State of Haryana vs Kishan and others

V.S. Aggarwal, J.

Shri Kishan along with others had been committed to the Court of Sessions by the learned Judicial Magistrate, Gurgaon on 11.1.1989. The commitment was pertaining to offences punishable under sections 302/325/323/506/148 read with Section 149 of the Indian Penal Code. The learned Additional Sessions Judge, Gurgaon to whom the case was assigned framed a charge against Shri Kishan and others on 27.1.1989 with respect to the above said offences. It was adjourned for prosecution evidence to 23.2.1989.

On 23.2.1989 when the case was listed for evidence before the learned Additional Sessions Judge, the learned Public Prosecutor submitted an application that procedure under Section 475 Cr.P.C. has not been complied with inasmuch as the judicial magistrate did not inform the Commanding Officer of the unit where Sh. Kishan was working as officer before committing him to the Court of Sessions. Accordingly, it was prayed that the case should be sent back to the committing Court for compliance of the provisions of the Code of Criminal Procedure.

The learned Additional Sessions Judge dismissed the application on 20.4.1989. He noted that charge has already been framed. Therefore, he has no jurisdiction to remit the case back to the judicial Magistrate. The learned Additional Sessions Judge further noted that he is aware that trial qua Sh. Kishan may be vitiated because there has been no complete compliance of the provisions of Criminal Procedure Code with respect to Sh. Kishan. Aggrieved by the said order passed by the learned Additional Sessions Judge, the State of Haryana has filed the present petition seeking quashing of the charge and commitment order qua Sh. Kishan.

The sole contention raised has been that Sh. Kishan is a military personnel. qua him without complying the provisions of Section 475 Cr.P.C. namely without informing the Commanding Officer of the unit he could not be tried by the Court at Gurgaon and therefore, it is appropriate that charge qua Sh. Kishan be quashed including the commitment order so that suitable directions are issued to the subordinate Court pertaining to the said commitment and the charge that had been framed.

During the course of arguments, the same plea was reiterated by the learned State Counsel. The pleas raised were identical in terms as mentioned above. He prayed that the charge framed qua Sh. Kishan be quashed and the case be remitted to the Judicial Magistrate for compliance of the provisions of Section 475 Cr.P.C. As against this learned counsel appearing for the respondents particularly Sh. Kishan urged that though there has been noncompliance of section 475 Cr.P.C. but still there cannot be a court martial trial qua Sh. Kishan because the period of more than 3 years since the offence is alleged to have been committed, expired. He relied on Section 122 of the Army Act in this regard.

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 Cenral 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 nearest military, naval or air force station, as the case may be, for the purpose of being tried by a CourtMartial.

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 Force of the Union."

Bare reading of the above said provision 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 base. 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 require 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 Sh. 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 and Remembrancer of Legal Affairs, West Bengal v. Usha Ranjan Roy Choudhry, 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 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 the commission of alleged offence, the trial is not vitiated."

Keeping in view the aforesaid, the irresistible conclusion is that qua Sh. 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.

It was urged that period of limitation has since expired because in terms of Section 122 of the Army Act, the period of 3 years from the date of the commission of offence has long come to an end. In all fairness, it be conceded that arguments were addressed in detail but this question need not be looked into by this Court. It would become irrelevant after the first step contemplated under Section 475 Cr.P.C. is taken.

For these reasons, the petition is allowed. The commitment order and the charge framed qua Sh. Kishan is set aside. The learned trial Court (Additional Sessions Judge) can proceed with the trial against other accused. As regards Sh. Kishan, if necessary supplementary challan would be presented.