Kafil Ahmed Khan vs State of Punjab

M.L. Singhal, J.

This is Crl. Misc. No. 24637M of 1998 filed by Kafil Ahmed Khan whereby he is claiming bail in case FIR No. 100 dated 11.2.96 under section 302 Indian Penal Code registered at P.S. Division No. 3 Ludhiana.

According to the prosecution Kafil Ahmed Khan was on guard duty in the State Bank of India, Chaura Bazar Branch, Ludhiana on 11.12.96 and on that day, Anil Kumar Sodhi came to the Bank in connection with some business. At about 1.30 PM when Anil Kumar Sodhi started coming out of the gate of the bank, the ITBP Sentry who is wearing the name plate K.A. Khan written on it told Anil Kumar that he wanted to search his bag. Anil Kumar replied "why are you conducting the search of persons when they leave the bank". Sentry told Anil Kumar that he would show him how he dared not allowing K.A. Khan to search his bag and the Sentry fired a shot at Anil Kumar from his carbine and the bullets hit chest and stomach of Anil Kumar and Anil Kumar fell on the ground. There was utter confusion and chaos all ground. Tilak Raj Malhotra and Vikas Sharma witnessed this occurrence. Bank employees took Anil Kumar to the hospital for treatment. Anil Kumar succumbed to his injuries in CMC Hospital, Ludhiana. Matter was reported to the Police by Tilak Raj Malhotra.

It has been submitted by the learned counsel for the petitioner that before Tilak Raj Malhotra could be examined, he died. Vikas Sharma has not supported the prosecution version. As such there is no eye witness to the occurrence. He has further submitted that the petitioner was performing his duty at the time of occurrence in the State Bank of India, Branch Chaura Bazar, Ludhiana and he wanted to search Anil Kumar deceased who objected to his search and prima facie no offence under section 302 Indian Penal Code is made out against the petitioner. He has further submitted that the petitioner has been in jail since 11.12.96. Petitioner did not have any enmity or illwill towards the deceased. There was no motive to kill him.

Trial is proceeding. A number of witnesses have been examined. It is not proper to weigh evidence lest it should prejudice the trial. Merits of the petitioner''s plea for bail cannot be gone into.

Faced with this position, learned counsel for the petitioner submitted that the petitioner is an army man. Before he was put up for trial before the Court of Sessions at Ludhiana, it was the duty of the Court of Sessions to have asked the army authorities whether they would try him or he should try him and if the army authorities informed him that they would try him, the Court of Session could not have tried him and if the army authorities had informed him that Court of Session should try him, the Court of Sessions could proceed with his trial. In support of this submission, he drew my attention to the provisions of Section 70 of the Army Act, 1950 which is reproduced as under :

Civil Offences not triable by court martial : A person subject to this Act who commits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be tried by a courtmartial, unless he commits any of the said offences :

(a) while on active service, or

(b) at any place outside India, or

(c) at a frontier post specified by the Central Government by notification in this behalf.

In Balbir Singh and another v. State of Punjab, 1995(1) RCR 170 , the Supreme Court, while construing the provisions of section 72 of the Air Force Act, which is para materia with section 70 of the Army Act, observed as follows :

"A conjoint reading of the above provisions shows that when a criminal court and court martial have each jurisdiction in respect of the trial of the offence, it shall be in the discretion of the officer commanding the group, wing or station in which the accused is serving or such other officer as may be prescribed, in the first instance to decide before which court the proceedings shall be instituted and if that officer decides that they should be instituted before a court martial, to direct that the accused person shall be detained in air force custody. Thus the option to try a person subject to the Air Force Act, who commits an offence while on active service is, in the first instance with the Air Force authorities. The criminal court, when such an accused person is brought before it, shall not proceed to try such a person or to inquire with a view to his commitment for trial and shall give notice to the commanding officer of the accused to decide whether they would like to try the accused by a court martial or allow the criminal court to proceed with the trial. In case, the Air Force authorities decide either not to try such a person by a court martial or fail to exercise the option when intimated by the criminal court within the period prescribed by Rule 4 of the 1952 Rules (supra), the accused can be tried by the ordinary criminal court in accordance with the Code of Criminal Procedure. On the other hand if the authorities under the Act opt to try the accused by the "Court Martial", the criminal court shall direct delivery of the custody of the accused to the authorities under the Act and to forward to the authorities a statement of the offence of which he is accused. It is explicit that the opinion to try the accused subject to the Act by a court martial is with the Air Force authorities and the accused person has no option or right to claim trial by a particular forum. The option appears to have been left with the Air Force authorities for good and proper reasons." It is thus apparent that where an army man is concerned, unless the option was given to the commanding officer in terms of Section 70 of the Army Act, and the option had been or had not been exercised by the commanding officer, the trial before the criminal court could not proceed.

It may be recalled that the petitioner was on sentry duty at the State Bank of India, Chaura Bazar branch, Ludhiana at the relevant time and he was ITBP personnel. ITBP denotes Indo Tibetan Border Police. Person subject to the Army Act, 1950 are :

Persons subject to this Act

The following persons shall be subject to this Act wherever they may be, namely :

(a) Officers, junior commissioned officers and Warrant Officers of the regular Army;

(b) Persons enrolled under this Act;

(c) Persons belonging to the Indian Reserve Forces;

(d) Persons belonging to the Indian Supplementary Reserve Forces when called out for service or when carrying out the annual test :

(e) Officers of the Territorial Army, when doing duty as such officers, and enrolled persons of the said Army when called out or embodied or attached to any regular forces, subject to such adaptations and modifications as may be made in the application of this Act to such persons under sub section (1) of Section 9 of the Territorial Army Act, 1948;

(f) persons holding commission in the Army in Indias Reserve of Officers, when ordered on any duty or service for which they are liable as members of such reserve forces;

(g) officers appointed to the Indian Regular Reserve of Officers, when ordered on any duty or service for which they are liable as members of such reserve forces;

(h)

(i) persons not otherwise subject to military law who, on active service, in Camp, on the march or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of, the regular Army.

(2) Every person subject to this Act under clauses (a) to (g) of subsection (1) shall remain so subject until duly retired, discharged, released, removed, dismissed or cashiered from the service."

"Active service" as applied to a person subject to Army Act, means the time during which such person

(a) is attached to, or forms part of, a force which is engaged in operations against an enemy, or

(b) is engaged in military operations in, or is on the lines of march to, a country or place wholly or partly occupied by an enemy, or

(c) is attached to or forms part of a force which is in military occupation of a foreign country.

Petitioner could not be viewed as an army personnel and was thus not subject to Arm Act, 1950. In Sukhwinder Singh v. State of Punjab, 1995(3) RCR 517 , Sukhwinder Singh was serving in the Army and when he was on leave, he allegedly committed murder. It was held that he would be deemed to be in the "active service" in terms of Section 70 of the Army Act read along with rules 3 and 4 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952. It was held that it terms of Section 70 of the Army Act read with rules 3 and 4 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 as also notification No. SRO 8E dated 8.12.62 declaring that all persons subject to the Act shall wherever they may be serving, be deemed to be on the active service within the meaning of the said Act. Sukhwinder Singh was in "active service" and as such the trial before the Additional Sessions Judge, Amritsar, without giving an opportunity to the commanding officer of the appellant to conduct a Court martial proceeding against him, stood vitiated and the proceedings were accordingly quashed against him and he was directed to be released on bail. It was observed that in terms of Section 70 of the Army Act, the commanding officer will be asked whether he will be tried by the court martial or he should be tried by a criminal court and if the commanding officer decides that he shall be tried by the criminal court, he will then be tried by the criminal court.

It would bear repetition that the petitioner was ITBP personnel. To my mind, he is not subject to the Army Act, 1950 and as such he cannot claim that the trial before Sessions Judge, Ludhiana is void and he should be allowed bail on the ground that if the commending officer says that he will be tried by court martial, it will take some time for the petitioner to be put up before the court martial for trial.

This Crl. Misc. petition fails and is dismissed.