Srinagar: The High Court of J&K and Ladakh on Tuesday said that no direction can be issued to the Union Of India, Home Affairs, to grant sanction to prosecute the accused troops under Armed Forces Special Powers Act (AFSPA).
The court said that it cannot tell the government of India’s Home Affairs to give permission to prosecute troops under the Armed Forces Special Powers Act (AFSPA).
Dismissing a petition being “misconceived”, a bench of Rajnesh Oswal said that it was the sole prerogative of the Union Government to grant or refuse the sanction.
The petition was filed by Munawara Sultan asking court to direct government for permission to prosecute some Border Security Force (BSF) officers. These officers were accused of killing her husband in 1993, just four months after they got married.
The police in Shergari, Srinagar, said that they finished their investigation and filed charges against some BSF officers. But because AFSPA is in place in Jammu and Kashmir, they needed special permission to prosecute these officers.
In the reply, SHO Police Station Shergari, Srinagar had stated that the investigation has been closed as challan against some officials of BSF has been filed but as the AFSPA is in vogue in the State of J&K and the sanction for launching prosecution against the officials is mandatory, as such, the case has been submitted to the Home Department for taking up the matter with the Ministry of Defence, Government of India for accord of sanction for launching the prosecution against the accused persons.
However, the court decided it cannot force the government of India to give permission for prosecution. It said that only the Indian government could decide whether to allow it or not. Trying to force them would be like interfering in their decision based on the evidence they have.
“…this Court is of the considered view that no direction can be issued to the respondent No.5 (Union Government) to grant sanction to prosecute the accused persons and it is the sole prerogative of respondent No.5 to grant or refuse the sanction,” the court said, adding, “Any direction by this court would amount to interference in the decision to be arrived at by the respondent No.5 on the basis of record placed before him,” the court said.