Karamjit Singh and Another vs Sonaram Kalita

K.N. Saikia, J.—The Petitioners pray for quashing of the proceeding in Criminal Case No. 2252C of 1978 against the Petitioner No. 1 now pending before the Judicial Magistrate, Gauhati on the ground that he has already been tried under the Military law at the discretion of the Petitioner No. 2, his Commanding Officer.

A complaint was lodged by the Respondent Sonaram Kallin, Secretary, 222S BOD Mazdur Union, Narangi in the Criminal Court at Gauhati under Sections 323, 352 and 342 I.P.C. on 22.11.1978 alleging that on 4.10.1978 at about 10.15 A.M. (at Tea Break) when the complainant was discussing about money matters of the Union with Sri Jatin Das, Treasurer of the Union, the accused (Petitioner No. 1) Sri Karamjit Singh, Commander No. 4, Sub depot, 222 ABOD, C/o 99 A.P.O, Geuhati came out of his room and bit up the complainant and one Shri Umesh Das, Assistant Secretary of the Union. The learned Magistrate on the said complaint dated 22 11.1978 took cognizance and issued summons to the accused Petitioner No. 1 who was a member and first class Officer of Armed Forces and as such was governed by the provisions of the Army Act, 1950 and the Army Rules, 1954. The complainant was a civilian government servant. On 28.12.1978, the learned Magistrate Issued a warrant of arrest against the instant Petitioner No. 1 fixing 10.2.1979 for appearance. On 9.2.1979 the Officer Commanding of the Petitioner No. 1, namely, the instant Petitioner No. 2, filed an application before the learned Magistrate stating that he had already given his choice u/s 125 of the Army Act, 1950 that the instant case be instituted and tried before tie Court-martial and prayed that the Magistrate should not proceed with the ease and recall the warrant of arrest. The learned Magistrate in the impugned order stated that as he had already assumed jurisdiction in the matter he would consider the petition later in presence of both parties after appearance of the accused. He, however, recalled the warrant of arrest. On 2. 3. 1979 the learned Magistrate beard the objection about his jurisdiction to try the matter and ordered that the question of jurisdiction would be finally considered after complying with all relevant laws and procedure provided by the Code of Criminal Procedure and also the Military law; and accordingly be fixed 30.4.1979 for production of the accused and directed the Commanding Officer .accordingly. Hence this petition for quashing the proceeding.

Mr. S.N. Chetis, learned Counsel for the Petitioners submits, inter alia, that the Officer Commanding having already exercised his discretion for trial of Petitioner No. 1 by the Court-martial for the offence alleged to have been committed by him, the jurisdiction of the Criminal Court to try him has reused; and therefore, it was beyond his jurisdiction to pass the impugned order of production of the Petitioner No. 1 and to have proceeded with the trial.

Mr. A.K. Phukan, the learned Counsel appearing for the complainant-Respondent fairly submits that what the complainant wanted was that the accused Petitioner should be tried in accordance with the law and he should not escape trial taking advantage of the two alternative systems of trial. If the accused Petitioner is tried under either of the systems, the complainant naturally has no objection. The only question, therefore, it whether it has been decided by the Commanding Officer that the instant Petitioner No. 1 to be tried under the Military law, to that the criminal trial before lbs Magistrate should pot proceed any further.

The complaint alleges commission of offences under Sections 323, 342, and 352 Indian Penal Code. There is no doubt that these offences are triable by a Criminal Court. Admittedly the instant Petitioner No. 1 being an Army Officer is subject to the provisions of the Army Act, 1950 and the Army Rules, 1954, and if he is triable under those Act or the Rules, it is necessary to decide whether he should be tried by the Criminal Court or by the Court-martial.

It is not disputed that the instant Petitioner No. 2 is the Commanding Officer of the instant Petitioner No. 1. As detined in Section 3 (XVII) of the Army Act "Offence" mean any act or omission punishable under that Act and includes a civil offence as there in before defined. Under Clause (ii) of Section 3 of that Act" Civil Offence " means an offence which is triable by a criminal court. It is not disputed that the offences under Sections 323, 342 and 352, Indian Penal Code are offences triable by Criminal Court. Section 69 of the Army Act deals with Civil Offence. Under it subject to the provisions of Section 70 thereof any person subject to that Act who at any place in or beyond India commits any civil offence shall ho deemed to be guilty of an offence against that Act and if charged therewith under that Section, shall be liable to be tried by a Court-martial and, on conviction, be punishable as stated in that Section. Section 70 deals with Civil offences of murder and rape which are not triable by Court-martial. The instant case is admittedly not covered by provisions of Section 70 but it is clearly covered by the provisions of Section 69.

Section 125 of the Army Act dealt with choice between Criminal court and court-martial, Under it "when a criminal court and a court-martial have each jurisdiction in respect of an offence, it shall be in the discretion of the Officer Commanding the army corps, division or independent brigade in which the accused person is serving or such other Officer as may be prescribed 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 military custody.

Section 473 of the Code of Criminal Procedure, 1973 deals with delivery to Commanding Officers of persons liable to be tried by court-martial. Under Sub-section (1) thereof, the Central Government may make rules, consistent with that Code and the Army Act, 1950 (46 of 1950), and 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 that 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 that 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 ha 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. Under explanation (b) thereto "Court-martial" includes any tribunal with powers similar to those of a Court-martial constituted under the relevant law applicable to the Armed Forces of the union. Under Sub-section (2) thereof every Magistrate shall, on receiving a written application for that purpose by the commanding officer of any unit of body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavors to apprehend and secure any person accused of such offence. u/s 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. The Central Government in exercise of the powers conferred by Sub-section (1) of Section 549 of the Code of Criminal Procedure, 1898, and in supersession of all previous notifications on the subject, made the Criminal Courts and Court-martial (Adjustment of jurisdiction) Rules, 1952 for the trial of persons subject to Military, Naval or Air force law by a court to which the said Code applies, or by a Court-martial. These rules are applicable to the whole of India except Jemmu and Kashmir and Manipur. Rule 2(1) thereof defines "Commanding Officer" in relation to a person subject to Military law to mean the officer Commanding the unit or detachment to which such person belongs or is attached. Rule 3 provides that where a person subject to Military, Naval or Air Force law is brought before a Magistrate and charged with an efface for which he is liable to be tried by a Court-martial, such Magistrate shall not proceed to try such person, or to inquire with a view to his commitment for trial by the Court of Sessions or the High Court for any offence triable by such Court, unless

(a) He is of opinion, for reasons to be recorded, that he should so proceed without being moved thereto by competent Military, Naval or air force authority, or

(b) He is moved thereto by such authority.

Under Rule 4, before proceeding under Clause (a) of Rule 3, the Magistrate shall give written notice to the Commanding Officer of the accused and until the expiry of a period of seven days from the date of the service of such notice he shall not-

(a) Convict or acquit the accused under Sections 243, 245, 247 or 248 of the Code of Criminal Procedure, 1898 (V of 1898), or hear him in his defence u/s 244 of the said Code; or

(b) Frame in writing a charge against the accused u/s 254 of the said Code; or

(c) Make an order committing the accused for trial by the High Court or the Court of Sessions u/s 213 of the said Code,

(d) Transfer the case for inquiry or trial u/s 192 of the said Code.

Under Rule 6, where a Magistrate has been moved by competent military, naval or air force authority, as the case may be under Clause (b) of Rule 3, and the Commanding Officer of e accused or competent military, naval or air force authority, as the case may be, subsequently gives notice to such Magistrate that, in the opinion of such authority, too accused should be tried by a Court-martial, such Magistrate, if he has not before receiving such notice, done any act or made any order referred to in Rule 4, shall stay the proceedings, and if the accused is in him power or under his control, shall in like manner deliver him, with the statement prescribed in Sub-section (1) of Section 549 of the said Old Code to the authority specified in the and Sub-section. Under Rule 7(1) when an accused person has been delivered by the Magistrate under rules 5 and 6, the Commanding Officer of the accused or the competent military, naval or air force authority as the case may be, shall, as soon as may be, inform the Magistrate whether the accused has been tried by a Court-martial or other effectual proceedings have been taken against him. Under Sub-rule 2 thereof, when the Magistrate has been informed under Sub-rule (1) that the accused has not been tried or other effectual proceedings have not been taken or ordered to be taken against him, the Magistrate shall in co- nsultation with the circumstances to the State Government, which may, in consultation with the Central Government, take appropriate steps to ensure that the accused person is dealt with in accordance with law. Under Rule 9, where a person subject to military, naval or air force law has committed an offence which, in the opinion of the competent Military, naval or air force authority, as the case may be, ought to be tried by a Magistrate in accordance with the Civil law in force or where the Central Government has, on a reference mentioned in Rule 8 decided that proceedings against such person should be instituted before a Magistrate, the Commanding Officer of such person shall after giving a written notice to the Magistrate concerned, deliver such person under proper escort to that Magistrate.

In the instant case the Commanding Officer by his petition u/s 125, Army Act read with the above rules stated at the offences alleged were triable by both the Criminal Court the Court-martial; and that the Petitioner (instant petition No. 2) as the Officer Commanding of the said Army Unit to which the Petitioner No. 1 belonged, in exercise of discretion as provided u/s 125 of the Array Act, 1950 decided that the proceeding against the Petitioner No. 1 be instituted before Court-martial to try said Array Officer who was placed in Military custody. We have already quoted Section 125 of the Army Act. u/s 126 of the Army Act (1) When a criminal court having jurisdiction is of the opinion that proceedings shall be instituted before itself in respect of any alleged offence, it may, by written notice, require the officer referred to in Section 125 at his option, either to deliver over the offender to the nearest Magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central Government; (2) In every such case the said officer shall either deliver over the offender in compliance with the requisition, or shall forthwith refer the question as to the court before which the proceedings are to be instituted for the determination of the Central Government, whose order upon such reference shall be final. Thus there is no doubt that the instant Petitioner No. 2, the Commanding Officer of the instant Petitioner No. 1 exercised his discretion as envisaged in Section 125 of the Array Act and in the Criminal Court and Court-martial (Adjustment and Jurisdiction) Rules, 1958; particularly under Rule 6 thereof. If the Magistrate had not, before receiving such notices done any act or made any order as referred to in Rule 4, he was required to stay the proceedings and, if the accused was in his power or under his control, deliver him with the statement prescribed in Sub-section (1) of Section 549 of the said Code to the authority specified in the said Sub-section. It is stated at the bar that the Petitioner No. 1 was already made to appear before a Court of Inquiry lawfully assembled under the Army Act and the Army Rule.

In Major E.G. Barsay Vs. The State of Bombay, it was held that when the offences are triable both (sic) the ordinary Criminal Court having jurisdiction to try the (sic) offences and a Court-martial, to such a situation Sections and 126 were clearly intended to apply, If the designated office in Section 125 had not chosen to exercise his discretion decide before which court the proceedings should be institution there was no occasion for the criminal Court to invoke provisions of Section 126 and Section 126(1) presupposes the the proceedings should be instituted before n Court-martial and directed that the accused person should be detained in military Custody. If no such decision was arrived at, the Army Act could not obviously be in the way of a criminal Court exercising its ordinary jurisdiction in the manner provided by law. In Ram Sarup Vs. The Union of India (UOI) and Another, it was held that the pro visions of Section 125 of the Act are not discriminatory and do not infringe the provisions of Article. 14 of the Constitution. It was observed that Section 125 itself did not contain anything which could be said to be a guide for the exercise of to the discretion of the military officers concerned in deciding as to which court should try a particular accused. But there was sufficient material in the Act which was to be a guide for exercising the discretion and it was expected that the discretion was exercised in accordance with that guideline. In Som Datta v. Union of India AIR 1569 SC 414, it was held that under the Scheme of the two Sections 125 and 126 of the Army Act, in the first instance, it was left to the discretion of the officer mentioned in Section 125 to decide before which court the proceedings should be instituted and if the officer decided that they should be instituted before a court-martial, the accused person was to be detained in military custody, but if a criminal court was of opinion that the said offence should be tried before itself, it might issue a requisite notice u/s 126 to deliver over the offender to the nearest Magistrate or to postpone the proceedings pending a reference to the Central Government, whose order shall be final. Thus the two sections of the Army Act provide a satisfactory machinery to resolve the verdict for jurisdiction having regard to the exigencies of the situation in any particular case.

Mr. Chetia categorically states that the Commanding Officer has already instituted u Court of Inquiry with a view to decide whether the Petitioner No. 1 should be tried by Court-martial; and that the Court of Inquiry has already completed the proceeding of inquiry in the mean time, From its proceedings placed before the court it appears that the Court of Inquiry was assembled by the order of Head quarter, 51 Sub Area C/o 99 A.P.O. vide their letter No. 600302/12 A-1, dated 27th October, 1978 and that the Court of Inquiry having assembled pursuant to that order, its findings it is stated, have since been placed before the Commander, 51 Sub Area, who has also given his opinion on the proceedings of the Court of Inquiry assembled at 222 ABOD on 23rd December, 1978, Under the above circumstances it would not be open for the Magistrate to proceed with the trial without exercising his powers u/s 126 of the Army Act. As in the instant case, the Court-martial has already proceeded to try the instant Petitioner No. 1 and the Court of Inquiry has already placed its findings before the Commander, as stated above, the Magistrate would have had no jurisdiction to proceed further with the trial and be should have stayed the same thenceforth, at that stage. The impugned order dated 2.3.1979 is therefore, liable to be quashed and it is accordingly quashed.

As the Army authorities have already proceeded under the Army Act and the Rules to try the instant Petitioner No. 1, it may not be open to the Magistrate to exercise his powers u/s 126 of the Army Act in view of Article 20(2) of the Constitution of India whereunder "no person shall be prosecuted and punished for the same offence more than once''''.

In the result this petition is allowed to the extent indicated above.