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Jharkhand High Court · body

2010 DIGILAW 152 (JHR)

Brigadier Harish Chander v. State of Jharkhand

2010-01-29

JAYA ROY

body2010
Judgment Jaya Roy, J.- This revision application was heard for final disposal at the admission stage with the consent of the parties. The petitioners have filed the instant revision application for quashing the order dated 17.12.2008 passed in Complaint Case No. C-599 of 2000 by Shri Prabhakar Singh, Judicial Magistrate, Ranchi whereby he has disallowed the petition filed on behalf of the petitioners for discharging them and dropping the proceeding pending against them. 2. The fact of the case, in brief, is that the opposite party no. 2 who is the wife of Major Anant Kumar, had filed a complaint petition (Complaint Petition No. C-599 of 2000) before the Chief Judicial Magistrate at Ranchi for the alleged offence under Sections 323, 324, 325, 326, 342, 352, 504, 506 read with Section 120B of the Indian Penal Code. Thereafter, the Judicial Magistrate took cognizance against the petitioners vide order dated 9.10.2002 and also issued bailable warrant of arrest by his order dated 27.2.2003 and against the said orders the petitioners filed a quashing application for quashing the order taking cognizance dated 9.10.2002 and also for quashing the entire proceeding of the criminal complaint pending before the Judicial Magistrate, Ranchi. The said quashing application was registered as Criminal Miscellaneous Petition (Cr. M.P. No. 578 of 2003) before this Court. But ultimately the said quashing application was withdrawn vide order dated 10.7.2003 with a liberty to the petitioners to raise all the points in the court below at the time of framing of charge or during the course of trial. Thereafter, the petitioners had filed a petition dated 26.7.2008 before the learned Magistrate for dropping the proceeding and discharging them. In the said petition it was categorically stated that since all the accused persons are employees of the Central Government in connection with the affairs of the Union of India in Army, sanction is required in this case for their prosecution as stated in Section 197(2) of Cr.P.C. which provides that:- "No court shall take cognizance of any offence alleged to have been committed by any member of Armed Force of the Union while acting or purporting to act, in the discharge of his official duty, except with the previous sanction of the Central Govt." 3. It is further submitted that cognizance has been taken by the court without taking sanction from the Central Govt. It is further submitted that cognizance has been taken by the court without taking sanction from the Central Govt. Accused persons being senior officers of Army were acting in the discharge of their official duty and they had not done anything beyond their jurisdiction. The sanction has not been obtained in this case hence, the case should be dismissed. It is also stated that the husband of the complainant was an officer in Army and during the court martial he was found guilty for that reason the complainant has filed this fabricated and concocted complaint petition only to harass, the senior officers. 4. The present opposite party no. 2 has also filed a rejoinder to the aforesaid petition dated 26.7.2008 filed by the petitioners. After considering the case of both the parties and perusing the records of the case and also hearing the parties at length, the trial court dismissed the aforesaid petition and directed the accused persons to appear physically in the court and fixed the case for accusation by its order dated 17.12.08. 5. The learned counsel of the petitioners Mr. Khan submits that in Cr. M.P. No. 578 of 2003 the High Court, by its order dated 10.7.2003, has given liberty to the petitioners to raise these points in the court below itself at the time of framing of charge or during the course of trial. From the record it transpires that after enquiry, the trial court has found prima facie case against the petitioners (accused persons) under Sections 323, 342 and 352 I.P.C and took cognizance of the case by its order dated 9.10.2002. The petitioners have moved before the High Court challenging the said order. After hearing the parties, the High Court disposed of the said case with the following observations:- "The learned counsel for the petitioner may raise the points in the learned court below itself at the time of framing of charge or during the course of trial regarding sanction to prosecute these petitioners who are army personnels and were in official duty on the alleged date of the occurrence and this complaint petition was filed regarding some differences in between the husband of the complainant and these petitioners who are inmates of army personnel of 23 Infantry Division Ordinance Unit, Army Campus, Namkum, Ranchi. With this observation that the petitioner will be at liberty to raise these points in the learned court below itself at the time of framing of charge or during the course of trial, if any, this criminal miscellaneous petition is hereby disposed." 6. Thus, it is clear that the question as to whether the alleged acts were committed during the discharge of official duty or not, is absolutely a question of fact which can be decided on the basis of evidence after full-fledged trial. The trial court has decided and has given its finding that after enquiry the court has not found the alleged act of causing hurt, wrong but the restraint act of assault, and using criminal force by the present accused persons were not found part of official duty. 7. In the case of Bakhshish Singh Brar vs. Smt. Gurmej Kaur and Another reported in AIR 1988 S.C. Page 257 the Hon'ble Apex Court has observed.- "It is necessary to protect the public servants in the discharge of their duties. They must be made immune from being harassed in, criminal proceedings and prosecution that is the rationale behind S. 196 and S. 197. But it is equally important to emphasis that• rights of the citizens should be protected and no excesses should be permitted. 'Encounter death' has become too common. In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and' whether the public servant has exceeded his limit. It is true that S. 196 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasized that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence." Finally in the aforesaid case the Hon'ble Apex Court has directed the trial court:- "We however, direct that the trial should proceed as expeditiously as possible. But at the same time it has to be emphasized that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence." Finally in the aforesaid case the Hon'ble Apex Court has directed the trial court:- "We however, direct that the trial should proceed as expeditiously as possible. We further record that if necessary the question of sanction under S. 97 Cr.P.C. may be agitated after some evidence has been noted by the learned Additional Sessions Judge. Special leave petition dismissed." 8. In a present pronouncement by the Apex Court reported in (2009)6 S.C.C. Page 372, State of Uttar Pradesh vs. Paras Nath Singh, it has been held as under:- "Sanction for prosecution, held, not required as these offences are not committed in the discharge of official duty Respondent charged with commission of offences under Ss. 409, 420, 461 and 468 IPC but convicted by trial court for the offences under Ss. 409 and 468 only-Appellate Court discharging respondent inter alia on the ground that sanction for prosecution was not granted by competent authority-High Court affirming the order-Held, sanction was not required in the present case-High Court's order set aside and appeal of the State directed to be heard on merits-Penal Code, 186D-Ss. .409 and 468." 9. The same view has also been taken by the Apex Court in the case of State of H.P. vs. M.P. Gupta, reported in (2004)2 S.C.C. 349 wherein it was held:- "E. Criminal Procedure Code, 1973-S. 197-Requirement of obtaining sanction to prosecute a public servant-Offences under Ss. 467, 468 and 471 IPC Held, it is no part of the duty of a public servant while discharging his official duties to commit the said offence Hence, want of sanction under S. 197, held, is no bar to prosecute a public servant in respect of such offence." 10. It is significant to mention here that taking over all view of the matter and the facts and circumstances mentioned in paras 2 and 7 of the complaint petition it is clear that the husband of the complainant, namely, Major Anand Kumar was assaulted by the petitioners and at any stretch of imagination it cannot be said that it was done in discharge of their official duty. The trial court has rightly observed that sanction is not at all required in this case. 11. Mr. The trial court has rightly observed that sanction is not at all required in this case. 11. Mr. Khan vehementally pressed his next point that the learned Judicial Magistrate has not followed the provision of Section 125 of the Army Act. Section 125 clearly stipulates " 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 persons shall be detained in military custody". 12. Mr. Khan has further submitted that the provisions of the Criminal Court and Court Martial Adjustment of Jurisdiction Rules, 1978 have also been violated by the Learned Magistrate. Rules 3 and 4 of the Rules clearly mention:- "In Rule 3-"Where a person subject to military, naval, air force or coast guard 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 or coast guard court, as the case may be such Magistrate shall not proceed. to try such person or to commit the case to the court of section, unless:- (a) he is moved thereto by a competent military, naval, air force or coast guard 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. to try such person or to commit the case to the court of section, unless:- (a) he is moved thereto by a competent military, naval, air force or coast guard 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. "In 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, air force or coast guard 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 Section 352, sub-section (1) of Section 256 or Section 257 of the Code of Criminal Procedure, 1973 (2 of 1974 or hear him in his defence under Section 254 of the said Code; or (b) Frame in writing a charge against the accused under Section 240 or sub-section (1) of Section 246 of the said Code; or (c) Make an order committing the accused for trial to the court of section under Section 209 of the said Code; or (d) Make over the case for inquiry or trial under Section 192 of the said Code." 13. Mr. Rajesh Kumar appearing for the opposite party no. 2, on the other hand, argued that the purpose of Section 125 of the Army Act & Rules 3 and 4 of the Adjustment Jurisdiction Rules are only for the purpose that it may come within the knowledge of the Army and the competent authorities that against their officers criminal case is lodged and if they want to proceed within the ambit of the Army Rules/Court Martial then they can proceed and they may inform the learned C.J.M. that they are proceeding against the said• officer by way of court martial and then the learned C.J.M. will stop the proceedings. 14. Mr. 14. Mr. Rajesh Kumar has further submitted that from the lower court records it appears that a notice under Rules 3 and 4 of the Adjustment Jurisdiction Rules was sent by the trial court which was refused by the army officers on flimsy ground and that notice with refusal dated 21.3.2002 is at page 244 of the lower court record and further that refusal goes to prove that the service of notice was valid and sufficient. Not only that, in the lower court record at page 241 another notice was also sent by the trial court dated 7.11.2003 which was received by the GOC, H.Q., 23 Inf. Division, Dipatoli informing him that against the petitioners cognizance has already been taken, under Sections 323, 324, 352 of the Indian Penal Code. The trial court has also requested to ensure the petitioner's ' presence in court on the next date, fixed i.e. 10.12.2003 which was duly replied by Major Manoj Kumar, AAG on behalf of GOC, 23 Inf. Div. informed the trial court giving reference to their letter that it• is within the knowledge of the three officers . and they have already filed a petition under Section 205 of Cr.P.C. for dispensing with their personal presence, which is pending in the Court of Judicial Magistrate (trial court) and, also stated that it is not possible for him to secure the attendance of the said three officers and also promised that nevertheless all assistance and co-operation as per law will be continued to be extended in future by the Army. The said letter of the. Army is also part of the lower court record at' page 13. Thus, it is well proved that it was within the knowledge of the Army since 2003 that against the petitioners, a criminal case is going on in the Court of Judicial Magistrate, Ranchi, under the aforesaid sections. But in spite of that the Army has never opted for initiating a court martial proceeding right from 2003 till date. So now the plea of the provisions of Section 125 of the Army Act and Rules 3 and 4 of the Adjustment of Jurisdiction Rules are of no any avail to them. In this regard learned counsel of the petitioners cited few decisions i.e. (i)1987 Cr.L.J. Page 637, and (ii) 2002 Cr.L.J. Page 531 and also few other decisions. 15. So now the plea of the provisions of Section 125 of the Army Act and Rules 3 and 4 of the Adjustment of Jurisdiction Rules are of no any avail to them. In this regard learned counsel of the petitioners cited few decisions i.e. (i)1987 Cr.L.J. Page 637, and (ii) 2002 Cr.L.J. Page 531 and also few other decisions. 15. But in my opinion, the aforesaid cases are not applicable in the facts of the present case as because in the present case, notices were issued and the Army authority had full knowledge about the same. 16. Considering the aforesaid submission of both the parties and after perusing the lower court records, I do not find much weight in the submission made by the petitioners that the trial court has not followed the provision of Section 125 of Army Act and the provisions of Criminal Court and Court Martial Adjustment of Jurisdiction Rules, 1978. 17. No other point has been argued by the petitioners before me. 18. In the aforesaid premises, I do not find any merit in this revision application which is, accordingly, dismissed. However it is needless to say that if some evidence comes during the trial in favour of the petitioners to the effect that the acts alleged in the complaint were done in the discharge of their official duties then they may agitate the question of necessity of sanction under Section 197 Cr.P.C. before the trial court. . 19. As the complaint case is of the year 2000 (Complaint Case No. C-599 of 2000), the trial court is directed to conclude the trial as early as possible preferably within a period of one year from the date of receipt of a copy of this order.