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2013 DIGILAW 602 (PAT)

Ajay Kumar @ Ajay Kumar Mishra v. State of Bihar

2013-05-09

GOPAL PRASAD

body2013
ORDER This is an application for quashing the order dated 21.11.2011 passed by the learned Sub-Divisional Judicial Magistrate, East Muzaffarpur in Complaint Case No. 09 of 2004, Trial No. 849 of 2011 rejecting the application dated 12.08.2010 filed by the petitioner under Section 475 of the Code of Criminal Procedure for delivering him to the Commanding Officer of the Unit to which the petitioner belongs, i.e. to the Commanding Office INS ANGRE, Shahid Bhagat Singh Road, Mumbai for the purpose of Court Martial. 2. The petitioner is sub-lieutenant in Indian Navy in defence service under the Commanding Officer of INS, ANGRE, Shahid Bhagat Singh, Road, Mumbai. 3. The prosecution case as alleged in the Complaint Case No. 09 of 2004 is that the complainant had purchased 0.07 acre of land from Smt. Shobha Devi through a sale deed dated 29.11.2003 and came in possession of the same since the date of purchase and he had sown wheat crop in the field. The accused persons started destroying the wheat crop by digging the earth and when the informant went there and protested, the accused persons abused him and asked as to how did he dare to get sale deed executed from his Mausi and started assaulting him with slaps and fists. They kept the complainant in confinement for about half an hour. They destroyed the wheat crop and ridged the field causing loss of about Rs.2,000/- and snatched a Titan wrist watch worth Rs.900/- from the complainant and also snatched cash Rs.450/- from the complainant. 4. On the complaint, the case proceeded after taking cognizance, process issued and even evidence before charge has been recorded and at the stage of framing of charge a petition under Section 475 Cr.P.C. was filed. 5. However, the petition was filed under 475 Cr.P.C. on 12.08.2010 before the S.D.J.M. East Muzaffarpur by the petitioner that the notice be sent to the Commanding Officer of the Unit in Indian Navy in which the petitioner is in service in INS, ANGERA, Shahid Bhagat Singh Road, Mumbai 40023. 6. The Magistrate after hearing the parties rejected the petition filed under Section 475 Cr.P.C., on the ground that the evidence before framing the charge has been recorded. The case has been fixed for framing of the charge. 6. The Magistrate after hearing the parties rejected the petition filed under Section 475 Cr.P.C., on the ground that the evidence before framing the charge has been recorded. The case has been fixed for framing of the charge. Since the place of occurrence of the present case is under Drai Police Station in the District of Muzaffarpur under jurisdiction of this Court so this case does not come under Section 475 Cr.P.C. and the Court of learned S.D.J.M., East Muzaffarpur is quite competent to try the case, hence, the petition filed by the petitioner under Section 475 Cr.P.C. was rejected. 7. The petitioner has challenged the order rejecting his petition under Section 475 Cr.P.C. before this Court by filing the present petition under Section 482 Cr.P.C. 8. Learned counsel for the petitioner submits that Section 475 of the Code of Criminal Procedure as well as the Rules 3 and 4 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 provides that the Magistrate taking cognizance shall not proceed with the case unless the appropriate Commanding Officer in Indian Navy in which the petitioner is in service is noticed for his option to try the case by Court-martial or not. 9. Learned counsel for the informant, however, contended that the Magistrate has also jurisdiction to try the case if the trial of the petitioner before the Magistrate shall not prejudice the case of the petitioner. 10. Hence, the question for consideration whether the Magistrate can proceed with the case without notice to the Commanding Officer of Indian Navy in which the petitioner is in service. 11. Now I proceed to consider the Scheme of the Navy Act, 1957 for person in Indian Navy.– Section 2 of the Navy Act, 1957 defines persons subject to naval law as a person belonging to Indian Navy during the time he is liable for service or on active service Section 3(1) defines “active service” means service or duty. Section 3(3) defines “civil offence” means an offence triable by a Court of ordinary criminal jurisdiction in India. Section 3(23) defines “subordinate officer” means a person appointed as an acting sub-lieutenant, a midship-man or a cadet in any Branch of the Indian Navy or the Indian Naval Reserve Forces. Section 3(6) defines “Court-martial” means a Court-martial constituted under this Act. Section 3(3) defines “civil offence” means an offence triable by a Court of ordinary criminal jurisdiction in India. Section 3(23) defines “subordinate officer” means a person appointed as an acting sub-lieutenant, a midship-man or a cadet in any Branch of the Indian Navy or the Indian Naval Reserve Forces. Section 3(6) defines “Court-martial” means a Court-martial constituted under this Act. Section 3(13) defines “naval offence” means any of the offences under sections 34 to 76. Section 3(16) “officer” means a commissioned officer and includes a subordinate officer but does not include a petty officer. 12. Section 77 defines Civil offences.– (1) Every person subject to naval law who commits a civil offence punishable with death or with imprisonment for life shall be punished with the punishment assigned for that offence. (2) Every person subject to naval law who commits any other civil offence shall be punished either with the punishment assigned for the offence or with imprisonment for a term which may extend to three years or such other punishment as is hereinafter mentioned. 13. Section 78 defines jurisdiction as to place and offences.– (1) Subject to the provisions of sub-section (2), every person subject to naval law who is charged with a naval offence or a civil offence may be tried and punished under this Act regardless of where the alleged offence was committed. (2) A person subject to naval law who commits an offence of murder against a person not subject to army, naval or air force law or an offence of culpable homicide not amounting to murder against such person or an offence of rape in relation to such person shall not be tried and punished under this Act unless he commits any of the said offences – (a) while on active service; or (b) at any place outside India; or (c) at any place specified by the Central Government by notification in this behalf. 14. Hence, Section 78 provides that every person subject to naval law who is charged with a naval offence or a civil offence may be tried and punished under this Act regardless of where the alleged offence was committed. Hence, a person subject to naval law even if commits a civil offence is required to be tried under this Act irrespective of the offence committed anywhere. 15. Hence, a person subject to naval law even if commits a civil offence is required to be tried under this Act irrespective of the offence committed anywhere. 15. Section 93 defines power of court-martial and commanding officers to try offences.– (1) An offence triable under this Act may be tried and punished by court-martial. ....... 16. Hence, the offence triable under the Navy Act may be triable by Court-martial. 17. Hence, it is apparent that the Navy Act provides two types of the offence, one is naval offence and other is civil offence. The civil offences are offences triable by Criminal Courts in India and naval offence are offences under Section 36 to 76 of the Navy Act. The petitioner is sub-lieutenant and hence, is person subject to naval law. Section 78 provides that person subject to naval law charged with naval offence and civil offence may be tried and punished under this Act regardless of the place where the offence committed. Section 93 provides that offence triable under this Act may be tried and punished by Court-martial. Hence, the Court-martial has the jurisdiction to try a case falling under civil offence with regard to person subject to naval law irrespective of the place of occurrence. 18. Section 93 provides that offence triable under this Act may be tried and punished by Court-martial. Hence, the Court-martial has the jurisdiction to try a case falling under civil offence with regard to person subject to naval law irrespective of the place of occurrence. 18. Now Section 475 of the Code of Criminal Procedure, 1973 provides as follows :– (1) The Central Government may make rules consistent with this Code and the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957), and the Air Force Act, 1950 (45 of 1950), and any other law, relating to the Armed Forces of the Union, for the time being in force, as to cases in which persons subject to military, naval or air force law, or such other law, shall be tried by a Court to which this Code applies or by a Court-martial, and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which this Code applies or 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 unit to which he belongs, or to the commanding officer of the nearest military, naval or air-force station, as the case may be, for purpose of being tried by a Court-martial. Explanation.–In this section – (a) “unit” includes a regiment, corps, ship, detachment, group, battalion or company. (b) “Court-martial” includes any tribunal with the powers similar to those of a Court-martial constituted under the relevant law applicable to the Armed Forces of the Union. (2) Every Magistrate shall, on receiving a written application for that purposes by the commanding officer of any unit or body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavours to apprehend and secure any person accused of such offence. (3) A High Court may, if it thinks fit, direct that a prisoner detained in any jail situate within the State be brought before a Court-martial for trial or to be examined touching any matter pending before the Court-martial. 19. (3) A High Court may, if it thinks fit, direct that a prisoner detained in any jail situate within the State be brought before a Court-martial for trial or to be examined touching any matter pending before the Court-martial. 19. The Central Government in exercise of the power under Section 475 of the Code of Criminal Procedure, 1973 and in suppression of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules 1952 have constituted a rule called the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 (hereinafter be referred as Rule) and it is relevant to quote Paragraphs 3, 4, 5, 6 and 7 of the said Rules:– 3. Where a person subject to Military, Naval, Air Force law 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 such Magistrate shall not proceed to try such person or to commit the case to the court of session, unless :– (a) He is moved thereto by a competent authority, Naval Air Force or Coast Guard Authority; or 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. 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 252, sub-section (1) and (2) of Section 255 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 session under section 209 of the said Code; or (d) Make over the case for inquiry or trial under section 192 of the said Code. 5. Where a Magistrate has been moved by the Competent Military, Naval, Air Force, or Coast Guard authority, as the case may be, under clause (a) of rule (3) and the such authority, as the case may be, subsequently gives notice to such Magistrate that in the opinion of such authority, the accused should be tried by a Court Martial, or Coast Guard Court such Magistrate if he has not taken any action or made any order under 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 475 of the said code to the officer specified in the said sub-section. 6. 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 that rule, the Commanding Officer of the accused or the competent Military, Naval, Air Force or Coast Guard authority, as the case may be, give 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 is in his power or under his control, shall deliver him together with the statement referred to in sub-section (1) of section 475 of the said Code to the Officer specified in the said sub section. 7. (a) 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, Air Force or Coast Guard Authority, as the case may be, shall as soon as may be, inform the Magistrate whether the accused has been tried by a court martial or coast guard court or other effectual proceedings have been taken or ordered to be taken against. (b) When the Magistrate has been informed under sub rule (1) 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. 20. From the conjoint reading of Section 475 Cr.P.C. read with Sections 3 and 4 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules 1978 referred to as the Rule, it is apparent that if a person subject to naval law is charged with civil offence for which he is also liable to be tried by a court-martial, is brought before a Magistrate, then under rule 3(a) of the Rule the Magistrate can proceed with a case only if the competent naval authority moves to proceed with the trial by Criminal Court. However, under rule 3(b) if the Magistrate is of the opinion that he should proceed without being moved by such authority he can only proceed for reason to be recorded for so proceeding. However, under rule 3(b) if the Magistrate is of the opinion that he should proceed without being moved by such authority he can only proceed for reason to be recorded for so proceeding. But under rule 4, before proceeding he is required to give a written notice to the Commanding Officer of the competent naval authority and until the expiry of a period of fifteen days from the date of service of notice to the said authority he shall not proceed either to convict or acquit or frame a charge or make over commitment or make over the case for inquiry under Section 192 of the Code. Rules 5 and 6 of the Rule provides that even if the competent authority moved Magistrate under rule 3 or even the Magistrate having been given notice to the competent authority but within fifteen days of sending the notice or before the Magistrate proceed under rule 4 if he receive a communication from the competent authority to deliver the accused for being tried by a Court-martial then the Magistrate if has not taken any action shall stay the proceeding. However, rule 7 provides that if under rule 5 and 6 the accused is delivered by the Magistrate, the Commanding Officer shall soon inform the Magistrate whether the accused has been tried by a court martial or other effectual proceedings. However, if the Magistrate has been informed that the accused has not been tried or other effectual proceedings has not been taken up by the competent authority of the accused then the Magistrate shall report the circumstances to the State Government which may, in consultation with the Central Government take appropriate step to ensure that the accused person is dealt with in accordance with law. 21. Moreover, under the facts and circumstances of the case, it is apparent that neither the competent authority of the accused under Navy Act 1957 moved the Magistrate nor the Magistrate before proceeding against the petitioner formed an opinion for reason to be recorded nor given notice to the competent authority as required under rule 3(a)(b) and 4 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules 1978. Hence, there is clear violation of Rule 3 and 4 of the Rules framed by the Central Government in exercise of power under Section 475 Cr.P.C. However, the petition filed under Section 475 Cr.P.C. for adherence to rule has been rejected by impugned order dated 21.11.2011 on erroneous ground. Section 475 Cr.P.C. provides that in case a person subject to Naval Law is required to be tried by the ordinary Criminal Court to which Cr.P.C. applies or by Court Martial and when a person is brought before the Magistrate, the Magistrate shall, regards to the rules framed hereunder, in proper case deliver him together with statement of offence for which he is an accused, to the Commanding Officer of the Unit or the nearest naval station for being tried by Court Martial but the learned Magistrate in contravention to these mandatory provision rejected the petition. Hence, order passed is in strict violation of Rules framed by the Central Government under Section 475 Cr.P.C. The Magistrate is required to notice the Commanding Officer of the Unit of the petitioner after recording reasons and shall not proceed within fifteen days as per rule 4. 22. In the decision of the Supreme Court in the case of Joginder Singh Vs. The State of Himachal Pradesh reported in AIR 1971 SC 501 where the Section 549 Cr.P.C., 1898 which is pari materia with Section 475 of the Cr.P.C. and rule 3 and 4 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 which is pari materia to the rule 3 and 4 of the present rule 1978 was considered. The fact in the case reported in AIR 1971 SC 501 (supra) that a military personnel was alleged to have raped on Gayatri Devi. The father of the victim was not allowed to cantonment area. The First Information Report lodged with ordinary police station. The case ended in conviction by Assistant Sessions Judge. The conviction challenged on the ground that the Assistant Sessions Judge was required to give notice to Commanding Officer of the Unit while interpreting Section 539 Cr.P.C. and Rules 3 and 4 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules and held that there is no violation. It is relevant to quote para 29 ...... 29. Rule 4 is related to cl. It is relevant to quote para 29 ...... 29. Rule 4 is related to cl. (a) of Rule 3 and will be attracted only when the Magistrate proceeds to conduct the trial without having been moved by the competent military authority. It is no doubt true that in this case the Assistant Sessions Judge has not given a written notice to the Commanding Officer as envisaged under Rule 4. But, in our view, that was unnecessary. When the competent military authorities, knowing full well the nature of the offence alleged against the appellant, had released him from military custody and handed him over to the civil authorities, the Magistrate was justified in proceeding on the basis that the military authorities had decided that the appellant need not be tried by the court-martial and that he could be tried by the ordinary criminal court.” 23. In decision reported in AIR 1986 Supp SCC 190 (1653) Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. USHA Ranjan Roy Choudhury and Another the offence alleged was triable by Special Court presided over by Judge. Hence, the point raised that Section 549(a) Cr.P.C. 1898 and rule 3 and 4 of the Criminal Court and Court Martial Act are applicable to Court presided over by Magistrate as well as to a Judge presided over a Special Court. It was held that these provisions are mandatory and even applicable in respect of proceeding before Special Court. 24. Hence, having regard to the facts and circumstances of the case and for reason recorded above, the impugned order dated 21.11.2011 is set aside with direction to proceed in accordance with law. 25. Accordingly, this petition is allowed.