Full Judgment Text
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PETITIONER:
DELHI SPECIAL POLICE ESTABLISHMENT, NEW DELHI
Vs.
RESPONDENT:
LT. COL. S. K. LORAIYA
DATE OF JUDGMENT24/08/1972
BENCH:
DWIVEDI, S.N.
BENCH:
DWIVEDI, S.N.
SHELAT, J.M.
PALEKAR, D.G.
CITATION:
1972 AIR 2548 1973 SCR (1)1010
1972 SCC (2) 692
CITATOR INFO :
R 1986 SC1655 (8)
RF 1987 SC1878 (4)
ACT:
Code of Criminal Procedure 1898, s. 549(1) and rules made
thereunder--Army Act 1950, ss. 122 and 125-Army officer
charged with offences under I.P.C. and Prevention of
Corruption Act 1947 by Special Judge-Procedure under s.
549(1) and r. 3 not followed-Charges whether liable to be
quashed-Lapse of more than three years between commission of
offences and framing of charges--Court martial whether has
jurisdiction to try offences-Word ’jurisdiction’ in s.
549(1) Cr. P.C. and s. 125 Army Act, meaning of.
HEADNOTE:
The respondent who was an army officer was alleged to have
committed certain offences under the Indian Penal Code and
the Prevention of Corruption Act 1947. The offences were
alleged to have been committed in the year 1962. The
special judge, Gauhati charged him with these offences in
the year 1967. The High Court quashed the charges on the
ground inter alia that the procedure in s. 549(1) Cr. P.C.
and the rules made thereunder had not been ’followed. The
appellant in appeal by special leave to this Court contended
that since more than three years had elapsed between the
commission of the offences and the framing of the charges
the court-martial had in view of s. 122(1) of the Army Act
ceased to have jurisdiction to try the said offences and
therefore s. 549(1) and ’the rules made thereunder were not
attracted to the case.
HELD, Section 549(1) Cr. P.C. is designed to avoid the
conflict of jurisdiction in respect of offences which are
triable by both the ordinary criminal court and the court-
martial. The clause "for which he is liable to be tried
either by the court to which this code applies or by a
courtmartial" qualifies the preceding clause "when any
person is charged with an offence" in s. 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
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by an ordinary criminal court as well as court-martial. 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 on merits. It was admitted
that both the ordinary criminal court and the court-martial
had concurrent jurisdiction with respect to the offences for
which the respondent had been charged by the special judge.
So s. 549 and the rules made thereunder were attracted to
the case in hand. [1013H-1014C]
Again, sub-section (3) of s.122 of the Army Act provides
that while computing the period of three years specified in
sub-section (1), any time spent by the accused as a prisoner
of war or in enemy territory, or in evading arrest after the
commission of the offence, shall be excluded. On a con-
joint reading of sub-ss. (1) and (3) of s.122 it is evident
that the court-martial and not the ordinary criminal court
has got jurisdiction to decide the issue of limitation. If
the court-martial finds that it cannot try the offence on
account of the expiry of three years from the commission of
the offence the Central Government can under s.127 of the
Act sanction the trial of the offender by an ordinary
criminal court. [1014D-F]
1011
Section 125 of the Army Act provides that when a criminal
court and a court-martial have each jurisdiction in respect
of an offence, it shall be in the discretion of the
commanding officer to decide before which court the
proceedings shall be instituted. Section 125 supports the
view that the court-martial alone has jurisdiction to decide
the issue as to limitation.
[1014H]
The word "jurisdiction" in s.125 really signifies the
initial jurisdiction to take congnizance of a case. It
refers to the stage at which proceedings are instituted in a
court and not to the jurisdiction of the ordinary criminal
court and the court-martial to decide the case on merits.
Section 549(1) should be construed in the light of s.125 of
the Army Act. Both the provisions have in mind the object
of avoiding a collision between the ordinary criminal court
and the court-martial. Both of them should receive the same
construction. [1015B]
It was an admitted fact that in the present case the
procedure specified in rule 3 was not followed by the
Special Judge, Gauhati before framing charges against the
respondent. Section 549(1) Cr.P.C. and rule 3 are
mandatory. Accordingly the charges framed ’by the Special
Judge against the respondent could not survive. [1013C]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 79 of
1970.
Appeal by special leave from the judgment and order dated
May 23, 1969 of the Assam & Nagaland High Court in Cr. Re-
vision No. 31 of 1967.
D. Mukherjee, G. L. Sanghi and R. N. Sachthey, for the
appellant.
A. S. R. Chari and R. Nagaratnam, for the respondent.
The Judgment of the Court was delivered by.
Dwivedi, J. The respondent, Lt. Col. S. K. Loraiya, is in
the army Service. In November-December, 1962, he was posted
as Commander, 625, Air Field Engineers, Tejpur. He was
charged under s. 120B, Indian Penal Code read with s. 5 (1)
(e) :and (d) and s. 5(2) the Prevention of Corruption Act
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and under ss. 467 and 471 I.P.C. by the Special Judge,
Gauhati, appointed under the Prevention of Corruption Act,
in respect of the offences alleged to have been committed by
him in November-December, 1962, as Commander, 625, Air Field
Engineers, Tejpur.
The trial started on June 7, 1966. but the charges were
framed against him by the Special Judge on January 7, 1967.
The respondent filed a revision against the framing of the
charges in the High Court of Assam and Nagaland. The High
Court
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allowed the revision and quashed the charges. Hence this
appeal by the Delhi Special Police Establishment, New Delhi,
by special leave under Art. 136 of the Constitution.
The High Court quashed the charges for two reasons : (1) The
charges were framed by the Special Judge without following
the procedure specified in the Rules made under s. 549
Cr.P.C.; and (2) the trial was held in the absence of a
sanction by the appropriate authority under S. 196A(2) of
the Code of Criminal Procedure in respect of the offences
under s. 5 of the Prevention of Corruption Act. The High
Court took the view that such sanction was essential as the
offence under s. 5 of the Prevention of Corruption Act is a
non-cognizable offence.
Counsel for the appellant has submitted that both the
reasons given by the High Court are erroneous. Taking up
the first reason first, s. 5(1)(b) of the Criminal Law
Amendment Act, 1966, could not give exclusive _jurisdiction
to the Special Judge, Gauhati lo try the respondent. It is
true that the trial started against him on June 7, 1966, but
the charges were framed on January 7, 1967, i.e., long after
June 7, 1966. Section 5(1)(b) does not apply where charges
are framed after June 7, 1966. So, prima facie both the
ordinary criminal court and court-martial have concurrent
jurisdiction to try the respondent for the aforesaid
offences. And S. 549(1) Cr.P.C. applies to such a situa-
tion. The material part of S. 549(1) reads : "The Central
Government may make rules consistent with this Code and the
Army Act as to the cases in which persons subject to
military law shall be tried by a court 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 Courtmartial, such Magistrate
shall have regard to such rules and shall in appropriate
cases deliver him, together with a statement of the offence
of which he is accused, to the commanding officer of the
regiment, corps .... or detachment to which he belongs or to
the commanding officer of the nearest military station for
the purpose of being tried by Court-martial."
The Central Government has framed under s. 549(1) Cr. P.C.
rules which are known as the Criminal Courts and Courts
Martial (Adjustment of jurisdiction) Rules, 1952. The
relevant rule for our purpose is rule 3. It requires that
when a person subject to military, naval or air force law is
brought before a Magistrate on accusation of an offence for
which he is liable to be tried by a court-martial also, the
Magistrate shall not proceed with the case unless he is
requested to do so by the appropriate
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military authority. He may, however, proceed with the case
if he is of opinion that he should so proceed with the case
without being requested by the said authority. Even in such
a case, the Magistrate has to give notice to the Commanding
Officer and is not to make any order of conviction or
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acquittal or frame charges or commit the accused until the
expiry of 7 days from the service of notice. The Commanding
Officer may inform the Magistrate that in his opinion the
accused should be tried by the Courtmartial. Subsequent
rules prescribe the procedure which is to be followed where
the Commanding Officer has given or omitted to give such
information to the magistrate.
It is an admitted fact in this case that the procedure
specified in rule 3 was not followed by the Special Judge,
Gauhati before framing charges against the respondent.
Section 549 (1) Cr.P.C. and rule 3 are mandatory.
Accordingly the charges, framed by the Special Judge against
the respondent cannot survive. But counsel for the
appellant has urged before us that in the particular
circumstances of this case the respondent is not ’liable to
be tried’ by a Court-martial.
Section 122(1) of the Army Act, 1950, provides that no trial
by court-martial of any person subject to the Army Act for
any offence shall be commenced after the expiry of the
period of three years from the date of the offence. The
offences are alleged to have been committed by the
respondent in November-December, 1962,. So more than three
years have expired from the alleged commission of the
offence. It is claimed that having regard to s. 122(1), the
respondent is not liable to be tried by courtmartial.
This argument is built on the phrase "is liable to be tried
either by the court to which this Code applies or by a
Courtmartial" in s. 549(1). According to counsel for the
appellant this phrase connotes that the ordinary criminal
court as well as the Court-martial should not only have
concurrent initial jurisdicdiction to take cognizance of the
case but should also retain jurisdiction to try him upto the
last stage of conviction or acquittal. We are unable to
accept this construction of the phrase.
As regards the trial of offences committed by, army men, the
Army Act draws a threefold scheme. Certain offences enume-
rated in the Army Act are exclusively triable by a Court-
martial; certain other offences are exclusively triable by
the ordinary criminal courts; and certain other offences are
triable both by the ordinary criminal court and the court-
martial. In respect of the last category both the courts
have concurrent jurisdiction. Section 549(1) Cr. P.C. 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
1014
applies or by a court-martial" in our view, qualifies the
preceding clause "when any person is charged with an
offence" in s. 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, S. 549 and the rules made thereunder
are attracted to the case at hand.
Again, sub-section (3) of s. 122 of the Army Act provides
that while computing the period of three years spectified in
sub-section any time spent by the accused as a prisoner of
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war or in enemy territory, or in evading arrest after the
commission of the offence. shall be excluded. On a con
joint reading of sub-ss. (1) and of S. 122, it is evident
that the court-martial and not the ordinary criminal court
has got jurisdiction to decide the issue of limitation.
There it nothing on record before us to indicate that the
respondent had not been evading arrest after commission of
the offence. As the court-martial has initial jurisdiction
to enter upon the enquiry in the case, it alone is competent
to decide whether it retains jurisdiction to try the
respondent inspite of subs. (1) of s. 122. The issue of
limitation is a part of the trial before it. If the court-
martial finds that the respondent cannot be tried on account
of the expiry of three years from the date of the commission
of the offence, he’ cannot be go scot free. Section 127 of
the Army Act provides that when a person is convicted or
acquitted by a court-martial, he may, with the previous
sanction of the Central Government, be tried again by an
ordinary criminal court for the same offence or on the same
facts. go it would be open to the Central Government to
proceed against the respondent after the court-martial has
recorded a finding that it cannot try him on account of the
expiry of three years from the date of the commission of the
offence.
Section 125 of the Army Act provides that 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 to decide
before which court the proceedings shall be instituted and
if that officer decides that they should be instituted
before a court-martial he will direct that the
1015
accused person shall be detained in military custody.
Sections 12 (1) and 12 5 both find place in Chapter X of the
Army Act. Section 125 supports our view that the court-
martial alone has jurisdiction to decide the issue of
limitation under s. 122(1). The word "jurisdiction" in s.
125 really signifies the initial jurisdiction to take
cognizance of a case. To put it in other words, it refers
to the stage at which proceedings are instituted in a court
and not to the jurisdiction of the ordinary criminal court
and the court-martial to decide the case on merits. It
appears to us that s. 549 ( 1) should be construed in the
light of s. 126 of the Army Act. Both the provisions have
in mind the object of avoiding a collision between the
ordinary criminal court and the courtmartial. So both of
them should receive a similar construction.
In the result, we are of opinion that the High Court has
rightly held that as the charges were framed without
following the procedure specified in the rules framed under
s. 549 (1) Cr. P.C., they cannot stand.
As this finding of ours is sufficient to dispose of this
appeal, we are not expressing any opinion on the correctness
or otherwise of the second reason assigned by the High Court
for quashing the
charges.
The appeal is dismissed.
G.C. Appeal dismissed.
1016