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2006 DIGILAW 25 (JK)

Gulzi Bhai v. State Of J. &K.

2006-03-03

PERMOD KOHLI

body2006
1. Petitioners herein are the accused in Criminal Challan no. 43/2001. They have been charged for offences u/s 302/307/34 RPC by the Ist Addl. Sessions Judge, Jammu vide order dated 16th November, 2004 and put to trial. They have sought quashment of the criminal proceedings against them besides the FIR No. 25/99, Sanction Letter dated 31st March, 2003 and the orders framing the charge against them by invoking inherent jurisdiction of this court u/s 561-A Cr. P. C. Before dealing with the grounds for quashment, it is relevant to summaries the factual background leading to the filing of the present petition. FACTUAL BACKGROUND : 2. All the four petitioners are B.S.F personnel. They were posted in 14 Bn. B.S.F D. Coy. On the night of 17th July, 1999, they were performing night duty at Mala Bela BSF Bunker Post, when an army patrol party arrived on the side of the Bunker. There was firing from both the sides. I do not want to go into the allegations and counter-allegations in this regard. However, in the firing, all the army personnel sustained bullet injuries to one. One Capt. Sanjeev Dahiya, Nk Jai Narayan Tripathi, Sep Data Ram died due to bullet injuries whereas Sep Keshav Singh survived. These army personnel were from Rajput Regiment. FIR no. 25/99 was registered with the Police Station, Khour on the basis of written complaint dated 21st July, 1999 made by CO.5 Rajput Bn. In the meanwhile, a Staff Court of Inquiry was ordered by Ftr. HQ BSF, Jammu vide order dated 17th July, 1999 to investigate into the circumstances under which three army men of 5-Rajput Bn were killed and one injured. Report came to be submitted by the staff Court of Inquiry (SCOI) to the I.G BSF, Jammu who noted that the incident was due to lack of co-ordination between the patrolling party and the BSF and no one was blamed for the killing of and injuries to army personnel. However, it was decided to initiate disciplinary action against S.I A.K Sarkar and Head Constable Kundan Singh. In the meanwhile, Ftr. HQ BSF, Jammu informed the Unit that the disciplinary or administrative action be withheld until police action is completed. 3. The Army authorities also ordered a departmental enquiry by Headquarter 10 Inf. Division vide their letter dated 17th July,1999 to investigate into the circumstances regarding the death of three army personnel. In the meanwhile, Ftr. HQ BSF, Jammu informed the Unit that the disciplinary or administrative action be withheld until police action is completed. 3. The Army authorities also ordered a departmental enquiry by Headquarter 10 Inf. Division vide their letter dated 17th July,1999 to investigate into the circumstances regarding the death of three army personnel. While this inquiry was being conducted, police filed a charge sheet on completion of investigation in FIR no.25/99 for offence u/s 302/307/34 RPC and 7/25 Arms Act in the court of Ist Class Judicial Magistrate, Akhnoor against the present petitioners who were named as accused in the challan. While the charge sheet was under consideration, SHQ BSF Ferozpur was requested by the Bn. Headquarter vide their dated 2nd March, 2002 for claiming the accused for trial by BSF authorities u/s 80 of BSF Act,1968. DIG BSF Ferozpur Sector, made an application to the Judicial Magistrate, Akhnoor for transferring the case to BSF authorities for trial under the BSF Act. This request of the BSF was accepted and the Magistrate handed over the accused persons to the BSF authorities for trial under the provisions of BSF Act. 4. Before any action could be taken by the BSF authorities, SHQ BSF Ferozpur vide letter dated 2nd September, 2002 directed the BSF authorities at Jammu to send back the case to the Civil Court as the matter has been re-considered at FHQ BSF New Delhi under the instructions issued by MHA on the ground that the case involves BSF and army i.e two armed forces of Union. The BSF authorities consequently moved to Judicial Magistrate, Ist Class, Akhnoor vide their application for handing over of the accused to the Civil court for trial on the basis of the charge sheet (challan) earlier produced by the P/S Khour. The Magistrate allowed this application and accepted the challan for trials vide his detailed order dated 18th November, 2003. Vide subsequent order dated 18th November, 2003 Magistrate committed the accused petitioners to Sessions Court. Learned Sessions Judge, Jammu transferred the challan to Ist Addl. Sessions Judge, Jammu for trial who has passed the order impugned herein for trial of the accused persons for offences u/s 302/304/34 RPC read with section 7/25 Arms Act. 5. I have heard learned counsel for the parties. Mr. Learned Sessions Judge, Jammu transferred the challan to Ist Addl. Sessions Judge, Jammu for trial who has passed the order impugned herein for trial of the accused persons for offences u/s 302/304/34 RPC read with section 7/25 Arms Act. 5. I have heard learned counsel for the parties. Mr. Ajay Partap Singh, learned Advocate for petitioners have emphasized that the civil court namely the Judicial Magistrate as also the Addl. Sessions Judge have no jurisdiction to try the accused in view of the provisions of notification SRO 73, namely J&K Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1983 read with section 549 of the Code of Criminal Procedure. He has further attempted to refer to the material on record to urge that there is no evidence for putting the petitioners to trial for the offences for which they have been charged. 6. Main contention on behalf of the petitioners is that once the BSF authorities decided to take the accused for trial from the Civil Court, they cannot approach the Civil Court for trial of the accused and the Magistrate is not competent to take cognizance of the request of BSF authorities without complying with the provisions of law. It is relevant to consider the relevant provisions of law. Section 549 of the Code of Criminal Procedure deal with the delivery of Military Authorities of the persons liable to be tried to by court martial. It is relevant to consider the relevant provisions of law. Section 549 of the Code of Criminal Procedure deal with the delivery of Military Authorities of the persons liable to be tried to by court martial. This section is quoted below:- "549 -- Delivery of Military Authorities of persons liable to be tried by Court Martial -- (1) 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 cases in which persons subject 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. (2) Apprehension of such persons -- Every Magistrate shall, on receiving a written application for that purpose by the commanding officer of any body of troops stationed or employed at any such place, use his utmost endeavors to apprehend and secure any person accused of such offence." 7. State Govt. has framed rules in exercise of powers u/s 549 (1) namely the J&K Criminal courts and Court Martial (Adjustment of Jurisdiction) Rules, 1983. Preamble of these rules reveal that these rules have been made for trial of the persons subject to Military, Naval or Air Force Law or any other law relating to the Armed Forces of the Union by a court to which the said Code applies, or by a Court Martial. It is also useful to notice relevant Rules namely Rules 3,4,5,6, & 7. It is also useful to notice relevant Rules namely Rules 3,4,5,6, & 7. These Rules are reproduced below:- "(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. (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 service of the notice he shall not :- (a) convict or acquit the accused u/s 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 ir 254 of the said Code; or (c) make a order committing the accused for trial to the court of Sessions u/s 205-D of the said Code; or (d) make over the case for inquiry or trial u/s 192 of the said Code. (5) Where a magistrate has been moved by the competent Military, Naval or Air Force Authority, as the case may be, under clause (a) of rule 3, and the Commanding Officer of the accused or the competent Military, Naval or Air Force authority, as the case may be, subsequently gives notice to such Magistrate that, in the opinion of such officer or authority, the accused should be tried by a Court Martial, such Magistrate if he has not taken any action or made any order referred to in clauses (a), (b), (c) and (d) of rule 4, before receiving the notice shall stay the proceedings and , if the accused is in his power or under his control, shall deliver him together with the statement referred to in sub-section (1) of section 549 of the said Code of the officer specified in the said sub-section. (6) Where within the period of fifteen days mentioned in rule 4, or at any time thereafter but before the Magistrate takes any action or makes any order referred to in the rule, the Commanding Officer of the accused or the competent Military, Naval or Air Force authority as the case may be gives notice to the Magistrate that in the opinion of such officer or authority, the accused should be tried by a Court Martial, the Magistrate shall stay the proceedings, and if the accused in his power or under his control, shall deliver him together with the statement referred to in sub-section (1) of section 549 of the said Code to the Officer specified in the said sub-section. (7) (i) When an accused has been delivered by the Magistrate under rule 5 or 6, the Commanding Officer of the accused or the competent Military, Naval or Air Force authority, as the case may be, shall, as soon as may be, inform the Magistrate whether the accused has been tired by the Court Martial or other effectual proceedings have been taken or ordered to be taken against him. (ii) When the Magistrate has been informed under sub-rule:- @L3 = (1) @L4 = that the accused has not been tried or other effectual proceedings have not been taken or ordered to be taken against him, the Magistrate shall report the circumstances to the State Govt. which may, in consultation with the Central Govt. (ii) When the Magistrate has been informed under sub-rule:- @L3 = (1) @L4 = that the accused has not been tried or other effectual proceedings have not been taken or ordered to be taken against him, the Magistrate shall report the circumstances to the State Govt. which may, in consultation with the Central Govt. take appropriate steps to ensure that the accused person is dealt with in accordance with law." 8. It is also relevant to refer to Section 80 of the Border Security Force Act which reads as under :- "80. Choice between criminal court and security force court -- When a criminal court and a security force court have each jurisdiction in respect of an offence, it shall be in the discretion of the Director General, or the Inspector General or the Deputy Inspector General within whose command the accused person is serving or such other officer as may be prescribed, to decide before which court the proceedings shall be instituted, and, if that officer decides that they shall be instituted before a Security Force Court, to direct that the accused person shall be detained in Force custody." 9. Section 80 empowers the BSF authorities to decide as to whether the accused charged for an offence triable both by Security Force Court and Civil Court (ordinary criminal court) should be tried by the BSF authorities under the provisions of BSF Act Rule (3) of SRO 73 provides that when a person subject to law relating to armed forces of the Union is brought before a Magistrate and charged with an offence for which he can also be tried by a court martial, the Magistrate shall not proceed to or commit the case to Sessions unless moved by a competent authority or he is of the opinion that he should be proceeded without being moved by such authority. In the present case, when a charge sheet (challan) came to be presented before the Magistrate, an application was made by BSF authorities u/s 80 of BSF Act for handing over the accused to BSF authorities for trial. Rule (4) further provides that before a Magistrate decides to proceed with the trial or commit the accused, he shall give a written notice to the Commanding Officer or the competent authority. Rule (4) further provides that before a Magistrate decides to proceed with the trial or commit the accused, he shall give a written notice to the Commanding Officer or the competent authority. Since the BSF authorities themselves have approached the Magistrate under section 80 for handing over the accused for trial under the BSF Act, there was no necessity of issuing a notice by a Magistrate in terms of Rule (4). A conjoint reading of Rules 3 to 6 reveal that where a magistrate is moved under rule 3(a) or a notice is issued by the magistrate envisaged by rule (4), and the competent authority of an armed force is of the opinion that the accused should be tried by a court martial, the magistrate shall hand over the accused to such officer/authority, if under his control. Rule (7) further provides that when an accused is handed over by the Magistrate to the Commanding Officer of the accused or the competent authority, such authority shall inform the Magistrate whether the accused has been tried by the court martial or other factual proceedings are ordered to be taken against him. Sub-rule (ii) further stipulates when a magistrate is informed that the accused has not been tried or other factual proceedings are not to be taken or ordered to be taken, the magistrate is required to report the circumstances to the State Govt. which may in consultation with the Central Govt. to take appropriate steps to ensure that the accused persons be dealt with in accordance with law. In the present case, the BSF authorities initially took the custody of the accused for trial by BSF authorities in accordance with the procedure prescribed under rules 5 and 6 of SRO 73. Subsequently without initiating any proceedings or action against accused again approached the Magistrate for trial of the accused/petitioners by the Civil Court (ordinary criminal court) on the ground that no factual proceedings have been taken or ordered to be taken against the accused persons. Based upon the aforesaid position of rules, it has been argued on behalf of the petitioner that neither the Magistrate nor the learned Sessions Judge were competent to take cognizance of the charge sheet and the application filed by the BSF authority for trial of the accused by Civil Court without resorting to the procedure prescribed under Rule 7(ii). Based upon the aforesaid position of rules, it has been argued on behalf of the petitioner that neither the Magistrate nor the learned Sessions Judge were competent to take cognizance of the charge sheet and the application filed by the BSF authority for trial of the accused by Civil Court without resorting to the procedure prescribed under Rule 7(ii). A reading of the scheme of the rules make it clear that the procedure for adjustment of the jurisdiction of the courts viz the court martial and the civil courts (ordinary criminal court) has been made with a view to ensure that no person escapes the law. Certain safeguards have been provided under the rules to prevent either over-lapping of the jurisdiction or misuse of the provisions of law and ensure that offender is dealt with properly. In the present case, the BSF authorities exercised the power and jurisdiction u/s 80 of the BSF Act and secured the accused for trial by a Security Force Court. However, due to some advice because of involvement of personnel of two armed forces, it was deemed proper to send the accused to the civil court for trial. In such a situation, Rule 7 (ii) is clearly attracted. Here the Magistrate against the accused/petitioners and he was requested to take cognizance on the charge sheet earlier filed before the magistrate, but withdrawn by the BSF authorities in accordance with procedure prescribed u/s 80 read with Rules 5 and 6 of SRO 73. It is at this stage that the Magistrate or even the Addl. Sessions Judge was required to apply their judicial mind. Rule 7 (ii) clearly provides that where no effective proceedings have been taken by a court martial, the Magistrate is required to report the circumstances to the State Govt. who in turn is under an obligation to consult the Central Govt. for taking appropriate steps to ensure that the accused persons are dealt with in accordance with law. A similar question came up before the Supreme Court in case of Union of India v. Major S.K Sharma, AIR 1987 SC 1878. In the case before the Supreme Court a private complaint was lodged by an army officer against another army officer before the Magistrate who took the cognizance. Thereafter request was made to the Magistrate for handing over the accused to the army authorities to be dealt with according to law. In the case before the Supreme Court a private complaint was lodged by an army officer against another army officer before the Magistrate who took the cognizance. Thereafter request was made to the Magistrate for handing over the accused to the army authorities to be dealt with according to law. The Magistrate directed the army authorities to report the progress of the case to the Magistrate. This order was challenged before the High Court. The High Court modified the order to the extent that the final outcome of the trial by the army authorities be reported to the Magistrate. The order of the High Court came to be challenged before the Honble Supreme Court. Apex Court considering the provisions of section 475(1) of the Central Criminal Procedure Code and Central Adjustment of Jurisdiction rules which are pari-meteria to section 549(1) of the J&K Cr. P.C and the Criminal courts and Court martial (Adjustment of jurisdiction) rules held as under:- "It is clear that when the accused is made over by the magistrate to the Commanding Officer or the competent Military, Naval or Air Force authority, it is for the purpose of trial by a court martial or other `effectual proceedings to be taken or ordered to be taken against him. For rule 7(1) provides that when an accused has been delivered by a magistrate under rule 5 and 6, the Commanding Officer or the competent Military, Naval or Air Force authority must as soon as may be, inform the magistrate whether the accused has been tried by a court martial or other effectual proceedings have been taken or ordered to be taken against him, he is obliged to report the circumstance to the State Govt. and the State Govt. in consultation with the Central Govt. may take appropriate steps to ensure that the accused person is dealt with in accordance with law. The policy of the law is clear. Once the Criminal Court determined that there is a case for trial and pursuant to the aforesaid rule delivers the accused to the Commanding Officer or the competent Military, Naval or Air Force authority, the law intends that the accused must either be tried by a court martial or some other effectual proceedings must be taken against him. Once the Criminal Court determined that there is a case for trial and pursuant to the aforesaid rule delivers the accused to the Commanding Officer or the competent Military, Naval or Air Force authority, the law intends that the accused must either be tried by a court martial or some other effectual proceedings must be taken against him. To ensure that proceedings are taken against the accused the rules require the commanding Officer of the competent authority to inform the magistrate of what has been done. Rule 7 92) appears to envisage the possibility that the Commanding Officer or the competent Military, Naval or Air Force authority may not try the accused or take effectual proceedings against him even where the magistrate has found a case for trial. To cover that exigency it provides that the State Govt. in consultation with the Central Govt. on a report from the magistrate to that effect, may take appropriate steps to ensure that the accused does not escape the attention of the law. The policy of our constitutional polity is that no person should be regarded as being above the law. Military, Naval or Air Force personnel are as much subject to the law as members of the civil population." 10. To similar effect is another judgment of the Apex Court reported as AIR 1960 SC 1655. In this case also the Apex Court considered the rules relating to the adjustment of jurisdiction of court martial and ordinary criminal courts and held the rules to be mandatory, the court thus said :- "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 compiled with. The initial lack of jurisdiction to take cognizance and try the case would of logical necessity vitiate the trial and the order or conviction and sentence would be liable to be quashed as a result thereof." 11. In view of the above factual and legal background, the order taking of cognizance by the magistrate and the committal proceedings, as also the cognizance by the learned Session Judge including the framing of charge are without jurisdiction. I quash the committal proceedings and all consequential orders passed by the learned Sessions Judge. In view of the above factual and legal background, the order taking of cognizance by the magistrate and the committal proceedings, as also the cognizance by the learned Session Judge including the framing of charge are without jurisdiction. I quash the committal proceedings and all consequential orders passed by the learned Sessions Judge. Since it has been brought to the notice of the Magistrate that no effective proceedings have been initiated by the court martial, the magistrate shall report the circumstances to the State Govt. which may in consultation with the Central Govt. take appropriate steps for dealing with the accused in accordance with law. The further proceedings in the case shall be initiated only after the Magistrate receives the opinion of the State Govt. The accused person is sent to Judicial Custody, if not on bail and case be sent to Judicial Magistrate, Ist Class, Akhnoor, to comply these directions. Disposed of.