General Officer Commanding vs State of J&K & Ors.

Through the medium of this petition quashing of order dated 18111996 passed by the learned Chief Judicial Magistrate, Jammu is prayed. The

petition is made under the provisions of section 561A Cr.P.C. By virtue of the said order the Magistrate committed the case (titled State V/s

Shinder Singh, offence under section 302 RPC) to the court of learned Sessions Judge, Jammu and issued a direction for the production of

respondent No.2 herein in the said court. Prayer in the alternative is made to the effect that said order may be quashed after exercising the

revisional jurisdiction.

The narration of the following facts for the disposal of the petition are necessary:

On 1481996, FIR No. 15/96 was lodged in Police Station, Bari Brahmana

wherein it was alleged that respondent No 2 herein had murdered J.C. 498271 Naib Subedar Najit Singh and No. 338005 Hav Hurdial Singh of

10 Sikh Regiment. The accused (respondent No.2) also serves in the said Regiment. The Army Authorities haded over respondent No.2 in

custody to the police for the purpose of carrying out the investigation which was completed and on 1811 1996 final report was submitted in the

court of learned Chief Judicial Magistrate, Jammu. In the report it was stated that respondent No. 2 had committed an offence under section 302

RPC

In this petition it is alleged that learned Chief Judicial Magistrate, Jammu has passed the impugned order in complete disregard and in

contravention of the provisions of section 549 Cr.P.C. and the Rules made thereunder (J&K Criminal Courts and Court Martial Adjustment of

Jurisdiction Rules. 1983 which hereinafter are referred to as the Rules ).

4 The order has been challenged on the following grounds:

i) Respondent No 2 is serving under the Command of the petitioner as a Naik in 10 Sikh Regiment and admittedly is a person subject to the Army

Act 1950 and the Rules made thereunder. He is accused of an offence for which he can also be tried by a Court Martial. It is purely the option of

tbie Army Authorities to decide whether his trial is to be held in Court Martial or he be tried by the concerned regular criminal court;

ii) The learned Chief Judicial Magistrate, Jammu should have shown compliance to the mandatory provisions of section 549 Cr.P.C. and the Rules

made thereunder, but the impugned order was passed in hot haste and the case was committed to the learned Session Judge, Jammu who

transferrea ttie same for trial to the court of 1st Addl Sessions Judge, Jammu. The learned Chief Judicial Magistrate. Jammu had not even issued

any notice of 15 days to the Army Authorities as is contemplated under Rule 4 as well as not given any reason as to how it would be appropriate

for him to precede with the case. The competent Military Authorities had never agreed or moved the Magistrate for committing the case to the

court of Sessions Judge, Jammu. Rather, these authorities had decided that respondent No.2 to be tried by the Court Martial and be detained in

the Army custody. 5 Heard the arguments. 6. The counsel appearing for the petitioner has reiterated the grounds of the petition in his arguments

and has further stated that noncompliance of the mandatory provisions of section 549 and the relevant rules has rendered the order as illegal. In

support of his contention he has cited the case of N.F. Chand V/s State of Utter Pradesh (1.987 Cr.L J. 637) and Mahabir Singh V/s State and

others (AIR 1977 J&K 81).

7 On behalf of the respondents it is contended that the plea to the effect that the trial of respondent No.2 should be held in a Court orignel can only

be raised before the concituted trial judge at the time of framing the Charge. The Army Authorities voluntarily have given respondent No.2 in the

custody of the police so it should be deemed that the authorities have acquiesced for his trial in the concerned Civil Court which has the concurrent

jurisdiction.

Section 549 Cr.P.C. lay down that when any person is brought before a magistrate and charged with an offence for which he is liable, under the

Army Act in force in the state to be tried by a Court Martial such Magistrate shall have regard to such rules which the Government may make

consistent with Criminal Procedure Code It is also enjoined upon the Magistrate that he shall in proper cases deliver the accused together with the

statement of offence of which he is accused to the Commanding Officer of the Regiment. Corps or detachment to which he belongs, or to the

Commanding Officer of the nearest military station for the purpose of being tried by court martial. It is an admitted fabt that in this case the

Divisional Commander had decided the trial of accused (respondent No.2) in a Court Martial. The Magistrate was required to have regard to the

rules which the Government has made under section 549 Cr.P.C. because the section provides that when any person is brought before a

Magistrate and charged with an offence for which he is liable, under the Army Act in force in the State to be tried by a CourtMartial, such

Magistrate shall have regard to such rules. The word employed in the section is shall which is of mandatory nature. The Government of Jammu &

Kashmir has made the rules and they are in force. Rule 3 states that where a person subject to Military, Naval or Air Force Law, or any other law

relating to Armed Forces 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 the courtmartial, such Magistrate shall not proceed to try person or to commit the case to the court of session unless.

a).he is moved there to by a competent military, naval or airforce authority; or

b) he is of opinon for reasons to be recorded that he should so proceed or commit without being moved there to by such authority.

9 Rules 4 is to the effect that before proceeding under Clause (b) of Rule 3, the Magistrate shall give written notice to the Commanding Officer or

the Competent military, naval or airforce 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 shall not

a) Convict or acquit the accused under Sections 243, 245,247 or 248 of Code of Criminal Procedure, 89, or hear him in his defence under

section 244 of the said Code; or

b) frame in writting a charge against the accused under subsection (3) of Section 251A or 254 of the said Code; or

c) make an order committing the accused for trial to the court of Sessions under Section 205D of the said Code; or

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

A bare perusal of the impugned order shows that the Magistrate had not even cared to peruse section 549 Cr.P.C: and the rules made

thereunder. He formed the opinion without recording any reason to commit respondent No.2 for the purpose of withstanding his trial in the court of

learned Sessions Judge, Jammu. Under Rule 4(c) he was prohibited to make order committing the accused for trial to the court of Sessions under

section 205D of the Cr.P C without giving a written notice to the Commanding Officer or other compelenimilitary authority He never gave any such

notice. Under these circumstances the order is found not only cryptic and laconic but illegal or perverse nature.

The Allahabad High Court in the above stated case (1987 Cr.L.J. 637) had held that noncompliance of Rules 3 & 4 (Rules of 1951) had

rendered the committal order without jurisdiction. The court had quashed the order. In AIR 1977 J&K 81 (supra) Full Bench of this court has held

that plenary jurisdiction has been conferred on a courtmartial to try a person subject to the Army Act, who has comiitted a civil offence in the state

of Jammu and Kashmir, if the conditions mentioned in section 69 of the Act are satisfied.

In view of the discussion made above the petition is accepted and the impugned order is quashed. All the subsequent orders passed in the

proceedings by the learned trial judge are hereby rendered infructuous. The learned 1st Addl Sessions Judge, Jammu is directed to deliver the

custody of respondent No.2 to the army authorities for being tried in a court martial. The relevant record (statement of offence of which

respondent No.2 is accused) be also handed over to the Army Authorities.