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2009 DIGILAW 233 (JK)

Ajai Uniyal (Capt. ) v. State

2009-05-15

SUNIL HALI

body2009
1. Matrimonial discord has become genesis for initiating the present spade of litigation between the parties. Petitioner is married to one Deepti at Dehradun on 19-4-2000. It seems that marriage was on rocks from the very inception. The discord led to filing of an FIR against the petitioner under section 498-A RPC read with sections 3/5 of Dowry Restraint Act by Smt. Deepti on 14-1-2002. The investigation in the case led to filing of report under section 173 by the police. The case was filed before the Chief Judicial Magistrate, Jammu on 26-11-2002. The case was set out for framing of charge by the court below. The matter came to be finally heard by the court and decided on 19-4-2004. The court did not decide the plea with regard to the framing of charge but addressed itself to the jurisdictional aspect to try the case by the criminal court. The necessity to address itself to this question was the fact that the accused no. 1 was a member of the armed force and was not ordinarily subject to jurisdiction of the criminal court. The trial court taking recourse to section 126 of the Army Act read with Rules 3 ,4,6 and 9 of the Jammu and Kashmir Criminal Courts and Court Martial ( Adjustment of Jurisdiction) Rules, 1983, sent communication to Commanding Officer seeking his option as to whether the accused is required to be tried by them or ordinary criminal court . It is this order, which has been called in question by the petitioner in these proceedings. 2. I have heard the learned counsel for the parties and perused the record. An application came to be filed by Dr. Deepti before the Chief Judicial Magistrate, Jammu, in which she pleaded that she was married to petitioner -1 and the said marriage had taken place at Dehradun on 19-4-2000. Immediately after the marriage, petitioner -1 started demanding dowry from her and on her failure to meet his demand , she was harassed and abused. Police investigation ultimately resulted in filing of report under section 173 against the petitioner under section 498-A RPC read with section 3/5 of the Dowry Restraint Act. It is not in dispute that petitioner -1 is Captain in the Army and is subject to the provisions of the Army Act and Rules. Police investigation ultimately resulted in filing of report under section 173 against the petitioner under section 498-A RPC read with section 3/5 of the Dowry Restraint Act. It is not in dispute that petitioner -1 is Captain in the Army and is subject to the provisions of the Army Act and Rules. Before invoking jurisdiction of the criminal court regarding civil offence committed by a member of the armed force, certain provisions of the Army Act are required to be observed. Sections 125 and 126 of the Army Act are quoted hereinbelow: "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." "126. Power of criminal court to require delivery of offender: 1) When a criminal court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect to any alleged offences, it may, by written notice, require the officer referred to in section 125 at his option, either to deliver over the offender to the nearest Magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central Government. 2) In every such case the said officer shall either deliver over the offender in compliance with the requisition, or shall forthwith refer the question as to the court before which the proceedings are to be instituted for the determination of the Central Government, whose order upon such reference shall be final." 3. 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 as the Jammu and Kashmir Criminal Courts and Court Martial ( Adjustment of Jurisdiction) Rules, 1983. These Rules are called as the Jammu and Kashmir Criminal Courts and Court Martial ( Adjustment of Jurisdiction) Rules, 1983. Rules 3 and 4 of SRO 73 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." 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. 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. 4. 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. 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 by a notice served on the designated officer to deliver the accused before the nearest Magistrate. 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 by a notice served 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. 5. 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. 6. There is another aspect of the matter, which is required to be taken note of. The alleged offence is stated to have been committed in Jammu, where the petitioner was residing, which is under the control of the army authorities. The designated officer under the Act has the first option to try the accused by the Court Martial and once he decides to try the person under the court martial, he will direct that the accused shall be detained in military custody. If he fails to exercise option under section 125 of the Army Act, it can be safely stated that he does not want the person to be tried by court martial. On his failure to do so, there is nothing which stops the criminal court to proceed in the matter. In the event, he receives a notice from the Magistrate under section 126 of the Army Act read with Rule-4 of the aforementioned rules to deliver the accused to the nearest Magistrate and despite notice, he does not exercise option as contemplated under the aforementioned provisions, then nothing stops the criminal court from proceeding in the matter. In case he exercises option to be tried by the court martial and the Magistrate despite the option exercised proceeds with the criminal trial, the matter is required to be decided by the Central Government, whose word will be final. The object of the aforementioned provisions clearly reveals that while exercising jurisdiction, both the forums will have to abide by the decision of the Central Government in case of conflict regarding the forum where the accused is to be tried. 7. The object of the aforementioned provisions clearly reveals that while exercising jurisdiction, both the forums will have to abide by the decision of the Central Government in case of conflict regarding the forum where the accused is to be tried. 7. The aforesaid rules can be invoked only in case criminal court has taken charge of the proceedings in criminal court against the person belonging to the armed forces. It reveals that the Magistrate will give a written notice to the Commanding Officer or the competent Military, Naval or Air Force Authority to exercise option within 15 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. 8. A conjoint reading of the aforementioned rules read with provisions of Army Act would reveal that both the army and the criminal court have the jurisdiction to try the person who has committed a civil offence. The power of the criminal court to try a person charged of the civil offence is subject to certain conditions. He can assume jurisdiction only after seeking option from the army authorities in the matter. The option exercised by the commanding officer may not necessarily preclude the Magistrate from proceeding in the matter. In that event, the conflict between two authorities regarding the trial of the accused, the matter has to be referred to the Central Government for final decision. What is visible from the reading of these provisions, is that in matter of exercise of jurisdiction, the army authorities have the first option to take decision in this regard. In case he fails to exercise option, nothing stops the criminal court to proceed in the matter irrespective of the provisions of the Army Act and the rules framed there-under. 9. Applying these principles to the present case, the trial court has directed that the notice be given to the commanding officer for seeking his option. Notice has been issued to the commanding officer on 19-4-2004. The proceedings continued before the trial court till 19-10-2004. Notice is available on the file. There has been no response from the designated officer to the notice issued by the Magistrate under the aforementioned rules. Notice has been issued to the commanding officer on 19-4-2004. The proceedings continued before the trial court till 19-10-2004. Notice is available on the file. There has been no response from the designated officer to the notice issued by the Magistrate under the aforementioned rules. This court on 16-5-2007 has passed the following order : "During the course of arguments, I have felt the necessity to peruse certain relevant provisions of the Army Act for arriving at just conclusion of the instant petition. Therefore, assistance from the counsel representing Union of India is required. Let Union of India be arrayed as respondent-2. Mr. Rajeev Bhushan Sharma, Advocate appears for the complainant, Dr. Deepti Uniyal, and prays that complainant, being the affected person, may also be arrayed as party respondent in the instant petition enabling her to contest it. Oral prayer made by Mr. Sharma is allowed and Dr. Deepti Uniyal, complainant, is also arrayed as respondent-3. Registry is directed to carry out necessary change in the title of the instant petition. Mr. V.K. Magoo, Assistant Solicitor General of India, who is incidentally present in the Court, accepts notice on behalf of Union of India. Copy of the petition has been handed over to him in the open court itself by Mr. Raina. He seeks time to have the instructions from the concerned quarter. List again immediately after summer vacation. Registry is directed to reflect the names of all the learned Advocates in the next cause list." 10. Perusal of the aforementioned order reveals that notice was given to Mr. V.K. Magoo, ASGI who represents the Union of India. The object of giving notice was only to obtain information from the Union of India, as to whether any option has been exercised by the respondents. Otherwise, there was no occasion to issue notice to the Union of India, as he was not a necessary party in these proceedings. Be that as it may, it is manifestly clear that the notice has been issued by the trial court, which has not been responded by the designated officer, which clearly reveals that he has failed to exercise option as required under the aforementioned Act and the rules. 12. Following things emerge from the above discussion: a) that no option has been exercised by the designated officer to try the accused under the court martial as contemplated by section 125 of the Army Act. 12. Following things emerge from the above discussion: a) that no option has been exercised by the designated officer to try the accused under the court martial as contemplated by section 125 of the Army Act. Since the offence itself was committed within the army area, they have not chosen to take any step in terms of the aforesaid rules and the Act. b) that despite notice dated 19-4-2004 issued by the Magistrate to the designated officer to exercise option of handing over the accused to the nearest Magistrate, the option has not been exercised by the designated officer. It clearly reveals that failure on part of designated officer to exercise option, leaves open to the criminal court to proceed with the trial. The trial court has not taken this fact into consideration, even though the proceedings before the trial court continued till 19-10-2004. It is, however, pertinent to mention that the proceedings before the trial court were stayed by this court but that did not stop the designated officer to submit his option to the Magistrate, which would have clinched the issue. Be that as it may, the fact of the matter is that no option has been exercised by the designated officer, which leaves the criminal court free to try the accused. 13. There is another aspect of the matter which relates to petitioners 2 and 3, who admittedly are not subject to the Army Act. In such a situation, what will be possible for the army authorities to try these persons, when admittedly they were not subject to their jurisdiction. However, this matter need not to be addressed by this court. 14. Mr. P.N. Raina, learned counsel for the petitioners lastly contended that the offence has been committed in the year 2002 and the limitation period prescribed under section 122 of the Army Act having been expired, the court martial has no jurisdiction to try the case. After the expiration of three years, the period of limitation, the persons charged with offences cease to be liable to arrest or trial by court martial. Section 122 of the Army Act clearly envisages that period of three years starts from the date the offence has been committed. Admittedly, no step has been taken by the designated officer to have the accused tried within the stipulated period. Nothing prevented him to initiate proceedings under section 122 of the Army Act. Section 122 of the Army Act clearly envisages that period of three years starts from the date the offence has been committed. Admittedly, no step has been taken by the designated officer to have the accused tried within the stipulated period. Nothing prevented him to initiate proceedings under section 122 of the Army Act. There was no stay order from the court against the designated officer not to initiate proceedings. He has willfully abdicated his power to try the accused under the court martial. On this count also, no proceeding before the court martial can be contemplated after the expiry of aforesaid period. 15. From the discussion held hereinabove, I hold that the designated officer under section 125 of the Army Act has failed to exercise option, which leaves the criminal court free to try the case. Failure on part of the authority to try the accused within a period of three years as contemplated by section 122 of the Army Act, also precludes jurisdiction of the court martial to try the accused. 16. From what has been stated above, I set aside the order dated 15-4-2004 passed by the Chief Judicial Magistrate, Jammu and direct that he should hear the accused on question of charge and proceed with the trial 17. This order will also dispose of Petition No. 67/2004. The order dated 14-4-2004 shall stand quashed. The trial court will proceed to hear the petitioner on the question of charge. 18. Disposed of both the petitions alongwith connected Cr. MPs.