Sukhwinder Singh vs State of Punjab

H.S. Bedi, J. (Oral)

The detailed facts of the case need not be given as we intend sending the case file to the Magistrate''s Court for complying with the provisions of Section 475 of the Code of Criminal Procedure, Section 70 of the Army Act read along with Rules 3 and 4 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952.

Sukhwinder Singh, the appellant, has been convicted and sentenced under Sections 302 and 324 of the Indian Penal Code, for having caused the murder of Harbhajana Singh on 7th December, 1990.

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 alongwith 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, 1995(1) Recent Criminal Reports 170 (SC) : 1994(3) All India Criminal L.R. 742. The Supreme Court while construing the provisions of Section 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 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 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 the 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 on 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 then 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 was entitled to bail till such time a fresh decision was taken in the matter.

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 day to day proceedings.

JUDGMENT accordingly.