Over 300 soldiers question CBI’s FIR against Army officer, SC to hear case on 4 Sept

Supreme Court of India | Manisha Mondal | ThePrint

The officer, Major Balhara, is accused of killing 12-year-old Azad Khan in Manipur in 2009. Soldiers say dilution of AFSPA will hit morale.

New Delhi: On 4 September, a Supreme Court bench of justices Madan B. Lokur and U.U. Lalit is set to hear a plea filed by more than 300 soldiers on active duty, who say that dilution of their powers under Armed Forces Special Powers Act (AFSPA) will lower the morale of the forces and hamper national security.

The plea is a direct result of a July 2017 judgment by this very bench, in which it had called out the excessive force used by the armed forces in Manipur, directed the CBI to probe the matter and register cases against those accused.

A year later, on 31 July, 2018, the CBI filed three chargesheets indicting officials from Manipur Police and 27 FIRs, including one against an Army official, Major Vijay Balhara, which has led to the active personnel’s plea in the court.

The case in question is the encounter killing of 12-year-old Azad Khan in Manipur in 2009, on the suspicion of being an insurgent. Major Balhara is suspected to have committed murder with a common intent, while seven Manipur Police personnel have also been charged.

The CBI has squarely cited Supreme Court orders as the reason for the FIR against the officer despite AFSPA. However, at the same time, the SC-appointed Justice Santosh Hegde commission probing the case has thrown up some interesting questions.

What the probe commission has found

According to the Hegde commission, an FIR was filed against Azad Khan on 8 January 2009, accusing him under relevant sections of the Indian Penal Code (IPC) and being a member of Peoples United Liberation Front (PULF) — which was not a banned organisation.

On 4 March 2009, at 11:50 am, while Khan was reading the paper with his friend Kiyam Ananda Singh, around 30 security personnel reached his house, dragged him to a field 70 metres away and severely beat him up. Khan’s family members – father, mother, aunt, a cousin sister — and Singh looked on in horror from inside the house as commandos shot him and threw the pistol next to his body.

Defending the killing, Manipur Police deposed before the commission that Major Balhara, an Army officer attached to the 21 Assam Rifles (a paramilitary force), sought their assistance to apprehend a member of the underground cadre of the PULF who was extorting money from the general public and attacking security forces.

Police officials stated the youth was killed as he was fleeing, while Singh — his alleged accomplice — took advantage of the dense vegetation and escaped.

After investigating the matter, the commission took conflicting reports by the Manipur Police, Assam Rifles and other mitigating factors in account to conclude that Khan — a class VII student — was not killed in an encounter, nor in the exercise of the right to self-defence.

355 soldiers come to the Major’s aid

The latest plea was filed by Colonel Amit Kumar and around 350 soldiers earlier this month, in response to the CBI’s FIR against Major Balhara.

The plea suggested that the top court’s July 2017 order directing the CBI to investigate the fake encounter killings in Manipur — allegedly perpetrated by the state police and the Army — would lower the morale of the forces and hamper national security.

Interestingly, the plea referred to the FIR filed against Major Balhara to indicate that the officer was merely doing his job, and that the killing was an encounter and thus justified.

The top court’s judgment on the Manipur fake encounter killings had come on a plea filed by the Extra-Judicial Execution Victims Families Association (EVAM) — a body comprising the widows and mothers who have alleged at least 1,528 people were killed in fake encounters in the last few decades.

Earlier, in 2016, in a separate but related judgment, the SC had held that armed forces cannot use excessive force even if the areas were are under AFSPA.