44. It is admitted by all parties that EEVFAM is an association of victims families whose father, husband, son or brother have been killed in allegedly fake encounters at the hand of State as well as Central security forces. In other words, each of the members of EEVFAM falls within the inclusive meaning of the term ‘victim’ as defined under Section 2(wa) CrPC. The next issue to be decided is whether EEVFAM, an association of victims, falls within the ambit of Section 2(wa) CrPC.
45. To determine this point, it will be pertinent to examine the object of establishing EEVFAM. As earlier discussed, EEVFAM is a registered Trust constituted by female victims of fake encounters in Manipur for the welfare of its members and specially to seek justice individually and collectively in connection with extra-judicial executions. In order to achieve this goal, it filed writ petition before Hon’ble Supreme Court and as a result CBI was directed to investigate the cases by registering fresh FIRs. Present case is one of such cases. Hence, EEVFAM is essentially involved in all fake encounter cases on behalf of its members. This Court does not find any merit in the submission of UOI as well as CBI that EEVFAM is a third party NGO having no locus in this case. … EEVFAM is an informant (as per finding on point No. I) and also an association of victims. Taking the cue from the expansive definition of ‘victim’ as propounded in the recent cases of Mallikarjun Kodagi and Jagjeet Singh (Lakhimpur Kheri), it is held that EEVFAM as an association of victims will fall within the ambit of ‘victim’ as defined under Section 2(wa) CrPC.
The judgement is pronounced following a revision petition filed by the Union of India, Ministry of Defence, Government of India challenging the order of the Chief Judicial Magistrate, Imphal West seeking a reference for clarification and guidance of the High Court of Manipur on ten seminal questions pertaining to the issue of prosecution sanction. The question are reproduced herewith:
1) Whether the Ministry of Defence, Gol can deny the grant of prosecution sanction against the accused persons (who are defence personnel) despite the fact the CBI found a strong prima facie material evidence for commission of serious offences punishable under Section 302/342/201 read with Section 34 IPC by the accused persons or not?
2) Whether, at this stage, the Ministry of Defence, Gol is empowered to project a fact situation contrary to the prima facie findings of the CBI (which is the investigating agency specially entrusted by the Hon’ble Apex Court in this regard) or not? In other words, can Ministry of Defence, Gol at this stage, project a fact situation thereby indicating that the prima facie findings of CBI against the accused persons are all wrong and that the victim namely Pheiroijam Sanajit was killed by the accused persons in an ambush during the course of official duty in lawful exercise of the powers conferred by law or not? Can the Ministry of Defence. Gol take the role of investigating agency in the present case at the present stage of the case?
3) Whether the detailed and reasoned order dated 2 nd December, 2019 passed by the Ministry of Defence, Gol, asserting that the victim namely Pheiroijam Sanajit was killed by the accused persons in an ambush during the course of official duty in lawful exercise of the powers conferred by law, is legally tenable or not?
4) Whether the benefit/protection of Section 6 of AFSPA can be extended in all given situations including blatant abuse or misuse of official position by defence personnel or not 9 Will a defence personnel get the protection of Section 6 of AFSPA even in such a given situation, for instance, where he (defence Personnel) keeps on firing/killing all passersby without any reason while he (defence personnel) is on patrolling/during official duty or not?
5) Whether the act of killing the victim Pheiroijam Sanajit by the accused persons be considered as act done during the course of official duty in lawful exercise the powers conferred by law in the light of the prima facie findings of the CBI or not?
6) Whether the accused persons be given protection under Section 6 of AFSPA even in cases where re-investigation was done by the CBI on the specific instruction/direction of Hon’ble Supreme Court of India?
7) Whether prosecution sanction is required, as per law, in case of the Accused No. 1 namely Girish Nair, the then Major, 19 Rajput (Bikaner) who is now retired from service or not?
8) Whether the victim’s family/EEVFAM has a right to file protest petition in the given fact situation of denial of prosecution sanction by the Ministry of Defence, Gol or not
9) It is revealed that the then District & Session, Manipur East submitted the Judicial Enquiry Report (JER), dated 31.07.2010 to the Hon’ble Gauhati High Court (Imphal Bench) in connection with killing of the present victim P. Sanajit by the accused persons and the Hon’ble High Court (then Gauhati High Court, Imphal Bench) on finding material substance against the accused persons passed an order dated 29:07.2011 thereby awarded a sum of Rs. 5 lakh as compensation to the wife of deceased P. Sanajit. Now the question is “Will the proceeding of the present case remain stagnant or futile exercise/empty formality even after aforesaid finding of Judicial Enquiry and subsequent award by the Hon’ble High Court on the ground of denial of prosecution sanction against the accused persons?
10) Whether this Court will have the power to take cognizance of the present case even in the face of denial of prosecution sanction by the competent authority or not?”
EEVFAM and HRA heartily thank Advocate Okram Kiranjit and Advocate Okram Nutankumar for their able representation of the cause of the victims, pro bono.
Click here to Download original Press Release