The points are very simple. An FIR
is mandatory wherever there is an untoward incident and anyone can file it;
even a bystander. The Army is required to file one for every incident
procedurally.
The second is that an FIR and a
charge are two different things. A charge is made after investigation and after
sanction from the Central Government. As you said the provision is applicable
to all on Govt duty.
You are very right as regards the
Govt permission being required to prosecute
any Mil Pers for any acts of commission/omission in the line of
Duty - which is true for ALL Govt servants , (
and not only the Armed Forces ), be it IAS, Police et al.
The point here is regarding the FIR
stage itself viz filing of the FIR itself , against an Army Personnel for
acts arising out of duty-bound actions.
To the best of my
knowledge, Protection at that stage viz against an FIR
also exists under AFSPA -- and as also quoted by the lady lawyer of
the major - for the simple reason that investigations under an FIR
itself can very easily be turned vindictive and biased, besides harassment
and psychological pressure by way of prolonging the investigations and
multiple/infructuous summons.
And mind you, AFSPA is expressly
meant to enable Army discharge its duties effectively in HOSTILE domestic areas
viz when operating against Own Population gone rogue , violent or truant, much
beyond the capabilities of other law-enforcing agencies and even Army with its
limited powers in aid to civ auth.
The protection from Prosecution (
needing Govt permission ) is an Umbrella protection for ALL Govt servants,
which comes ONLY AFTER police makes out a viable case with
evidences ( consequent to Invetigations based on FIR ), frames a
legal charge sheet and files a case in a Court for further/final prosecution.
Hence here the moot question is, if
a mil person or a mil cdr charged / assigned with an
order to quell a violent mob has to constantly worry
about an Impending FIR or is fully aware that the Govt will not
back his bonafide actions, HOW on earth will he discharge his
duties faithfully ??
And at least on my own personal
behalf, I am definitely sore that the soldier or his family has to fight for
this justice in his private/personal capacity and it is neither the Army nor
the MoD who filed this appeal to H'ble SC against the Mehbooba Mufti
dispensation.
(( ** It is besides the point and a
very insignificant consolation that there WAS a Central Govt counsel in SC
hearing day before yesterday, who in principle supported the Maj Aditya's plea
)).
The very fact that the SC has '
stayed " the FIR , and now apparently Mehbooba Mufti too being
on back foot ( lamely saying that the Major has NOT been DIRECTLY
indicted - only named as the Officer in charge of Army convoy ! ), itself
indicates that the FIR is indeed is not above board.
Many policemen being hounded by the legal process for doing their duty. This
happened in Punjab , for many years, with cases against policemen who had
killed terrorists in the line of duty.
One set of events have
been rather Intriguing and disturbing - the issue of FIR against the
Army Personnel in J&K, wherein civilian deaths are involved -- even if he is a Violent Stone-Pelter or a
Terrorist .
however, the very fact
that the H'ble SC has put a stay TWICE in last few weeks on any
such investigations under this FIR and on any further action against the Army,
raises many a fundamental issues.
In fact, most of the
Legal people have always maintained that an FIR can be filed against an
Army person (( for doing what he did in his line of Duty and especially
under AFSPA and Disturbed Area kind of conditions )), ONLY with the
approval of the Central Govt viz the MoD, in case of Army.
MILLION
DOLLAR QUESTION ~~ Basically, WHO should be fighting this case ( to
safeguard the interests of the Army and its personnel and its assigned
charter vis-a-vis actions necessary to implement this charter in
J&K ) in the Court -- the private Individual ( father of the Major , foe
example, in this case ), or the Army as an organisation or
the system viz the MoD ??
Does not the Onus lie
with the MoD to protect the interests of the Army, who are the ones to
have thrust/deployed and ORDERED the Army in J&K in the first place ,
and has tasked the Army to deal with Violent Militancy ? Have they
not any responsibility/accountability in their capacity as the
Ordering/Controlling Authority ?
An innocent and
Plaintive Question comes to my mind -- Are FIRs lodged against each and every Police
personnel involved in the many a daily law
& order shoot-outs and encounters which take place in our urban and rural
areas -- killing robbers, the dacoits , criminals etc ,of genuine & routine killings that take place at the hands of
Police - are they too hounded by the so called same Criminal Procedures , the
Public and the NHRC types ? They too are doing their duty, No ??
Are the Policemen
who shoot dead a a rogue chap going on a killing spree in American Schools also
booked/persecuted under an FIR ( or a similar stuff ) in US or any other
country
So my basic question still remains - If a Soldier protects the
nation - who is protects the soldier ?? APPARENTLY NOBODY !!
