Press Trust of india

SC to hear armymen's plea challenging their prosecution under AFSPA

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New Delhi, Aug 20:  A plea by over 300 army personnel challenging the registration of FIRs against the armed forces for carrying out operations in Manipur and Jammu and Kashmir, where the Armed Forces (Special Powers) Act is in force, would be heard by the Supreme Court next month.

The plea today came up for hearing before a bench of Justices Madan B Lokur, S Abdul Nazeer and Deepak Gupta, which said the matter has to be heard by a bench of Justice Lokur and Justice U U Lalit as the order for registration of FIRs and probe into the alleged fake encounters by the Army, Assam Rifles and police in insurgency-hit Manipur was delivered by that bench.

"It has to go before the same bench," Justice Lokur said.

The bench of Justices Lokur and Lalit had on July 14 last year ordered setting up of a special investigation team (SIT) of CBI to probe alleged fake encounters in Manipur.

The bench had earlier observed that the use of "excessive force" by the armed forces or police was not permissible in 'disturbed areas' under the draconian AFSPA.

During the brief hearing today, senior advocate Mukul Rohatgi, appearing for the petitioners, agreed that the matter be heard by the same bench which had passed the order earlier.

Rohatgi said the Manipur encounter matter was listed for hearing later today and the plea by the Army personnel could be heard along with that case. To this, Justice Lokur said it was "not possible" and posted the matter for hearing on September 04.

Senior advocate Colin Gonsalves, who is representing the petitioners in the Manipur encounter cases, objected to the filing of this fresh petition saying it appeared to seek a review of the earlier order passed by the top court.

The plea filed by over 300 army personnel, including Colonel Amit Kumar, claims that they were being "persecuted" and proceeded against for performing duties in such disturbed areas.

The filing of the plea by serving army officers assumes significance as the CBI's SIT has recently filed charge-sheets in three encounter cases in Manipur against members of armed forces in two of which murder charges have also been slapped.

The Army personnel, in their petition, have alleged that they "are now facing confusion and countering questions from the soldiers under their command, as to whether they are supposed to continue to engage the proxy war and insurgency with their military training, principals, standard operating procedures, operational realities, valour and courage or act and operate as per the yardsticks of peace time operations, law and order issues and CrPC."

The plea has said that an "extraordinary situation of confusion" has arisen with respect to their protection from prosecution, as defined under the sections of AFSPA (Assam and Manipur) and AFSPA (Jammu and Kashmir), and such prosecutions lowered the morale of the military and paramilitary forces.

"This protection doesn't give any blanket prohibition or any special right to the soldier for himself, but facilitates his functioning and operations in extraordinary circumstances of proxy war, insurgency, armed hostility, ambushes, covert and overt operations," the plea has said, adding that "such operations are materially and substantially different from law and order situations."

It has said "any criminality, misuse, abuse, negligence, excessive power, judgment error, mistake, bona fide, mala fide, good faith or mens rea have to be questioned, considered, assessed, investigated or adjudged only with respect to the peculiar facts and circumstances of insurgency and proxy war, taking into regard the Standard Operating Procedures of Indian Army and operational realities."

It has sought specific guidelines to protect the bonafide action of soldiers under AFSPA "so that no soldier is harassed by initiation of criminal proceedings for actions done in good faith in exercise of their duties, as mandated by the Union of India, in protection of sovereignty, integrity and dignity of the country."

It has also said that the "garb of protection of human rights should not be taken as a shield to protect the persons involved in the terrorist act."

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