No prosecution of India's armymen without prior sanction: Supreme Court

New Delhi, May 2 (PTI) In an important order relating to army personnel engaged in counter insurgency operations in India, the Supreme Court has ruled that those involved in encounter killings cannot be prosecuted without prior sanction of the Central Government as they enjoy immunity under Armed Forces (Special Powers) Act, 1958. A bench of justices B S Chauhan and Swatanter Kumar, however, said if the accused army officials are to be tried under the court martial proceedings then no such sanction was required. The bench granted the option to the army authorities to try the officers in encounter killings at Pathribal in the northern state of Jammu and Kashmir and in Saikhowa in the northeastern state of Assam under court martial proceedings or alternatively subject them to trial in criminal courts. The court gave this ruling on Tuesday while rejecting Central Bureau of Investigation's contention and upholding the appeal filed by army officers challenging their prosecution over "fake" encounters in Pathribal 12 years ago in which 7 persons were killed and in Saikhowa Reserve Forest in Assam in 1994 in which five persons were killed. The court said the immunity granted to security personnel under the Armed Forces (Special Powers) Act (AFSPA) and Section 197 Criminal Procedure Code was to ensure that they were not subjected to unnecessary harassment or prosecution. "It is also to be kept in mind that the cognizance is taken of the offence and not of the offender. The sanction of the appropriate authority is necessary to protect a public servant from unnecessary harassment or prosecution. "Such a protection is necessary as an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralises the honest officer,"Justice Chauhan writing the judgement said. The apex court, however, said that performance of public duty cannot be camouflaged to commit a crime. "The public duty may provide such a public servant an opportunity to commit crime and such issue is required to be examined by the sanctioning authority or by the court." PTI