Research › Search › Judgment

J&K High Court · body

2012 DIGILAW 86 (JK)

Captain Vinod Kumar & Anr. v. State of J&K & Ors.

2012-03-02

HASNAIN MASSODI

body2012
1. Though Mr. Dutta, learned counsel for the petitioner on 27th and 29th of February, 2012 elaborated on the grounds urged in the petition to pray that the trial/proceedings against the petitioners in connection with Case FIR No. 47 of 1998 under Sections 376, 456, 342 RPC Police Station Mandi, Poonch, dated 25.09.1998 be "stopped and abandoned", Ld. Counsel has not come present. The record was summoned to appreciate the grounds urged in the petition against the backdrop of the record. On behalf of Mr. B. S. Slathia, Sr. Advocate, adjournment was sought by his junior associate, indicating that Mr. Salathia may also add to what has been already urged by Mr. Dutta. However, perusal of the petition and record reveals that the charge sheet alleging commission of offence of House-breaking by night and rape punishable under Sections 376, 456, 342 RPC is still at its initial, stage though the occurrence has taken place a little less than 14 years back. The matter, in the circumstances, does not admit of any further delay and it would be unconscionable to adjourn the matter and further compound the agony of the parties, more so when Ld. Counsel for the petitioners has already dilated on the grounds urged in the petition. 2. Viewed thus, the petition deserves to be taken up to see whether it deserves to be entertained. 3. Petitioners seek quashment of proceedings emanating case FIR No.47/1998 Police Station Mandi under Sections 376, 456, 342 RPC on the grounds that this Court having held the trial proceedings vitiated while disposing Criminal Revision No.5/2005 Decided on 02.4.2009, Ld. Sessions Judge, Jammu, lack jurisdiction to proceed with the trial and secure presence of the petitioners through non-bailable warrant. 4. The background facts need to be noticed in the first instance. 5. Petitioners are members of Armed Forces. Petitioner No.1 is a captain in 8th Btn JAKLI of the Army and petitioner No.2 a Havaldar in said Btn. During the night intervening 22nd and 23rd September 1998, the petitioners while posted at Army post Poonch Chaktaro, accompanied by other army personnel allegedly broke into residential house of one Noor Mohammad S/o Khan Alam resident of Chaktaro, separated male members of the family from the ladies, whisked them away and committed repeatedly rape on two female members of the family aged 18 and 24 years. The occurrence was reported by Shri Noor Mohammad to Superintendent of Police, Poonch. The Superintendent of Police directed Dy.SP Headquarter Poonch to verify and take necessary action. The Dy SP in turn referred application to SHO Poonch, whereupon case under Sections 376/348/342/148 was registered. The Investigating machinery was set into motion. During investigation, statements of victims were recorded under Section 164 Criminal Procedure Code before the Judicial Magistrate First Class, 0MIC) Poonch. The victim aged 18 years gave details how the petitioner No. 1 with the help of petitioner No.2, during the night of occurrence, allegedly disrobed the victim and committed rape on her a few times within one hour or so, he stayed in her house. The victim No. 2 in her statement stated how the petitioner No. 2 allegedly stripped her and forcibly committed rape on her in presence of her three years and one and a half year old children. The Investigating Officer also sought assistance of experts to unravel the facts. The investigation was concluded as proved against the petitioners and charge sheet presented in the Court of Chief Judicial Magistrate, Poonch on 19.04.1999. 6. The learned Chief Judicial Magistrate on 05.06.1999 issued a notice to the Commanding Officer of 8th Bn. JAKLI requiring him to exercise option as regards the trial of the petitioners. The Commanding Officer was requested to decide whether the petitioners were to be tried by Court Martial or allowed to be tried by the Criminal Code .On 28.06.1999, a Communication was received from Shri Satish Dua Commanding Officer concerned conveying his decision not to get the petitioners tried by Court Martial and consented to the petitioners trial by the criminal Court. Ld. Chief Judicial Magistrate, Poonch, on receiving the decision taken by the Commanding Officer of 8th Btn. JAKLI vide order dated 28.6.1999 committed the case to the Court of Sessions. 7. The Sessions Court on 23.10.1999 on going through the charge sheet and the material submitted therewith and on hearing the Prosecuting Officer and the accused as also their counsel, found the available material to prima facie disclose commission of offences punishable under Sections 454,342,376 RPC. 8. The petitioners were, therefore, formally charged of the aforesaid offences. They denied the charge. The prosecution, therefore, was asked to adduce evidence in support of the charge. 8. The petitioners were, therefore, formally charged of the aforesaid offences. They denied the charge. The prosecution, therefore, was asked to adduce evidence in support of the charge. The prosecution witness was closed on 6.3.2002, and the petitioners confronted with the incriminatory material appearing in the prosecution evidence. 9. On 19.03.2002, while the matter was posted for recording defence evidence the petitioners filed a Criminal Transfer application registered as CRTA No. 19/2003. The application was allowed by this Court on 31.07.2003 and the case withdrawn from the files of Sessions Judge, Poonch and transferred to Sessions Court, Jammu. 10. The case, on its receipt by learned Sessions Judge, Jammu was on 05.09.2003 transferred to Second Additional Sessions Judge, Jammu, and the accused asked to appear before the Transferee Court on 6.9.2003. No effective proceedings were taken in the case for next two years. The petitioners on 8.2.2005 filed an application before the Trial Court stating therein that as on the date of alleged occurrence, they were serving under "Poonch Brigade", in terms of Section 125 Army Act, Brigade Commander was to be given an option to get the accused tried by the Court Martial or consent to their trial by the Criminal Court. The petitioners insisted that as consent to their trial by the Criminal Court was given by Commanding officer 8th Bn. JAKLI and not the Brigade Commander of Poonch Brigade, the Committal Court lacked jurisdiction to commit the case. Learned Trial Judge after scanning the record held that as the Chief Judicial Magistrate on 02.06.1999 issued notice to the Commanding Officer 8th Bn. JAKLI to exercise option as regards the forum before which the petitioners were to be tried and issued a reminder to the Commanding Officer oh 5.6.1999 and as the Commanding Officer Shri Satish Dua exercised the option and decided not to get the petitioners tried by the Court Martial and vide his No.57448/case/A dated 27.6.1999 consented to their trial by the Criminal Court, the Committal order was in conformity with law. Learned Trial Judge opined that Section 125 of the Army Act was to be read with Section 549 Cr.PC and option given to Commanding Officer of the Regiment, Corps or attachment to which the accused belongs or the Commanding Officer of the nearest Military Sta tion and the aforesaid provisions were complied with by the Committal Court before committing the case to Sessions Court. The application for dropping the proceedings filed by the petitioners, in short, did not find favour with the learned Trial Judge and was rejected on 8.1.2005. 11. The petitioners aggrieved with the Trial Court order dated 08.01.2005 assailed it in a Criminal Revision registered as Cr. Revision No.5/2005. The petitioners reiterated their stand taken before the Trial Court. The High Court on 2.4.2009 accepted the Revision petition. The High Court took the view that the discretion is to be exercised by the officer commanding the army, Army Corps, Division or independent Brigade in which the accused personnel are serving or such other officers as may be prescribed. The Court while holding that the Magistrate before whom the accused has been produced, may also exercise his jurisdiction of trying the accused by a criminal court, held that the only limitation in exercise of his (Magistrates) power is that the designated officer is required to exercise option as regards forum before which the accused is to be tried. The Court held that notice in terms of Rule 4 had not been served on the competent officer and, in the present case, the Commanding Officer of 8th Bn. JAKLI Shri Satish Dua, was not competent to exercise the option and that notice ought to have gone to the Brigade Commander of the petitioners. The Court while allowing their Revision Petition set aside the Trial Court order dated 8.1.2005 holding that trial in consequence of the committal order stood vitiated. 12. Perusal of record reveals that the case file after the order dated 8.1.2005 was set aside by the High Court, was sent to the Committal Court, i.e., CJM, Poonch for its disposal under law. The committal court having regard to the observations made by the High Court while deciding the Revision Petition, served a fresh notice on Brigade Commander of the Brigade in which the petitioners were posted, for exercise of option as regards trial of the petitioners in terms of the relevant provisions of the Army Act. Brigade Commander in response to the notice received from the Committal Magistrate (CJM Poonch) vide his reply received on 13.3.2010 conveyed his decision not to get the petitioners tried by the Court Martial and consented to their trial by the Criminal Court. Ld. Brigade Commander in response to the notice received from the Committal Magistrate (CJM Poonch) vide his reply received on 13.3.2010 conveyed his decision not to get the petitioners tried by the Court Martial and consented to their trial by the Criminal Court. Ld. Committal Magistrate on receipt of the communication committed the case a 2nd time to the Sessions Court Poonch after complying with the requirement laid down in section 205-D Cr. P.C. The Sessions Court on its receipt took up the matter for hearing on 18.3.2010. The petitioners once again approached the High Court with an application for transfer of the case from the files of Sessions Judge, Poonch, to Sessions Court Jammu. The High Court on 11.5.2010 stayed the proceedings and finally on 10.8.2010 once again allowed the application and directed transfer of the case from the files of Sessions Court Poonch, to Sessions Court Jammu. The High Court, however, did not fix date on which the parties were to appear before the Transferee Court. The case file was received by Sessions Court Jammu from the Sessions Court Poonch and taken up for hearing on 13.9.2010. The petitioners did not appear before the Trial Court and avoided to appear on next ten hearings. Ld. Sessions Judge Jammu, in the circumstances, was left with no option but to direct issuance of non bailable warrants against the petitioners to secure their presence. However, the non bailable warrants are yet to be executed though the matter has come up before the Trial Court on four hearings after the non bailable warrants were issued. No proceedings worth the name have been taken till date. The net result of the proceedings spread over a period of about 14 years is that the charge sheet is at its threshold and yet to be taken to the 'take off' stage. 13. The petitioners' case now is that in wake of High Court judgement dated 02.04.2009 in Criminal Revision reported as Vinod Kumar (Capt.) & anr. v. State, 2009 (Supp.) JKJ HC-690, the trial stands vitiated ab intio and Ld. Sessions Judge Jammu lacks jurisdiction to proceed with the trial and let alone direct issuance of non-bailable Warrant against the petitioner to secure their presence. 14. It is strenuously argued by Mr. Dutta Ld. v. State, 2009 (Supp.) JKJ HC-690, the trial stands vitiated ab intio and Ld. Sessions Judge Jammu lacks jurisdiction to proceed with the trial and let alone direct issuance of non-bailable Warrant against the petitioner to secure their presence. 14. It is strenuously argued by Mr. Dutta Ld. Counsel for the petitioner that after the High Court, while disposing of the Criminal Revision against the order dated 08.01.2005, held the proceedings to have been vitiated, nothing was left in the matter and no cause survives. It is insisted that continuation of the trial is against the law and renders the High Court judgment dated 2.4.2009 "nugatory". It is also insisted that "not only the compulsions of the judicial conscientiousness but demands of justice, fairness and propriety that the continuance of the trial be abandoned and stopped. " 15. The case set up by the petitioners in the present petition to insist that trial be abandoned and stopped is preposterous and devoid of any merit, to say the least. The High Court while setting aside the trial Court order dated 08.01.2005 has set aside the committal order and not the proceedings before the CJM after cognizance was taken. It needs no emphasis that a criminal court has jurisdiction to proceed against and try an accused subject to Army Act, like any other accused. The only restriction on such power is that before the Court proceeds to try such accused, an option is given to the Army Officer of the rank and status mentioned in Section 125 Army Act to take a decision on the forum before which such accused is to be tried. In case the Army Officer competent in terms of Section 125 Army Act, decides to get the accused tried by the Court Martial, the Criminal Court has to respect the decision so taken and remit charge sheet/case to the Court Martial, However, in case the Army Officer decides not to get the accused tried by Court Martial and instead consents to his trial by the Criminal Court, the Criminal Court has jurisdiction to try the accused like any other accused tried by it. 16. 16. In case arguments advanced by Mr.Dutta is accepted, the accused subject to the Army Act alleged to have committed a civil offence, whom the Army Officer competent under section 125 of the Army Act decides not to get tried before the Court Martial and consents his trial by the Criminal Court shall neither be tried by the Court Martial nor by the Criminal Court and go Scott free notwithstanding gravity of the allegations levelled against him. It needs to be pointed out that all that the High Court while deciding Criminal Revision No. 5/2005 held was that the notice was not given in the requisite format and option was exercised by Commanding Officer of petitioners unit and not the Brigade Commander of the Brigade where the petitioners were posted. 17. In view of the High Court judgment dated 02.04.2009 all the proceedings that followed the Committal Order dated 28.6.1999 were rendered inconsequential. However, High Court order dated 02.04.2009 did not dismiss the charge sheet or hold thatproceeding from the date, charge sheet waspresented, and petitioners/accused entered appearance were vitiated. Learned Chief Judicial Magistrate Poonch, on receipt of the case file after the High Court judgement dated 02.04.2009, proceeded in strict accordance with law by serving a fresh notice on the Brigade Commander of the Brigade and once the Brigade Commander reiterated the stand taken by the Commanding Officer of 8th Bn. JAKLI declined to get the petitioners tried by the Court Martial and consented to petitioners trial by the Criminal Court, there was absolutely no hiccup or legal impediment in committing the case and commencing of the trial. 18. So viewed, there is no reason to hold the trial to have been vitiated ab initio or accept the stand that trial needs to be "stopped and abandoned" Ld. Sessions Judge, Jammu cannot faulted for his having taken steps, available under law to secure presence of the accused and pickup the threads after a long interval of about 13 years. For the reasons discussed, the petition is devoid of any merit and is, accordingly, dismissed. 19. Ld. Sessions Judge, Jammu cannot faulted for his having taken steps, available under law to secure presence of the accused and pickup the threads after a long interval of about 13 years. For the reasons discussed, the petition is devoid of any merit and is, accordingly, dismissed. 19. Ld. Sessions Judge Jammu is expected to realise that the matter is still at its threshold though the alleged occurrence of house breaking by night and rape as per the charge sheet has taken place during intervening night of 22nd and 23rd of September 1998 and that he is under constitutional and statutory obligation to proceed in the matter expeditiously and ensure that justice is done without any further delay. Ld. Sessions Judge Jammu, in the circumstances, shall take up the matter at least once in two weeks and exercise all powers available to him under the Code of Criminal Procedure to secure presence of the accused and thereafter proceed in the matter so that the matter is taken to its logical end, as far as in six months from the date of this order. Learned counsel for the petitioners, would do well, to advise the petitioners to appear before the Trial Court, and remain present, on every date of hearing, so that trial that is already delayed is concluded with proper despatch. Copy of the order be also handed over to Shri K. K. Pangotra, Assistant Solicitor General of India for onward transmission to Core Commander/General Office Commanding (GoC) so that presence of accused/petitioners before the trial court is ensured. 20. Parties to appear before the trial Court 06.03.2012. 21. The record be send down today itself.