Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13
PETITIONER:
S. K. KASHYAP & ANR.
Vs.
RESPONDENT:
THE STATE OF RAJASTHAN
DATE OF JUDGMENT02/03/1971
BENCH:
RAY, A.N.
BENCH:
RAY, A.N.
VAIDYIALINGAM, C.A.
CITATION:
1971 AIR 1120 1971 SCR (3) 881
1971 SCC (2) 126
ACT:
Army Act, 1878 (1 of 1878)-Sections 125 and 126-Code of
Criminal Procedure, 1898 (5 of 1898) Section 549-Criminal
Courts and Court Martial (Adjustment of Jurisdiction)
Rules, 1952-jurisdiction of Special Judge-Rules 4, 5, 8 and
9-Scope of Rules.
Criminal Law Amendment (Amending) Act, 1966-Section 5(1) (a)
(b) "Pending", "Charged with and tried for an offence",
meaning of.
HEADNOTE:
On January 27, 1966, a charge sheet against the four
appellants and four civilians was put up before the special
judge On January 12, 1967 the Special Judge gave notice to
the commanding officer notifying under rule 4 of the
Criminal Courts and Courts Martial (Adjustment of Juris-
diction) Rules, 1952, framed under s. 549 of the Code of
Criminal Procedure, that charges would be framed against the
accused. On January 16, 1967, the Officer Commanding wrote
to the Special Judge, in exercise of the powers conferred on
him rule 5 of the 1952 Rules, that the four appellants
belonging to his unit would be tried by Court Martial under
the Army Act, 1950, and the Court of the Special Judge was
requested to stay the proceedings with immediate effect. On
January 17, 1967, the State of Rajasthan made an application
before the Special Judge. stating that the period of
limitation for the purpose of Court Martial had-already
expired and that the Special Judge take cognisance of the
case on the basis of sanction by the Central Government.
The Special Judge requested the Commanding Officer to make a
reference to the Central Government. On January 28, 1967,
the Commanding Officer wrote to the Special Judge that the
notice dated January 16, 1967, under Rule 5, served on the
Special Judge might be treated as cancelled. Thereupon the
appellants. made an application before the Special Judge
challenging the legality of the action of the Commanding
Officer in canceling the notice dated January 16, 1967 and
praying that they be delivered to the Army authorities. The
Special Judge held that since the notice dated January 16,
1967 had been cancelled, he had jurisdiction to try the
case. A revision. against this order was dismissed and the
High Court directed the Special Judge to conduct the trial.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13
In the appeal to this Court it was contended that the High
Court was Wrong, because, the Special Judge had no
jurisdiction to deal with the: application of the State made
on January 17, 1967 and pass an order that the Commanding
Officer ’should make a reference to the Central Government;
and that the Commanding Officer had no pow(* to cancel, the
intimation dated January 16, 1967. The respondent contended
that the effect of the cancellation of the notice dated
January 16, 1967, was that no Court Martial proceeding was
to be commenced and that in any event the Special Judge had
jurisdiction and authority to try and dispose of the case
which was pending on June 30 1966 in the Criminal Court by
virtue of the provisions contained in the Criminal Law
Amendment. (Amending) Act, 1966. Dismissing the appeal,
882
HELD : The provisions of the Army Act, the Rules under
Section 549 of the Criminal Procedure Code and the decisions
of this Court all support the conclusion that the Special
Judge in ;he present case was justified in asking the
Officer Commanding to make a reference to the Central
Government and that the Officer Commanding in the facts and
circumstances of the case expressed the opinion that the
appellants should be tried by criminal courts because there
would in fact be no Court Martial proceedings.
The contention that the Officer Commanding having once
exercised the discretion under Rule 5 could not cancel the
discretion is unacceptable. There are no allegations of
mala fide or abuse of power to challenge the propriety of
the exercise of power and discretion.
Ranjit Sarup v. The Union of India & Anr., [1964] 5 S.C.R.
931, SVorn Datt Datta v. Union of India & Ors., [1969] 2
S.C.R. 177; Ioginder Singh v. State of Himachal Pradesh,
Criminal Appeal No. 34 of 1969 decided on 30-11-1970 and
Major E. G. Barsay v. State of Bombay, [1962] 2 S..R. 195:
referred to.
The present appeal relates to a case "pending" immediately
before June 30 1966, before a Special Judge, within the
meaning of s. 5(1) (a) of the Criminal Law Amendment Act,
1966. The word "pending" win ordinarily mean that the
matter is not concluded and the meet which has. cognisance
of it can make an order on the matter in issue. The test is
whether any proceedings can be taken in the cause before the
Court or tribunal where it is said to be pending. Judged by
these tests the present appeal relates to a case pending
before June 30, 1966.
It is not necessary that charges should have been framed in
order to make it a case pending within the meaning of
Section 5 (1) (a) of the 1966 Act. The words "Charged with
and tried for an offence" mean that there are accusations
and allegations against a person. The words "charged with
are used in Section 5(1)(a) in contradistinction to the
words "Charges have already been framed" in Section 5 (1)
(b) of the Act. Further. Sections 251A, 252 and 253 of the
Code of Criminal Procedure throw light as to the meaning to
be given to the words "charged with ’and tried for an
offence".
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 241 of
1968.
Appeal by special leave from the judgment and order dated
September 9, 1968 of the Rajasthan High Court in Criminal
Appeal No. 134 of 1968.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13
S. V. Gupte, D. P. Singh, R. K. Jain and V. J. Francis,
for the appellants.
Debabrata Mukherjee and R. N, Sachthey, for the respondent.
The Judgment of the Court was delivered by
Ray, J. This is an appeal by special leave against the order
and judgment dated 9 September, 1968 of the High Court
Rajasthan.
883
The question for consideration is whether the Additional
Special Judge, Rajasthan, Jaipur could proceed with the
trial of Criminal Case No. 2/68/Spl. Cr. as directed by the
order of the High Court., That case was initiated under a
sanction accorded’ by the Central Government under section
197 of the Code of Criminal Procedure and section 6 (1) (a)
of the Prevention of Corruption Act and the appellants along
with four civilians were charged, with offences punishable
under sections 120-B, 161, 165A. 4,20, 409 and 467-A of the
Indian Penal Code and section 5(2) of the Prevention of
Corruption Act read with sections 5 (1 ) (a) and 5 (1 ) (d)
of the Prevention of Corruption Act.
The Special Police Establishment, Jaipur Branch on 27
January, 1966 put up before the Special Judge, Jaipur a
charge-sheet against the four appellants and four civilians.
One of the civilians turned approver. The four appellants
thereafter made an application on 13 September, 1966 before
the Special Judge that they were Commissioned Officers of
the Indian Army and without complying with the provisions of
section 549 of the Code of Criminal Procedure and the Rules
thereunder called the "Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules," the Special Judge could
not proceed against the appellants in the criminal court
which under the Army Act is described as a civil court as
opposed to court-martial under the Army Acts. The Special
Judge rejected that application on 10 October, 1966 and
ordered that the case would be put up for further
proceedings on 16 January, 1967. A revision application was
thereafter moved in the Rajasthan High Court. The High
Court of Rajasthan by order and judgment dated 20 December,
1966 said that the Special Judge would proceed in accordance
with the provisions of Rules 3 and 4 of the Rules framed
under section 549 of the Code of Criminal Procedure.
In compliance with the aforesaid order of the High Court,
the Special Judge on 12 January, 1967 gave notice to the
Commanding Officer, 123 Infantry Battalion (T.A.), Jaipur
notifying under Rule 4 of the Criminal Courts and Court
Martial (Adjustment of Jurisdiction) Rules, 1952 that the
appellants along with three civilians were charged with the
offences as indicated above and charges would be "framed
against the accused after the expiry of a period of seven
days from the date of the service of the notice". On 16
January, 1967 the OfficerCommanding wrote to the Special
Judge for Rajasthan that in exercise of the powers conferred
upon him by Rule 5 of the Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules, 1952 the Officer
Commanding gave notice that the four Officers meaning
thereby the appellants belonged to his Unit and that the
appellants would be tried by Court Martial under the Army
Act, 1950 for the offences alleged to have
884
been committed by the in as set out in the notice of the
Special Judge and that the Court of the Special Judge was
requested to stay the proceedings against the four
appellants with immediate effect. The letter concluded by
stating that the four appellants might be delivered
immediately to Major R. N. Kesar who was carrying the notice
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13
to be handed over to the Court by hand.
On 17 January, 1967 the State of Rajasthan made an appli-
cation before the Special Judge that under section 122 of
the army Act, 1950 a period of three years was provided
after which no Court Martial proceedings could be commenced
against the Army Officers and the period of limitation was
to be computed from the date of such offence. The charges
of conspiracy and corruption against the appellants were
alleged to have been committed in the month of December,
1962 and the end of the year 1963 and as such, according to
the State of Rajasthan, the limitation for the purpose of
Court Martial expired with the close of the year 1966. The
State of Rajasthan submitted that the Special Judge took
cognizance of the case on the basis of sanction granted by
the Central Government and there were two orders one from
the highest authority of the Government, namely, the
President of India sanctioning the prosecution of the
appellants by a competent criminal court and the other by an
Officer Commanding for holding a Court Marlial and therefore
the matter might be referred to the Central Government for
clarification. The Special Judge on 17 January, 1967 held
that along with the appellants three civilians were charged
with the commission of offence and they could not be tried
by Court Martial. The Special Judge requested the Com-
manding Officer to make a reference to the Central
Government within seven days failing which the Special Judge
would make a reference to the Central Government. The
Special Judge did not deliver the four appellants to the
Commanding Officer.
On 28 January, 1967 the Officer Commanding, 123 Infantry
Battalion (T.A.), Jaipur wrote to the Special Judge that the
notice under Rule 5 of the Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules, 1952 served by the
Officer on the Special Judge by letter dated 16 January,
1967 might be treated ,as cancelled.
On 21 March, 1968 the appellants made an application before
the Additional Special Judge, Jaipur that the Commanding
Officer acted illegally and without jurisdiction in
cancelling the earlier notice dated 16 January, 1967 and the
Commanding Officer should have made a reference to the Chief
of the Army Staff. The appellants prayed that they might be
handed over to the Commanding Officer in terms of the letter
dated 17 January, 1967 issued by the Commanding Officer
asking the Special Judge to deliver the appellants, to the
Army authorities. On 5 April, 1968 the Additional
885
Special Judge held that the Officer Commanding revised his
discretion and intimated by letter dated 28 January, 1967
that the earlier notice dated 16 January, 1967 issued under
Rule 5 requiring delivery of the appellants to the Army
authorities for trial by Court Martial was cancelled and
therefore the Special Judge would try the case and not
deliver the appellants to the army authorities.
The appellants thereafter made an application to the High
Court of Rajasthan under section 435 read with section 561-A
of ,the Code of Criminal Procedure for quashing the
proceedings before the Additional Special Judge and for
directing the Special Judge to hand over the appellants to
be tried by Court Martial. The High Court by order dated 9
September, 1968 dismissed the revision application and
directed the Special Judge, Rajasthan to conduct the trial
expeditiously, because sufficient time had elapsed since the
submission of The charge-sheet by the Special Police
Establishment Branch, Jaipur.
Counsel on behalf of the appellants contended that the order
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13
of the High Court was wrong for 3 reasons : First, that the
Special Judge having issued a notice on 12 January, 1967
under Rule 4 of the Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules, 19,52 to the Officer
Commanding and having received a reply dated 16 January,
1967 from the Officer, the Special Judge had no
jurisdiction to deal with an application of the State made
on 17 January, 1967 and pass an order on 17 January, 1967 on
the stay application that the Commanding Officer should make
a reference to the Central Government. The second contention
was that the Commanding Officer had no power to cancel the
intimation dated 16 January, 1967 by the subsequent letter
dated 28 January, 1967. Thirdly, it was said that the
sanction for prose caution accorded by the Central
Government had no relevance to section 549 of the Code
of Criminal Procedure read with the Rules.
Counsel on behalf of the respondent on the other hand
contended that the Officer Commanding by letter dated 28th
January, 1967 cancelled the earlier notice dated 16th
January, 1967 with the result that no Court Martial
proceeding was to be commenced against the appellants. It
was said on behalf of the respondent that the competent
military authority had power and jurisdiction to cancel
the letter dated 16th January, 1967. Secondly, it was
said that the Special Judge had jurisdiction and authority
to try and dispose of the case which was pending on 30th
June, 1966 in the criminal court by virtue of the
provisions contained in the Criminal Law Amendment
(Amending) Act, 1966. The third, contention was that the
Special Judge, was justified in making an order on 17th
January, 1967 requesting the competent military authority
to make a reference to the Central Government failing which
the Special Judge would make a reference to the Central
Government.
886
In order to appreciate the rival contentions reference has
to be made to sections 125 and 126 of the Any Act and Rules
3- to 9 of the Criminal Courts and Court Martial (Adjustment
of Jurisdiction) Rules, 1952 made by the Central Government
in exercise of the powers under section 549 of the Code of
Criminal Procedure.
Sections 125 and 126 of the Army Act are framed for the
purpose of ensuring that there is no conflict between the
criminal court and the Court Martial. Section 125 confers
discretion on the Officer Commanding of the army corps
division or brigade in which the accused is serving to
decide before which court proceedings shall be instituted in
respect of an offence legend to be committed by the accused.
If the decision will be for institution of proceedings
before the Court Martial direction is given for detention of
the accused in military custody. Section 126 provides that
where a criminal court having jurisdiction is of opinion
that proceedings shall be instituted before it in respect of
any alleged offence, the criminal court, may require the
Officer Commanding mentioned in section 125, of the Army Act
either to deliver the offender to the Magistrate or to
postpone proceedings pending a reference to the Central
Government. Section 126(2) of the Army Act provides that
the Officer Commanding shall either deliver the offender to
the Magistrate or shall refer the question to the Central
Government whose order upon such reference shall be final.
These two sections of the AnY Act do not leave any room for
doubt that if after commencement of Court Martial
proceedings the ordinary criminal court intends to proceed
against an accused who is subject to, the control of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13
Army Act, the criminal court will have to adopt either of
the two courses mentioned The order of the Central
Government shall be final in cases of, reference by the
criminal court to the Government.
In the present case there was in the beginning suggestion by
the Officer Commanding of institution of Court Martial pro-
ceedings. When the Special Judge found on the application
made by the State on 17 January, 1967 that section 122 of
the Army Act raised the bar of limitation with regard to
initiation of Court Martial proceedings and further found
that there were civilians. charged along with the
appellants, it was not unjustified in asking the Officer
Commanding to make a reference to the Government in order to
prevent any competition or conflict between the criminal
courts and Court Martial. On 17th January, 1967 as matters
stood, the Special Judge had the intimation from the Officer
Commanding that Court Martial proceedings would be
instituted. Therefore on a reading of section 126 of the
Army
887
Act the Special Judge requested the Officer Commanding to
refer the question to the Central Government for
determination as to, the Court before which proceedings
would be started.
Section 549 of the Code of Criminal Procedure empowers the
Central Government to make Rules as to the case in which
persons subject, to military, naval or air-force law be
tried by a court to which the Code of Criminal Procedure
applies or by Court Maritial. When any such person is
brought before the Magistrate and charged with an offence
for which he is liable to be tried either by a court or by
Court Martial, the Magistrate’ shall have regard to such
Rules and shalt in appropriate cases deliver him together
with the statement of the, offence of Which he is accused
to the Commanding Officer for the purpose of being tried by
Court Martial.
There are 9 rules under section 549 of the Code of Criminal
Procedure. These Rules are called Criminal Courts and Court
Martial (Adjustment of Jurisdiction) Rules, 1952. Broadly
stated, rules 3 to 9 are, as follows Under rule 3, (a) a
Magistrate may proceed against a person subject to military,
naval or air-force laws without being moved by ’a competent
military, naval: or air-force authority, or (b) by being
moved by such authority., Under rule 4 if the Magistrate is
of opinion that he will precede against such a person
without being moved by the competent military, naval or air-
force authority, he shall give written notice, to the
Commanding Officer of the accused and until the expiry of a
period of seven days shall not (a) convict or acquit the
accused, or (b) hear him in defence or (c) frame in writing
a charge, or (d) make an order committing the accused for
trial by the High Court or by the Court of Sessions under
section 213 of the Code of Criminal Procedure Under Rule 5
where within, the period of seven days or at any time
thereafter before the Magistrate has done any act or issued
any order, the Commanding Officer gives notice to the
Magistrate that the accused should be tried by Court
Martial, the Magistrate shall stay the proceedings and if
the accused is in his power or under this control the
Magistrate shall deliver him to the relevant authority Under
rule 6 where a Magistrate has been moved by the competent
military, naval or air force Authority under rule 3(b) and
the Commanding Officer subsequently gives notice to the
Magistrate that the accused shall be tried by Court Martial,
such Magistrate,. if he has not before receiving such notice
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13
done any act or issued any order referred to in rule 4,
shall stay proceedings and, if the accused is in his power,
or under his control, shall deliver him to the relevant
authority. Under rule 7 where an accused person having been
delivered by the Magistrate under rule 5 or 6 is not tried
by a court-martial for the offence of which he is accused,
888
or other effectual proceedings are not taken against him,
the Magistrate shall report the circumstance to the State
Government which may, in consultation with the Central
Government take appropriate steps to ensure that the.
accused person is dealt with in accordance with law. Under
rule 8, where it comes to the notice of the Magistrate that
a person subject to military, naval or air-force law has
committed an offence, proceedings in respect of which are
instituted before him and that the presence of such a person
cannot be procured unless through military, naval or air-
force, authorities the Magistrate may by a written notice
require the Commanding Officer of such person either to
deliver such a person to a Magistrate to be named in the
said notice for being proceeded against according to law, or
to stay the proceedings against such person before the court
martial if since instituted, and to make a reference to the
Central Government for determination as to the Court before
which the proceedings should be instituted. Under rule 9
where a person subject to military, naval or air-force law
has committed an offence which in the opinion of the
competent military, naval or air-force authority, as the
case may be, ought to be tried by a Magistrate in accordance
with the civil law in force or where the Central Government
has on a reference mentioned in rule 8, decided that
proceeding$ against such person should be instituted before
a Magistrate the Commanding Officer of such person shall
after giving a written notice to the Magistrate concerned,
deliver such person under proper escort to that Magistrate.
These Rules enjoin coming of criminal courts and Court
Martial. Before proceeding against the person subject to
military law, the Magistrate is required to give notice to
the Commanding Officer. If within the period of seven days
or before the Magistrate has done, any, act or issued any
order the Commanding Officer gives notice that the accused
should be tried by a Court-Martial the criminal court shall
stay proceedings. If thereafter the court-martial
proceeding is not taken the Magistrate may report to the
State Government which may in consultation with the Central
Government take appropriate steps to ensure that the accused
is dealt with in accordance with law. Where. it comes to
the notice of the Magistrate that proceedings ,,ought to be
instituted before him he may by written notice require the
Commanding Officer to deliver the accused to the ’Magistrate
or require the Commanding Officer to stay the Court
’,Martial proceedings if instituted and to make a reference
to the ,Central Government for determination as to the Court
before which the proceedings shall be instituted. Rule 8
again supports The step taken by the Magistrate in the
present case, on 17th
889
January, 1967 when he required the Commanding Officer to
make a reference to the Central Government. Under rule 9 if
the relevant authority of the armed forces is of opinion
that the criminal court ought to try the offender or if the-
Central Government on a reference to it is of similar
opinion the offender is delivered to the Magistrate. Rule 9
is also attracted in the present case by reason of two
features, viz., the Officer Commanding on 28th January, 1967
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13
informed that no Court-Martial proceeding would be
instituted, and, secondly, the military authorities never
asked the criminal court to deliver the appellants to the
military authority. The facts and circumstances indicate
that the competent military authority formed the opinion
that-the appellants should be tried by the Special Court.
This Court in the case of Ram Sarup v. The Union of India(1)
considered the question whether section 125 of the Army Act
could be said to be discriminatory and violative of Article
14 of the Constitution. In that case Ram Sarup who was
subject to the Army Act was tried by the General Court
Martial found guilty and sentenced to death. He then filed
a petition under Article 32 of the Constitution for a writ
of habeas corpus and a writ of certiorari setting aside the
order of the Court Martial and the order of the Central
Government. It was contended there that section 125 of the
Army Act left to the unguided discretion of the Officer
mentioned in that section to decide whether the accused
should be tried by a court-martial or by a criminal ’court.
This Court repelled that contention and held "there is
sufficient material in the Act which indicates policy which
is to a guide for exercising discretion and it is expected
that the discretion is exercised in accordance with it. The
Magistrate could question it and the Government in case of
difference of opinion between the views of the Magistrate
and the Army authorities decide the matter finally". In Ram
Sarup’s case (supra) this Court further-examined the meaning
of sections 125 and 126 of the Army Act and section 549 ’of
the Code of Criminal Procedure and Rues 3 to 9 of the
Criminal Courrts Court Martial (Adjustment of Jurisdiction)
Rules, 1952 made under the Code of Criminal Procedure and
laid down two pro,positions; First, if the Magistrate will
find that the military authorities do not take effectual
proceedings under the Army Act within a reasonable time the
Magistrate can report the cirCumstance to the State
Government which may in consultation with the Central
Government.take appropriate steps to ensure that the accused
is dealt with in accordance with law. Secondly, whenever
there will be difference of opinion between the criminal
(1) [1964] 5 S.C.R 931.
890
court and the military authorities about the forum where an
accused is to be tried for the particular offence committed
by him, final choice about the forum of the trial of a
person accused of a civil offence meaning thereby an offence
triable by criminal court rests with the Central Government.
This Court in the recent decision in Som Datt Datta v. Union
of India & Ors.(1) considered the effect of rule 3 of the
Rules framed under section 549 of the Code of Criminal Pro-
cedur The petitioner in that case made an application under
Article 32 for a writ of certiorari for quashing the
proceedings before the Court-Martial whereby he was found
guilty of charges under sections 304 and 149 of the Indian
Penal Code and sentenced to 6 years’ rigorous imprisonment.
The contention in that case was that having regard to the
provisions of section 125 of the Army Act and having further
regard to the fact that the Army Officer had in the first
instance decided to hand over the matter for investigation
to the Civil Police and by reason of absence of notice under
Rule 5 of the Rules under section 549 of the Code of
Criminal Procedure that the petitioner should be tried by
Court Mar tail, the criminal court alone had jurisdiction
under rule 3 to try the petitioner. This Court held that
the action of the Officer under section 125 of the Army Act
constituting a court-martial indicated that decision was
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13
taken under section 125 of the Army Act for institution of
Court Martial proceedings. Rule 3 was said to be applicable
to a case where the Police had completed the investigation
and the accused was brought before the Magistrate after
submission of the charge-sheet. Rule 3 could not be invoked
where the Police metered started investigation. In Some
Datt Datta’s case (supra) this Court said about sections 125
and 126 of the Army Act "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 particular case." In the present case the
special Judge gave notice to the Officer Commanding. The
Officer Commanding had first said that Court-Martial
proceedings would be instituted. The Officer Commanding
thereafter cancelled that intimation. There is no further
aspect of conflict between the criminal court or the Court-
Martial in the present case.
The appellants contended that they should be delivered to
the Army authorities. The Army authorities did not want
delivery of the appellants to them for any Court-Martial
proceedings. On the contrary, the Army authorities
indicated in no uncertain terms that the Special Judge
should proceed with-the case. When Special Judge asked the
Army authorities to make a reference
(1) [1969] 2 S.C.R. 177.
891
to the Government the Army authorities instead of making a
reference to the Government cancelled their first intimation
about ,the institution of Court Marial proceedings with the
result that the Officer Commanding expressed the opinion
that the appellants ought to be tried by a Magistrate in
accordance with law of the land.
This Court in the recent unreported decision in Joginder
Singh v. State of Himachal Pradesh(1) considered the
question as to whether the trial and conviction by the
Assistant Sessions Judge in respect of an offence, under
section 376 of the Indian Penal Code violated provisions of
the Army Act read with criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules, 1952. The contention in
that case was that the criminal court did not follow the
provisions contained in section 126 of the Army Act read
with rules 3 and 4 of the Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules, 1952. It was
particularly emphasised in that case that it was for the
competent officer to decide in the first instance that the
appellant should be tried by Court Martial. This Court
referred to the earlier decision of this Court in Major E.
G. Barsay v. State of Bombay (2) for the proposition that
there was no exclusion of Jurisdiction of the ordinary
criminal courts in respect of offences which are also
triable by Court Martian. Sections 125 and 126 of the Army
Act leave no doubt in that matter. Rule 3 (a) of the
Criminal Courts and Court Martial (Adjustment of Juris-
diction) Rules also indicates that the criminal court can of
its own motion start proceeding against an accused who is
subject to the Army Act. The several provisions of the Army
Act and the Rules also indicate that the criminal court is
not powerless when it is of opinion that the case should be
tried in a criminal court and in case of conflict between
the criminal court and the Court-Martial the order of the
Central Government is final decision as to the forum of
trial of the offence. In Joginder Singh’s case (supra) this
Court examined the Rules and said that the absence of a
notice under rule 4 was not fatal in the facts and
circumstances of the case because the competent military
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13
authority knowing the nature of the offence released the
accused from military custody and handed him over to the
civil authorities, and the action amounted to a decision by
the military authorities that the accused in that case- was
to be tried by an ordinary criminal court and not by Court-
Martial.
The provisions of the Army Act, the Rules under section 549
of the Code of Criminal Procedure and the decision of this
(1) Criminal Appeal No.34 of 1969 decided on 30-11-1970
(2) [1962] 2 S.C.R. 195.
892
Court all support the conclusion that the Special Judge in
the present case was justified in asking the Officer
Commanding to make a reference to the Central Government and
that the Officer Commanding in the facts and circumstances
of the case expressed the opinion that the appellants should
be tried by criminal courts because there would in fact be
no Court-Martial proceedings.
The contention on behalf of the appellants that the Officer
Commanding having once exercised the discretion under rule 5
could not cancel the discretion is unacceptable. The
Officer Commanding upon consideration of facts and
circumstances and particularly in the context of the
communication of the Special Judge on 17th January, 1968
intimated on 28 January, 1967 that the previous letter dated
16 January, 1967 was cancelled. There are no allegations of
malafide or abuse of power to challenge the propriety of the
exercise of power and discretion.
The Officer Commanding did not lack authority of
jurisdiction to communicate to the Special Judge that Court-
Martial proceedings would not be instituted.
The Criminal Law Amending Act-, 1966 being Act No. 22 of
1966 has an important bearing on the present appeal.
Section 5 of Act 22 of 1966 is as follows :-
"(1) Notwithstanding anything contained in
this Act or in the principal Act as amended by
this Act,-
(a) cases pending immediately before the
30th day of June, 1966, before a Special Judge
in which one or more persons subject to
military naval or air-force law is or are
charged with and tried for an offence under
the principal Act together with any other
person or persons not so subject, and
(b) cases pending immediately before the said
date before a Special Judge in which one or
more persons subject to military, naval or
air-force law is or are alone charged with and
tried for an offence under the principal Act
and charges have already been framed against
such person or persons shall be tried and
disposed of by the special Judge.
(2) Where in any case pending immediately
before the 30th day of June, 1966, before a
special Judge one or more persons subject to
military naval or air force law is or are
alone charged with and tried for an offence
under the principal Act and charges have not
been framed against such person or persons
before the said date,
893
Or where, on appeal or on revision against any
sentence passed by a special Judge in any case
in which one or more persons so subject was or
were alone tried, the Appellate Court has
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13
directed that such person or persons be,
retired and on such retrial charges have not
been framed against such person. or persons
before the said date, then, in either case,
the special Judge shall follow the procedure
laid down in section 549 of the Code of
Criminal Procedure, 1898, as if special Judge
were a Magistrate.
The question is whether the present appeal relates to a case
Pending immediately before 30 June, 1966 before a Special
Judge within the meaning of section 5(1)(a). Sanstion was
accorded on 29 October, 1965 under section. 197 of the Code
of Criminal Procedure. A charge-sheet was submitted before
the Special. Judge on 27 January, 1966. On 5 March, 1966
the case was adjourned to 4 July, 1966 at the request of the
Public Prosecutor for enabling the Public Prosecutor to
supply the copies of documents envisaged by section 113 of
the Code of Criminal Procedure. The case was numbered
4/66/Spl. Cr.
The word ’pending 9 came up for consideration before this
Court in Asgarali Nazarali Singaporawalla v. The State of
Bombay(1). Criminal Law Amendment Act. 1952 provided for
the trial of all offences under section 161, 165 or 165-A of
the Indian Penal Code or sub-section (2). of section 5 of
the Prevention of Corruption Act, 1947 exclusively by
Special Judges and directed the transfer of all such trial
pending on the date of the, coming into force of the Act to
Special Judges. The Presidency Magistrate continued the
trial and acquitted the appellant. Upon appeal by the State
Government the High Court held that from the date of the
commencement of the. Act the Presidency Magistrate lost all
jurisdiction to continue I the trial and ordered retrial’ by
the Special Judge. It was contended that on the date of
the coming into force of the Criminal Law Amendment Act,
1952, viz., 28 July, 1952, the case was not pending because
no Special Judge was appointed until 26 September, 1962 and
the trial also came to an end on 26 September, 1962. This
Court did not accept that contention because the, accused
was not called upon his defence on 28 July, 1962 and the
examination of the. accused’ under section 342 of the Code
of Criminal Procedure took Place after that date and the
accused filed his writer statement on 14 August, 1952 and
the addresses by the prosecution as well as the defence
continued right UP to 26 September, 1952. The word
’pending’ will ordinarily mean- that the matter is not
concluded and
(1) [1966] S.C.R. 678
8 94
the court which has cognizance of it can make an order on
the matter in issue. The test is whether any proceedings
can be taken in the cause before the court or tribunal where
it is said to be pending. The answer is that until the case
is concluded it is pending. Judged by these tests it will
appear that this present appeal relates to a case pending
before 30 June, 1966.
The next question is as to what meaning should be given to
the words ’charged with and tried for an offence under the
principal Act’, occurring in section 5(i)(a). Counsel for
the appellants contended that the words "charged with and
tried for an offence" would mean that charges ’had been
actually framed and trial commenced. There is a distinction
between clauses (a) and (b) of sub-section (1) of section 5
of Act 22 of 1966. Clause (a) deals with persons who are
subject to the military, naval or air-force law being
charged with and tried for an offence together with a person
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13
or persons not so subject whereas clause (b) deals only with
persons who are subject to military, naval or air-force law.
In the present case, the appellants are persons who were
subject to military law and they were charged along With
civilians. Therefore, clause (a) is attrached. It is in
connection with a case which concerns only persons subject
to- military, naval or air-force law that under section
5(1)(b) it is en.acted that a case is not only to be pending
before 30 June, 1966 before a Special Judge but that charges
should also have been framed against such persons. The
absence of framing of charges ,in clause (a) and requirement
of framing charges in clause (b) repels the construction
suggested by counsel for the appellants that charges should
have been framed in the present case in order to make it a
case pending within the meaning of section 5 (1) (a) of the
1966 Act. The words, "charged with and tried for an
offence" mean that there are accusations and allegations
against the person. The words "charged with" are used in
section 5 (1) (a) in contra-distinction to the words
"charges have already been framed" in section 5 (1) (b) of
the Act. Therefore the use of separate words in the two
separate clauses: (a) and (b) is significant to indicate
that the statute speaks of the words charged with" in clause
(a) not in the sense of "charges have been framed" in clause
(b). The legislative intent is abundantly clear from the
use of separate words.
Sections 251, 251A, 252, 253 and 254 of the Code of Criminal
Procedure throw some light as to the meaning to be given to
the words "charged with and tried for an offence’. In the
trial of warrant cases instituted on a police report, the
Magistrate is to ;follow the procedure specified in section
251A and the present is one such. Section 251A contemplates
that the Magistrate on the commencement of the trial shall
satisfy himself that
89 5
the documents referred to in section 173 have been furnished
to the accused and if he finds that the accused has not been
furnished with such documents or any of them he shall cause
them to be so furnished. In the present case, it will
appear that in the month of March, 1966 the Public
Prosecutor made an application to the Special Judge for
adjournment of the case till the month of July, 1966 to
enable copies of papers to be given to the accused under
section 173 of the Code of Criminal Procedure. Under
section 251A(2) if, upon consideration of all the documents
referred to in section 173 and making such examination, if
any, of the accused as the Magistrate thinks necessary and
after giving the prosecution and the accused an opportunity
of being heard, the Magistrate considers the charge against
the accused to be groundless, he shall discharge him. This
provision that the Magistrate may discharge the accused
where the charge against the accused appears to be
groundless indicates that the words "charged with" cannot be
said to mean framing of a charge. It is because the charge
or the allegation or accusation against the accused is
groundless that he is. discharged.
Again, in section 252 it will appear that the Magistrate in
any case instituted otherwise than on a police report shall
proceed to hear the complainant and take evidence‘ in
support of the prosecution. Under section 253, if, upon
taking the evidence referred to in section 252, and making
such examination of the accused as the Magistrate thinks
necessary, he finds that no case against the accused has
been made out, the Magistrate shall discharge him. The
provisions contained in sections 252 and 253 are cases where
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13
the Magistrate deals with warrant case instituted not on a
police report but upon a complaint.
These three sections i.e. sections 251A, 252 and 253
indicate that an accused can be discharged by the Magistrate
if the charge appears to be groundless. Charge is framed
under section 254 of the Code of Criminal Procedure when the
Magistrate upon evidence and examination is of opinion that
there is ground for presuming that the accused has committed
an offence which the Magistrate is competent to try and
which could be ordinarily punished by them that he shall
frame in writing a charge against the accused. The charge
under section 255 of the Code of Criminal Procedure is read
and explained to the accused and he shall be asked whether
he is guilty or has any defence to make.
The Special Judge therefore has jurisdiction to try and
dispose of the case. It is a case pending before 30 June,
1966 and under Act 22 of 1966 it is to be tried and disposed
of by the Magistrate. The letter dated 28 January, 1966 is
an additional reason to indi
L1100SupCI/71
896
cate that the appellants are not required to be delivered to
the competent military authorities. It is also in evidence
that no court martial proceeding is pending and the
appellants are to be Tried by the Special Judge. The
judgment of the High Court is upheld.
The appeal therefore fails and dismissed.
R. K. P. S.
Appeal dismissed.
89 7