Pritam Singh vs State of Haryana

J.S. Sekhon, J.

Pritim Singh, appellant was tried and convicted by Sh. S.D. Anand, Additional Sessions Judge, Ambala on a charge for offences punishable under Ss. 302, Indian Penal Code qua the murder of his brother Sunder Singh and under section 307, Indian Penal Code, for attempt to murder his other brother Mohinder Singh. He was also convicted under sections 27 and 25 of the Arms Act. The appellant was awarded imprisonment for life and fine of Re. 10, 000/ or in default of payment of fine to undergo six months rigorous imprisonment on the first count and seven years rigorous imprisonment and fine of Rs. 10,000/ or in default of payment thereof to undergo six months rigorous imprisonment on the second count while two years'' rigorous imprisonment and fine of Rs. 500/ or in default of payment thereof to undergo one month''s rigorous imprisonment were awarded on the third count. No sentence was awarded for offence under Section 25 Arms Act., All the substantive sentences were ordered to run concurrently. Out of the entire amount of fine, if realised, Rs.25,000/ were ordered to be paid to Mst. Gurmit Kaur widow of Sunder Singh. Being aggrieved against his conviction and sentence, the appellant has come up in appeal. Gurmit Kaur, complainant has also preferred Criminal Revision No. 717 of 1992 for enhancement of sentence. Both these matters shall be disposed of by this judgment as they arise out of the same judgment of the trial Court.

Mr. R.S. Ghai, Senior Advocate, the learned counsel for the appellant, inter alia, contends that the entire trial is vitiated for noncompliance of the provisions of section 475, Code of Criminal Procedure, as well as Rules 3 and 4 of the Criminal Courts and CourtMaterial (Adjustment of Jurisdiction) Rules 1952 as the accused appellant admittedly being enlisted in the Army during those days, giving of notice to the commanding Officer of the Regiment of the accused was necessary in order to ascertain whether the accused was required to he tried by Court Martial under the provisions of the Army Act or under the General Criminal Law. Reliance in this regard was placed on the decision of the apex Court in Superintendent and Remembrancer of Legal Affairs West Bengal v. Usha Ranjan Roy Choudhury and another, AIR 1986 Supreme Court 1655.

Mr. JC Sethi, the learned Additional AdvocateGeneral Haryana, assisted by Mr. K.K. Aggarwal, the learned counsel for the complainant. .on the other hand contends that the accused being on leave on the day of the occurrence and not on active service, the offence of murder of Sunder Singhcommitted by him would be exclusively triable by the criminal court under section 70 of the Army Act. In the alternative it is maintained the Army authorities have waived the right to elect for trial of the accused by a Court Martial despite the intimation Exhibit PH sent by Dr. Om Parkash (PW9) qua the admission of Mohinder Singh, injured (PW 3) in the hospital.

As the controversy is purely legal, there is no need to go into the details of the facts of the prosecution case except to the extent that in the FIR Exhibit PM lodged by Mst. Gurmit Kaur (PW6) there is specific mention that her husband Sunder Singh deceased, the latter''s brothers Mohinder Singh PW and Pritam Singh accused were serving in the Army and they had come on two months leave in connection with the marriage of his sisterinlaw Amarjit Kaur, which took place on 7.5. 1989. Thus, there is no doubt about Pritam Singh accused as well as Sunder Singh deceased and Mohinder Singh being enlisted in the Army during the days of this occurrence. Consequently, Sub Inspector Pramal Singh (PW 11) who had recorded the FIR has become aware of this fact, but strangely enough he had failed to move the committing Magistrate or the trial Court for giving information to the commanding Officer of the Regiment as to whether the accused was required to be tried by the Court Martial under the provisions of the Army Act or by a Criminal Court as required under rules 3 and 4 of the 1952 Rules. It is strange that the committing Magistrate before committing the case to the Court of Sessions had not taken any steps for the compliance of the above referred rules. The learned Sessions Judge. has also not taken any such steps for compliance of mandatory provisions of section 475 of the Code of Criminal Procedure as well as rule 3 and 4 of 1952 Rules before framing the charge i.e. before taking cognizance of the above referred offences.

In the case in hand, admittedly the accused as well as Sunder Singh deceased and Mohinder Singh injured PW were enlisted in the Army and were on leave to their village on the day of the occurrence. Thus, the provisions of section 70 of the Army Act would not be attracted in this case as both the parties were subject to the provisions of the Army Act. Section 70 of the Army Act reads as under :

"Section 70. Civil offences not triable bycourt 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 and shall not be tried by a court martial unless he commits any of the said offences

(a) While on active service, or

(b) at anyplace outside India, or

(c) at a frontier post specified by the Central Government by notification in this behalf (Explanation) 1."

A bare perusal of the above referred provisions of section 70 leaves no doubt that if a person subject to the provisions of this Act, i.e. Army Act, 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 rape in relation to such a person shall not be tried by a Courtmartial unless he commits the offence while on, active or at any place outside India or at a frontier post specified by the Central Government by notification in this behalf. Section 70 is exception to the general rules embodied in section, 69 of the Army Act that any person subject to this Act who at, any place in or beyond India commits any civil offence shall be deemed to be guilty of an offence against this section, shall be liable to be tried by a courtmartial. Section 69 of the Army Act reads as under :

"69. Civil offences : Subject to the provisions of Section 70, any person subject to this Act who at any place in or beyond India commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be tried by a courtmartial and, on conviction, be punishable as follows, that is to say :

(a) if the offence is one which would be punishable under any law in force in India with death or with imprisonment for life, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned

(b) in any other case, he shall be liable to suffer any punishment, other that whipping, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as in this Act mentioned."

A bare glance through the same leaves no doubt that for civil offence both the Criminal Courts as well as the Court Martial have the concurrent jurisdiction except the cases covered by the provisions of section 70 of the Army Act. As already discussed, the provisions of section 70 of the Act would not be applicable in this case, because both the parties were subject to the provisions of the Army Act being enlisted in Army during the days of the occurrence. The term a person subject to this Act has been defined in section 2 of the Act. SubSection 1(b) of that section clearly provides that all persons enrolled under this Act shall be persons, Subject to this Act. Subsection (2) further provides that such person shall remain so subject to the provisions of this Act until duly retired, discharged, released, removed, dismissed or (sic) from service. Consequently there is no escape but to conclude that a person enrolled in the Army shall remain subject to the provisions of the Army Act while on leave.

The controversy whether the offences under the Army Act are exclusively triable by the Court Martial under this Act or by the Criminal courts also has been set at rest by the Apex Court in Major E.C. Barsay v. State of Bombay, AIR 1961 SC 1762. In para 16 of the judgment, the Apex Court had elaborately discussed the concurrent jurisdiction of the Court Martial and the Criminal Court as under :

"16. To appreciate the said argument it is necessary to scrutinize the provisions of the Army Act in some detail. Section 2 describes the different categories of Army personnel who are subject to the Army Act. Section 3(ii) defines "civil offence" to mean an offence which is triable by a criminal court". Section 3(vii) defines "courtmartial" to mean "a courtmartial held under this Act". Section 3 (viii) define "criminal court" to mean "a court of ordinary criminal justice in any part of India other than the State of Jammu and Kashmir". Section 3(xvii) defines "offence" to mean "any act or omission punishable under this Act and includes a civil offence; and Section 3(xxv) declares that "all words and expressions used but not defined in this Act and defined in the Indian Penal Code shall be deemed to have the meanings assigned to them in that Code. Chapter VI is "comprised of Sections 34 to 70. The heading of the chapter is "offences". As we have already noticed, the word offence" is defined to mean not only any act or omission punishable under the Army Act, but also a civil offence. Sections 34 to 68 define the offences against the Act triable by courtmartial and also give the punishments for the said offences, Section 69 says that any person subject to the Act who at any place in or beyond India commits any civil offence shall be deemed to be guilty of an offence against the Act and, if charged therewith under this section, shall be liable to be tried by a courtmartial and, on conviction, be punishable as provided for the offence under any law in force in India or such less punishment as in the Act mentioned.

Under Section 70 :

"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 be deemed to be guilty of an offence against this Act and shall not be tried by a courtmartial."

There are three exceptions to this section with which we are not concerned now. Shortly stated, under this Chapter there are three categories of offences, namely (1) offences committed by a person subject to the Act triable by a courtmartial in respect whereof specific punishments have been assigned; (2) civil offences: committed by the said person at any place or beyond India, but deemed: to be offences committed under the Section 69 of the Act, triable by a court martial, and (3) offences of murder and culpable homicide not amounting to. murder or rape committed by a person subject to Act against a person not subject to the military law. Subject to a few exceptions, they are not triable by courtmartial, but are triable only by ordinary criminal courts. The said categorization of offences and tribunals necessarily bring about a conflict of jurisdiction. Where an offence is for the first time created by the Army Act, such as those created by Sections 34, 35, 36, 37 etc. it would be exclusively triable by a court martial; but where a civil offence is also an offence under the Act or deemed to be an offence under the Act, both an ordinary criminal court as well as a court material would have jurisdiction to try the person committing the offence. Such a situation is visualized and provided for by Sections 125 and 126 of the Act. Under Section 125.

"When a criminal court and a courtmartial have each jurisdiction in respected 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 before (sic) a courtmartial to direct that the accused person shall be detained in military custody. Under Section 126(1) of the Act :

"When a criminal court having jurisdiction, is of opinion that proceedings shall be instituted be more 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." Clause (2) of that section says that.

"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."

Section 125 presuppose that in respect of an offence both a criminal court as well as a courtmartial have each concurrent jurisdiction. Such a situation can arise in a case of an act or omission, punishable both under the Army Act as well as under any law in force in India. it may also arise in the case of an offence under the Act. Under the scheme of the said two provisions, in the first instance, it is left to the discretion of the officer mentioned in Section 125 to decide before which court the proceedings shall be instituted and, if the officer decides that they should be instituted before a courtmartial, the accused person is to be detained in military custody; but if a criminal court is of opinion that the said offence shall be tried before itself he may issue the requisite notice under Section 126 either to deliver over the offender to the nearest magistrate or to postpone the proceedings pending a reference to the Central Government. On receipt of the said requisition, the officer may either deliver over the offender to the said court or refer the question of proper court for the determination of the "Central Government" whose order shall be final. These two sections provide a satisfactory machinery to resolve the conflict of jurisdiction. having regard to the exigencies of situation.

In para 17 of the judgment, the Apex Court after taking note of the provisions of section 127 of the Army Act provided for successive trial by the Courtmartial and by the Criminal Courts in respect of the same offences observed in para 18 of the judgment as under :

"18. The scheme of the Act therefore is selfevident. It applies to offences committed by army personnel described in Section 2 of the Act, it creates new offences with specified punishments, imposes higher punishments to preexisting offences, and enables civil offences by a fiction to be treated as offencesunder the Act, it provides a satisfactory machinery for resolving the the conflict of jurisdiction. Further it enables subject to certain conditions, an accused to be tried successively both by courtmartial and by a criminal court. It does not expressly bar the jurisdiction of criminal courts in respect of acts or omissions punishable under the Act, if they are also punishable under any other law in force in India, nor is it possible to infer any prohibition by necessary implication. Sections 125, 126 and 127 exclude any such inferences, for they in express terms provide not only for resolving conflict of jurisdiction between a criminal court and courtmartial a respect of a same offence, but also provide for successive trials of an accused in respect of the same offence "

In the light of the above referred findings of the apex Court, there is no escape but to conclude that in the case of civil offence subject to the provisions of Section 70, both the Criminal Courts as well as Court Material have the concurrent jurisdiction. If that is so, then before taking cognizance of the offence, committing Magistrate under the Provisions of Section 4 75 of the Code of Criminal Procedure, 1973 read with Rules 3 and 4 of the 1952 Rules, was bound to give notice to the Commanding Officer of the Regiment of the accused whether he wanted to try the accused under the Army Act or the case should be tried by the Criminal Court.

The provisions of Section 475 of the Code of Criminal Procedure empower the Central Government to frame rules consistent with this Code and the Army Act, 1950, the Navy Act, 1957 and Air Force Act, 1950 and by other law, relating to the Armed Forces of the Union, for the time being in force, as to cases in which persons subject to the Military, Naval or Air Force Law shall be tried by a Court to which this Code applies or by the Courtmartial under rules known as Criminal Courts and Court. martial (Adjustment of Jurisdiction) Rules, 1952. Rules 3 and 4 of the said Rules provide as under

"3. Where a person subject to military, naval or air force law is brought before a 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 issue orders for his case to be referred to a Bench to inquire with a view to his commitment for trial by the Court of Session or the High Court for any offence triable by such Courts 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 Mills, 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 Section 243, 245, 247 or 248 of the Code of Criminal Procedure 1898 (Act 5 of 1899) 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 or the said Code,

or

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

(d) transfer the case for inquiry or trial under Section 92 of the said Code."

The provisions of section 475 of the new Code of Criminal Procedure are analogous to the provisions of Section 549(1) of the Old Code of Criminal Procedure 1898. A combined reading of rules 3 and 4 reveals that before taking cognizance of the offence, the concerned Magistrate was bound to give notice to the Commanding Officer in this behalf and till the expiry of severn days of the service of such notice to the Commanding Officer, the Magistrate is prohibited from taking cognizance of the offence or framing any charge or committing the accused to the Court of Session. Simply because intimation Exhibit PH was sent by Dr. Om Parkash (PW 9), then posted in Military Hospital in Ambala Cantt to the Commanding Officer of the Regiment where Mohinder Singh PW was then enlisted, regarding his injuries & admission in the hospital, it cannot be said that the aid information would amount to the compliance of the provisions of rules 3 and 4 of the said Rules, especially when there is no indication therein that he had received the injuries at the hands of Pritam Singh accused appellant, who was also enlisted in the Army at the relevant time.

The above referred view is also supported from the ratio of the decision of the Apex Court in Usha Ranjan Roy Choudhury''s case, referred above In that case in para 9 of the judgment after elaborate discussion it was observed as under :

"Having regard to the enunciation of law to this affect, it is evident .that the ordinary Criminal Court would have no jurisdiction to take cognizance of the case and to try to 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 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 the commission of the alleged offence, the trial is not vitiated."

In the said case, the legal. controversy about the lack of jurisdiction was raised for the first time before the apex Court. Ultimately, the apex Court modified the order of the High Court qua the expression of acquittal by observing at under".

The expression acquitted has been employed by the High Court though it was sufficient to say no more than this, that the order of the conviction and sentence was without jurisdiction and was therefore being quashed in the eye of law, it is not an acquittal since it is not on merits. It is therefore for the competent authority to decide whether or not to subject the accused to a first trial after following the procedure prescribed by the Rules. With these observations, we dismiss the appeal."

For the foregoing reasons there is no option but to hold that order of conviction and sentence of the trial court being without jurisdiction is liable to be quashed. It is ordered accordingly. It is, however, clarified that the committing Magistrate shall be at liberty to commit the accused to fresh trial after following the procedure prescribed by the Rules. The appeal stands disposed of accordingly.

In view of the above findings, the revision petition fails. Keeping in view that the accused appellant is in custody since 1351989 he directed to be released on bail on furnishing requisite bonds to the satisfaction of the Chief Justical Magistrate Ambala undertaking to appear before the committing Magistrate or before the Army Authorities as the case may be whenever called upon to do so.