N. F. CHAND v. STATE OF U. P. — 1986 DIGILAW 607 (ALL)

V. P. MATHUR, J. ( 1 ) MAJOR N. F. Chand is petitioner before this Court and opposite party No. 2 is Retired Lt. General Jagdishwar Singh Nakal. The petitioner is a person subject to (The) Army Act, 1950. There is no dispute about it. In S. 3 (b) (ii) "civil offence" has been defined as an offence which is triable by a Criminal Court. As between these two parties mentioned above, criminal proceedings giving rise to the allegations making out a case covered by Ss. 307, 147, 148, 149, 380 etc. of the I. P. C. have been started. After investigation charge-sheet has been submitted against the present applicant Major N. F. Chand. It appears that the learned Magistrate before whom the case came up was conscious of the fact that in cases of this type it is the option of the Army Authorities to decide whether they have to try the case by a court martial, or whether they have to permit it to be tried by the regular Criminal Courts. The learned Magistrate, therefore, entered into correspondence with the Army authorities. The record is before me and it appears that a letter was sent by the Magistrate informing the Authorities concerned about the pendency of the case and asking them whether they would like to try the case by a court martial. A reply was received to the effect that the matter has been referred to the higher authorities and on receipt of their direction information shall be communicated. Then on 18-12-1982 the learned Magistrate made further inquiry as to what action has been taken by the higher authorities and how the Army Authorities were going to exercise their discretion in the matter. On 24-12-1982 the Army Authorities asked for a report of police investigation and copies of the charge-sheet in this case as well as in the cross-case No. 309 A. It was clearly made out in this letter that the Army had to take a decision under S. 125 of (The) Army Act and for this purpose these papers were needed. There is on record a copy of the letter dt. 11-1-1983, sent by the learned Magistrate to Army Authorities informing that the case diary has been sent to the Copying department for preparation of the copies and it was expected back by 15-2-1983 and then the Army Authorities may further contact the Court. There is on record a copy of the letter dt. 11-1-1983, sent by the learned Magistrate to Army Authorities informing that the case diary has been sent to the Copying department for preparation of the copies and it was expected back by 15-2-1983 and then the Army Authorities may further contact the Court. Then there is a letter dt. 14-3-1983 from the Army Authorities asking the learned Magistrate to supply them with a copy of the case diary. Order was passed on this letter. The order was that the copies are given free of cost to accused and there is no provision of supplying the copies to the Army Authorities free of cost. The letter was directed to be kept on file. This order is also dt. 14-3-1983. There the matter ended and the learned Magistrate proceeded with the case and passed the impugned order on 18-7-1984 committing the accused Major N. F. Chand and one Irfan under Ss. 462, 380 and 307, I. P. C. to the Court of Session to stand their trial. Against this order, the present petition under S. 482, Cr. P. C. has been filed. ( 2 ) SECTION 69 of (The) Army Act, 1950 clearly lays down that subject to the provisions of S. 70 any person subject to this Act who at any place in or beyond India commits any civil offence shall be deemed to the guilty of an offence against this Act and if charged therewith under this section, shall be liable to be tried by a court martial. . . . . . . Section 70 is not applicable to this case because it applies only to the care in which the offence of murder is committed against a person not subject to the military, naval or air force or offence of a culpable homicide not amounting to murder or rape in relation to such a person, is committed. ( 3 ) IN view of S. 69, it is now clear that the offences with which the present applicant is being charged are civil offences under S. 69 of (The) Army Act, 1950 and he is liable to be tried by a court-martial. ( 3 ) IN view of S. 69, it is now clear that the offences with which the present applicant is being charged are civil offences under S. 69 of (The) Army Act, 1950 and he is liable to be tried by a court-martial. ( 4 ) SECTION 125 of the same Act lays down that when a Criminal Court and a court-martial have each jurisdiction in respect of an offence it shall be in the discretion of the Officer commanding the Army, Army corps, division or independent brigade in which the accused person is serving or such other person as may be prescribed to decide in which Court the proceeding is to be instituted and if that person decides that it should be instituted before a court-martial, to direct that the accused person shall be detained in military custody. ( 5 ) UNDER S. 126 of (The) Army Act, 1950 when a Criminal Court having jurisdiction is of an opinion that proceedings shall be instituted before itself in respect of any alleged offence, it may, by a written notice, require the Officer referred to in S. 125 either to deliver over the offender to the nearest Magistrate to be proceeded against according to law or to postpone the proceedings pending a reference to the Central Government. ( 6 ) RULES have been framed by the Central Government known as the Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1952. According to R. 3 of these rules where a person subject to Military, Naval or Air Force is brought before a Magistrate and charged with an offence for which he is liable to be tried by a court-martial such Magistrate shall not proceed to try such person or to issue orders for his case to be referred to a Bench, or 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 Court, 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. Rule 4 lays down-"4. Before proceeding under Cl. Rule 4 lays down-"4. Before proceeding under Cl. (a) of R. 3 the Magistrate shall give written notice to the Commanding Officer of the accused and until the expiry of a period of seven days from the date of the service of such notice shall not- (a) convict or acquit the accused under Ss. 243, 245, 247 or 248 of the Cr. P. C. , 1898 (V of 1898) or hear him in his defence under S. 244 of the said Code; or (b) frame in writing a charge against the accused under S. 254 of the said Code; or (c) make an order committing the accused for trial by the High Court or the Court of Session under S. 213 of the said Code. " ( 7 ) IT will thus be clear that before a Magistrate can proceed to try or inquire with a view to commitment for trial by any Court of Session or a High Court in cases where the person concerned is subject to Military, Naval or Air Force law, he should first make up his mind and come to a conclusion, that for reasons to be recorded, he should so proceed without being moved therefor by a competent Military, Naval or Air Force Authority or whether he can proceed if the Military, Naval or Air Force Authority itself moves him to proceed with the case. In this case the discretion has not yet been exercised by the Army Authorities. All the time they have been asking for papers and the last letter dt. 14-3-1983 shows that they wanted copies of the case diary. The learned Magistrate simply passed an order on this letter that there was no provision to supply the copies free of cost. He directed the letter to be kept on file. There does not appear anything on record to show that he communicated his order to the Army Authorities. There is also nothing on record to show that he had come to the opinion that he should proceed with the case and record reasons in support of the same. Under these circumstances he could not proceed with the base at all. There does not appear anything on record to show that he communicated his order to the Army Authorities. There is also nothing on record to show that he had come to the opinion that he should proceed with the case and record reasons in support of the same. Under these circumstances he could not proceed with the base at all. Rule 4 lays down that after forming an opinion for reasons to be recorded that he should proceed with the case without being moved by the competent Military, Naval or Air Force Authority but before actually proceeding with the case he has to give a written notice to the commanding officer of the accused and wait for a period of 7 days from the date of service of this notice and in the meanwhile he is precluded from making an order for committing the accused for trial by the High Court or the Court of Session, R. 4 (c ). ( 8 ) THE law is extremely clear. Two things are required before a Magistrate can proceed - even before committal proceedings- (1) He should be of the opinion for reasons to be recorded that it will be proper for him to proceed with the case; (2) Before proceeding and after forming his opinion he has to give a notice to the Army Authorities and then wait for 7 days from the date of the service of the notice, before making this order committing the accused for trial to the Court of Session. These provisions of the rules have not been complied with in this case. The learned Magistrate has not passed any order in writing giving reasons for coming to the conclusion that he should proceed with the matter without being moved by the Authorities, and it is not disputed that the Army Authorities have not moved him to proceed with the matter. The learned Magistrate has also not, before proceeding to record his order of committal given any notice to the Army Authorities as is required by R. 4 of the criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1952. ( 9 ) IN the case of Delhi Spl. The learned Magistrate has also not, before proceeding to record his order of committal given any notice to the Army Authorities as is required by R. 4 of the criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1952. ( 9 ) IN the case of Delhi Spl. Police Establishment, New Delhi v. S. K. Loraiya, AIR 1972 SC 2548 it has been held that the rules under the criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1952 are mandatory and if the procedure specified in the rules is not adopted, the further proceedings taken by the Criminal Courts shall not survive. ( 10 ) EARLIER in the case of Ram Sarup v. Union of India, AIR 1965 SC 247 it has been held that : -" (22) In short, it is clear that there could be a variety of circumstances which may influence the decision as to whether the offender be tried by a Court-Martial or by an ordinary Criminal Court, and therefore it becomes inevitable that the discretion to make the choice as to which Court should try the accused be left to responsible military officers under whom the accused be serving. Those officers are to be guided by considerations of the exigencies of the service, maintenance of discipline in the army, speedier trial, the nature of the offence and the person against whom the offence is committed. " ( 11 ) IT was further held that when a person charged is brought before a Magistrate on an accusation of offences which are liable to be tried by court-martial, the Magistrate is not to proceed with the case unless he is moved to do so by the relevant military authority. He can, however, proceed with the case when he be of opinion, for reasons to be recorded, that he should so proceed without being moved in that behalf by competent authority. Even in such a case he has to give notice of his opinion to the commanding officer of the accused and is not to pass an order of conviction or acquittal, or hear him in defence, or to frame any charge or to make an order of committal to the Court of Session or High Court till a period of 7 days expires from the service of notice on the Military Authority. ( 12 ) IT is open to the military authorities to intimate to the Magistrate within the period of the notice that they want to try the accused by a court martial and the Magistrate under those circumstances will have no option but to stay the proceedings and deliver the accused to the relevant Authority in accordance with the provisions of the Code of Criminal Procedure. ( 13 ) IN Ram Sarups case (1965 (1) Cri LJ 236) (SC) (supra) it was also observed that the Magistrate, however, has still a sort of control over what the military authorities do with the accused. If no effectual proceedings are taken against the accused by the military authorities within a reasonable time, the Magistrate can report the circumstances to the State Government which may, in consultation with the Central Government, take appropriate steps to ensure that the accused person is dealt with in accordance with law. ( 14 ) IN a recent case of Supdt. and Remembrancer of Legal Affairs, West Bengal v. Usha Ranjan, 1986 Cri LJ 1248 the Supreme Court was of the view that 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. It was also held that the provisions of R. 3 are mandatory. ( 15 ) TO sum up, the position in the present case is absolutely clear. The provisions of Rr. 3 and 4 of the "criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1952" have not been complied with in this case. Therefore, the order passed by the learned Magistrate committing the accused Major N. F. Chand to the Court of Session for trial is without jurisdiction and cannot be sustained. The petition under S. 482, Cr. P. C. is, therefore, allowed. The order of the learned Magistrate passed on 18-7-1984 against Major N. F. Chand directing him to be committed to the Court of Session for trial under Ss. 452, 380 and 307, I. P. C. is quashed. The petition under S. 482, Cr. P. C. is, therefore, allowed. The order of the learned Magistrate passed on 18-7-1984 against Major N. F. Chand directing him to be committed to the Court of Session for trial under Ss. 452, 380 and 307, I. P. C. is quashed. The case shall go back to the learned Magistrate to proceed afresh in the light of the legal position and specially Rr. 3 and 4 and onward of the Criminal Courts and Court-Martial Adjustment of Jurisdiction) Rules, 1952. Petition allowed. .