When an Army sodier is made accused in False Encounter case, no sanction is needed if Army decides to Court Martial him.
But if Army does not court martial him, then he can be prsecuted in normal courts. But here sanction of Government is necessary before prosecution.
In Case of General Officer of Commanding V/s CBI and ors (2012) 5 SCALE 58 on page 82, Supreme Court observed as under:
“The Legislature has conferred “absolute power” on the statutory authority to accord sanction or withhold the same and the court has no role in this subject”
A POSSIBLE REASON TO PROTECT ARMY SOLDIERS
The judgement is based purely on law and precedents.
But one can visualize, what may be in mind of court and Lesgislature.
Army soldier has to go into terrorist affected area with gun ready in his hand. Every second is crucial. Either he shoots terrorist or he gets shot by terrorist. Suppose in such tense moment, an innocent man jumps on the scene, the trigger by army man gets pulled automatically and an innocent may get killed.
Now if an army man has to constantly live in fear that he may get prosecuted for risking his life and going in terror affected area, then he may not be able to perform his duty with a free mind.
The Lagislature and Court seem right in living such cases in hands of Army officers and Competent Authority. It will not be possible for court to determine such cases, where usually, there are no eye witnesses.
The supreme power of Judicial Review is always invested in courts. But there also role of court is limited to see that proper material is placed before authority or not.