Avinash Kumar vs State Of Madhya Pradesh

Avanindra Kumar Singh, J

Accused is present in person.

Heard on admission.

Admit.

Heard on I.A. No. 5057 of 2026, which is an application for impleading the following as respondent No.2 :-

"Commanding Officer

10th Battalion The Bihar Regiment

Lalgarh Jattan, Sri Ganganagar, Rajasthan

PIN - 910510 , Care of 56 Army Postal Office"

In view of the grounds mentioned therein, aforesaid I.A. is allowed.

Let the amendment take place within two working days.

Thereafter, on payment of P.F. within 7 working days, issue notice to the newly added respondent No.2.

Learned counsel for the applicant points out Section 475 of Cr.P.C. which is as below :-

"475. Delivery to commanding officers of persons liable to be tried by Court-martial.—(1) The Central Government may make rules consistent with this Code and the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957), and the Air Force Act, 1950 (45 of 1950), and any other law, relating to the Armed Forces of the Union, for the time being in force, as to cases in which persons subject to military, naval or air-force law, or such other law, shall be tried by a Court to which this Code applies, or by a Court-martial; and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which this Code applies or by a Court-martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the commanding officer of the unit to which he belongs, or to the commanding officer of the nearest military, naval or air-force station, as the case may be, for the purpose of being tried by a Court-martial.

Explanation.—In this section—

(a) “Unit” includes a regiment, corps, ship, detachment, group, battalion or Company,

(b) “Court-martial” includes any Tribunal with the powers similar to those of a Court-martial constituted under the relevant law applicable to the Armed Forces of the Union.

(2) Every Magistrate shall, on receiving a written application for that purpose by the commanding officer of any unit or body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavours to apprehend and secure any person accused of such offence.

(3) A High Court may, if it thinks fit, direct that a prisoner detained in any jail situate within the State be brought before a Court-martial for trial or to be examined touching any matter pending before the Court-martial."

He has also drawn attention of this Court to Rules 3, 4 and 5 of the Criminal Courts and Court-martial (Adjustment of Jurisdiction) Rules, 1978 which are reproduced below :-

"3. Where a person subject to military, naval or air force law, or any other law relating to the Armed Forces of the Union for the time being in force is brought before a Magistrate and charged with an offence for which he is also liable to be tried by a Court- martial, such Magistrate shall not proceed to try such person or to commit the case to the Court of Session, unless—

(a) he is moved thereto by a competent military, naval or air force authority; or

(b) he is of opinion, for reasons to be recorded, that he should so proceed or to commit without being moved thereto by such authority.

Before proceeding under clause (b) of rule 3, the Magistrate shall give a written notice to the Commanding Officer or the competent military, naval or air force authority, as the case may be, of the accused and until the expiry of a period of fifteen days from the date of service of the notice he shall not-

(a) convict or acquit the accused under section 252, sub-sections (1) and (2) of section 255 sub-section (1) of section 256 or section 257 of the Code of Criminal Procedure, 1973 (2 of 1974), or hear him in his defence under section 254 of the said Code; or

(b) frame in writing a charge against the accused under section 240 or sub-section (1) of section 246 of the said Code; or

(c) make an order committing the accused for trial to the Court of Session under section 209 of the said Code; or

(d) make over the case for inquiry or trial under section 192 of the said Code.

Where a Magistrate has been moved by the competent military, naval or air force authority, as the case may be, under clause (a) of rule 3, and the commanding officer of the accused or the competent military, naval or air force authority, as the case may be, subsequently gives notice to such Magistrate that, in the opinion of such officer or authority, the accused should be tried by a Court- martial, such Magistrate if he has not taken any action or made any order referred to in clauses (a), (b), (c) or (d) of rule 4, before receiving the notice shall stay the proceedings and, if the accused is in his power or under his control, shall deliver him together with the statement referred to in sub-section (1) of section 475 of the said Code to the officer specified in the said sub-section."

Learned counsel for the applicant submits that compliance of aforesaid Rules 3, 4 and 5 of the Criminal Courts and Court-martial (Adjustment of Jurisdiction) Rules, 1978 has not been done by the concerned Magistrate or the Sessions Court but he fairly submits that he has not filed order-sheets of the Committal Magistrate when the case was committed to the Court of Sessions. He has also not filed first order-sheet when the case was received by the Sessions Court and the order-sheet showing framing of charges and charges itself. Even copy of FIR and charge-sheet has not been filed with the Revision but has filed copy of application dated 5.1.2026, reply of State and relevant order-sheet dated 4.2.2026 has been filed.

The Trial is pending under Section 122, 420 r/w 120-B, 476 r/w 120, 468 r/w 120, 471 r/w 120-B.

Perused the order-sheet dated 4.2.2026 in which it is mentioned that the applicant stated that the provisions of Army Act, 1950 do not apply to him but this is a typographical error because at page 43, there is an application in which applicant Avinash Kumar mentions that provisions of Army Act applies to him and detailed objections have been taken. Learned counsel has rejected the application of accused/ revision. Placing reliance on the judgment of Hon'ble Supreme Court in State of Sikkim V/s Jasbir Singh and another, 2022 (2) CCSC 870 (SC), specific paragraphs 41, 42 and 51 which are reproduced below :-

"41 Broadly speaking there are three categories of offences. First, the provisions of Chapter VI of the Army Act indicate that where an offence is created by the Act itself it would be exclusively triable by a court -martial. Second, where a ‘civil offence’ is also an offence under the Army Act or is deemed to be an offence under the Act, both the ordinary criminal court as well as court-martial would have jurisdiction to try the person committing the offence. The third category (referred to in Section 70) consists of the offences of murder, culpable homicide not amounting to murder or rape committed by a person subject to the Army Act against a person who is not subject to military, naval or air force law. Subject to the three exceptions which are set out in Section 70, such offences are not triable by a court-martial but by an ordinary criminal court.

The offence in the present case does not fall in the category of those offences which are triable exclusively by a court-martial (Section 34 to 68) or those offences which cannot be tried by a court-martial (under Section 70). The offence with which the respondent-accused is charged falls in the category where there is a concurrent jurisdiction between the court-martial and the ordinary criminal court. Hence, it needs to be underscored that there is no inherent lack of jurisdiction in the ordinary criminal court to conduct a trial in accordance with the procedure envisaged in the CrPC.

*******

For the above reasons, we find that the High Court was in error in affirming, in the exercise of its revisional jurisdiction, the decision of the Sessions Judge that the court-martial alone would have jurisdiction. Both on law and in fact, the position is to the contrary. The Sessions Judge was competent and there was no error in the assumption or the exercise of the jurisdiction. The consequence of the decision of the High Court is to foist an obligation on the Army Authorities to hold a court-martial despite a clear and unequivocal submission to the jurisdiction of the Court of Sessions. We accordingly allow the appeal and set aside impugned judgment of the Single Judge of the High Court of Sikkim dated 6 April 2019 in Criminal Revision Petition No 2 of 2017. The respondent-accused shall be transferred from military custody to civil custody to face trial."

Regarding the above citation of State of Sikkim (Supra), this Court finds that on perusal of the order dated 4.2.2026, it is not clear whether at the relevant point of time in the present case under revision, appropriate Military authorities were informed or not by Court. In fact, learned Trial Court has mentioned in the order that after the arrest of the accused, even after 6 years no application has been filed by the department/ Commanding Officer and neither the accused prayed that case may be sent to the Army authorities and since case is pending at the stage of accused's statement, therefore, on overall consideration this case which involves sending of top secret information regarding Army to foreign unauthorised personnel, application was rejected but as per rules 3,4 and 5 as stated above by the applicant's counsel, it is not clear whether the Court on its own motion informed the concerned Military authorites or not. It is seen that in reply, Special Public Prosecutor informs that after the arrest of the accused, information was given to the Commanding Officer but no information was received from the Commanding Officer whether they want to try the accused in Court Martial.

Learned counsel for the applicant has referred to the judgment in the case of Union of India through Major General H.C. Pathak Vs. Major S.K. Sharma - judgment dated 29.06.1987. He has also referred to the judgment passed by Hon'ble Supreme Court in the case of Superintendent and Remembrancer of Legal Affairs,West Bengal Vs. Usha Ranjan Roy Choudhury; AIR 1986 SC 1655 as well as judgment passed by Hon'ble Apex Court in Delhi Special Police Establishment New Delhi Vs. Lt. Col S.K. Loraiya; AIR 1972 SC 2548.

The judgment referred by learned Trial Court in State of Sikkim Vs. Jasbir Singh and another; (2022) 7 SCC 287 also refers to the judgment of Hon'ble Supreme Court in Delhi Special Police (Supra) paragraph 35 which is reproduced as below :-

"35. The next decision to which a reference has to be made is that of a three-judge Bench decision in Delhi Special Police Establishment, New Delhi v. Lt. Col. SK Loraiya. The respondent in that case was a Lieutenant Colonel in the service of the Army and was charged by the Special Judge, Gauhati for offences punishable under Section 120 B IPC read with Section 5(1)(c) and (d) and Section 5(2) of the Prevention of Corruption Act 1988. A revision against the framing of charges was allowed by the High Court. The order of the High Court quashing the charges was assailed before this Court. In that context, the Court held (SCC p. 695, para 9)

As regards the trial of offences committed by army men, the Army Act draws a threefold scheme. Certain offences enumerated in the Army Act are exclusively triable by a Court- Martial; certain other offences are exclusively triable by the ordinary Criminal Courts; and certain other offences are triable both by the ordinary criminal court and the Court- Martial. In respect of the last category both the courts have concurrent jurisdiction. Section 549(1) CrPC is designed to avoid the conflict of jurisdiction in respect of the last category of offences. The clause “for which he is liable to be tried either by the court to which this Code applies or by a Court-Martial” in our view, qualifies the preceding clause “when any person is charged with an offence” in Section 549(1). Accordingly the phrase “is liable to be tried either by a court to which this Code applies or a Court-Martial” imports that the offence for which the accused is to be tried should be an offence of which cognizance can be taken by an ordinary criminal court as well as a Court-Martial. In our opinion, the phrase is intended to refer to the initial jurisdiction of the two courts to take cognizance of the case and not to their jurisdiction to decide it on merits. It is admitted that both the ordinary criminal court and the Court-Martial have concurrent jurisdiction with respect to the offences for which the respondent has been charged by the Special Judge. So, Section 549 and the rules made thereunder are attracted to the case at hand.”

(emphasis supplied)

Whereas, judgment of Superintendent and Remembrancer of Legal Affairs ,West Bengal Vs. Usha Ranjan Roy Choudhury (Supra), paragraph 10, which is reproduced below quotes that if the procedure prescribed by the Rules was not followed then it cannot be said that Army authorities voluntarily abandoned their officer to try the accused person in Court Martial. There is no substance in the appeal and it has been rightly repelled by the High Court.

"10. The last contention raised before the High Court was that having regard to the fact that the investigation which preceded the lodging of the complaint before the learned Trial Judge was commenced in pursuance of a letter written by the Brigadier of the Division, which contained a request for investigation by the Police into alleged offences, it can be said that the Army authorities had opted for the trial of the accused person by the ordinary criminal court. The argument was that by necessary implication this would follow as a logical corollary. The High Court brushed aside this contention as untenable, taking into account the contents of the letter in question. The said letter was in the following terms:

"Dear Sir, (1) Please refer to Memo No. 8940 dated August 28, 1963 from Shri R.K. Bhattacharyya, Superintendent of Police, D.E.B., Darjeeling.

(2) At appendix 'A' please find a copy of the investigation that had been carried by us. We request you to take over the case and submit your detailed report to us at your earliest convenience."

The High Court relied on the fact that the Army had called for a detailed report by the Police which would show that the Army authorities had not taken any such decision either expressly or by necessary implication. Counsel for the appellant has not been able to press this point with any vigour for the obvious reason that it relates to the stage of investigation preceding the complaint. The question regarding exercise of jurisdiction by the court-martial would arise only after the investigation was completed and the police report was available. What is more, it is only after the prescribed procedure under Rules 3 and 4 of the Rules is resorted to by the ordinary criminal court that the question of exercising an option can arise. In the present matter, admittedly the procedure prescribed by the Rules was not followed. Under the circumstances it is futile to contend that the Army authorities had voluntarily abandoned their option to try the accused person in the court-martial. There is no substance in the plea and it has been rightly repelled by the High Court."

In the judgment of Union of India through Major General H.C. Pathak (Supra), the relevant paragraph G to H is at page No. 468, which are reproduced as below :-

"G. On the aforesaid analysis we are of opinion that the Army authority is not entitled to ignore the proceeding taken by the Additional Chief Judicial Magistrate and to invoke the provisions of Rule 22 and related rules of the Army Rules. The Additional Chief Judicial Magistrate having hold that there is a case for trying the two accused officers and having directed their appearance, the Army authority must proceed to held a court martial for their trial or take other effectual proceedings against them as contemplated by the law.

H. The contention advanced by learned counsel for the appellants to the contrary must be rejected."

And the principles laid down is :-

"The Army Authority is not entitled to ignore the proceeding taken by the Magistrate and to invoke the provisions of r. 22 and related rules of the Army Rules. The Magistrate having held that there is a case for trying the two accused officers and having directed their appearance, the Army Authority must proceed to hold a Court Martial for their trial or take other effectual proceedings against them as contemplated by the law."

Therefore, looking to the situation as it is submitted that in the Trial Court, the trial is at the fag end as copy of Court statement of P.W.31 Pranay Nagwanshi is filed., just to ensure that no procedural illegality or irregularity was committed, the proceedings in S.T. No. 860/2019 pending before the learned XXIVth Additional Sessions Judge, Bhopal shall remain stayed till 14.04.2026 and I.A.No. 4226 of 2026 for stay is allowed to above extent.

Let the aforesaid documents as mentioned in order-sheet be filed by the applicant before the next date of hearing. It is made clear that if by the next date of hearing, all the above documents by way of certified copies as mentioned in the order-sheet which ought to have been filed by the applicant at the time of filing revision but have not been filed, if these documents are not filed, then stay shall be automatically vacated on the next date of hearing i.e. 15.04.2026 .

List this case on top of list on 15.04.2026.