EXTRA JUDICIAL EXECUTION VICTIM FAMILIES  ASSOCIATION (EEVFAM) & ANR. versus UNION OF INDIA & ANR.
[2016] 4 S.C.R. 909, Supreme Court of India, 2016
Outcome: Directions issued
Segment: Ratio
provisions of the Cr.P.C. and that cognizance 
means takingjudicial notice of an offence by an application of mind to 
the complaint or police report and thereafter proceeding under the 
provisions of the Cr.P.C. Relying upon Matajog Dobey it was held that 
the criminal court lacks jurisdiction to take cognizance of the offence 
unless sanction is granted by the Central Government. 
161. A reference was then made to Sections 125 and 126 of the 
Army Act and it was held in paragraph 86 ofthc Report, following Som 
Datt Datta and Balbir Singh as follows: 
"Military authority may ask the criminal court dealing with the 
case that the accused would be tried by the Court Martial in view 
of the provisions of Section 125 of the Army Act. However, the 
option given by the authority is not final in view of the provisions 
of Section 126 of the Army Act. Criminal court havingjurisdiction 
to try the offender may require the competent military officer to 
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EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.] 
deliver the offender to the Magistrate concerned to be proceeded 
with according to law or to postpone the proceedings pending 
reference to the Central Government, ifthat criminal court is of 
the opinion that proceedings be instituted before itself in respect 
of that offence. Thus, in case the criminal court makes such a 
request, the military officer either has to comply with it or make a 
reference to the Central Government whose orders would be final 
with respect to the venue of the trial. Therefore, the discretion 
exercised by the military officer is _subject to the control of the 
Central Government. Such matter is being governed by the 
provisions of Section 4 75 CrPC read with the provisions of the 
J&K Criminal Courts and Court Martial (Adjustment of 
Jurisdiction) Rules, 1983." 
162. This Court then recorded its conclusions in paragraph 95 of 
the Report and they read as follows: 
"95.To sum up: 
95.1. The conjoint reading_ of the relevant statutory provisions and 
Rules make it clear that the term "institution" contained in Section 
7 of the 1990 Act means taking cognizance of the offence and not 
mere presentation of the charge-sheet by the investigating agency. 
95.2. The competent army authority has to exercise his discretion 
to opt as to whether the trial could be by a Court Martial or criminal 
court after filing of the charge-sheet and not after the
cognizance 
of the offence is taken by the court. 
95.3. Facts of this case require sanction of the Central Government 
to proceed with the criminal prosecution/trial. 
95.4. In case option is made to try the accused by a Court Martial, 
sanction of the Central Government is not required." 
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163. The law is therefore very clear that if an offence is committed 
even by Army personnel, there is no concept of absolute immunity from 
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trial by the criminal court constituted under the Cr.P.C. To contend that 
this would have a deleterious and demoralizing impact on the security 
forces is certainly one way oflooking at it, but from the point of view of 
a citizen, living under the· shadow of a gun that can be wieided with 
impunity, outright acceptance of the proposition advanced is equally 
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SUPREME COURT REPORTS 
[2016] 4 S.C.R. 
unsettling and demoralizing, particularly in a constitutional democracy 
like ours. 
164. The result of the interplay between Section 4 and Section 5 of 
the Cr.P.C. and Sections 125 and 126 of the Army Act makes it quite 
clear that the decision to try a person who has committed an offence 
punishable under the Army Act and who is subject to the provisions of 
the Army Act does not always or necessarily lie only with the Army -
the criminal court under the Cr.P.C. could also try the alleged offender 
in certain circumstances in accordance with the procedure laid down by 
the Cr.P.C. 
Issue of limitation 
165. The next contention of the learned Attorney General was that 
even today the Army would be entitled to hold a Court of Inquiry and 
determine whether an offence had been committed by any of its 
personnel, identify the offender (if any) and then punish him in accordance 
with the provisions of the Army Act. It was submitted that the issue of 
limitation postulated by Section 122 of the Army Act would not come in 
the way. 
166. It may be mentioned that the period of limitation provided 
under Section 122 of the Army Act commences from (a) the date of the 
offence (the commission of which is denied in the present case); (b) 
where the commission of the offence was not known to the competent 
authority, the first day on which the commission of such offence comes 
to the knowledge of the competent
authority; (c) when it is not known 
who committed the offence, the first day on which the identity of the 
alleged offender is known to the competent authority. 
167. Reference was made by the learned Attorney General to Union 
of India v. V.N. Singli'0 in which the allegation related to irregularities 
in local purchases. It was only much later when a Staff Court oflnquiry 
gave its recommendations blaming the respondent that Court Martial 
proceedings were initiated against him. This Court took the view that 
the period oft imitation for convening a Court Martial would commence 
from the date on which the competent authority of the respondent came 
to know of the involvement of the respondent in the irregularities. 
10 (201 oi s sec 579
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 
(EEVFAM) v. UNION OF INDIA [MADAN B. LOKUR, J.] 
168._Similarly, J.S. Sek/ion v. Union of India71 concerned an 
allegation of irregularities in some purchases. It is only after a Court of 
Inquiry gave an adverse recommendati!)n against the appellant that he 
had defrauded the Army through irregular purchases that a Court Martial 
was convened. 
169. None of decisions really take us much further in understanding 
a situation such as the present in which the Army categorically says that 
no offence has been committed by any of its personnel. If that be so, 
there .is no question of holding any Court oflnquiry and Section 122 of 
the Army Act does not even come into picture, nor does the question 
whether a particular person is guilty of any offence or not. Therefore, 
even holding a Court Martial cannot arise. But ifthe Army has an open 
mind on the issue, it can certainly hold a Court of Inquiry, if the law 
permits it to do so at this distant point of time. 
170. However, we make it clear that even if the armed forces 
decide to take action and inquire into the allegations at their own level, it 
would not preclude any other inquiry or investigation into the allegations 
made. 
I 71. Insofar as holding a Magisterial Enquiry is concerned, the 
NHRC has stated in their affidavits that the guidelines issued from time 
to time are not being followed in their true spirit. That apart, the NHRC 
has complained that the State
Governments (including perhaps the State 
ofManipur) invariably take more than reasonable time to submit important 
documents such as the port-mortem report, inquest report and the ballistic 
expert report as well as the Magisterial Enquiry report. Therefore, it 
appears that the Magisterial Enquiry is not given its due importance but 
in any event since it is an administrative enquiry (which is apparently 
conducted in a casual manner) and not a judicial enquiry, not much 
credence can be attached to the Magisterial Enquiry report. In this 
context, it may also be mentioned that the NHRC has also complained 
about the poor quality of the Magisterial Enquiry reports received by it 
and it is pointed out that in some instances the family of the person killed 
is not examined nor any independent witness is examined by the 
Magistrate. That being the position, it is not possible to attach any 
importance to the Magisterial Enquiry conducted at the behest of the 
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State Government, even though it might have been conducted under 
Section 176 of the Cr.P.C. 
172. Therefore, we make it clear that even if the State Government 
decides to hold Magisterial Enquiries and take suitable action on the 
report given, it would not preclude any other inquiry or investigation into 
the allegations made. In situations of the kind that we are dealing with, 
there can be no substitute for a judicial inquiry or an inquiry by the NHRC 
or an inquiry under the Commissions oflnquiry Act, 1952. 
Conclusions 
173. On an overall consideration of the submissions made and the 
material before us, we conclude : 
(a)This writ petition alleging gross violations of human rights is 
maintainable in this Court under Article 32 of the Constitution. 
(b) We respectfully follow and reiterate the view expressed by the 
Constitution Bench of this Court in Naga People's Movement of Human 
Rights that the use of excessive force or retaliatory force by the Manipur 
Police or the armed forces of the Union is not permissible. As is evident 
from the Dos and Don 'ts and the Ten Commandments of the Chief of 
Army Staff, the Army believes in this ethos and accepts that this principle 
would apply even in an area decl~red as a disturbed area under AFSPA 
and against militants, insurgents and terrorists. There is no reason why 
this principle should not apply to the other armed forces of the Union 
and the
Manipur Police. 
(c) We respectfully follow and reiterate the view expressed by the 
Constitution Bench of this Court in Naga People's Movement of Human 
Rights that an allegation of excessive force resulting in the death of any 
person by the Manipur Police or the armed forces in Manipur must be 
thoroughly enquired into. For the time being, we leave it open for decision 
on who should conduct the inquiry and appropriate directions in this regard 
will be given after the exercise mentioned below is ~onductecl 
( d) We respectfully follow and reiterate the view expressed by this 
Court that in the event of an offence having been committed by any 
person in the Manipur Police or the armed forces through the use of
EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION 
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(EEVFAM) v. UNION OF INDIA [MADAN B. LOK UR, J.] 
excessive force or retaliatory force, resulting in the death of any person, 
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the proceedings in respect thereof can be instituted in a criminal court 
subject to the appropriate procedure being fol lowed. 
Further steps 
174. Unfortunately, we have not been given accurate and complete 
information about each of the 1528 cases that the petitioners have 
complained about. Therefore, there is a need to obtain and collate this 
information before any final directions can be given: Learned Amicus 
has to Id us that there are 15 cases out of 62 in which it has been held by 
the Justice Hegde Commission or by judicial inquiries conducted at the 
instance of the Gauhati High Court that the encounters were faked. On 
the other hand, the NHRC has informed us that there are 31 cases out 
of62 in which it has been concluded thatthe encounters were not genuine 
and compensation awarded to the next of kin of the victims or the award 
of compensation is pending. 
175. Therefore, as a first step, we direct: 
(a)Of the 62 cases that the petitioners have documented, their 
representative <tnd the learned Amicus will prepare a simple tabular 
statement indicating whether in each case a judicial enquiry or an inquiry 
by the NHRC or an inquiry under the Commissions oflnquiry Act, 1952 
has been held and the result of the inquiry and whether any First 
Information Report or complaint
or petition has been filed by the next of 
kin of the deceased. We request the NHRC to render assistance to the 
learned Amicus in this regard. We make it clear that since a Magisterial 
Enquiry is not ajudicialinquiry and, as mentioned above, it is not possible 
to attach any importance to Magisterial Enquiries, the tabular statement 
will not include Magisterial Enquiries. 
(b) The representative of the petitioners and the learned Amicus 
will revisit the remaining cases ( 1528 minus 62) and carry out an identical 
exercise as above. This exercise is required to be conducted for 
eliminating those cases in which there is no information about the identLty 
of the victim or the place of occurrence or any other relevant detail and 
then present an accurate and faithful chart of cases in a simple tabular 
form. 
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176. We propose to consider the grievance of the NHRC that it 
has become a toothless tiger, after hearing the Union of India and the 
NHRC on this important issue. We also propose to consider the nature 
of the guidelines issued by the NHRC - whether they are binding or 
only advisory. 
177. For the time being we keep open the question whether Court 
Martial proceedings can be initiated by the Army against an offender, if 
any, to await the result of the first step as mentioned above. We are 
making it clear that we have not precluded the petitioners from contesting 
this issue. We are not deciding it for the time being only because full 
facts are not available to us. However, ifthe law permits and the Army 
is so inclined, it may hold a Court of Inquiry in each case. 
178. We record our appreciation for the assistance rendered by the 
learned Amicus at every stage of hearing of the case and for the valuable 
assistance rendered and expect her to continue assisting us till the closure 
of this petition. 
l 79. List the matter for further proceedings immediately after four 
weeks. 
Devika Gujral 
Listed for further proceedings. 
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