The Attorney General has told the CBI that a prior nod from the Home Ministry is required before prosecuting Intelligence Bureau officers in the Ishrat Jahan encounter case.
Attorney General G E Vahanvati's opinion came yesterday - a day after CBI charged former IB Special Director Rajinder Kumar with murder in the Ishrat Jahan encounter case while accusing three other serving officers of criminal conspiracy and other offences.
The AG said in his legal opinion that prior sanction for prosecution is a must under section 197 of the CrPC without which the serving IB officials cannot be put to trial.
He said prior sanction is also required for Kumar notwithstanding his retirement.
Vahanvati has cited at least two Supreme Court verdicts of the recent past to say IB men were acting or purporting to act in the discharge of their official duty, therefore, they were covered under section 197 of the CrPC.
The Union Home Ministry is the administrative ministry for IB.
Section 197 states that when any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognisance of such offence except with the previous sanction...
Nearly a decade after Ishrat was murdered along with her friend Javed Sheikh alias Parnesh Pillai in Gujarat and two others believed to be Pakistani nationals, the CBI filed a supplementary charge sheet in a Gujarat court naming Kumar, who was the then Joint Director of IB and posted in Gujarat.
He was charged with 120-B (criminal conspiracy) for 302 (murder) and other sections of Indian Penal Code besides various provisions of the Arms Act.
Besides Kumar, those named in the charge sheet are serving officers P Mittal, M K Sinha and Rajiv Wankhede who have been booked for criminal conspiracy, wrongful confinement, kidnapping and wrongful concealment and various sections of the Arms Act.
