Ravi Kumar and Another vs State of J. and K.

Virender Singh, J.—Heard Mr. R.S. Kotwal, and perused all the impugned orders.

Notice. Mr. B.S. Salathia, Learned Addl. Advocate General accepts notice on behalf of the State.

Since it is a short matter, with the consent of the Learned Counsel for both the sides, I intend to dispose of the same finally at motion stage itself.

The petitioners stand booked in case FIR No. 38/2004 registered under Sections 307, 324, 325, 326 and 34 RPC read with Sections (sic) and

25 of the Arms Act at Police Station, Vijaypur. Admittedly, both the petitioners are Army personnel and were on leave at the time of alleged

occurrence. Consequently, they were taken into custody and ultimately they got anticipatory bail. The case of the petitioners is that when initially

they were granted interim bail by the Court concerned on 28.04.2004 and since they had to join their respective places of posting, vide order

dated 19.05.2004 (annexure-PB) interim bail was made absolute. In their application the petitioners had furnished their complete details pertaining

to their service and this was in the knowledge of the State. To say so Mr. Kotwal relies upon annexure 'PA' (bail application).

Further the case or the petitioners is that even in detailed order dated 19.05.2004 (Annexure -PC) there is a reference to the effect that both the

petitioners are Army personnel and were on leave up to 30.04.2004, but due to their arrest they could not join the duties. This order was passed

in the presence of Public Prosecutor. This indicates that the petitioners have never concealed their identity at any point of time so far as the

question of their service is concerned and this all was done by them much prior to the filing of the final report in terms of Section 173 of the Code

of Criminal Procedure (hereinafter referred to as the Code). Incidentally or willfully it is not mentioned in the final report that the petitioners were

the Army personnel and the Committal Court without examining the record committed the case to the Court of Sessions who in turn referred to the

trial Court (Additional Sessions Judge, Jammu). The petitioners, thus, assert that the Learned trial Judge was reminded of the order of Learned

Chief Judicial Magistrate dated 19.05.2004 and a prayer was made that the trial Court has no jurisdiction to proceed with the trial under law till

the option is obtained from the concerned Commanding Officers of the petitioners. Two applications moved by the petitioners on different stages in

this regard stand dismissed vide two orders dated 05.03.2007 and 26.07.2007 (impugned herein). Hence, this petition.

Heard the Learned Counsel for both the sides.

Mr. Kotwal contends that both the petitioners at the time of alleged occurrence and even at present are working in the Indian Army. Petitioner

No. 1 is a Sepoy under No. 2492396 M of Unit-3, Punjab Regt., whereas petitioner No. 2 is a Rifleman, under No. 9099235 A of Unit-39,

Rashtria Rifles. Both are, thus, subject to Army Act, and Rules made thereunder and Section 549 of the Code and the Rules made thereunder

namely, the Jammu and Kashmir Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1983 (hereinafter referred to as the Rules

of 1983). According to Mr. Kotwal under Clause (b) of Rule 3 and Clause(c) of Rule 4 of Rules 1983 read with Section 125 of the Army Act the

Committal Magistrate should have examined the entire case and given a written notice of fifteen days to the respective Commanding Officer of the

petitioners before proceeding further with the case. Since the same has not been done in the instant case, not only the Committal order would be

bad, but all subsequent proceedings arisen there from are non-est in eye of law. The entire trial which is not in accordance with the procedure

established by law would be ultimately vitiated.

According to Mr. Kotwal, the trial Court while passing the aforesaid two impugned orders dated 05.03.2007 and 26.07.2007 has not taken

care of the right of the petitioners and dismissed their claims just on the ground of delay observing that it was cause of serious prejudice to the

State. Mr. Kotwal states that this legal plea could be raised by either sides at any stage even during the appeal. Therefore, the observation of the

Learned trial Court is not sustainable in the eye of law. Proceedings as non-est in the eye of law can cause prejudice to the accused (petitioners

herein) at any stage and, therefore, it being a legal defect going to the root of the case was to be rectified. In any case even on facts the fault cannot

be attributed to the petitioners.

On the basis of aforesaid submissions, Mr. Kotwal prays for setting aside of the aforesaid two impugned orders dated 5.3.2007 and 26.7.2007

respectively.

So far as the legal aspect of the matter is concerned, Mr. Salathia has not been able to oppose the submissions advanced by Mr. Kotwal and

fairly submits that all the legal requirements under Clause (b) of Rule 3, Clause (c) of Rule 4 reads with Section 125 of the Army Act should have

been completed by the Committal Magistrate before taking recourse to Section 205-D of the Code so as to avoid all the subsequent

complications.

In Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Usha Ranjan Roy Choudhury and Another, , their lordships while

quashing the entire proceedings after the complete trial, observed that the Competent Authority was to decide as to whether or not to subject the

accused to a fresh trial after following the procedure prescribed under Rules. In the said case while dealing with the delay part also, it was

observed in para-9 as under:-

Having regard to the enunciation of law to this effect it is evident tha t 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 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 Balbir Singh and Anr. v. State of Punjab 1994 (3) All India Cri L.R. 742 the Hon'ble Apex Court while construing the provisions of Sections 72

of the Air Force Act which is para 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 espect 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 tot he 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.

In my view the aforesaid two judgments rendered by the Hon'ble Apex Court are the complete answer to the controversy crept in this case. It

is, therefore, apparent that unless the option was given to the Commanding Officer(s) in terms aforesaid and the option had been or had net b«>n

exercised by the officer concerned, the trial would stand vitiated. Therefore, the present case needs to be remitted to the Competent Court

(Committal Court) for complying with the procedure in accordance with law. Ordered accordingly.

Resultantly, both the impugned orders dated 05.03.2007 and 26.07.2007 passed by the Learned trial Court are hereby set-aside.

The Learned trial court shall send the records of the case to the Committing Court by a special messenger before 9th of October 2007 on

which date the parties shall appear before the Committal Court. Should the Commanding Officer(s) decide that the petitioners be tried by a

Criminal Court, in that eventuality the trial Court would make all efforts to expedite the trial considering that the instant case has already gone very

old.