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Madhya Pradesh High Court · body

2016 DIGILAW 680 (MP)

Karamjeet Singh v. State Of M. P.

2016-08-09

S.K.PALO

body2016
ORDER : Mr. G. S. Ahluwalia, learned counsel for the petitioner. Ms. Surabhi Nigam, learned Deputy Government Advocate for the respondent/State. Heard. This revision under section 397 read with section 401 of the Code of Criminal Procedure has been preferred against the order dated 13-4-2016 passed by 18th Additional Sessions Judge, Jabalpur in Special Case No. 207/2010 whereby learned Additional Sessions Judge refused to allow the application filed by the petitioner under sections 125 and 126 of the Army Act, 1950. 2. Filtering unnecessary details, the facts requisite for disposal of this revision, are that allegedly the petitioner served in Indian Army as a soldier on the basis of forged mark-sheet, therefore, FIR was lodged by Army and proceeding has been initiated by police for offence under sections 420, 467, 468 and 471 of the Indian Penal Code. After filing of the charge-sheet, trial is in progress before learned Additional Sessions Judge, Jabalpur. Referring sections 125 and 126 of the Army Act, 1950 the petitioner filed an application requesting the learned Additional Sessions Judge to drop the proceeding on the ground that no intimation was given to the Commanding Officer as required under sections 125 and 126 of the Army Act, 1950. Learned Additional Sessions Judge vide impugned order dated 13-4-2016 dismissed the same stating that the petitioner is no more in Army services and, therefore, sections 125 and 126 are not attracted in the present case, and the petitioner did not file the application at preliminary stage and filed the same at the stage of defence evidence. 3. Learned counsel for the petitioner argued that if the provisions of sections 125 and 126 of the Army Act, 1950 are not complied with, it goes to the root of the case and the trial would be vitiated. He has placed reliance on the decisions rendered in Delhi Special Police Establishment, New Delhi vs. Lt. Col. S. K. Loraiya, (1972) 2 SCC 692 and Captain P. K. Rekwal vs. State of M.P., 2001 (1) MPHT 72 in support of his contentions. 4. Learned Deputy Government Advocate has opposed the contentions raised by the learned counsel for the petitioner and submitted that the order impugned is well merited and does not call for any interference. 5. Col. S. K. Loraiya, (1972) 2 SCC 692 and Captain P. K. Rekwal vs. State of M.P., 2001 (1) MPHT 72 in support of his contentions. 4. Learned Deputy Government Advocate has opposed the contentions raised by the learned counsel for the petitioner and submitted that the order impugned is well merited and does not call for any interference. 5. Having heard learned counsel for the parties and perusing the record, it is found that criminal trial is pending before 18th Additional Sessions Judge for offences punishable under sections 420, 467, 468 and 471 of the Indian Penal Code for allegedly entering into Army service by the petitioner with the help of forged mark-sheets. 6. For better understanding of the provisions, sections 125 and 126 of the Army Act, 1950 are reproduced 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. 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 of any alleged offence, 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 very 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.” Plain reading of the aforesaid provisions shows that Criminal Court having jurisdiction is, of the opinion that proceedings shall be instituted before itself in respect of any alleged offence, it may, by written notice require the officer referred to in section 125 of his option, either to deliver over the offender to the nearest Magistrate to be proceeded against according to law and to postpone proceedings pending a reference to the Central Government. 7. In the case of Lt. Col. S. K. Loraiya (supra) in paragraph 9 the Supreme Court has held as under : “9. As regards the trial of offences committed by army men, the Army Act draws a threefold scheme. Certain offences enumerated in the Army Act are exclusively triable by a Court-martial; certain other offences are triable both the ordinary criminal court and the court-martial. In respect of the last category both the Courts have concurrent jurisdiction. Section 549(1), Criminal Procedure Code is designed to avoid the conflict of jurisdiction in respect of the last category of offences. The clause “for which he is liable to be tried either by the Court to which this Code applies or by a court martial” in our view, qualifies the preceding clause “when any person is charged with an offence” in section 549(1). Accordingly, the phrase “is liable to be tried either by a Court to which this Code applies or a court-martial” imports that the offence for which the accused is to be tried should be an offence of which cognizance can be taken by an ordinary criminal court as well as a court-martial. In our opinion, the phrase is intended to refer to the initial jurisdiction of the two Courts to take cognizance of the case and not to their jurisdiction to decide it on merits. It is admitted that both the ordinary criminal court and the court-martial have concurrent jurisdiction with respect to the offences for which the respondent has been charged by the Special Judge. So, section 549 and the rules made thereunder are attracted to the case at hand.” 8. It is admitted that both the ordinary criminal court and the court-martial have concurrent jurisdiction with respect to the offences for which the respondent has been charged by the Special Judge. So, section 549 and the rules made thereunder are attracted to the case at hand.” 8. This Court in earlier judgment in the case of Captain P. K. Rekwal (supra) has held as under : “....Under section 475 of the Code rules consistent with Criminal Procedure Code and Army Act may be framed and Magistrate shall have regard to such Rules. If ordinary criminal Court decides to try accused who is subject to Army Act, it will have to give notice to the Army authorities as per mandatory provision in sections 125 and 126 of the Act and Rules 3 and 4 of the Rules, 1952 — As mandatory procedure has not been followed the trial against the petitioners is vitiated. - The impugned order framing charges against the petitioners is quashed and proceedings stayed.” 9. In this regard Rules 3 and 4 of the Criminal Courts and Court-martial (Adjustment of Jurisdiction) Rules, 1952 are felt necessary to be also reproduced below : “3. Where a person subject to Military, Navel or Air Force law is brought before a Magistrate and charged with an offence for which he is liable to be tried by Court-Martial, such Magistrate shall not proceed to try such person or to inquire with a view to his commitment for trial by the Court of Session or the High Court for any offence triable by such Court, unless — (a) he is of opinion, for reasons to be recorded, that he should so proceed without being moved thereto by competent Military, Naval or Air Force authority, or (b) he is moved thereto by such authority. 4. 4. Before proceeding under clause (a) of Rule 3, the Magistrate shall give a written notice to the Commanding Officer of the accused and until the expiry of a period of — (i) three weeks, in the case of a notice given to a Commanding Officer in command of a unit or detachment located in any of the following areas of the hill districts of the State of Assam, that is to say — (1) Mizo, (2) Naga Hills, (3) Garo Hills, (4) Khasi and Jaintia Hills, and (5) North Cachar Hills; (ii) Even days, in the case of a notice given to any other Commanding Officer in command of a unit or detachment located elsewhere in India, from the date of the service of such notice, he shall not — (a) convict or acquit the accused under sections 243, 245, 247 or 248 of the Code of Criminal Procedure, 1898 (Act 5 of 1898), or hear in his defence under section 244 of the said Code; or (b) frame in writing a charge against the accused under section 254 of the said Code; or (c) make an order committing the accused for trial by the High Court or the Court of Session under section 213 of the said Code; or (d) transfer the case for inquiry or trial under section 192 of the said Code.” Under these rules framed by the Central Government, where a person subject to Military, Naval or Air Force law, the Magistrate shall have regard to such Rules. Combined reading of the above rules and provisions of sections 125 and 126 of the Army Act, 1950, provides that accused is subject to Army Act, the criminal court before proceeding against him will have to give notice to the Commanding Officer of the accused as envisaged under sections 125 and 126 of the Army Act. 10. Compliance of the aforesaid procedure prescribed by the above Rules is mandatory requirement. The words used in sections 126 “when a criminal court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged offence” means that before proceeding with the criminal trial, the additional sessions Judge ought to have followed this provision. 10. Compliance of the aforesaid procedure prescribed by the above Rules is mandatory requirement. The words used in sections 126 “when a criminal court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged offence” means that before proceeding with the criminal trial, the additional sessions Judge ought to have followed this provision. In the proceeding undertaken by learned Additional Sessions Judge, without compliance of the aforesaid mandatory provision is vitiated and entire exercise would be null and void as has been held by the Supreme Court in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Usha Ranjan Roy Choudhary, 1986 Cr.L.R. (SC) 309. 11. In view of the above legal and factual position, this Court is of the opinion that the aforesaid provisions and law have not been followed in the present case and, therefore, the trial against the petitioner will render vitiated. This petition is therefore, allowed, setting aside the impugned order dated 13-4-2016. It is directed that learned 18th Additional Sessions Judge, Jabalpur shall follow the above provision and if the competent authority of the Army decides that trial be conducted by ordinary criminal Court, then proceed against the accused from the stage of framing of charge.