I.

Whether the FIR against the Commandant and JCO is fit to be

quashed.

It is most humbly submitted before the Hon’ble Court that institution of any legal proceeding
against any commissioned army officer working under the guidelines of the SPAFA, 2016 is
bad in law. There can be no prosecution, suit or other legal proceeding shall be instituted,
except with the previous sanction of the Central Government, against any person acting in
the good faith of the act.1

1. Section 7 of the SPAFA, 2016 clearly restrain institution of any legal proceeding
against any army officer working under the guidelines of SPAFA, 2016.

It is humbly submitted before the Hon’ble Court that the question of sanction is of paramount
importance for protecting a public servant who has acted in good faith while performing his
duty.2 This is in the order that the public servant may not be unnecessarily harassed on a
complaint of an unscrupulous person.3 As in this case a discernible connection between the act
complained of and the powers and duties of the public servant can be made out, making it not a
violation of the one the part of the Petitioner no. 1. The act of the officials here is clearly under
the state of duress and not an overreach and abuse of the rights provided to them thus not making
out any case against them.

2. The Honorable Supreme Court has the power to quash the FIR under Article 142 of
Constitution of Bharat.

It is most humbly sumbmitted before the Hon’ble Court that the FIR is fit to be quashed as power
to quash criminal proceeding.4 Once the Supreme Court is satisfied that the criminal proceedings
1
Armed forces (Jammu and Kashmir) special powers act, 1990. Sec 7.
2
General Officer Commanding v. CBI Criminal Appeal No.257 of 2011.
3
Bakshish Singh Brar v. Gurmej Kaur (1987) 4 SCC 663.
4
Monica kumar v. state of U.P. (2008) 8 SCC 781.
amounts the abuse of process of court, it would quash such proceedings in order to ensure
justice5. In the case there is no sanction given by central government, so FIR can be quashed. In
the given case there is Petitioner No. 1 acted in the authority of the power and did in no manner
digress from the idea of self-defense.6 The mob was ordered to disperse and not to obstruct
military duty. Warning was issued to the unlawful assembly to disperse in strict compliance with
the established terms of engagement as are employed in such situations and all the effective
guidelines issued and ensuring utmost restraint in the use of power 7. It is also submitted that if
the Cr.P.C or any other law expressly prohibits carrying out criminal proceedings against the
accused then the respective court may quash the FIR. 8 Accused may seek for quashing the FIR if
allegation, even when accepted as true, do not establish any offence or if there is any legal bar. 9 ,
in the present case the Commandant fired a shot on only when the attackers caught hold of the
JCO and started lynching him to death.10

5
Dehli judicial service association tis hazari court, delhi v. state of Gujarat AIR 1991 SCW 2419
6
Moot Problem Pg. 5
7
Id.
8
State of Haryana v. Bhajan lal and Ors AIR 1992 SC 604
9
Dr. Shankar singh gonad singh v. State of Punjab, 1954 CrLJ 1393.
10
Para 13, Moot Prooposition.