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2014 DIGILAW 67 (JK)

Mohd. Abdulla Baba v. State Of J&K

2014-02-20

Virender Singh

body2014
1. Brief facts relevant for the disposal of the instant petition are as under:- 2. Mehraj-ud-Din Baba aged 18 years son of the petitioner and a student of 12th class was picked up by Border Security Force personnel on 23.12.1992 and on 25.12.1992 his dead body was handed over to Police Station Soura. In this connection F.I.R. No. 260/92 came to be registered in Police Station Soura at the instance of one Ghulam Hassan HC. In the F.I.R. name of SI of BSF Sh. Gurbachan Singh was mentioned as he had brought the dead body to the Police Station. The dead body was brought from Far View Guest House (FVGH). It is mentioned in the F.I.R. that the deceased was arrested by 107 BN B.S.F. on 23.12.2012 near Ali Mardan Khan Bagh, Nowshehra. 3. Petitioner being apprehensive that the investigation of the present case would not be properly conducted, filed HCP No. 287/1993 in this Court, in which, the Court took a serious note of the pace in which the investigation was being conducted and gave direction for completing it within a stipulated period, reference in this regard, can be had from an order dated 22.10.1996. It reads: - "It is very strange that a case of murder and custodial death was registered way back in the year 1992 under FIR No. 260 of 1992, P/S Soura and on the directions of this Court passed on 29.06.1995, respondents i.e. Investigating Officer and respondent No. 2 Director General of Police, J&K were made answerable to apprise the Court regarding progress and outcome of the investigation. At one stage Officer Incharge, P/S Soura Mr. Ab. Rashid Khan came forthwith with an affidavit in compliance of the court directions stating therein that as per investigation conducted, person of one B.K. Singh (SI) G of 107 BN BSF was found involved in the matter. It was also apprised to the Court that his whereabouts are being traced out and located. On 19.12.1995, again an affidavit was filed by Mr. P.S. Gill, Inspector General of Police, stating and reiterating the fact that as per investigation conducted, Shri B.K. Singh has been prima facie found involved in the commission of offence. It is also revealed that said Singh is reported to have died in an encounter on 24.12.1992, for which FIR No. 89 of 1992 P/S Nowhatta stands registered. It has also been stated by Mr. It is also revealed that said Singh is reported to have died in an encounter on 24.12.1992, for which FIR No. 89 of 1992 P/S Nowhatta stands registered. It has also been stated by Mr. Gill that the investigation is still going on and they will apprise the Court about latest position. Since 19.12.1995 till date, more than eleven months have passed. The case diaries which have been made available before me are showing poor performance of the Investigating agency. The slackness and indifferent attitude shown by the Investigating agency speaks volumes. Though court has been assured that the investigation will be completed within the stipulated period as was ordered by the Court in its order dated 25.06.1995, but that direction has not been complied with in letter and spirit. Long rope given to the investigating agency and not making themselves answerable before the court seems that perhaps they are under the impression that they have to follow go slow policy in the matter and the matter will be shelved. Be it known to the persons at the helm of affairs that whosoever has committed an offence, will not be spared at any cost. Howsoever high he may be and wherever he may be, he will be traced out and put to regular trial and the ends of justice will be served. The policy of go slow will not come to the rescue of the Investigating Officer or bail out the culprits. The persons who with impunity have at one stage managed to kill the people or in any way cause custodial deaths and the cases stand registered against them, shall not be spared. Here in this case, I call upon the investigating agency to apprise me of the latest case diaries, because I don't find any progress from 20.01.1996, the last proceedings recorded in the case diaries. What is improvement from 20.01.1996 till date i.e. 22nd of October, 1996 is not known. Mr. Mustaffa appearing for this respondents seeks some time for apprising this Court about the latest position. It may be noted that it was not only the person of Sh. B.K. Singh who is alleged to have been involved in the commission of the crime, but it is the whole unit of BSF who at the relevant time had arrested the person of deceased and subsequently handed over his corpse to the control room. It may be noted that it was not only the person of Sh. B.K. Singh who is alleged to have been involved in the commission of the crime, but it is the whole unit of BSF who at the relevant time had arrested the person of deceased and subsequently handed over his corpse to the control room. So the whole unit is responsible. The Investigating Agency has to come with a definite finding as to who amongst the concerned BSF unit are involved in causing custodial death of deceased Mehraj-Ud-Din Baba. At the request of Mr. Mustaffa, I give further three weeks time to apprise this court of the latest position obtaining in the matter and I hope that by that time, respondents will come with a regular challan against the culprits who-so-ever are found involved in the matter, before a regular court of competent jurisdiction. Additional Registrar, is directed to give a copy of this order to Mr. Mustaffa, Government for compliance. List immediately after three weeks." 4. Since the investigation was not showing any substantial progress, the Court was constrained to pass different directions on different dates so that B.S.F. personnel, involved in the incident, faces the legal consequences and ultimately a status report was submitted by the concerned police before the Court which finds reference in the order dated 30.11.2004. It reads:- "SHO P/S Soura was directed to complete the investigation in FIR No. 260/1992 registered with Police Station Soura with regard to the death of Mehraj-Ud-Din Baba. The investigation had been completed and status report submitted by the respondents through Mr. M. A. Rathore, Sr. AAG. On investigation prima facie it is found that Sub Inspector B.I. Singh No.750036197, K. K. Verma and Inspector Ras Behari Dutta are involved in the killing of the deceased. It is stated in the report that B.I. Singh has expired and K. K. Verma has retired; whereas Inspector Behari Dutta is in service of the respondents and posted at North Bengal. The respondents Union of India is to take steps for seeking sanction of the Government for the prosecution of the aforesaid two persons. Investigation has been completed. Petition is accordingly disposed of." 5. It is how HCP No. 287/1993 came to be disposed of on 30.11.2004 itself. The respondents Union of India is to take steps for seeking sanction of the Government for the prosecution of the aforesaid two persons. Investigation has been completed. Petition is accordingly disposed of." 5. It is how HCP No. 287/1993 came to be disposed of on 30.11.2004 itself. It so happened that since the matter was not proceeding ahead with regard to the grant of sanction for prosecuting the BSF personnel allegedly involved in the present incident, it constrained the petitioner to file Contempt Petition bearing Contempt No. 01/2007 which was also subsequently disposed of on 29.09.2009 for the reason that during the intervening period, the challan (Charge-sheet) along with all connected documents of this case were processed for sanction by State Home Department and submitted to Central Government for necessary sanction vide Letter No. Home/Pros/53/2005 dated 29.06.2007, which has now been declined vide order dated 12.11.2007, aggrieved thereof, petitioner filed HCP No. 167/2008, the petition on hand. However for the perusal of the Court, records of HCP No. 287/1993 & Contempt No. 01/2007 are also tagged with the instant petition. 6. The impugned order dated 12.11.2007 declining the sanction reads:- "I am directed to write that after having examined the report of BSF and statements of witnesses recorded during police investigations, there appears no evidence against the said BSF personnel viz. Shri K. K. Verma, AD(G) (Retired) and Inspector, Rass Behari Dutta of BSF. The statements of the witnesses recorded do not show any role of the two personnel in causing any injuries to the deceased. Shri K. K. Verma, the then AD(G), Srinagar has already been dismissed from service and Inspector Rass Behari Dutta is presently serving in BSF. In view of the above, the Central Government (Ministry of Home Affairs) has decided not to grant sanction u/s 7 of Armed Forces (J&K) Special Powers Act, 1990 for launching prosecution against Shri K. K. Verma, AD(G) (Retired) and Inspector Rass Behari Dutta of BSF. The CD file, in original, is returned herewith. Sd/- Director (Personnel)" 7. Reply affidavit has been filed by the State through SHO Police Station Soura (respondent No.3) and Union of India (respondent No.4). 8. Heard Mr. Qureshi, learned counsel for the petitioner and Mr. Wazir, learned counsel for Union of India. However, no one appears for the State. Records also perused. 9. Mr. Sd/- Director (Personnel)" 7. Reply affidavit has been filed by the State through SHO Police Station Soura (respondent No.3) and Union of India (respondent No.4). 8. Heard Mr. Qureshi, learned counsel for the petitioner and Mr. Wazir, learned counsel for Union of India. However, no one appears for the State. Records also perused. 9. Mr. Qureshi submitted that no doubt B.S.F. personnel in terms of Ministry of Home Affairs Notification dated 15.02.1990 have also the protection under J&K Armed Forces Special Powers Act, 1990 (for short `Act of 1990') and Section 4-(a) of the said Act, gives power to an officer to even use force to cause death against any person who is acting in contravention of any law and any act done by the said officer in good faith gives him the protection also u/s 7 of Act of 1990 with regard to prosecution except with the previous sanction of the Central Government but the act so done by the concerned officer should have nexus with the discharge of his official duty as defined under Section 4-(a) of Act of 1990 and not otherwise. Mr. Qureshi submitted that the manner in which the death of the son of the petitioner has been caused cannot be said to be an act done in exercise of the powers conferred under Section 4-(a) of Act of 1990 and therefore the protection under Section 7 of the Act will not be available to the persons involved in causing the death. Learned counsel submitted that causing serious injuries while in custody, which ultimately proved fatal, cannot be termed as an act purported to have been done in good faith so as to bring it within the ambit of Section 7 of the Act of 1990 and that B.S.F. persons involved in the present incident have been just protected without there being any valid reason for the same. 10. Mr. Qureshi would content that the provisions as contained in Section 7 of Act of 1990 are similar to Section 197 of the Code of Criminal Procedure as held by Constitution Bench of Hon'ble Supreme Court in Naga People's Movement of Human Rights v. Union of India' reported in AIR 1998 SC 431 . 11. On facts, Mr. 10. Mr. Qureshi would content that the provisions as contained in Section 7 of Act of 1990 are similar to Section 197 of the Code of Criminal Procedure as held by Constitution Bench of Hon'ble Supreme Court in Naga People's Movement of Human Rights v. Union of India' reported in AIR 1998 SC 431 . 11. On facts, Mr. Qureshi submitted that during the investigation of the present case, it has surfaced that B.S.F. persons headed by B.K. Singh had picked up the son of the petitioner and thereafter his dead body was handed over to Police Station Soura and that the cause of death is the injuries found on the person of the deceased. He submitted that no doubt involvement of B.S.F. personnel i.e. K. K. Verma and Rass Bihari Dutta is not there by way of direct evidence so far as causing of injuries is concerned, which in this case could not be possible as the deceased was in the custody of B.S.F. persons, the presumption is that it were those persons only who had caused injuries resulting into his death. Learned counsel submitted that all these factors, therefore, speak volumes of the involvement of B.S.F. personnel in custodial killing of the deceased and it appears that the Competent Authority has not bothered to apply its mind to these aspects at all and virtually gave clean chit to them by refusing to grant sanction. The impugned order, therefore, sans application of mind, as such, deserves to be set aside/quashed for re-consideration of the entire matter afresh, Mr. Qureshi so contended. 12. Per contra, Mr. Wazir submitted that the present petition in the shape of Habeas Corpus will not lie as it relates to according or not granting sanction for prosecution of B.S.F. personnel, as such, liable to be dismissed on this count alone. He submitted that the earlier HCP No.287/1993 was disposed of by this Court with a direction to the respondents-State to take steps for seeking sanction for prosecution which order has not been questioned by the petitioner, therefore, the present petition after the sanction has been declined does not lie against the said order. 13. Mr. He submitted that the earlier HCP No.287/1993 was disposed of by this Court with a direction to the respondents-State to take steps for seeking sanction for prosecution which order has not been questioned by the petitioner, therefore, the present petition after the sanction has been declined does not lie against the said order. 13. Mr. Wazir then submitted that the instant petition, otherwise, merits dismissal in the light of the latest decision rendered by Hon'ble Supreme Court in case `General Officer Commanding v. C.B.I. & Anr.' reported in AIR 2012 SC 1890 , in which, while dealing with Section 7 of Act of 1990, it is held that 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 short, Mr. Wazir wants to press upon that this Court lacks jurisdiction to review the impugned order passed under Section 7 of Act of 1990. In this regard, he has referred to para 55 of General Officer Commanding's case(supra) which reads as under:- "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 authority." 14. Mr. Wazir then submitted that even otherwise the denial for prosecution by Central Government is as per the provisions of law and all the relevant documents viz. challan etc. have been thoroughly examined by the competent authority with utmost care and caution and thereafter the sanction for prosecution is denied. According to learned counsel Mehraj-Ud-Din Baba, the son of the petitioner, was an active militant and was very actively involved in subversive activities, therefore, his arrest and interrogation was not beyond the limits of law. challan etc. have been thoroughly examined by the competent authority with utmost care and caution and thereafter the sanction for prosecution is denied. According to learned counsel Mehraj-Ud-Din Baba, the son of the petitioner, was an active militant and was very actively involved in subversive activities, therefore, his arrest and interrogation was not beyond the limits of law. He submitted that it is the specific stand of the B.S.F. that the son of the petitioner was questioned by learned Late SI(G) B.K. Singh and in the evening put into the cell in Far View Guest House (FVGH) where he complained of chest pain, for which, was given first aid and then shifted to Hospital where he was declared `brought dead' by the doctor. Learned counsel submitted that in these circumstances, it cannot be said to be a case of torturing to death. 15. Mr. Wazir submitted that it is Late B. K. Singh with whom the custody of the deceased remained for interrogation and so far as SI Gurbachan Singh is concerned, no doubt, his name figures in the F.I.R. but he actually carried the dead body to P.C.R. Srinagar, as such, he had no occasion to interrogate him. Similarly, SI Rass Bihari Dutta was responsible for the security of Far View Guest House and was never the custodian of the suspect; even Sh. K. K. Verma the then AD(G) of Srinagar (since retired) was also not having the custody of the deceased and he never interrogated the deceased. According to the learned counsel, there is complete application of mind to all the material available on record and it is after considering the same minutely, the sanction has been denied by the Central Government vide impugned order which is within the ambit of provisions of Act of 1990. Mr. Wazir, thus, prays for dismissal of the instant petition on all counts. 16. No doubt, the instant petition has been styled as Habeas Corpus Petition, on which aspect only, Mr. Wazir, learned counsel for Union of India, has raised objection vis-a-vis its maintainability, but if one peruses the averments made in the instant petition and the relief sought for, virtually the petitioner is seeking quashing of impugned communication dated 12.11.2007 issued by the Director (Personnel) Govt. Wazir, learned counsel for Union of India, has raised objection vis-a-vis its maintainability, but if one peruses the averments made in the instant petition and the relief sought for, virtually the petitioner is seeking quashing of impugned communication dated 12.11.2007 issued by the Director (Personnel) Govt. of India, Ministry of Home Affairs, with a further prayer that State be directed to produce the challan against accused persons without obtaining sanction under Section 7 of Act of 1990 or in the alternative, if the Court finds it to be a case of sanction, in that eventuality, respondent No.4 be directed to grant sanction for prosecution of accused persons namely Rass Bihari Dutta and K. K. Verma AD(G) Branch under Section 7 of Act of 1990. Therefore, for all intents and purposes, the instant petition can be treated as a petition for issuance of writ of certiorari and mandamus and the petitioner cannot be non-suited on this ground. I, therefore, treat the petition at hand as one under Article 226 of Constitution of India read with Section 103 of Constitution of Jammu & Kashmir and proceed ahead with the merits of the case. 17. The question now crops up in this petition for determination by this Court is; i) whether an order passed by Central Government refusing to grant sanction under section 7 of Act of 1990 can foe reviewed; ii) If the answer to the said question is in affirmative, whether in the facts and circumstances of the present case, the order refusing to grant sanction bereft of reasons? Does it suffer from non application of mind? 18. Let us advert to the facts of General Officer Commanding's case (supra) on which Mr. Singh is banking upon to say that this Court lacks jurisdiction to review the order of refusing sanction in wake of the observations made in para 55 of the said judgment. 19. Does it suffer from non application of mind? 18. Let us advert to the facts of General Officer Commanding's case (supra) on which Mr. Singh is banking upon to say that this Court lacks jurisdiction to review the order of refusing sanction in wake of the observations made in para 55 of the said judgment. 19. In the aforesaid case, some persons were allegedly killed by 7 RR on 25.03.2000 at Pathribal claiming them to be responsible for Sikhs massacre at Chittising Pora and in this regard a complaint was sent to the Police Station Achchabal, District Anantnag (J&K) by Major Amit Saxena, the then Adjutant, 7 RR, for lodging FIR stating therein that during a Special cordon and search operation in the forests of Panchalthan, an encounter took place between terrorists and troops of that unit and in that operation five unidentified terrorists were killed. On receipt of the complaint, FIR No.(sic)/2000 came to be registered against unknown persons. There was long processions in the valley in protest of killing of five persons on 25.03.2000 by 7 RR alleging that they were civilians and had been killed by the army personnel in a fake encounter. The matter was subsequently handed over to CBI. CBI conducted the investigation and filed a charge-sheet in the Court of Chief Judicial Magistrate-cum-Special Magistrate, CBI, Srinagar alleging therein that it was fake encounter, an outcome of criminal conspiracy hatched by Col Ajay Saxena and certain other army officers of 7 RR for killing innocent persons. Learned CJM did not take the cognizance of the offence on the ground that it would tantamount to assuming jurisdiction not vested in him in view of the provisions of the Act of 1990 and gave an option to the Army to exercise the option as to whether the competent authority would prefer to try the case by way of court martial by taking over the case under the provisions of Section 125 of the Army Act, 1950. However, the Army Officers filed an application before CJM pointing out that no prosecution could be instituted against them except with the previous sanction of the Central Government in view of provisions of Section 7 of the Act of 1990 and therefore, the proceedings be closed by returning the charge-sheet to the CBI. However, the Army Officers filed an application before CJM pointing out that no prosecution could be instituted against them except with the previous sanction of the Central Government in view of provisions of Section 7 of the Act of 1990 and therefore, the proceedings be closed by returning the charge-sheet to the CBI. The said application was dismissed by CJM, aggrieved thereof, Revision Petition was filed before the Sessions Court, Srinagar, which also stood dismissed. However, Revisional Court directed CJM to give one more opportunity to Army Personnel for exercising the option under Section 125 of the Army Act. The appellant approached the High Court under Section 561-A of the Code and the High Court affirmed the order of the Courts below and held that very objective of sanction is to enable the Army Officers to perform their duties fearlessly by protecting them from vexatious, mala fide and false prosecution for the act done in performance of their duties. It further observed that however it has to be examined as to whether their action falls under the Act of 1990 and CJM does not have the power to examine such an issue at the time of committal of proceedings and at this stage, the Committal Court has to examine only as to whether any case is made out and, if so, the offence is triable by whom. 20. It is in the aforesaid background the matter landed in Supreme Court along with another appeal originating from High Court of Gauhati wherein the application of the appellant therein seeking protection of the provisions of Section 6 of the Armed Forces (Special Powers) Act, 1958 in respect of Armed Forces personnel was rejected. Section 6 of Act of 1958 is in pari materia to Section 7 of Act of 1990. Ultimately their Lordships dealt with the issue elaborately interpreting Section 7 of the Act of 1990 as to whether the term `institution' used therein means filing/presenting/submitting charge-sheet in the court or taking cognizance and whether the court could proceed with the trial without previous sanction of the Central Government. It is in this context, their Lordships held that the Legislature has conferred `absolute power' on the statutory authority to accord sanction or withhold the same and the court has no role to play in this subject. It was further held that Court would not proceed without sanction of the competent statutory authority. It is in this context, their Lordships held that the Legislature has conferred `absolute power' on the statutory authority to accord sanction or withhold the same and the court has no role to play in this subject. It was further held that Court would not proceed without sanction of the competent statutory authority. Court here means the trial Court and not the High Court. It does not in any manner curtail the constitutional power of the High Court envisaged under Article 226 of the Constitution. I, therefore, repel the arguments of Mr. Wazir on this count. 21. Viewed, thus, I hold that this Court does not lack jurisdiction to judicially review the impugned order of refusing to grant sanction. The first question is answered accordingly. 22. Having said so, the next issue before the Court is as to whether in the present set of circumstances of the case on hand, impugned order refusing to grant sanction for prosecution by the Central Government/Competent Authority can be made subject matter of judicial review, so as to say that it is bereft of reasons and sans application of mind and that the entire matter requires a re-look afresh by the Competent Authority. 23. It is well settled that this Court will not sit as a Court of appeal or substitute its own discretion for that of the authority, in which the statute has vested discretion, while exercising the power of judicial review and the Court would primarily be concerned as to whether there has been any infirmity in the decision making process or not, but this is also well settled that granting or refusing sanction is not an idle formality or an acrimonious exercise, but a solemn and sacrosanct act. It is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty. Therefore, the order granting or refusing sanction should be demonstrative of the fact that there had been application of mind on the part of the sanctioning authority 24. It is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty. Therefore, the order granting or refusing sanction should be demonstrative of the fact that there had been application of mind on the part of the sanctioning authority 24. While examining the case as the one on hand, on its individual facts on the touch stone of well settled principle of judicial review, one very important aspect which cannot escape the notice of the Court is that the object of giving special powers to armed forces is to prevent terrorist acts and Section 7 of the Act of 1990 has to be construed keeping such objective in mind. But at the same time, does it provide absolute immunity to the armed forces is also an equally important aspect which has its bearing while deciding a particular case falling within the ambit of Act of 1990. 25. Special powers under the Act of 1990 have been conferred upon army official to meet the dangerous conditions i.e. use of armed forces in aid to the civil power to prevent activities involving terrorist acts directed towards overawing the government or striking terror in the people or any section of the people or alienating any section of the people or adversely affecting the harmony amongst different sections of the people. It is with this objective, Section 4 of Act of 1990 has to be read. In terms of Section 4(a), if an officer is of the opinion that it is necessary to act for the maintenance of public order, he after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death against any person who is acting in contravention of any law or order for the time being in force in the disturbed area. The officer concerned in terms of Section 4(c) is also empowered to arrest without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the recovery. The officer concerned in terms of Section 4(c) is also empowered to arrest without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the recovery. At the same time, this Section also confers special other powers also upon an officer concerned even to destroy arms dumped, enter and search without warrant any premises to make any such arrest or to recover any person believed to be wrongfully restrained or confined or any property suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises. He has also the power to search and seize any vehicle which is carrying any arms, ammunition or explosive substances. In terms of Section 5 of Act of 1990, the concerned officer while making the search under the Act can even break open the lock of any door, almirah, safe, box, cupboard, drawer etc. 26. What is important is that in terms of Section 6 of Act of 1990, any person arrested or taken into custody under this Act or any property, arms, ammunition or explosive substances or any vehicle or vessel seized under this Act has to be handed over to the officer incharge of the nearest police station by the concerned officer exercising such power under Sections 4 & 5 of Act of 1990 and this exercise has to be done without any delay. 27. Section 7 of Act of 1990 provides for umbrella protection to the army personnel in respect of anything done or purported to be done in exercise of the powers conferred by the Act. 28. 27. Section 7 of Act of 1990 provides for umbrella protection to the army personnel in respect of anything done or purported to be done in exercise of the powers conferred by the Act. 28. In General Officer Commanding's case (supra) wherein the whole issue was with regard to the interpretation of Section 7 of the Act of 1990, the Hon'ble Supreme Court dealt with the aspect of absolute immunity from being prosecuted and while dealing with this issue, their Lordships also relied upon Constitution Bench decision of Supreme Court in Naga People's case (supra) wherein while considering the provisions of Section 6 of Armed Forces Act 1958, held as under:- "Under Section 6 protection has been given to the persons acting under the Central Act and it has been prescribed that no prosecution, suit or other legal proceeding shall be instituted against any person in respect of anything done or purported to be done in exercise of the powers conferred by the said Act except with the previous sanction of the Central Government. The conferment of such a protection has been assailed on the ground that it virtually provides immunity to persons exercising powers conferred under Section 4 inasmuch as it extends the protection also to "anything purported to be done in exercise of the powers conferred by this Act". It has been submitted that adequate protection for members of armed forces from arrest and prosecution is contained in Sections 45 and 197, CrPC and that a separate provision giving further protection is not called for. It has also been submitted that even if sanction for prosecution is granted, the person in question would be able to plead a statutory defence in criminal proceedings under Sections 76 and 79 of the Indian Penal Code. The protection given under Section 6 cannot, in our opinion, be regarded as conferment of an immunity on the persons exercising the powers under the Central Act. Section 6 only gives protection in the form of previous sanction of the Central Government before a criminal prosecution or a suit or other civil proceeding is instituted against such person. Insofar as such protection against prosecution is concerned, the provision is similar to that contained in Section 197, CrPC which covers an offence alleged to have been committed by a public servant "while acting or purporting to act in the discharge of his official duty". Insofar as such protection against prosecution is concerned, the provision is similar to that contained in Section 197, CrPC which covers an offence alleged to have been committed by a public servant "while acting or purporting to act in the discharge of his official duty". Section 6 only extends this protection in the matter of institution of a suit or other legal proceeding. XX XX XX In order that the people may feel assured that there is an effective check against misuse or abuse of powers by the members of the armed forces it is necessary that a complaint containing an allegation about misuse or abuse of the powers conferred under the Central Act should be thoroughly inquired into and, if it is found that there is substance in the allegation; the victim should be suitably compensated by the State and the requisite sanction under Section 6 of the Central Act should be granted for institution of prosecution and/or a civil suit or other proceedings against the person/persons responsible for such violation." (Emphasis added) 29. In General Officer Commanding' case (supra), their Lordships while dealing with the aspect of performance of duties; act in good faith either done or purported to be done in the exercise of the powers conferred under the Act so as to provide protection under the `immunity clause' or not, observed that this issue would be dependent upon facts of each case and cannot be a subject matter of hypothesis as such cases relate to initiation of criminal prosecution against a public official, who has done or has purported to do something in exercise of the power conferred under a statutory provision. The facts of each case are, therefore, necessary to constitute the ingredients of an official act. It was further observed that the act has to be official and not private as it has to be distinguished from the manner in which it has been administered or performed. It was observed in para 52 as under:- 52. It is in the aforesaid background that we wish to record that the protection and immunity granted to an official particularly in provisions of the Act, 1990 or like Acts has to be widely construed in order to assess the act complained of. This would also include the assessment of cases like mistaken identities or an act performed on the basis of a genuine suspicion. This would also include the assessment of cases like mistaken identities or an act performed on the basis of a genuine suspicion. We are therefore of the view that such immunity clauses have to be interpreted with wide discretionary powers to the sanctioning authority in order to uphold the official discharge of duties in good faith and a sanction therefore has to be issued only on the basis of a sound objective assessment and not otherwise." 30. Adverting to the facts of the present case. It is conceded position before the Court that PAPA-II (FVGS) where Mehraj-Ud-Din (deceased) was taken for interrogation, was declared as additional Police Lock up. Another admitted fact is that deceased was taken into custody by B.S.F. personnel on 23.12.1992 and on 25.12.1992 his dead body was handed over to Police Station Soura and in this connection a case FIR No. 260/92 came to be registered in Police Station Soura. In the FIR, it is mentioned that Gurbachan Singh SI of BSF had brought the dead body to the police station from FVGH. 31. Union of India in its para-wise reply stated that Mehraj-Ud-Din Baba was an active militant of Hezbollah Outfit and was actively involved in subversive activities, hence he was a terrorist. He was detained for questioning by SI(G) B. K. Singh (since deceased). In the evening, he was put in the Cell FVGH where he complained of Chest pain and was given first aid from where he was taken to the hospital and the doctor declared him to be dead. It is specific stand of BSF that Mehraj-Ud-Din was never tortured. 32. It is further the stand of BSF that SI Rass Behari Dutta was responsible for the security of the FVGS i.e. PAPA-II and was never the custodian of the suspect and that Sh. K. K. Verma, the then AD(G) of Srinagar Ftr (since retired) was also not having the custody of the deceased and he never interrogated the deceased. 33. It is further the stand of BSF that SI Rass Behari Dutta was responsible for the security of the FVGS i.e. PAPA-II and was never the custodian of the suspect and that Sh. K. K. Verma, the then AD(G) of Srinagar Ftr (since retired) was also not having the custody of the deceased and he never interrogated the deceased. 33. Reply filed by SHO Police Station, Soura is absolutely contrary to it, in which, `it is specifically stated that Mehraj-Ud-Din Baba was lifted by 107 Bn BSF on 23.12.1992 at Baghi-Ali Mardan Khan, Nowshehra and upon examination of the dead body, it was found that it bore torture marks and the death, prima facie, appeared to be homicidal, which resulted into the registration of a case FIR No.260/92 of Police Station Soura. Reply further reveals that during the course of investigation, it surfaced that the deceased was arrested by one SI B. K. Singh of 107 Bn BSF on 23.12.1992, who handed over the arrestee to the Incharge (G) Branch H-3 (PAPA-II) on 24.12.1992 where he was detained for interrogation and subjected to 3rd degree treatment, which resulted into his death. 34. It needs to be mentioned here that the investigation conducted in the present case, prima facie, established the involvement of Sh. B. K. Singh of 107 Bn BSF and since he had died in an encounter with militants on 24.12.1992, the investigation of the present case was initially closed as untraced owing to the death of aforesaid B. K. Singh and report in this connection was submitted HCP No.287/1993. However, the Court did not agree with the conclusion to which the investigation had arrived and observed that aforesaid B. K. Singh alone could not be held responsible for the death of Mehraj-Ud-Din Baba and it was the whole team, who had lifted the deceased on 23.12.1992 and thereafter handed over the dead body to Police Station Soura. It is on the directions of this Court the investigation of the present case was re-opened wherein it is established that Mehraj-Ud-Din Baba had died in custody of BSF at H-3 location (PAPA-2) and duty S.O. was also found involved in the commission of the offence. On the strength of that evidence, offences under Sections 109, 342 RPC read with Section 302 RPC were invoked in the matter against Incharge H-3 Location (PAPA-2) Sh. On the strength of that evidence, offences under Sections 109, 342 RPC read with Section 302 RPC were invoked in the matter against Incharge H-3 Location (PAPA-2) Sh. K. K. Verma, Duty S.O. Rass Bihari Dutta SI and aforesaid late SI B. K. Singh. 35. While referring to the aforementioned facts, the State in its reply has categorically stated that prima facie, B. K. Singh SI (since deceased), Inspector Rass Bihari Dutta and K. K. Verma ADG(G) are found involved in the commission of the offences punishable under Sections 302, 109 and 342 RPC. It is thereafter the case was processed by Home Department, Govt. of J&K, for obtaining sanction from the Central Government (competent authority). 36. The present case requires to be appreciated in the light of the aforesaid facts wherein a young boy was picked up on a particular date, may be for the purposes of interrogation, by BSF personnel and thereafter taken to FVGH i.e. PAPA-II and then his dead body was handed over to Police Station Soura. As per the investigation carried out in this case, there were marks of torture on the dead body of the deceased and the death was homicidal in nature, whereas the stand taken by BSF is that it was a case of chest pain, which the deceased suffered during interrogation and he was taken to the hospital where he was declared dead. Another material fact, which is worthnoticing is that SI B. K. Singh, who had initially lifted the deceased on 23.12.1992 and detained him in PAPA-II, got killed in an encounter with terrorists, whereas the dead body of Mehraj-U-Din Baba was handed over to the police on 25.12.1992. As per investigation further carried out in this case, K. K. Verma, Duty SO and Rass Bihari Dutta SI were also there in PAPA-II. 37. Yet another important aspect, which needs consideration is that assuming Mehraj-Ud-Din Baba was arrested by SI B. K. Singh 107 Bn BSF without warrant on 23.12.1992, may be on suspicion that he has committed or about to commit a cognizable offence and therefore, it was necessary to effect his arrest, the custody of the arrested person should have been handed over to the officer incharge of the nearest Police Station without any delay with a report of circumstances which had occasioned effecting the arrest. This is the requirement of Section 6 of Act of 1990. This is the requirement of Section 6 of Act of 1990. In the present case, the deceased was straightway taken to the interrogation cell (declared as additional police station) from where his dead body was brought and handed over to the concerned police station. It is no where provided that a person who is arrested can be tortured to death. Perhaps, the officer concerned exercising the special powers under Act of 1990 does not enjoy this immunity even if we interpret the immunity clause with wider scope keeping in mind that the army officials have to meet the dangerous conditions where they have to deal with certain persons who are adversely affecting the social fabric by striking terror in people. It is altogether in different context. The protection provided under Section 7 for acting in good faith under this Act is available to officer only when he is doing anything or has done in exercise of the powers conferred by this Act i.e. the powers as defined in Sections 4, 5 & 6 of Act of 1990 and not beyond that. 38. The present case on its individual facts should have been appreciated in that perspective only and what appears to the Court is that the Competent Authority has either ignored all this deliberately or overlooked it in a very casual manner as one finds from the impugned order wherein it is simply stated that after having examined the Report of BSF and statements of witnesses recorded during police investigation, there appears to be no evidence against K. K. Verma, the then AD(G) and Inspector Rass Behari Dutta. It sans application of mind and gives an impression that the discretionary powers, which, undoubtedly are wider powers with the sanctioning authority, have not been exercised on sound objective assessment of the entire facts. It goes without saying that there is gross infirmity in the decision making process. It is a case of custodial death which has to be accounted for. After all a precious life of a teen aged has been taken away. Viewed thus, the entire case deserves to be re-examined in its right perspective by the competent authority afresh. 39. Resultantly, the petition on hand succeeds and the impugned order No. 1/8/2004-CLO/BSF/Pers.III 2795 dated 12.11.2007 issued by Director (Personnel), Govt. After all a precious life of a teen aged has been taken away. Viewed thus, the entire case deserves to be re-examined in its right perspective by the competent authority afresh. 39. Resultantly, the petition on hand succeeds and the impugned order No. 1/8/2004-CLO/BSF/Pers.III 2795 dated 12.11.2007 issued by Director (Personnel), Govt. of India, Ministry of Home Affairs, whereby refusing to accord sanction to prosecute K. K. Verma, the then AD(G) and Inspector Rass Behari Dutta is, hereby quashed. The Competent Authority, is hereby directed to examine the entire case afresh on certain vital aspects referred to hereinabove and take a fresh decision, whether or not to accord sanction for prosecution of K. K. Verma, the then AD(G) and Inspector Rass Behari Dutta in terms of Section 7 of Act of 1990. The entire exercise in this regard culminating in an order shall be completed within a period of two months from the date of receipt of copy of the order, which shall be the responsibility of Mr. Wazir, learned counsel for Union of India. Home Department, Government of J&K, shall forward the entire record of the present case (C.D. file) to the Competent Authority for its perusal afresh within two weeks from today. Since State of J&K has gone unrepresented, Registrar Judicial of this Wing shall communicate the order to the State. 40. Disposed of in the aforesaid terms.