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2017 DIGILAW 972 (JK)

Kuldeep Kumar v. State of J&K

2017-10-28

SANJAY KUMAR GUPTA

body2017
JUDGMENT : Sanjay Kumar Gupta, J. 1. This Criminal Revision is filed against the order dated 20.08.2010 passed by the Court of learned 3rd Additional Sessions Judge, Jammu whereby the application of the petitioner for quashment of committal order has been dismissed. 2. Facts giving rise to filing of the instant revision are that the petitioner is an army personnel bearing No. 2488432P of 21 Punjab and is thus subject to Army Act and Rules made thereunder. The police of Police Station, R.S. Pura has lodged an FIR No. 131/2001 under Sections 307/34/326, 324/148 RPC and 4/25 Arms Act against the petitioner amongst various others and filed the charge sheet before the Magistrate, who vide its order dated 20.10.2001 committed the case for trial to the Court of Sessions. It is contended that since the petitioner is an Army personnel, the learned Magistrate before passing the order of committal is bound to issue notice in writing to the Commanding Officer or Competent Authority under Section 549 Cr.P.C. read with Rule 3 & 4 of J & K Criminal Court and Court Martial (Adjustment of Jurisdiction) Rules 1983 and Section 125 of Army Act which is mandatory and binding in nature as per the bare reading of the above stated sections and rules and thus committed an error which goes to the root of the case. It is further contended that the error committed by the Magistrate was overlooked by the Sessions Court before whom the charge sheet transferred for trial and the alleged accused were thus charged under various Sections of Ranbir Penal Code and Arms Act even though when there was sufficient material existing in the file proving beyond doubt that the petitioner is an army personnel, moreover, the prosecution was also well aware of the said fact and thus the prosecution was directed to commanding officer of any body of troops stationed or employed at any such place, use his utmost endeavors to apprehend and secure any person accused of such offence. 3. 3. The petitioner is aggrieved of the order impugned dated 20.08.2010 and also Magistrate's committal order dated 20.10.2001 forming part of the criminal challan titled State of J & K vs. Baldev Raj & others pending before the Court of learned 3rd Additional Sessions Judge, Jammu, therefore, is challenging the same on the following amongst other grounds which are alternatively and without prejudice to each other: (a) That the trial Court has passed the order in clear contradiction to law. (b) That the order impugned is indicative of non-application of mind as it does not take care of the entire evidence which is a part of the challan. There is sufficient evidence existing in the present challan which leaves no doubt in proving the contention raised by the petitioner in his application. (c) That from the bare reading of the provisions mentioned herein before, it transpires that these provisions are mandatory in nature and are required by law to be strictly complied with by Magistrate before whom charge sheet is presented before its committal to the Sessions Court, and the failure to do so goes to the root of the case as such the committal order and consequently all the proceedings after such committal order are bad and non-existent in the eyes of law. (d) That since the petitioner is an army personnel, the learned Magistrate is bound to issue notice in writing to the commanding officer or competent authority under Section 549 Cr.P.C. read with Rule 3 & 4 of the J & K Criminal Court and Court Martial (Adjustment of Jurisdiction) Rules 1983 and Section 125 of the Army Act (e) That the order impugned has been passed in a casual manner and by referring to the facts which are non-existent, as there could be no occasion which would justify the recording by the learned Magistrate in its bail order of the fact that the applicant i.e. the petitioner is serving in Army. The learned Magistrate who has made a noting of the fact in its bail order about the petitioner being in Army must have some concrete evidence of the same, which formed the basis upon which such noting in the order has been made. The learned Magistrate who has made a noting of the fact in its bail order about the petitioner being in Army must have some concrete evidence of the same, which formed the basis upon which such noting in the order has been made. (f) That the prosecution in the very next month of presentation of Challan i.e. on 18.02.2002 (date of presentation of challan before the trial court is 15.01.2002) moved an application before the trial Court, wherein it is specifically admitted by the prosecution (State) that the petitioner i.e. Kuldeep Raj is serving in Army and provided the specific address of the petitioner for the service of Warrants against the petitioner. Thus the learned trial Court committed error in its finding that the petitioner did not disclose his full service particulars before the I.O. or the State. Had the full service particular was not provided by the petitioner, the application for issuance of warrants with full service particulars should not have been moved before the trial Court. The prosecution is also precluded from taking a stand that the petitioner intentionally suppressed the fact of being in service of Army and that the petitioner did not disclose this fact even at the time of framing of charge and the accused was not on active duty of his service at the time of commission of offence and that the petitioner was serving in Army at that time as the application stating petitioner to be in active army services with a prayer for issuance of warrants had been moved by the prosecution only and that too at the initial stage of the proceedings. Further the learned trial Court is erroneous in its finding that the petitioner has not furnished any record to show that he is really serving in Army and more particularly record which may establish that the petitioner was in active service of army at the time of alleged occurrence in the background of the application moved by the prosecution themselves which form part of the challan stating that the petitioner to be in service of army. (g) That the finding by the trial Court that the accused did not disclose his identity before the Court at the time when he was charged is also erroneous as on the same day when the petitioner was charged, he moved an application for permanent exemption stating therein that clearly as he is army personnel and posted outside the state as such he should be permanently exempted for appearance and should be allowed to appear through counsel, which application is accordingly accepted and the petitioner is allowed to appear through counsel and exempted permanently from appearance which finds mention in the order passed while charging the petitioner and others. (h) That it is further held by the learned trial Court that even a petition under Section 561-A Cr.P.C. was filed before the Hon'ble High Court but there too the petitioner did not disclose that he is an army personnel is wrong and erroneous as the instant petition has been moved not by the petitioner but by the complainant i.e. Sardari Lal which is titled Sardari Lal & others vs. Baldev Raj & others bearing No. 561-A 73/2004. Thus there arose no occasion to the petitioner to disclose his particulars in the petition before the High Court. (i) That further the petitioner never has intention to hide his particulars from the trial Court as he admitted the same before the trial Court as he appeared on 19.01.2006 before the learned trial Court and stated that he is in army and came on this date of hearing as he is on leave as such the hearing of the case may kindly be preponed. (j) That again the finding by the learned trial Court that the bail application and the bail bonds furnished by the petitioner did not disclose that the petitioner is an army personnel is also wrong as at the time of filing of the instant bail application, the petitioner was in custody and the same had been filed by his family relatives as such there arose no occasion before the petitioner to disclose his particulars. 4. This Court vide order dated 08.10.2010, issued notice and vide order dated 10.02.2012 record of the case was also called. 5. Heard learned counsel for the parties and perused the case file. 6. Learned counsel has also relied upon the judgments of this Court in case titled State vs. Hav. 4. This Court vide order dated 08.10.2010, issued notice and vide order dated 10.02.2012 record of the case was also called. 5. Heard learned counsel for the parties and perused the case file. 6. Learned counsel has also relied upon the judgments of this Court in case titled State vs. Hav. Mangla Kumar reported in 2005, KLJ 320 and in case titled Ravi Kumar vs. State of J & K reported in 2008 (II) SLJ 549, and in case titled Kanwardeepsingh Harbansingh Bedi vs. State of Maharashtra reported in 2010 Cri.LJ 315. 7. I have considered the rival contentions. The only question arises as to whether when the criminal case after completion of trial, has been fixed for final argument, the plea of compliance of section 549 Cr.P.C., which is corresponding to section 475 of central Cr.P.C., can be taken into consideration and whole proceeding can be held void. 8. From the perusal of main challan, it is evident that petitioner-Kuldeep Raj is facing trial in FIR No. 131/2001 of P/S R.S. Pura for offences u/s. 307/324/326/148/149 RPC and 4/25 A. Act along with five other accused before 3rd additional sessions judge, Jammu. All accused were charge-sheeted on 14.3.2002 by trial court; prosecution thereafter has completed all the evidence and even statements of accused under section 342 Cr.P.C. have been recorded; the case was fixed for final arguments. 9. On 30.11.2009 learned counsel for accused Kuldeep Raj moved an application under section 549 Cr.P.C. read with rules 3 and 4 of J & K Criminal Court and Court marital (Adjustment of Jurisdiction) Rules 1983 and section 125 of Army Act, thereby seeking quashment of the committal order dated 20.10.2001 of JMIC (CJM) Jammu and all trial conducted by 3rd additional session judge thereafter, as it is without jurisdiction. 10. The ground mentioned in the application was that he being army person at the time of incident, so JMIC was required to comply with the provisions of section 549 Cr.P.C. read with rules 3 and 4 of J & K Criminal Court and Court Marital (Adjustment of Jurisdiction) Rules 1983 and section 125 of Army Act, before passing the committal order on 20.10.2001. 11. 11. Court below on 20.8.2010 dismissed the application on the ground that accused/applicant has faced whole trial, but did not disclose his identify as army personal; even in a petition u/s. 561-A Cr.P.C. No. 73/2004 (decided on 11.08.2005) filed by complainant against the order of court below for refusing to call witnesses, accused/petitioner did not made such disclosure in this regard before High Court. Even in his statement recorded under section 342 Cr.P.C. he did not disclose this fact and identity as civilian. He has no where stated that he was army person at the time of incident. Court below has held that application has been filed half heartily with intention to delay the trial. 12. There is no dispute with regard to legal aspect of matter that, a JMIC before taking to recourse of section 205-D of Cr.P.C., i.e. before passing committal order in a criminal case against army personal, is required to follow the mandatory provisions of section 549 Cr.P.C. read with rules 3 and 4 of J & K Criminal Court and Court Marital (Adjustment of Jurisdiction) Rules 1983 and section 125 of Army Act. 13. But in present case, petitioner is not only accused; there are five more accused. At the time of presentation of challan, neither police nor accused brought to the knowledge of committal court that one of accused/applicant is army personal at the time of incident. Even during the trial this fact has not been brought to the knowledge of trial court. No application with regard has ever been filed during recording of prosecution witnesses or after framing of charge. Even in charge sheet and bail bonds, there is no mention that accused/petitioner is army personal. Even in application filed by petitioner for setting aside committal order, no documentary evidence to this effect has been annexed. In this way accused deliberately allowed the trial to be completed, so he cannot be given any benefit of its own wrong. 14. Learned counsel for accused has stated that, in bail application he has mentioned that he was army personal and even he has filed many applications for exemption thereby stating that applicant is army personal; these arguments are not tenable, because mere alleging in bail application that applicant/accused is in army it is enough, there should be evidence which has to brought to the knowledge of I/O. that he is army person. Further from the perusal of applications for exemption, there is only mention that being army personal he may be exempted. But it has not been mentioned that he was army person at the time of incident. 15. In case titled Ajit Singh vs. state of Punjab reported in AIR 1970 P & H 351, it has been held by Full bench that;- "22. The next question calling for decision arises from the non-observance of the provisions of Section 549 of the Code of Criminal Procedure and the rules framed there under. It is urged on behalf of the appellant that his committal and the trial held in pursuance thereof must be held to be without jurisdiction, According to his learned counsel, the Magistrate had no jurisdiction to begin, with, and that he could acquire jurisdiction only after a decision in his favour had been given by the Central Government in the case of a conflict between the army authorities and the Magistrate. Reliance for the contention is placed on the authorities cited in that behalf in the order of reference. In my view, however, none of those authorities can be said to have been correctly decided in view of the following observations of their Lordships of the Supreme Court in AIR 1961 SC 1762 , in relation to offence. -------------------- It may be noted here that Sections 125, 126 and 127 of the Army Act make provisions for army personnel exactly similar to those which Sections 124, 125 and 126 of the Act make in respect of members of the Air Force so that the observations just quoted are applicable mutatis mutandis to the latter set of sections and it must be held that when Section 549 of the Code of Criminal Procedure comes into play in the case of a member of the Air Force, it cannot be said that a Magistrate before whom he is produced would not have jurisdiction to take cognizance till the procedure laid down in the rules framed under the section has been gone through and the necessary order of the Central Government obtained in the case of a conflict between the Magistrate and the Air Force authorities. In view of the observations just above quoted, it must be held that the Air Force Act does not stand in the way of the Magistrate "exercising his ordinary jurisdiction in the manner provided by law". In view of the observations just above quoted, it must be held that the Air Force Act does not stand in the way of the Magistrate "exercising his ordinary jurisdiction in the manner provided by law". The result is that Section 549 above-mentioned and the rules framed there under must be looked upon as provisions which merely regulate the exercise by the Magistrate of that jurisdiction which already vests in him and cannot be treated as directions which must be followed by the Magistrate before he can "acquire" jurisdiction. This was also the view taken by a majority (Dua C.J. and Tatachari J.) in 1969-71 Pun LR (Delhi Section) 61 (FB) on a detailed consideration of various provisions of the Army Act and the above quoted observations of their Lordships of the Supreme Court." In Som Datt Datta v. Union of India, AIR 1969 SC 414 , the above view of the provisions of Sections 125 and 126 of the Army Act was reiterated in the following words: "The legal position therefore is that, when an offence is for the first time created by the Army Act, such as those created by Sections 34, 35, 36, 37, etc., it would be exclusively triable by a court-martial; but where a civil offence is also an offence under the Act or deemed to be an offence under the Act, both an ordinary criminal court as well as a court-martial would have jurisdiction to try the person committing the offence. Such a situation is visualized and provision is made for resolving the conflict under Sections 125 and 126 of the Army Act * * * * Section 125 presupposes that in respect of an offence both a criminal court as well as a court-martial have each concurrent jurisdiction. Such a situation can arise in a case of an act or omission punishable both under the Army Act as well as under any law in force in India. It may also arise in the case of an offence deemed to be an offence under the Army Act. Such a situation can arise in a case of an act or omission punishable both under the Army Act as well as under any law in force in India. It may also arise in the case of an offence deemed to be an offence under the Army Act. Under the scheme of the two sections, in the first instance, it is left to the discretion of the officer mentioned in Section 125 to decide before which court the proceedings shall be instituted, and, if the officer decides that they should be instituted before a court-martial, the accused person is to be detained in military custody; but if a criminal court is of opinion that the said offence shall be tried before itself, it may issue the requisite notice under Section 126 either to deliver over the offender to the nearest Magistrate or to postpone the proceedings pending a reference to the Central Government on receipt of the said requisition, the officer may either deliver over the offender to the said court or refer the question of proper court for the determination of the Central Government whose order shall be final. These two sections of the Army Act provide a satisfactory machinery to resolve the conflict of jurisdiction, having regard to the exigencies of the situation in any particular case." No room is left for doubt about the legal position being that the inherent jurisdiction which a Magistrate has to take cognizance of civil offences under the Code of Criminal Procedure is not taken away by any provisions of the Army Act (and, therefore, of the Air Force Act), and of Section 549 of the Code of Criminal Procedure and the rules made there under. What those provisions, envisage is concurrent jurisdiction in the criminal Courts and the courts-martial and an arrangement for the proper exercise of such jurisdiction including, when necessary, a way of resolving a conflict of jurisdiction. AIR 1967 Cal 323 and (1949) 2 Mad LJ 44, which take a contrary view, cannot be accepted as laying down good law. In AIR 1945 Mad 289 , there is no discussion of the relevant provisions of law and all that is said is: "The attention of the Magistrate who tried the accused was not drawn to Section 549. Criminal P.C., or the rules framed there under, and he did not act in accordance therewith. In AIR 1945 Mad 289 , there is no discussion of the relevant provisions of law and all that is said is: "The attention of the Magistrate who tried the accused was not drawn to Section 549. Criminal P.C., or the rules framed there under, and he did not act in accordance therewith. Consequently, the trial was illegal and the conviction and sentence must be set aside." If by the finding that the trial was illegal is meant that it was vitiated by inherent lack of jurisdiction, this authority must be held to have been overruled by AIR 1961 SC 1762 (supra) and the same would be true of AIR 1945 Bom 176, which takes a view similar to that adopted in the Madras case. 23. I may also state here that AIR 1945 Cal 340 is one of the cases mentioned in (1969) 71 Pun LR (D) 61 (FB) (supra) as laying down the law incorrectly in view of the verdict of the Supreme Court in AIR 1961 SC 1762 (supra). I have not been able to lay my hands on this authority which appears to have been miscited as AIR 1945 Cal 340. Reliance for the appellant, however, was placed mainly on the dissenting judgment of Kapur. J., in (1969) 71 Pun LR (D) 61 (FB) the following observations wherefrom have been quoted with emphasis: "From the above discussion what emerges is this that under the Army Act as well as the Rules the first option lies with the army authorities to decide the forum of trial. The Magistrate gets jurisdiction only after a decision in his favour by the Central Government in case of a conflict between the army authorities and the Magistrate. To my mind, it clearly appears that a Magistrate cannot assume jurisdiction straightway unless the army authorities have had an opportunity of deciding upon the forum. No doubt, the Magistrate can try again the accused person convicted or acquitted by the court-martial but that too can be done with the previous sanction of the Central Government." These observations no doubt lend great support to the case of the appellant but if I may say so with the greatest respect they do not lay down the law correctly in view of the interpretation placed by their Lordships on the various relevant provisions of law. I may mention in this connection that while the majority of the Judges of the Full Bench were at pains to take note of and follow the observations of the Supreme Court decision in AIR 1961 SC 1762 (supra) not a mention of that decision was made by Kapur, J., whose judgment runs counter thereto and cannot be regarded as laying down the law correctly in view of what I have already said. 24. I would accordingly hold that the contention raised on behalf of the appellant that the trial was vitiated by lack of jurisdiction in the Magistrate and the learned Additional Sessions Judge must be rejected as untenable. 25. Another point raised on behalf of the appellant is that the trial was in any case vitiated by the illegality which cannot, according to him, be considered as a mere irregularity, arising from the Magistrate not following the procedure prescribed by Section 549 of the Code of Criminal Procedure and the rules framed there under. In this point also I find no substance. Neither the Magistrate nor the learned Additional Sessions Judge was apprised of the facts which would make the said provisions applicable. It is not disputed that neither the policy of the law nor the object underlying the legal provisions just above-mentioned would appear to make it incumbent on every criminal Court taking cognizance of an offence to start with an enquiry as to whether the accused before it is or is not a person subject to Military, Naval or Air Force Law and also one to whom those provisions would apply. Nor could it be intended that an accused person could take the benefit of those provisions after he had gone through a trial ending in a conviction by the ordinary Criminal Court and thus get a chance to have the best of both worlds. It would, therefore, depend on the circumstances of each particular case as to whether a trial held in breach of the said provisions would be considered illegal and, therefore, liable to be quashed, or to be suffering from a mere irregularity not vitiating it. This was also the view of the majority of the Full Bench in (1909) 71 Pun LR (D) 61 (FB) (supra) with which I respectfully agree. Delivering the judgment of the majority. This was also the view of the majority of the Full Bench in (1909) 71 Pun LR (D) 61 (FB) (supra) with which I respectfully agree. Delivering the judgment of the majority. Dua, C.J., observed: "As a result of the foregoing discussion, the violation of Rules 3 and 4 of the Rules does not seem to us by itself to deprive the Magistrate of his inherent jurisdiction, thereby automatically nullifying all subsequent proceedings and the effect of such violation has to be determined on evaluation of all the facts and circumstances of each case." What then are the circumstances obtaining in the case with reference to which the question of illegality or otherwise of the trial of the appellant has to be determined? As stated in the referring order, it is only when the charge was framed against the appellant and his plea was recorded that he stated his occupation to be service in the Indian Air Force. When he was examined in pursuance of the provisions of Section 342 of the Code of Criminal Procedure, after the close of evidence at the trial, he again asserted that he was an employee of that Force. Apart from this, there was no material either with the Committing Magistrate or with the learned Additional Sessions Judge to indicate that the appellant had anything to do with the Air Force. Neither of them was informed at any stage that the appellate was regular Air Force employee having been enrolled as such under the Act or that he was on active service either in fact or by virtue of the legal fiction forming the basis of the notification above-mentioned and that, therefore, his case was covered by the provisions of Clause (a) of Section 72 read with those of Section 9 and Section 2 of the Act and of the said notification. Their failure to take note of the provisions of Section 549 of the Code of Criminal Procedure and the rules framed there under arose neither out of deliberation nor of negligence. Even if it be said, however, that after the appellant had disclosed his occupation to the Committing Magistrate, the latter could hold further enquiry into the matter. I do not think that any useful purpose would thereby have been served as it appears that the Air Force authorities do not intend to claim a trial of the appellant by a Court-martial. I do not think that any useful purpose would thereby have been served as it appears that the Air Force authorities do not intend to claim a trial of the appellant by a Court-martial. In this connection I may refer to the affidavit dated the 20th of August, 1969, sworn by Wing Commander K.S. Suri and placed before the referring Division Bench which states that the deponent is the Officer Commanding to whom the case of the appellant should have been referred by the Criminal Court in accordance with the provisions of Section 124 of the Act read with Section 549 of the Code of Criminal Procedure. Although a period of five months has elapsed since the affidavit was filed. Wing Commander Suri has not made a claim that the trial of the appellant should have been by a Court-martial. And Wing Commander Suri's failure in that behalf is understandable. The appellant was admittedly on leave from his Unit on the day of the occurrence and the victims of the offence alleged against him were persons not subject to Military, Air Force or Naval law. He was tried along with four others, his fifth co-accused having died before the case came up for trial. All his co-accused were persons not subject as aforesaid. It would thus be seen that the facts of the case are such as may well have persuaded the higher Air Force authorities not to take any action with reference to the provisions of Section 124 of the Act. Under the circumstances, I do not think the failure of the Courts below in not observing the provisions of Section 549 of the Code of Criminal Procedure and the rules made there under amounts to any illegality vitiating the trial, especially as no prejudice is shown to have been caused to the appellant in consequence, but would hold that it is a mere irregularity curable by what is contained in Section 537 of the Code. I am accordingly of the opinion that the case be sent back to the Division Bench for hearing of the appeal on merits." 16. In 1994 (3) CRIMES 900 in case titled Balbir Singh v. State of Punjab, the finding of full bench as mentioned above has been found correct, it has been held:- "18. I am accordingly of the opinion that the case be sent back to the Division Bench for hearing of the appeal on merits." 16. In 1994 (3) CRIMES 900 in case titled Balbir Singh v. State of Punjab, the finding of full bench as mentioned above has been found correct, it has been held:- "18. In our opinion, on a construction of the various provisions referred to above the criminal courts are not deprived of their inherent jurisdiction to take cognizance of civil offences under the Code. Before the Full Bench of the Punjab & Haryana High Court in Ajit Singh v. State of Punjab it was argued on behalf of the appellant therein, who was in "active service" of the Air Force, that on account of the non-compliance with the provisions of Section 125 of the Act and Section 549 Cr.P.C. (corresponding to Section 475 of the Code), the committal of the appellant and his trial held in pursuance thereof must be held to be without jurisdiction. The Full Bench repelled the argument and opined: "No room is left for doubt about the legal position being that the inherent jurisdiction which a Magistrate has to take cognizance of civil 1 AIR 1965 SC 247 : (1964) 5 SCR 931 :(1965) 1 Cri.L.J. 236 2 AIR 1970 P & H 351 : 1970 Cri.L.J. 11 19: 72 Punj LR 396 (FB) 101 offences under the Code of Criminal Procedure is not taken away by any provisions of the Army Act (and, therefore, of the Air Force Act), and of Section 549 of the Code of Criminal Procedure and the |rule's made there under. What those provisions, envisage is concurrent jurisdiction in the criminal courts and the court-martial and an arrangement for the proper exercise of such jurisdiction including, when necessary a way of resolving a conflict of jurisdiction." and went on to hold: "that the contention raised on behalf of the appellant that the trial was vitiated by lack of jurisdiction in the Magistrate and the learned Additional Sessions Judge must be rejected as untenable." 19. In our opinion, the view of the Full Bench is correct and we agree with it and hold that the inherent jurisdiction under which the criminal courts have to take cognizance of civil offences is not taken away by any of the provisions of the Act or Section 475 Cr.P.C. and the rules framed there under." 17. In view of above detail law on the matter in controversy, I am of the considered opinion that no prejudice has been caused to accused Kuldeep Raj due to non compliance of section 549 Cr.P.C. by committal Magistrate; further there are also five more accused who have faced trial along with the accused Kuldeep Raj. As already held, accused-petitioner never stated or brought to the knowledge of court or placed on record any documentary evidence that he was serving in army at the time of occurrence, so this plea stands given up off after 9 years of trial especially when the case has been fixed for final arguments. The law cited by learned counsel for petitioner are, thus, not applicable. Further, in all these cases there was only one accused who was army personal. In present case, there are six accused who all are civilian except petitioner herein. 18. Hence this revision petition is dismissed. I don't find any infirmity of law or facts in the order dated 20.8.2010. File of court below is sent back with direction to court below to decide the case expeditiously as already more than 15 years has passed from commencement of trial.