State vs Hav. Mangla Kumar and A.M. Sangma

Y.P. Nargotra, J.—As in both these criminal references, a common question of law is involved, therefore, both these references are being

disposed of by a common order.

The question involved in these criminal references is whether a Magistrate is bound to comply with the provisions contained in Section 549 Cr.

P.C, before committing the case to the Court of Session for trial of the accused for the offences exclusively triable by the Court of Session.

The necessary facts are to be noticed. In Criminal reference No. 12/2003, Learned Chief Judicial Magistrate, Jammu, in terms of his order

dated 26th September 2002, committed the case to the Session Court for trial of the accused for commission of offences under Sections

302/307/304 RPC, without giving any notice in writing to the Commanding Officer. The accused is B.S.F personnel.

In Cr. Ref. 11/2003, the accused respondent is an Army Personnel, against whom, Gandhi Nagar Police, after investigation of FIR No.

381/2002 filed a charge sheet before the court of learned Chief Judicial Magistrate on 3rd February 2003 for his trial for commission of offences

u/s 302 RPC and learned Chief Judicial Magistrate has committed the case for trial to the Court of Session without giving any notice in writing to

the Commanding Officer or Competent authority.

The learned Sessions Judge, Jammu, in turn, transferred these cases for trial to the Court of Ist Additional Sessions Judge Jammu. The learned

Ist Additional Sessions Judge, Jammu has made these references u/s 438 Cr. P.C. and thereby recommended the quashment of the commitment

order passed by the learned Chief Judicial Magistrate, Jammu, on the ground that the learned Chief Judicial Magistrate had passed the orders of

commitment without following the procedure prescribed u/s 549 of the Criminal Procedure Code read with Section 3 and 4 of the J&K Criminal

Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1983 and has not given notice to the Commanding Officer or concerned authorities

to decide as to whether the accused should be tried by BSF Court, Army Court or by the Court of Session.

Notices of these references were issued to the respondents-accused as they are in jail. Accused-respondent in Cr.Ref. No. 11/2003 is

represented by counsel, Mr. Nitin Bhasin. Accused-respondent in Cr.Ref. No. 12/2003 did not appoint any counsel for representing his case, Ms.

Tabasum Mughal, amicus-curia was appointed to represent the case of the accused.

I have heard learned Deputy Advocate General, Mr. A.S. Dogra and Ms. Tabasum Mughal, amicus-curia of the accused and Mr. Nitin Bhasin.

Section 519 Cr.P.C provides that the Government may make rules consistent with this Code and the Army Act in force in the State or any

similar law for the time being in force as to the case in which persons subjected to military law, shall be tried by a Court to which this code applies

or by Court-Martial, and when any person is brought before a Magistrate and charged with an offence for which he is liable, under the Army Act

in force in the State to be tried 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 he is accused, to the commanding officer of the regiment, corps or detachment, to which he belongs or to

the commanding officer of the nearest military station, for the purpose of being tried by court-martial. Pursuant to the power conferred by Section

549 Cr. P.C., the Government has framed J&K Criminal Courts and Court martial (Adjustment of Jurisdiction) Rules, 1983. Rule 3 and 4 of these

rules read as follows:-

Rule 3 -- Where a person subject to Military, Naval or Air Force law, or any other law relating to the Armed Forces of the Union for the time

being in force is brought before a Magistrate and charged with an offence for which he is also liable to be tried by a Court Martial, such Magistrate

shall not proceed to try such persons, or to commit the case to the court of Sessions unless-

(a) he is moved thereto by a competent Military, Naval or Air Force Authority, or

(b) he is of opinion, for reasons to be recorded that he should so proceed or to commit without being moved thereto by such authority.

Rule 4 - Before proceeding under Clause (b) of Rule 3 the Magistrate shall give a written notice to the Commanding Officer or the Competent

Military, Naval or Air Force authority, as the case may be of the accused and until the expiry of a period of fifteen days from the date of the

service of the notice he shall not -

(a) convict or acquit the accused under Sections 243, 245, 247 or 248 of code of Criminal Procedure 1989 or hear him in his defence u/s 244 of

the said code ; or

(b) frame in writing a charge against the accused under Sub-section 3 of Section 251-A or 254 of the said code; or

(c) make an order committing the accused for trial to the court of Sessions u/s 205-D of the said codes; or

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

From the bare persual of the above quoted Rules 3 and 4, it is manifest that a Magistrate is legally bound to issue fifteen days notice to the

Commanding Officer or the competent Military authority informing him about the institution of the charge sheet for commission of the offences

which can also be tried under the Military law to which the accused may be subject to before proceeding to pass the order of commitment of the

case u/s 205-D of the Cr. P.C. in a case where the offences alleged are triable exclusively by the Session Court. The provisions contained in

Section 3 and 4 of the Rules of 1983and Section 549 Cr. P.C. are mandatory in nature and are required by law to be essentially complied with by

a Magistrate before whom such a charge sheet is filed against such accused.

Learned Amicus-Curia, Ms. Tabasum Mughal for the accused submits that once the commitment order has been passed, learned Additional

Sessions Judge should have proceeded with the trial of the accused in the Court itself as non-compliance of the above quoted provisions is only

irregularity and secondly the provisions referred above are not mandatory in nature. She argued that the accused should be ordered to be tried in

the Court of Sessions Judge itself instead of sending him for trial to the Military Court after giving any such option to the Military authorities under

rules. In support of her contention, she relies upon a case, Joginder Singh Vs. State of Himachal Pradesh, . Their Lordships in the said case have

observed:

In respect of an offence, which could be tried both by a criminal court as well as a court-martial, Sections 125, 126 and the Rules, have made

suitable provisions to avoid a conflict of jurisdiction between the ordinary criminal courts and the court-martial. But discretion is left to the officer

mentioned in Section 125 to decide before which court the proceedings should be instituted. It is only when the designated officer does not

exercise his discretion and decide that the proceedings should be instituted before a court-martial, that the Army Act would not obviously be in the

way of a criminal court exercising its ordinary jurisdiction in the manner provided by law and Section 126 would not come into operation.

Their Lordships have further held that :

Rule 4 is related to Clause (a) of Rule 3 and will be attracted only when the Magistrate proceeds to conduct the trial without having been moved

by the competent military authority. When the competent military authorities, knowing full well the charge against the accused and the investigation

that was being conducted by the Police release him from military custody and hand him over to civil authorities, the Magistrate is justified in

proceeding on the basis that the military authorities had decided that the accused need not be tried by the court-martial and that he can be tried by

the ordinary criminal court.

It was also observed that:

Surrender of the accused to the civil authorities to be dealt with by the latter, after being made aware of the nature of the offence against the

accused is a clear indication that the decision of the military authorities was that the accused need not be tried by a court-martial and that his trial

can take place before the criminal court. Under these circumstances there is no occassion to follow the procedure u/s 126 or Rule 4 requiring

notice to the Commanding Officer of the accused.

This authority relied upon by the Amicus-Curia for the accused does not in any way lay down the proposition that the provisions contained in

Section 549 of the Cr. P.C. read with Rule 3 and 4 of the Rules of 1983 are not mandatory. It is only under the particular circumstances of that

case where the accused had been allowed to be tried by the ordinary criminal court and convicted, their lordships repelled the argument advanced

on behalf of the accused that trial is vitiated by holding that consent of the Military authorities for trial of the accused could be implied. In the same

judgment their Lordships in para 8 have held as follows:

Under Section 549 (1) Cr. P. C. the Magistrate was bound to have regard to the rules......

It is only in the circumstances of that case, their lordships held that failure of the Magistrate to follow the procedure did not vitiate the trial.

Therefore, the case relied upon by the learned Amicus-curia, Ms. Tabasum Mughal does not support her contention, Ms. Mughal also relied upon

a full bench judgment of Punjab and Haryana High Court in case Ajit Singh Vs. State of Punjab, to submit that the aforesaid provisions, are

directory and not mandatory and non-compliance thereof does not vitiate the trial.

This case also has no question to the present case because in that case also the question was whether trial of the accused conducted without

complying the provisions of the Section 549 Cr. P. C. was vitiated and their Lordships held that it was mere an irregularity cartable u/s 537 Cr.

P.C. In the present cases, the accused have not been put on trial yet. The cases are still at the thresh hold and learned Chief Judicial Magistrate has

passed the commitment orders in a clear violation of mandate of Section 549 Cr. P. C. and Rules 3 and 4 of Rules of 1983.

In this view of the matter, Learned Additional Sessions Judge is right in taking the view that the commitment orders made by the learned Chief

Judicial Magistrate are bad in law and, therefore, should be set aside. He has given good and sound reasons for making such recommendation and,

therefore, both the references are accepted and disposed of and orders of learned Chief Judicial Magistrate, Jammu, committing both the cases to

the Court of Sessions Judge are set aside. Learned Ist additional Sessions Judge, Jammu is directed to remit back both the cases to the Chief

Judicial Magistrate, Jammu for proceeding afresh after following the procedure prescribed u/s 549 Cr. P.C and by the J&K Criminal courts and

Court martial (Adjustment of Jurisdiction) Rules 1983.