners. However, vide the same order, the learned Judicial Magistrate First Class, Yupia committed the case to the Court of the Sessions Judge, Papum Pare District.
Being aggrieved and dissatisfied with the Charge-Sheet No. 54/2023 dated 04.12.2023 and the impugned orders dated 05.06.2024 and 30.06.2025 passed in Longding PS Case 27/2020 (GR Case No. 1066/2022), the petitioners have filed the instant Criminal Petition before this Court.
Mr. S. K. Medhi, learned counsel appearing for the petitioners, submits that the petitioners, being Army personnel, are subject to the provisions of the Army Act, 1950, and during the relevant time of the incident, they were deployed on official duties in an area declared as a “disturbed area” under Section 3 of the Armed Forces (Special Powers) Act, 1958 (hereinafter referred to as “AFSPA”). He submits that the petitioners were discharging their bona fide military duties in accordance with the mandate of the AFSPA. He further submits that Rule 3 of the Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1978, provides that where a person subject to military, naval or air force law, or any other law relating to the armed forces of the Union for the time being in force, is brought before a Magistrate and is charged with an offence for which he is liable to be tried by a Court-Martial, such Magistrate shall not proceed to try such person or to commit the case to the Court of Sessions. He submits that Section 475 of the Code of Criminal Procedure (Section 521 of BNSS) also bars the same. Learned counsel for the petitioners has pointed out the Section 6 of the Armed Forces (Special Powers) Act, 1958 (AFSPA), which provides protection to persons acting under the said Act. He submits that no prosecution or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by the said Act. He further submits that, in terms of Section 218(2) of the BNSS, no Court shall take cognizance of any offence alleged to have been committed by any member of the arm forces of the union while acting for purporting to act in discharge of the official duty except with the previous sanction of the Central Government. He submits that in the instant case, no previous section was obtained for prosecuting the petitioners from the Central Government. He submits that though the Home Department Government of Arunachal Pradesh has sought for the sanction under Section 6 of the AFSPA, 1958, the Department of Military Affairs, Ministry of Defence, Government of India, vide order dated 07.08.2026, has rejected the prayer made by the State of Arunachal Pradesh for sanction to prosecute the petitioners.
A copy of the aforesaid order dated 07.08.2026, passed by the Department of Military Affairs, Ministry of Defence, Government of India, has been produced before this Court, which is marked as “X” and kept on record.
In the instant case though prosecution sanction has been rejected by the Ministry of Defence, Department of Military Affairs, the same has not been challenged as yet by the Govt. of Arunachal Pradesh.
Learned counsel appearing for the petitioners submits that, since the sanction has not been granted by the competent authority, the criminal proceedings arising out of the FIR dated 08.02.2021 should be quashed and set aside. He submits that it is a settled law wherein, no prosecution sanction has been granted by the competent authority, the case of the prosecution cannot go ahead. In support of his submissions, the learned counsel has referred to the following cases:
General Officer Commanding, Rashtriya Rifles Vs. CBI & Anrs reported in (2012) 6 SCC 228.
ii) Rabina Galle & Anr. Vs. Union of India & Ors., reported in (2024) 9 SCC 142.
Mr. L. Kurdu, learned Special Public Prosecutor, has fairly submitted that, since the requisite prosecution sanction has not been granted by the Central Government, Ministry of Defence, he does not oppose the prayer made by the petitioners in the instant Criminal Petition.
It is not disputed that the petitioners were members of the 19 Sikh Regiment and had been deployed on official duties in an area which had been declared a “disturbed area” under Section 3 of the Armed Forces (Special Powers) Act, 1958. It is also not disputed that the incident occurred while the petitioners were discharging their official duties. Section 6 of the AFSPA, 1958, being relevant in the instant case, is extracted herein below:
“i) Protection to persons acting under Act.— No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of
the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.”
It may be also relevant to consider Section 218 of the BNSS which provides prosecution of Judges and public servants. The relevant provision of Section 218 of BNSS, 2023 is extracted herein below:
“(ii)No Court shall take cognizance of any offence alleged to have been committed by any member of the armed forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.”
From the above two provisions, it is clear that when an Army personnel who is discharging his official duty and is sought to be prosecuted under any law in respect of an act done or purported to have been done in the discharge of such official duty, the previous sanction of the competent authority, as provided under the Act, 1958 has to be obtained, the same can be done at a later stage also, if required.
In this connection, in the case of General Officer Commanding (Supra) the Hon’ble Supreme Court has observed as follows:
’’82. Thus, in view of the above, the law on the issue of sanction can be summarised to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him. However, there must be a discernible connection between the act complained of and the powers and duties of the public servant. The act complained of may fall within the description of the action purported to have been done in performing the official duty. Therefore, if the alleged act or omission of the public servant can be shown to have a reasonable connection, interrelationship or is inseparably connected with discharge of his duty, he becomes entitled for protection of sanction.
83.If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab initio for want of sanction. Sanction can be obtained even during the course of trial depending upon the facts of an individual case and particularly at what stage of proceedings, requirement of sanction has surfaced. The question as to whether the act complained of, is done in performance of duty or in purported performance of duty, is to be determined by the competent authority and not by the court. The legislature has conferred “absolute power” on the statutory authority to accord 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.
84.The present case stands squarely covered by the ratio of the judgments of this Court in Matajog Dobeyand Sankaran Moitra. Thus, we have no hesitation to hold that sanction of the Central Government is required in the facts and circumstances of the case and the court concerned lacks jurisdiction to take cognizance unless sanction is granted by the Central Government.’’
Similarly, in the case of Rabina Galle (Supra) the Hon’ble Supreme Court, in a case involving Army personnel in Nagaland, has observed as follows:
“In view of the admitted position that mandatory previous sanction as required under Section 6 of the Armed Forces (Special Powers) Act, 1958, has not been obtained, we are constrained to pass an interim order staying further proceedings pursuant to FIR No. 27/2021, till final report of the Special Investigation Team.”
The Hon’ble Supreme Court, in paragraph 5 of the aforesaid case, observed as follows:
“The matter has since remained pending, and arguments were heard on 06.08.2024. The learned Senior Counsel and Counsel for the parties had made submissions making allegations and counter-allegations. However, we are not inclined to go into those submissions, as, in our view, in view of the specific bar contained in Section 6 of the AFSPA Act, 1958, which provides that no prosecution, suit or other legal proceedings can be instituted except with the previous sanction of the Central Government with respect to the exercise of any power conferred under the said Act. The proceedings based on the impugned FIR cannot continue any further. The interim order granted by the order dated 19.07.2022 deserves to be made absolute and the proceedings arising from the impugned FIRs deserves to be quashed.”
From the above observations of the Hon’ble Supreme Court, it is very clear that army personnel who has been alleged to have committed any crime while he was on duty, the prosecution has to obtain the prosecution sanction from the competent authority. In the instant case, the petitioners are army personnel who were serving under the 19 Sikh Regiment at the point of time when the alleged incident occurred while discharging their official duties, they cannot be prosecuted without having the required sanction in terms of section 6 of AFSPA Act. Section 218(2) of the BNSS has also bars such prosecution of any member of the Armed Forces of the Union.
Therefore, in the instant case, the cognizance taken by the Learned Judicial Magistrate First Class, Yupia and the subsequent transmission of the case to the Learned Sessions Court, Papum Pare District, are not in terms of the provisions of the AFSPA Act, 1958 as well as the BNSS, 2023.
In view of the aforesaid discussion, this Court is of the considered view that the instant petition merits to be allowed. Accordingly, the Charge-Sheet No. 54/2023 dated 04.12.2023 and the impugned orders dated 05.06.2024 and 30.06.2025, passed in Longding P.S. Case No. 27/2020 (G.R. Case No. 1066/2022) passed by the learned Judicial Magistrate First Class, Yupia, are hereby set aside and quashed.
In terms of the aforesaid directions, the instant Criminal Petition stands disposed of.
The TCR to be sent back immediately.