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2003 DIGILAW 392 (JK)

State v. Mangla Kumar (Hav. ) And A. M. Sangma

2003-12-09

Y.P.NARGOTRA

body2003
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 under section 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 under section 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 under section 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. 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 under section 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 under Section 205-D of the said codes; or (d) make over the case for inquiry or trial under section 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 under section 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. 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 v. State of Himachal Pradesh reported in, AIR 1971 SC 500. 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 S. 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 acriminal court exercising its ordinary jurisdiction in the manner provided by law and S. 126 would not come into operation." Their Lordships have further held that : " Rule 4 is related to cl.(a) of R. 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 under S. 126 or R. 4 requiring notice to the Commanding Officer of the accused." This auhtority 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 judgement their Lordships in para 8 have held as follows: " Under S. 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 judgement of Punjab and Haryana High Court in case Ajit Singh v. State of Punjab reported in, AIR 1970 Punjab and Haryana 351 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 under section 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. 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 under section 549 Cr. P.C and by the J&K Criminal courts and Court martial (Adjustment of Jurisdiction) Rules 1983.