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J&K High Court · body

2009 DIGILAW 150 (JK)

Vinod Kumar (Capt. ) v. State

2009-04-02

SUNIL HALI

body2009
1. Petitioners are facing trial under sections 376/458/342 RPC before the 2nd Additional District and Sessions Judge, Jammu. An FIR No. 47/1998 came to registered with the Police Station, Mandi, Poonch against the petitioners who are the members of the armed force. At the time of registration of the case, petitioners were working under the Brigade Command, Poonch. After registration of the case, report under section 173 was presented before the Chief Judicial Magistrate, Poonch on 19-4-1999. A notice was issued on 2-6-1999 by the Chief Judicial Magistrate, Poonch to the Commanding Officer under whose unit the petitioners were working, seeking option from him, whether the accused are required to be tried by the court martial or by the civil court. Another notice by Way of reminder was sent on 5-6-99 to the Commanding Officer for exercising his option. 2. On 28-6-1999, a communication is stated to have been sent by the Commanding Officer, Satish Dua to the court whereby he communicated that the accused be tried by the criminal court. After having received the communication from the Commanding Officer, the trial commenced before the Chief Judicial Magistrate, Poonch. 3. The case was committed by the Chief Judicial Magistrate, Poonch to the Court of Sessions. The Principal District and Sessions Judge, Poonch commenced the trial after committal order was made by Chief Judicial Magistrate, Poonch. A transfer application was filed by the petitioners before the court seeking transfer of the file from Poonch to any court of competent jurisdiction at Jammu. The case stood transferred to 2nd Additional District and Sessions Judge, Jammu. Application was filed by the petitioners before the 2nd Additional District and Sessions Judge, Jammu seeking dropping of proceedings against the petitioners on the ground that the present trial was being conducted in violation of section 125 of the Army Act. The court after hearing the petitioners, has dismissed the aforesaid application vide its order dated 8-1-2005. It is under these circumstances that the present revision has been preferred by the petitioners. 4. I have heard the learned counsel for the parties. 5. It is not in dispute that the petitioners belong to armed force and were working in Poonch Brigade at the time of occurrence. The Brigade is headed by the Brigadier. The petitioners are governed by the Army Act and the rules made thereunder. 4. I have heard the learned counsel for the parties. 5. It is not in dispute that the petitioners belong to armed force and were working in Poonch Brigade at the time of occurrence. The Brigade is headed by the Brigadier. The petitioners are governed by the Army Act and the rules made thereunder. On the basis of FIR registered with the Police Station, Mandi, accused could be tried either by the criminal court or by the court martial. In order to invoke the jurisdiction of the criminal court, certain provisions of the Army Act are required to be observed. Relevant provision is section 125 of the Army Act. For facility of reference, section 125 of the Army Act is quoted herein below: "125. Choice between criminal court and court- martial: 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 officer as may be prescribed 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 person shall be detained in military custody." 6. The import of the aforesaid section reveals that where there is concurrent jurisdiction of the criminal court and the court martial in respect of offence, discretion has to be exercised by the officer commanding the army, army corps, division or independent brigade in which the accused persons are serving or such other officer as may be prescribed. The Act contemplates that such discretion has to be exercised only by the persons who are indicated hereinabove. Section 126 of the Army Act is other provision, which is required to be observed for determining the present controversy. The act relates to a situation where the proceedings are directly instituted before the Magistrate without reference to the army authorities. The Magistrate has to send notice to the officer referred in section 125 for getting his option. The option which is required to be exercised by the officer is either to deliver the offender to the nearest Magistrate or to postpone proceedings pending a reference to the Central Government. The other provision, which is required to be noted, is section 549 of Cr. PC. The option which is required to be exercised by the officer is either to deliver the offender to the nearest Magistrate or to postpone proceedings pending a reference to the Central Government. The other provision, which is required to be noted, is section 549 of Cr. PC. In exercise of powers conferred by section 549 Cr. PC, SRO, 73 was promulgated by the State of Jammu and Kashmir by virtue of which rules for the trial of the persons subject to Military, Naval or Air Force were framed. These rules are called the Jammu and Kashmir Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1983(hereinafter called the Rules). For the purpose of present discussion, rules 3 and 4 of SRO 73 are relevant, the same are quoted hereinbelow: "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 note 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 under sections 243,245,247 or 248 of Code of Criminal Procedure 1989, or hear him in his defence under section 244 of the 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 for trial to the court of Sessions under section 205-D of the said Code ; or d) make over the case for inquiry or trial under section 192 of the said Code." 7. The scheme of the Act and the rules framed therein is self evident. It provides a satisfactory machinery for resolving a conflict of jurisdiction. Further it enables subject to certain conditions, an accused to be tried successively both by court martial and by a criminal court. It does not expressly bar the jurisdiction of criminal courts in respect of acts or omissions punishable under the Act, if they are also punishable under any other law in force in India; nor it is possible to infer any prohibition by necessary implication. Sections 125,126 and 127 exclude any such inference, for they in express terms provide not only for resolving conflict of jurisdiction between a criminal court and court martial in respect of a same offence, but also provides for successive trials of an accused in respect of the same offence. 8. Any civil offence committed by an army person, shall be deemed to be an offence under the Act by the force of section 69 of the Act. With the result that the offences are triable both by an ordinary criminal court having jurisdiction to try the said offences and a court martial. In such a situation sections 125 and 126 of the Army Act are clearly intended to apply. The designated officer under section 125 is required to exercise his discretion to decide before which court the proceedings shall be instituted. The Magistrate before whom the accused has been produced, may also exercise his jurisdiction of trying the accused by a criminal court. The only limitation in exercise of his power is that the designated officer is required either to deliver over the offender to the nearest Magistrate or to postpone the proceedings pending a reference to the Central Government. It is manifestly clear that the criminal court can assume jurisdiction to try a person even if an option has been exercised by the designated officer to try the same by court martial. It is a situation where both the forums intend to try the accused to the exclusion of other meaning thereby that both have concurrent jurisdiction to try the accused. It is in this eventuality, the matter has to be referred to the Central Government for its decision, which is what contemplated by section 126 of the Act reads with rule 4 of the aforesaid Rules. It is in this eventuality, the matter has to be referred to the Central Government for its decision, which is what contemplated by section 126 of the Act reads with rule 4 of the aforesaid Rules. The only distinction in exercise of jurisdiction is that the designated officer may initiate proceedings against the accused before the court martial without seeking option of the Magistrate. The Magistrate cannot proceed unless, he serves notice on the designated officer to deliver the accused before the nearest Magistrate. This is the only distinction regarding exercise of power by a court martial and the criminal court. 9. In case on a notice served by the Magistrate on the designated officer, he exercised his option to deliver the accused, then there is no dispute regarding conflict in jurisdiction. The Magistrate can proceed to try the accused once he receives option or consent of the designated officer competent under section 125 of the Army Act. 10. The import of the rules reveal that the Magistrate will not proceed to try a person of armed force unless he is moved thereto by a competent Military, Naval or Air Force Authority or no proceedings would go before the Magistrate without moved thereto by such authority. Rule-4 contemplates the procedure and the manner in which the Magistrate is required to proceed in the matter. It reveals that the Magistrate will give written notice to the Commanding Officer or the competent Military, Naval or Air Force Authority to exercise option within fifteen days from the date of service of the notice. He will not proceed in the matter in terms of framing of charge or passing of an order of committal in cases specified therein. Notice contemplated has to be in writing and in consonance with the rules made hereunder. The arguments of the learned counsel for the petitioner are two folds: a) That no written notice has been given to the Officer Commanding in the prescribed form. b) That consent in terms of section 125 read with Rules 3 and 4 of the aforesaid Rules, is given by an incompetent person and not by an officer commanding the Brigade or the officer as may be prescribed. 11. Examining the first contention raised by the petitioners, it reveals that no written notice is stated to have been given by the Magistrate to the Commanding Officer. 11. Examining the first contention raised by the petitioners, it reveals that no written notice is stated to have been given by the Magistrate to the Commanding Officer. Report under section 174 was produced on 19-4-1999 before Chief Judicial Magistrate. There is an order passed on 2-6-1999, which shows that notice has been issued to the Commanding Officer seeking his option in terms of Rule-4 of the aforementioned Rules. On 5-6-1999, there is an endorsement in the interim order of one Sat Pal which states that copy of some document has been received. On 28-6-1999, it is stated that counsel of the accused had produced letter addressed by the Colonel Commanding Officer in the court wherein he has stated to have been given an option that the accused be tried by a criminal court. Proceeding on this assumption, the accused were committed to the court of Sessions Judge on the same date. Communication which is on the file has been issued by Colonel Commanding Officer on 27-6-1999 giving such option. There is no notice on the file stated to have been issued by the court in terms of Rule-4 of the aforesaid Rules to the Commanding Officer. This notice had to be issued in the format as provided in Appendix "C", provided under the aforementioned Rules. No such notice is stated to have been given by the Magistrate, as is revealed from the record. All that which has been noticed is that the counsel of the accused whose endorsement seems to be on the file of having received the said notice on 5-6-1999 in person, the same has been responded by the Commanding Officer of the Unit. This is not in consonance with the requirement of Rulc-4 of the aforesaid Rules. 12. Second contention raised is that the Commanding Officer would not mean an officer commanding the unit but commanding an independent Brigade, where the accused are serving. This is clearly contemplated in section 125 of the Army Act and Rule-4 of the Jammu and Kashmir Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1983. Under section 125 of the Army Act, in addition to the Commanding Officer, any other person as may be prescribed can also exercise this discretion. The proscribed officer has been defined under Rule 197 -A of the Army Rules. Under section 125 of the Army Act, in addition to the Commanding Officer, any other person as may be prescribed can also exercise this discretion. The proscribed officer has been defined under Rule 197 -A of the Army Rules. For facility of reference, Rule 197-A is quoted below: "197 A Prescribed officer under section 125: The prescribed officer for the purposes of section 125 of the Act shall, except in cases falling under section 69 of the Act in which death has resulted, be the officer commanding the brigade or station in which the accused person is serving." 13. The rule also contemplates that prescribed officer under section 125 of the Army Act would mean an officer commanding the Brigade or station in which the person is serving and not commanding officer of the unit. 14. The petitioners admittedly are involved in offence under section 376 of the Army Act and it is only the Brigadier under whose Brigade they were working at that point of time, who was required to exercise the option. 15. Be that as it may, it is evident that the only person competent to give such option, is a person commanding the Brigade and not a person commanding the unit. 16. In the present case, the option has been given by Colonel Satish Dua, Commanding Officer. The only question that is to be determined whether competent person has exercised option or not in the present case. Admittedly, the option has been given by Colonel Satish Dua, who is not commanding officer of the Brigade, which is clearly revealed by his designation. He only heads the unit and not the Brigade. It is in light of this that the present controversy has to he examined. 17. I have perused the judgment of the learned 2nd Additional District and Sessions Judge, Jammu. None of these features have been taken note by the court before rejecting the application of the present petitioners. The learned Judge has dismissed the application on the ground that there is communication of the Colonel commanding the unit who has given the permission to try the accused by a criminal court. None of these features have been taken note by the court before rejecting the application of the present petitioners. The learned Judge has dismissed the application on the ground that there is communication of the Colonel commanding the unit who has given the permission to try the accused by a criminal court. Even though the ground was specifically taken that the accused could not have been tried by the criminal court, as it was the Commanding Officer of the unit who has exercised the option and was not competent to do the same has not been considered by the trial court. Reliance has been placed on a judgment passed by the Supreme Court entitled Superintendent and Remembrancer of Legal Affairs, West Bengal v. Usha Ranjan Roy Choudhury and another, reported as AIR 1986 SC 1655. After discussing the import of sections 125 and 126 of the Army Act read with Rule-3 of Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1983, the Apex Court held as under: "The ordinary criminal court would have no , jurisdiction to take cognizance of [he case and to try the accused, an Army man in a matter where the procedure prescribed by the Rules has not been complied with, The initial lack of jurisdiction to lake cognizance and try the case would by logical necessity vitiate the trial and the order of conviction and sentence would be liable to be quashed as a result thereof" 18. Viewed from the above discussion, it transpires that the option has been exercised by the commanding officer of the unit, who is not an officer designated under section 125 of the Act. The persons who was competent under section 125 read with section 127-A was the commanding officer of the Brigade, who was designated officer to give such option. Notice which has been issued to the said commanding officer, is also not in consonance with the rules. 19. After going through the record, it reveals that the trial court has assumed the jurisdiction without complying with the requirement of sections 125 and 126 of the Army Act read with Rules 3 and 4 of the aforesaid rules. In this case, the Magistrate had issued notice to the commanding officer of the unit, who has given the option that the accused be tried by criminal court. In this case, the Magistrate had issued notice to the commanding officer of the unit, who has given the option that the accused be tried by criminal court. The only question required to be seen is that while exercising his power under section 126 read with rule 4, the Magistrate has complied with the requirement of law. Compliance with the procedure prescribed by the Act and the Rules mentioned herein supra, is mandatory requirement and any proceeding undertaken by the learned Trial Judge without complying the mandatory procedure would vitiate the trial before the ordinary criminal court and the entire proceedings be rendered null and void. This being the essential question of initial jurisdiction of ordinary criminal court to try the accused unless the procedures prescribed by the rules are complied with, ordinary criminal court would not have initial jurisdiction in regard to the matter. 20. The offence for which the accused is to be tried should be an offence of which cognizance be taken by an ordinary criminal court as well as court martial. In order to avoid conflict of jurisdiction in respect of such offences, the procedure mandated by sections 125 and 126 of the Army Act read with Rules 3 and 4 of the aforementioned rules, has to he complied with, which has not been done in the present case. The trial court exercised the jurisdiction, which did not vest in it. 21. For the reasons stated hereinabove, the order of committal made by the Chief Judicial Magistrate on the basis of which the trial against the accused was commenced by the 2nd Additional District and Sessions judge, Jammu, shall stand vitiated. Consequently the order of the 1st Additional District and Sessions Judge is set aside Revision petition is accordingly allowed alongwith connected Cr.MP.