The Jammu and Kashmir government on Monday contended before the Supreme Court that the state was bound to register an FIR in the case of a cognisable offence, even when committed by army personnel, in accordance with the apex court's five-judge judgements of the 'Lalita Kumari case of 2014' and another one.
The state sought the lifting of the apex court's stay of investigation against army personnel into the FIR lodged by Jammu and Kashmir police in the Shopian firing incident on January 27 that resulted in death of three civilians.
Senior advocate Shekhar Naphade contended before a three-judge bench presided over by Chief Justice Dipak Misra that all states should be made a party to the matter as it involved the issue of law and order, which was their exclusive domain.
The counsel also questioned a PIL filed by advocate Vineet Dhanda and a writ petition filed by father of accused Major Aditya Kumar, saying such issues cannot be raised in PILs.
"It is a criminal matter, no PIL can be entertained," he said, contending it was an extraordinary relief granted to the apex court to stay the investigation.
However, the bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, refused to make all states party to the matter but the court agreed to adjudicate upon the question of law.
Attorney General K K Venugopal, for his part, countered the state counsel's plea, saying the decisions rendered by the Constitution Benches, including in the case of 'Naga People’s Movement of Human Rights vs Union of India' (1998), would not be applicable in view of the language employed in Section 7 of the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990. He raised the issue of sanction for such action.
The court, keeping the issue of maintainability of writ petitions, fixed the matter for consideration on July 30 to decide the question of law.
The top court had on March 5 stayed the FIR in the Shopian firing incident as Major Kumar's father Lieutenant Colonel Karamveer Singh challenged the police action against Army personnel in the area covered under the AFSPA.
Singh, a decorated army officer, claimed the FIR would have a "numbing effect on the morale of the armed forces of the nation.”
The army convoy was attacked and a junior commissioned officer was about to be lynched, forcing the personnel to open fire lawfully as part of their bonafide duties, the petitioner said.
