SC closes criminal proceedings in Oting killing case with caveat

Says case may be revived if centre grants sanction

DIMAPUR — The Supreme Court of India closed criminal proceedings against 30 army personnel accused of killing 13 civilians in a botched operation in Mon district in 2021. However, the Court’s decision included a caveat that the case may be revived if the central government ultimately grants sanction to prosecute.

The apex court’s decision comes in response to two petitions filed by the spouses of the accused. The petitions, citing the protections granted to armed forces personnel under the Armed Forces (Special Powers) Act, 1958 (AFSPA), sought the dismissal of the criminal case initiated by the Nagaland police.

A key provision of the AFSPA, Section 6, mandates that prior sanction from the central government is required before any prosecution can be initiated against armed forces personnel operating under the Act. In this case, the central government had, in February 2023, declined to grant sanction.

While this refusal formed the basis for the petitioners’ plea to close the case, the state of Nagaland has filed a separate petition in the apex court, challenging the centre’s refusal to grant sanction, arguing that it possesses substantial evidence against the personnel.

Delivering the judgment on Tuesday, a bench comprising Justices Vikram Nath and PB Varale underscored the binding nature of Section 6 of AFSPA, stating: “ …in view of the specific bar contained in Section 6 of the AFSP Act, 1958 which provides that no prosecution, suit, or other legal proceedings can be instituted except with the previous sanction of the Central Government with respect to the exercise of any power conferred under the said Act, the proceedings based on the impugned FIRS cannot continue any further.”

In light of this, the Court allowed the writ petitions filed by the spouses, effectively closing the current proceedings stemming from the FIR.

However, recognising the state of Nagaland’s pending challenge to the sanction denial, the Court added a crucial caveat.

“As such, we make it clear that if such a situation arises, at any stage of sanction being granted under Section 6 of the AFSP Act, 1958, the proceedings pursuant to the impugned FIRs would continue according to law and may take its own course as provided under law,” the judgment stated.

Notably, the court refrained from issuing any directives regarding potential disciplinary action against the officers involved.

While the counsel representing the state of Nagaland sought directions to compel the Armed Forces to proceed with these internal proceedings, the court held that such decisions fell under the purview of the Armed Forces and were not within the scope of its current judgment.

“The said submission does not merit consideration by this Court as that would be at the sole discretion of the Armed Forces whether or not to carry on disciplinary proceedings against its officers. As such, we are not inclined to issue any such directions. The concerned wing of the Armed Forces would be at liberty to take or not to take any disciplinary proceedings against its officers”, it court order stated.