New Delhi:  In an important order relating to army personnel engaged in counter insurgency operations, the Supreme Court on Tuesday ruled that those involved in encounter killings cannot be prosecuted without prior sanction of the Central Government as they enjoy immunity under AFSPA.

A bench of justices B S Chauhan and Swatanter Kumar, however, said if the accused army officials are to be tried under the court martial proceedings then no such sanction was required.

The bench granted the option to the army authorities to try the officers in Pathribal  and Saikhowa encounter killings under court martial proceedings or alternatively subject them to trial in criminal courts.

The court gave this ruling while rejecting CBI's contention and upholding the appeal filed by army officers challenging their prosecution over "fake" encounters in Pathribal, J&K, 12 years ago in which 7 persons were killed.

The verdict also covered another encounter in 1994 in Saikhowa Reserve Forest in Assam's Tinsukhia District in which five persons were killed.

The court said the immunity granted to security personnel under the Armed Forces Special Powers Act (AFSPA) and Section 197 Cr PC was to ensure that they were not subjected to unnecessary harassment or prosecution.

"It is also to be kept in mind that the cognizance is taken of the offence and not of the offender. The sanction of the appropriate authority is necessary to protect a public servant from unnecessary harassment or prosecution.

"Such a protection is necessary as an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralises the honest officer,"Justice Chauhan writing the judgement said.

The apex court however, said that performance of public duty under colour of duty cannot be camouflaged to commit a crime.

"The public duty may provide such a public servant an opportunity to commit crime and such issue is required to be examined by the sanctioning authority or by the court.

"It is quite possible that the official capacity may enable the public servant to fabricate the record or mis-appropriate public funds etc.

"Such activities definitely cannot be integrally connected or inseparably inter-linked with the crime committed in the course of the same transaction," the bench said.  "It is quite possible that the official capacity may enable the public servant to fabricate the record or mis-appropriate public funds etc.

"Such activities definitely cannot be integrally connected or inseparably inter-linked with the crime committed in the course of the same transaction. Thus, all acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of requirement of sanction," the bench said.

However, once the matter stands transferred to the Army for conducting a court-martial, the court-martial has to be as per the provisions of the Army Act.

"The Army Act does not provide for sanction of the Central Government. Thus, we do not find any force in the contention raised by the appellant (Army) and the same is rejected," the bench said.

The apex court said whether the sanction is required or not under a statute has to be considered at the time of taking cognizance of the offence and not during enquiry or investigation.

It said Section 7 of the Act 1990, puts an embargo on the complainant/investigating agency/ or an aggrieved person to file a suit, prosecution etc. in respect of anything done or purported to be done by a Army personnel, in good faith, in exercise of power conferred by the Act, except with the previous sanction of the Central Government.

"We wish to record that the protection and immunity granted to an official particularly in provisions of the Act 1990 or like Acts has to be widely construed in order to assess the act complained of.

"This would also include the assessment of cases like mistaken identities or an act performed on the basis of a genuine suspicion.

(Agencies)