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Issues: (i) Whether the word "institution" in Section 7 of the Armed Forces (Special Powers) Act, 1990 means mere filing of the chargesheet or taking cognizance of the offence; (ii) Whether prior sanction of the Central Government was required before the criminal court could proceed, and how the option between criminal court trial and court-martial was to be exercised.
Issue (i): Whether the word "institution" in Section 7 of the Armed Forces (Special Powers) Act, 1990 means mere filing of the chargesheet or taking cognizance of the offence.
Analysis: Section 7 bars institution of prosecution, suit or other legal proceedings against a person for anything done or purported to be done under the Act except with prior sanction. Reading the provision in the context of criminal procedure, the expression "institution" cannot be confined to mere presentation of the chargesheet. The controlling stage in criminal proceedings is cognizance, and the statutory bar is attracted before the court takes cognizance. The protection is intended to operate at the threshold so that proceedings do not commence without the mandated sanction.
Conclusion: The word "institution" means taking cognizance of the offence, not merely filing or presenting the chargesheet.
Issue (ii): Whether prior sanction of the Central Government was required before the criminal court could proceed, and how the option between criminal court trial and court-martial was to be exercised.
Analysis: The alleged acts were examined in the setting of armed forces operations in a disturbed area, where the statutory protection extends to acts done or purported to be done in exercise of the powers conferred by the Act. The Court held that the sanction requirement is jurisdictional and that, on the facts, the prosecution could not proceed without prior sanction of the Central Government. At the same time, the choice whether the accused should be tried by criminal court or court-martial under the Army Act arises after filing of the chargesheet and before cognizance, and if the matter is taken to court-martial, the sanction requirement under the special Act does not control that forum.
Conclusion: Prior sanction of the Central Government was required for criminal prosecution, but it was not required if the matter was proceeded with by court-martial; the Army authority had to decide the forum first.
Final Conclusion: The statutory bar on prosecution was held to operate before cognizance, and the matter was directed to be taken forward according to the Army's choice of forum, with sanction required only if the criminal court route was adopted.
Ratio Decidendi: Where a special statute prohibits institution of prosecution without prior sanction, the bar operates at the stage of cognizance, and proceedings cannot be initiated in the criminal court until sanction is obtained; however, the question whether the accused should instead be tried by court-martial is to be decided at the post-chargesheet, pre-cognizance stage.
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