Kulwant Singh @ Kala vs State of Punjab

K.K. Srivastava, J.

The grievance of the petitioner who is a serving member of the Indian Armed Forces is that he has been involved in FIR case No. 13 dated 21.2.1997 under Sections 302, 34 IPC relating to the Police Station Bassi Pathanan, District Fatehgarh Sahib in the State of Punjab and the matter was not taken up by the Court of competent jurisdiction with the Commanding Officer of the petitioner and instead the case was committed to the Court of Sessions. It is further urged that even the learned Additional Sessions Judge declined the prayer of the petitioner and proceeded to frame charge and put the petitioner to trial.

Notice was issued to the respondents and reply has been filed by way of an affidavit of Shri Shamsher Singh, PPS, Deputy Superintendent of Police, Fatehgarh Sahib wherein it has been contended that there is no mention in the report filed under Section 173 Cr.P.C. that the petitioner was serving in the Army and was arrested while he was availing his annual leave. However, no comments were made regarding the relevant provisions of law dealing with such a situation. Learned Counsel for the petitioner contends that Section 475 of the Code of Criminal Procedure provides for delivery to Commanding Officer of the persons liable to be tried by Court martial. Section 475 Cr.P.C. reads as under :

"475. Delivery to Commanding Officers of persons liable to be tried by Courtmartial. (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 Fores 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 Courtmartial; 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 Courtmartial, 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) "courtmartial" includes any tribunal with the powers similar to those of a courtmartial 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 situated within the State be brought before a Courtmartial for trial or to be examined touching any matter pending the Courtmartial."

The learned Additional Sessions Judge disagreed with the submissions raised on behalf of the petitioner on the ground that the Criminal Courts were not deprived of their inherent jurisdiction to take cognizance of the civil offences under the Code of Criminal Procedure or by the provisions of Section 475 Cr.P.C. The petitioner has in para 2 referred to that Unit in which he was serving as 103 INF/BNTF SIKH. L.I. C/o 56 APO. In Sukhwinder Singh v. The State of Punjab, 1995(3) R.C.R. (Crl.) 517 : 1995(3) All Indian Criminal Law Reporter, 348 , a Division Bench of this Court while considering the question of nonissuance of a notice by the concerned criminal Court to the officer commanding of the offender involved in an offence under Sections 302, 324 IPC, regarding his decision about the forum of trial of the offender whether it should be by the Courtmartial or the Criminal Court held that trial conducted by the Criminal Court without the consent of the officer commanding is without jurisdiction and is liable to be quashed. The accused was also held entitled to bail till final decision by the competent Court or the other. In the case of Sukhwinder Singh (supra) the appellant, Sukhwinder Singh was convicted and sentenced under Sections 302, 324 IPC for having caused the murder of one Harbhajan Singh on 7.12.1990. Learned Counsel for the appellant raised a preliminary plea that the appellant was admittedly serving in the Army but was on leave in his village on the fateful day, he would be deemed to be in active service in terms of Section 70 of the Army Act read along with the Rules aforesaid as also notification No. SRO 8E dated 8.12.1996 declaring that all persons subject to the Act, shall wherever they may be serving be deemed to be in active service within the meaning of the said Act 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. The Division Bench noted the contention of the learned Senior Advocate for the appellant Mr. R.S. Ghai as also of the learned Deputy Advocate General, Mr. M.S. Gill appearing for the respondentState in paragraphs 3, 4 and 5 which read as under :

"Mr. Ghai, the learned Senior Counsel appearing for the appellant has raised a preliminary plea that as the appellant was admittedly serving in the Army but was on leave in his village on the fateful day, he would be deemed to be in active service in terms of Section 70 of the Army Act read along with the Rules aforesaid as also notification No. SRO 8E dated 8.12.1962 declaring that all persons subject to the Act, shall wherever they may be serving be deemed to be on active service within the meaning of the said Act 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. In support of this plea, Mr. Ghai has relied upon Balbir Singh and another v. State of Punjab, 1994(3) All Indian Criminal L.R. 742 . The Supreme Court while construing the provisions of Section 72 of the Air Force Act which is pari materia with Section 70 of the Army Act, held as under :

"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 of 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 persons shall be detained in Air Force custody. Thus, the opinion 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 enquire with a view to his commitment for trial and shall give a notice to the Commanding Officer of the accused, who decides whether they would like to try the accused by a Court Martial or allow the Criminal Court to proceed with the trial.''

It is, therefore, apparent that unless the option was given to the Commanding Officer in the terms aforesaid and the option had been or had not been exercised by the Commanding Officer, the trial before the Additional Sessions Judge stood vitiated.

Mr. M.S. Gill, learned Deputy Advocate General, appearing for the respondent has urged that he cited case was distinguishable inasmuch as the Court had found that the trial was not vitiated and the conviction of the appellant thereunder was valid. We have considered this argument and find no substance in it. The Supreme Court held against the appellant the ground that as a matter of fact an offer in terms had in fact been made to the Commanding Officer, but he had not exercised his right to order a Court Martial.

Mr. Ghai has argued that as the very institution of the trial was without jurisdiction, the entire proceedings stood vitiated and has for this proposition, relied upon Superintendent and Remembrancer of Legal Affairs, West Bengal v. Usha Ranjan Roy Choudhary and another, AIR 1986 Supreme Court 1655. He has argued that the proceedings were, thus, liable to be quashed and the matter remitted for redecision to the Court of the Competent Magistrate. He has also argued that as the appellant had been in custody since 1990 and a period of five years had already elapsed, he has entitled to bail till such time afresh decision was taken in the matter."

After noticing the rival contention of the parties, the Division Bench held in para 6 as under :

"We find merit in this contention of the learned Counsel in the light of Usha Ranjan''s case (supra) that once the trial was without jurisdiction, the proceedings were liable to be quashed and the matter remitted for fresh trial. We, therefore, quash the proceedings against the appellant and direct that he be released on bail to the satisfaction of the Chief Judicial Magistrate, Amritsar till final decision by a competent Court or authority. The record of the case is directed to be remitted by special messenger to the competent Court at Ajnala, who shall comply with the procedure set out in terms mentioned above as further interpreted by the Supreme court. Should the Commanding Officer decide that the appellant be tried by the Criminal Court, we direct that the trial will be completed within three months if necessary by taking daytoday proceedings."

In Balbir Singh v. State of Punjab, 1995(1) RCR 170 (SC) the Hon''ble Supreme Court while dealing with the case of Superintendent and Remembrancer of Legal Affairs West Bengal v. Usha Ranjan Roy Choudhary and another, AIR 1986 Supreme Court 1855 held, inter alia as under :

"The judgment in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Usha Ranjan Roy Coudhary and another, AIR 1986 SC 1855 relied upon by the learned Counsel for the appellant is clearly distinguishable and has no application whatsoever to the facts of the present case. In that case three accused persons who were Army Officers were charged with offences which fell within the purview of Section 52 of the Army Act. The said section deals with the offences in respect of property and those offences could be tried both by the ordinary criminal courts as also by the court martial, since both have concurrent jurisdiction. The offence under Section 52 of the Army Act is not analogous to the offences falling under Section 72 of the Air Force Act. The Army authorities in that case had only requested for investigation to be made by the Civil police. After the investigation was complete, the criminal Court proceeded to try the case without giving option to the Army Authorities as is envisaged by Rules 3 and 4 of the 1952 Rules to exercise their option. This Court found that the action of the Army authorities on calling for a detailed police report at the investigation stage could not amount to the authorities under the Act exercising the option not to try the accused by the Court martial and the Army authorities could not be said to have voluntarily abandoned their option to try the accused in Court martial."

The Hon''ble Apex Court was considering the case of an Air Force Officer in the case of Balbir Singh (supra). The relevant Rules 3, 4, 5 and 6 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 provide as under :

"3. Where a person subject to military, naval or air force is brought before Magistrate and charged with an offence for which he is liable to be tried by a Courtmartial, such Magistrate shall not proceed to try such person or to inquire with a view to his commitment to trial by the Court of Session 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.

Before proceeding under Clause (a) of Rule 3, the Magistrate shall give a written notice to the Commanding Officer of the accused and until the expiry of a period of

(i) three weeks, in the case of a notice given to a Commanding Officer in command of a unit or detachment located in any of the following areas of the hill districts of the State of Assam, that is to say :

"(1) Mizo,

(2) Naga Hills,

(3) Garo Hills,

(4) Khasi and Jaintia Hills, and

(5) North Cachar Hills;

(ii) seven days in the case of a notice given to any other Commanding Officer in command of a unit or detachment located elsewhere in India, from the date of 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 (Act 5 of 1989), or hear him in his defence under Section 244 of the said Code; or

(b) frame in writing a charge against the accused under Section 254 of the said Code; or

(c) make an order committing the accused to trial by the High Court or the Court of Session under Section 213 of the said Code; or

(d) transfer the case for inquiry or trial under Section 192 of the said Code.

(5) Where within the period of seven days mentioned in Rule 4, or at any time thereafter before the Magistrate has done any act or made any order referred to in that rule, the Commanding Officer of the accused or competent military, naval or air force authority, as the case may be, gives notice to the Magistrate that in the opinion of such authority, the accused should be tried by a Courtmartial, the Magistrate shall stay proceedings and if the accused is in his power or under his control, shall in the like manner deliver him, with the statement prescribed in subsection (1) of Section 549 of the said Code to the authority specified in the said subsection.

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 the accused or competent military, naval or air force authority, as the case may be, subsequently gives notice to such authority, the accused should be tried by a Courtmartial, such Magistrate if he has not before receiving such notice done any act or made any order referred to in Rule 4, shall stay proceedings and, if the accused is in his power or under his control, shall in the like manner deliver him, with the statement prescribed in subsection (1) of Section 549 of the said Code to the authority specified in the said subsection."

While dealing with these provisions the Hon''ble Supreme Court in case of Balbir Singh 1995(1) RCR (Crl.) 170 (supra) observed in para 22 as under :

"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 persons 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 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 a 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 was held further in para 23 as under :

"There appears to be sound logic to give the first option to the authorities under the Act to decide whether the accused should be tried by the Court martial or the Criminal Court. The defence of the country being of paramount importance, the Air Force authorities would know best as to whether the accused should be tried by the court martial or by the ordinary criminal court because the trial by the ordinary criminal court would necessarily involve a member of the force being taken away for trial by the ordinary criminal court and not being available to the authorities and the like considerations. However, in the event the criminal court is of the opinion, for reasons to be recorded, that instead of giving option to the authorities under the Act, the said court should proceed with the trial of the accused, without being moved by the competent authority under the Act and the authorities under the Act decide to the contrary, the conflict of jurisdiction shall be resolved by the Central Government under Section 125(2) of the Act and the decision as to the forum of trial by the Central Government in that eventuality shall be final."

In State of Haryana v. Kishan and others, 1997(2) RCR 414 a learned Single Judge of this Court considered the scope of Section 475 Cr.P.C. and also the provisions of the Criminal Courts and Court Martial (Adjustment and Jurisdiction) Rules, 1952 (hereinafter to be referred as `the 1952 Rules'') Rule 3 of military personnel accused of the offence of murder. In that case the trial was commenced and charges were framed by the Sessions Judge but no prior notice was sent to the military authorities and no request was made by military authority to Magistrate to proceed against the accused. It was held that the proper procedure under Section 475 Cr.P.C. was not valid (followed ?) and the charge was quashed. It was held that the provisions of the Rule 3, the 1952 Rules are mandatory in nature. In para 6 the learned Single Judge dealt with the matter as under :

"At the outset it may be mentioned that there was no dispute raised before the Court that Sh. Kishan can be taken to have committed the offence while an active servant. Keeping in view the said fact, there is no need to dwell into Section 70 of the Army Act, 1950. With this backdrop safely reference can be made to subsection (1) of Section 475 of the Criminal Procedure Code which reads as under :

"475. Delivery to Commanding Officers of persons liable to be tried by Courtmartial. (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 Courtmartial; 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 Courtmartial, 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) "courtmartial" includes any tribunal with the powers similar to those of a Courtmartial constituted under the relevant law applicable to the Armed Forces of the Union."

Bare reading of the above said provisions shows that in accordance with the rules that have been framed when a person is brought before a Magistrate and charged with an offence, then the Magistrate having regard to such rules in a proper case deliver him with the statements to the Commanding Officer of the nearest bases. The Central Government has framed the rules known as Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952. Rule 3 of the said rules required that when a person subject to military, Air Force or Naval Law is brought before a Magistrate on accusation of offence for which he is liable to be tried by Courtmartial and also by the Magistrate, he shall not be proceeded with unless requested to do so by the appropriate military authority. The Magistrate is enjoined to give notice to the Commanding Officer in this regard and is restrained to frame charge or acquit the accused within the stipulated time. The Rules are mandatory in nature. In the present case, admittedly, the procedure has not been followed. The result would have been that trial qua Shri Kishan would have been vitiated. This question had been considered by this Court in the case of Jaipal Singh v. State of Haryana, 1975 CLR 181. Herein also the procedure prescribed had not been followed. Keeping in view the said fact, the charge that was framed against the military personnel was quashed. The same question arose before this Court in the case of Ram Sarup v. State, 1977 Criminal Law Times 98. The Court was considering Section 549 Cr.P.C. which was basically pari materia with Section 475 Cr.P.C. The petition was allowed and the Magistrate was directed to make a report to the Commanding Officer of the Unit. In case the Commanding Officer decides that petitioner should be tried by the ordinary Court, it shall be open to the prosecution to launch fresh prosecution against him. The Supreme Court had set this controversy at rest. In the case of Superintendent & Remembrancer of Legal Affairs, West Bengal v. Usha Ranjan Roy Choudhry and another, 1986(2) RCR (Crl.) 339 : 1987(1) CLR 560, Section 549 of the Code of Criminal Procedure, 1898 which corresponds to Section 475 of the Code of Criminal Procedure was under consideration. It was held that prior (trial ?) without adhering to the strict provisions of Section 475 of the Code would be vitiated. In paragraph 9 it was observed :

"Having regard to the enunciation of law to this effect it is evident that the ordinary criminal Court would have no jurisdiction to take cognizance of the case and to try the accused in a matter where the procedure prescribed by the Rules has not been complied with. The initial lack of jurisdiction to take cognizance and try the case would of logical necessity vitiate the trial and the order of conviction and sentence would be liable to be quashed as a result thereof. We are, therefore, unable to accede to the submission urged on behalf of the appellant State that even if the Rules are applicable, having regard to the fact that more than three years have expired from the date of commission of alleged offence, the trial is not vitiated.

Keeping in view the aforesaid, the irresistible conclusion is that qua Shri Kishan without following the prescribed procedure under Section 475 Cr.P.C., the commitment proceedings could not take place. As a necessary corollary the charge framed against him by the trial Court would also crumble."

In view of the foregoing discussion the impugned orders, copy Annexure P2 passed by JMIC, Fatehgarh Sahib and Annexure P3, passed by Additional Sessions Judge, Fatehgarh Sahib suffer from grave illegality and as such the conduct of the trial by framing the charge against the petitioner is wholly contrary to the provisions of law and mandatory in nature of Rule 3 of the 1952 Rules. The petition is allowed and the impugned order is quashed including the order framing the charge. The case is sent back to the trial Court with a direction to refer the matter to the Commanding Officer of the petitioner for exercising the option regarding the forum of the trial of the petitioner for the offence under Section 302 IPC. Considering the fact that the option of the trial is to be considered by the Commanding Officer concerned, I deem it appropriate to order that the petitioner be permitted to be admitted to bail subject to satisfaction of Chief Judicial Magistrate, Fatehgarh Sahib and it is ordered accordingly.