Full Judgment Text
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PETITIONER:
UNION OF INDIA THROUGH MAJOR GENERALH.C. PATHAK
Vs.
RESPONDENT:
MAJOR S.K. SHARMA
DATE OF JUDGMENT29/06/1987
BENCH:
PATHAK, R.S. (CJ)
BENCH:
PATHAK, R.S. (CJ)
KHALID, V. (J)
CITATION:
1987 AIR 1878 1987 SCR (3) 456
1987 SCC (3) 490 JT 1987 (3) 12
1987 SCALE (2)12
ACT:
Criminal Procedure Code, 1973--S. 475--Read with ss. 200
to 204 of the Code, and the provisions of the Army Act, 1950
and the Army Rules--When a Magistrate has taken cognizance
of an offence committed by a member of the Armed Forces and
thereafter transferred the case for trial under the Army Act
and the Rules, it is not open to the Competent Authority to
hold an inquiry for determining whether there is any case
for trying the accused--It must proceed to hold the Court
Martial or take such other ’effectual proceedings’ as is
contemplated by r. 7(1) of the Criminal Courts and Court
Martial (Adjustment of Jurisdiction) Rules, 1978.
HEADNOTE:
An officer in the Army filed a complaint before a Magis-
trate alleging that another officer has assaulted him, that
the Commanding Officer to whom he had complained earlier had
failed to take satisfactory action and thus both of them had
committed offences under the Indian Penal Code. The Magis-
trate examined the complainant under s. 200 Cr. P.C., took
cognizance of the offences under s. 190(A) and, on being
satisfied of the existence of a prima facie case, issued
summons under s. 204(A) for the appearance of the accused.
Upon applications being made by the appellants urging that
the case be handed over to the Military Authorities for
disposal, the Magistrate made an order directing that the
case be transferred to the Army Authorities for disposal in
accordance with the provisions of the Army Act, 1950 after
trial by a Court Martial at any place within the jurisdic-
tion of his Court and that the progress of the case be
reported to him at intervals of two months. Upon the appel-
lants making further applications praying for review of the
said order on the ground that under the Army Act and the
Army Rules, it was not mandatory that all disciplinary cases
against military personnel should culminate in a trial by
Court Martial and submitting that the disciplinary action
against the officers concerned would be initiated after an
investigation of the alleged offences, the Magistrate,
pointing out that the judicial process for ascertaining the
prima facie existence of a case had already been completed,
held that the trial of the accused by Court Martial was
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mandatory under s. 475 Cr. P.C. and,
457
therefore, it was not permissible for the Army Authorities
to hold a preliminary investigation. However, having regard
to s. 127 of the Army Act, the Magistrate directed that the
progress of the case be intimated at intervals of four
months. in the Revision filed by the appellants, the High
Court interfered with the order of the Magistrate insofar
only that it deleted the direction requiring the Army Au-
thorities to inform the Magistrate of the progress of the
case ’at intervals of four months and directed instead that
the result of the Court Martial proceeding be communicated
to the Magistrate, as soon as may be, in accordance with r.
7 of the Criminal Courts and Court Martial (Adjustment of
Jurisdiction) Rules, 1978.
Dismissing the appeal by Special Leave,
HELD: The Army Authority is not entitled to ignore the
proceeding taken by the Magistrate and to invoke the provi-
sions of r. 22 and related rules of the Army Rules. The
Magistrate having held that there is a case for trying the
two accused officers and having directed their appearance,
the Army Authority must proceed to hold a Court Martial for
their trial or take other effectual proceedings against them
as contemplated by the law. [468G-H]
(i) It is open to a Magistrate under ss. 200-203, Cr.
P.C. to inquire into a complaint of an offence alleged to
have been committed by a military person, where it falls
within his jurisdiction and to take proceedings for trial of
the accused. Likewise, a duly constituted Army Authority has
power under the provisions of r. 22 onwards of the Army
Rules to investigate into a charge against a military person
accused of an offence triable under the Army Act, and after
such hearing to decide whether his trial by a Court Martial
should be ordered. The provisions of the Army Rules run
parallel to the provisions in the Cr. P.C. Inasmuch as there
is always a possibility of the same offence being triable
either by a Criminal Court or by a Court Martial, s. 475,
Cr. P.C. empowers the Central Government to make rules as to
cases in which persons shall be tried by a Court to which
the Code applies or by a Court Martial, and the section
provides that whenever a person is brought before a Magis-
trate and charged with an offence for which he is liable to
be tried either by a Court to which the Code applies or by a
Court Martial, such Magistrate must have regard to such
rules and must, in proper cases, deliver the person together
with a statement of the offence of which he is accused, to
the Commanding Officer of the unit to which he belongs for
the purpose of being tried by a Court Martial. The language
used in s. 475 is significant. It refers to a person
458
who "is brought before a Magistrate and charged with an
offence." In other words, he must be a person respecting
whom the Magistrate has taken the proceedings envisaged by
ss. 200 to 204 of the Cede. He will be a person in respect
of whom the Magistrate has found that there is a case for
trial. It is for that reason that s. 475 goes on to say that
when such person is delivered to the Commanding Officer of
the unit to which he belongs, it will be "for the purpose of
being tried by a Court Martial". When he is so delivered, a
statement of the offence of which he is accused will also be
delivered to the Commanding Officer. The relevance of deliv-
ering such statement can be easily understood, for it is to
enable the Army Authority to appreciate the circumstances in
which a Court Martial is required by the law. [464C-D;
465E-H]
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(ii) It is clear from r. 7(1) of the Criminal Courts and
Court Martial (Adjustment of Jurisdiction) Rules, 1978
framed under s. 475 of the Cr. P.C. that when the accused is
made over by the Magistrate under s. 5 or 6 thereof to the
competent military or other authority, it is for the purpose
of trial by a Court Martial or other "effectual proceedings"
to be taken or ordered to be taken against him inasmuch as
the competent authority must, as soon as may be, inform the
Magistrate, whether the accused has been tried by a Court
Martial or other effectual proceedings have been taken or
ordered to be taken against him and the communication of
such information is mandatory. When the Magistrate is in-
formed that the accused has not been tried or other effectu-
al proceedings have not been taken or ordered to be taken
against him, he is obliged to report the circumstances to
the State Government and the State Government, in consulta-
tion with the Central Government, may take appropriate steps
to ensure that the accused person is dealt with in accord-
ance with law. The policy of the law is clear. Once the
Criminal Court determines that there is a case for trial,
and pursuant to the aforesaid rule, delivers the accused to
the competent military or other authority, the law intends
that the accused must either be tried by a Court Martial or
some other effectual proceedings must be taken against him.
[467B-E]
(iii) The policy of our Constitutional Polity is that no
person should be regarded as being above the law. Military,
navel or air force personnel are as much subject to the law
as members of the civil population. It is significant that
r. 8 of the Criminal Courts and Court Martial (Adjustment of
Jurisdiction) Rules, 1978 empowers the Magistrate, on coming
to know that a person subject to the military, naval or air
force law or any other law relating to the Armed Forces has
committed an offence and proceedings in respect of which
ought to be instituted
459
before him and that the presence of such person cannot be
procured except through military, navel or air force author-
ities, to require the Commanding Officer of such person
either to deliver such person to a Magistrate for being
proceeded against according to law or to stay the proceed-
ings against such person before the Court Martial if since
instituted, and to make a reference to the Central Govern-
ment for determination as to the Court before which the
proceedings should be instituted. [467G-H; 468A-B]
(iv) Section 127 of the Army Act provides that a person
convicted or acquitted by a Court Martial, may, with the
previous sanction of the Central Government, be tried
against by a Criminal Court for the same offence or on the
same facts which is an exception to the rule contained in
Art. 20 of the Constitution that no person shall be prose-
cuted and punished for the same offence more than once. It
is to enable the operation and application of s. 127 of the
Act that r. 7(1) of the Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules, 1978 requires the compe-
tent military or other authority to inform the Magistrate
whether the accused has been tried by a Court Martial or
other effectual proceedings have been taken against him.
[468B-D]
(v) Section 125 of the Army Act, which provides that
when a Criminal Court and a Court Martial have each juris-
diction in respect of an offence, it will he in the discre-
tion of the Commanding Officer of the accused to decide
before which Court the proceedings shall he instituted, is
of no assistance in deciding whether it is open to the Army
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Authority to take proceedings for determining prima facie
whether there is substance in the allegations made against
the accused and decline to try him by a Court Martial or
take other effectual proceedings against him even where a
Magistrate has taken cognizance of the offence and finds
that there is a case for trying the accused. [468E-F]
(vi) There is nothing in the provisions of the Army
Rules relating to Courts of Inquiry which can support the
contention that notwithstanding the proceeding taken by the
Magistrate it is open to the Army Authority to hold a Court
of Inquiry and determine whether there is any case for
trying the accused by a Court Martial. If, it is not open to
the Army Authority to have recourse to r. 22 of the Army
Rules and investigate the charge directed against the ac-
cused officer in this case, for the same reason, it is not
open to it to hold a Court of Inquiry and supersede the
proceeding already taken by the Magistrate. [469B-D]
460
JUDGMENT:
CRIMINAL APPELLATE ORIGINAL JURISDICTION: Criminal
Appeal No. 271 of 1987.
From the Judgment and Order dated 3.7. 1986 of the
Gauhati High Court in Crl. Revn. No. 229 of 1986.
A.K. Ganguli, R.P. Srivastava, P. Purameswarn and Ashok
K. Srivastava for the Appellant in Crl. A. No. 271 of 1987
and Respondent in W.P. (Crl.) No. 664 of 1986.
R.K. Jain, Gaurav Jain, Abha Jain and R.P. Singh for the
Respondent in Crl. A. No. 271 of 1987 and Petitioner in W.P.
(Crl.) No. 664 of 1986.
The Judgment of the Court was delivered by
PATHAK, CJ. Special Leave is granted.
The respondent Major S.K. Sharma addressed a letter
dated 21 December 1985 to Brigadier S.S. Randhawa, Command-
er, HQ 41 Sub Area alleging that on 15 December, 1985 he was
manhandled by Col. Mir Usman Ali in the HQ 41 Sub Area
Officers Mess at Jorhat. It was stated that the incident
took place in the presence of Major M.M. Subbaiah. Major
Sharma was attached to B Camp. Signal Regiment while Col.
Ali belonged to HQ 41 Sub Area. Brigadier Randhawa wrote to
the Officer Commanding, B. Comp. Signal Regiment on 14
January 1986 seeking clarification from Major Sharma on some
of the allegations. It appears that correspondence was
exchanged in the matter but apparently Major Sharma, having
met with no satisfactory response, filed a complaint 21
January 1986 in the Court of the Additional Chief Judicial
Magistrate, Jorhat alleging that Col. Ali had criminally
assaulted him and further that Brigadier Randhawa did not
report the matter to the higher authorities and was attempt-
ing to protect Col. Ali. It was alleged in the complaint
that Col. Ali had committed the offences under sections 323,
352 and 355 of the Indian Penal Code and Brigadier Randhawa
had committed the offence under section 2 17 of the Indian
Penal Code. The Additional Chief Judicial Magistrate exam-
ined the complaint, and taking cognizance of the offences
alleged to have been committed by Col. Ali and Brigadier
Randhawa it directed that summons be issued to them for
their appearance before him on 7 March, 1986.
On two applications moved by Major Sharma before him the
461
Chief Judicial Magistrate made an order dated 25 January.
1986 directing that the venue of a Court of Inquiry insti-
tuted in respect of certain complaints made against Major
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Sharma by his Commanding Officer be shifted from Mohanbari,
where it was convened, to a place within the jurisdiction of
his Court and it was directed further that Major Sharma
should not be moved out of the jurisdiction of the Court
during the pendency of the case. Major Sharma had complained
that the Court of Inquiry had been ordered by Brigadier
Randhawa at Mohanbari as a measure of retaliation because of
the institution of the criminal case by Major Sharma before
the Additional Chief Judicial Magistrate.
On 7 February 1986 the Union of India moved an applica-
tion before the Chief Judicial Magistrate along with an
application dated 3 February 1986 addressed to the Court by
Major General T.S. Chaudhri informing the Chief Judicial
Magistrate that the General Officer Commanding was of opin-
ion that Col. Ali should be dealt with in accordance with
the procedure laid down under the Army Act and the Army
Rules and the Criminal Courts and Court-martial (Adjustment
of Jurisdiction) Rules, 1978, and that therefore, the case
may be handed over to the Military Authorities. It was
pointed out by Major Chaudhri in his letter that the com-
plaint before the Additional Chief Judicial Magistrate
against Col. Ali should, in his opinion, be disposed of
under the procedure laid down in Army Rule 22 of Army Rules,
1954 and that under s. 125 of the Army Act 1950 read with
Army Rule 197A of the Army Rules and the Criminal Court and
Court Martial (Adjustment of Jurisdiction) Rules 1978, Major
General Chaudhri was the competent Military authority to
claim the case. He requested that the case should be handed
over to the Military authorities for further necessary
action. On 12 February 1986 the Union of India moved another
application before the Chief Judicial Magistrate along with
an application dated 3 February 1986 addressed to the Chief
Judicial Magistrate by Major General T.S. Chaudhri as Gener-
al Officer Commanding requesting that the case against
Brigadier Randhawa should similarly be handed over to the
Military authorities for necessary action. On 17 February
1986 the Chief Judicial Magistrate, Jothat made an order
disposing of the two requisitions made by Major General
Chaudhri. He noted that the cognizance of the offences had
been taken by the Additional Chief Judicial Magistrate and
necessary process had been issued against both accused to
compel their presence, and that in the light of Rule 3 of
the Criminal Court and Court Martial (Adjustment of Juris-
diction) Rules 1978 the prayer for trial by a Court martial
by the competent authority was. allowed. In this connection
he made reference to Delhi Special Police Establish-
462
ment v. Lt. Col. S.K. Loraiya, AIR 1972 SC 2548. He directed
that the case be transferred to the Army authorities pursu-
ant to the requisitions, and for disposal in accordance with
the provisions of the Army Act, 1950 after trial by a
court-martial at any place within the jurisdiction of his
Court, He directed further that the progress of the case
should be reported to his Court at intervals of two months
and ultimately intimating the result thereof, for the pur-
pose of determining whether a successive trial was necessary
as provided for in the Army Act. While making the order the
Chief Judicial Magistrate noted that the Army authorities
had not shifted the venue of the Court of Inquiry mentioned
earlier to any place within the jurisdiction of his court as
required by his order dated 25 January, 1986, and this prima
facie amounted to contempt for which it was open to Major
Sharma to apply to the High Court for necessary action. He
also directed that Major Sharma should be permitted to
proceed on leave to enable him to apply to the Gauhati High
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Court for filing a writ petition or taking other legal
proceedings.
On 21, March 1986 the Union of India through the General
Officer Commanding filed an application before the Chief
Judicial Magistrate for modification of the order dated 17
February 1986. In that application it was contended that
under the Army Act and the Army Rules it was not mandatory
that all disciplinary cases against military personnel
should culminate in a trial by the Court Martial and that
the directions made by the Chief Judicial Magistrate with
regard to the trial of Brigadier Randhawa and Col. Ali by
Court Martial were in contravention of the Army Act and the
Army Rules and the Criminal Court and Court Martial (Adjust-
ment of Jurisdiction) Rules 1978. It was asserted that the
proposed disciplinary action would be initiated by the
General Commanding Officer after an investigation of the
alleged offences in accordance with Army Rule 22. It was
prayed that the order dated 17 February 1986 be reviewed by
deleting the direction for a trial by Court Martial at a
place within the jurisdiction of the Court of the Chief
Judicial Magistrate and of the direction further that the
progress of the case should be intimated to the Chief Judi-
cial Magistrate at intervals of two months. On 7 April 1986
the Union of India filed another application making more
detailed submissions for modification or the other dated 17
February 1986. A third application was moved by the Union of
India on 30 April 1986 to the Chief Judicial Magistrate
requesting that the records of the case be handed over to
the Army authorities. These applications were disposed of
the Chief Judicial Magistrate by his order dated 8 May 1986.
In that order he noted that the Additional Chief Judicial
Magistrate had, on receipt of
463
the complaint examined the complainant Major S.K. Sharma
under s. 200 of the Cr. P.C. and had taken cognizance of the
offence under s. 190(A) of the Code and on being satisfied
of the existence of a prima facie case process had been
issued by him under s. 204(A) of the Code. He noted that the
judicial process for ascertaining the prima facie existence
of a case had thereby been completed. He held that in the
circumstances the trial of the accused officers by a court
martial appeared to be mandatory under the provisions of s.
475 of the Code. He observed that the preliminary investiga-
tions by a departmental court of inquiry did not seem per-
missible in the case. However, having regard to s. 124 of
the Army Act which conferred absolute power on the Army
authorities to choose the venue of trial and keeping in view
the administrative convenience of the Army authorities he
decided to accept the request of the General Officer Com-
manding for deleting the direction in respect of the venue
of the trial. The Chief Judicial Magistrate also directed
that instead of intervals of two months the Army authorities
should, having regard to the provision of s. 127 of the Army
Act, inform his Court as to the progress of the case at
intervals of four months.
On 14 June 1986 the Union of India through the General
Officer Commanding filed a revision petition before the High
Court at Gauhati, which was disposed of by the High Court by
its order dated 3 July 1986. The High Court interfered with
the order of the Chief Judicial Magistrate in so far only
that it deleted the direction requiring the Army authorities
inform the Chief Judicial Magistrate of the progress of the
case at intervals of four months, and it directed instead
that the result of the Court Martial proceedings should be
communicated to the Chief Judicial Magistrate as soon as may
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be in accordance with Rule 7 of the Criminal Courts and
Court-martial (Adjustment of Jurisdiction) Rules, 1978.
It may be mentioned that according to the order of the
High Court the only submission raised on behalf of the
appellant in the revision petition was that the Magistrate
had no jurisdiction to direct the Court Martial to submit
reports relating to the progress of the case, including the
result thereof, at intervals of four months. Thereafter a
special Leave Petition was filed by the Union of India, out
of which the present appal arises.
Although it appears that the only point raised before
the High Court on the revision petition related to the
direction that the Army authorities should report periodi-
cally to the Chief Judicial Magistrate
464
in regard to the progress of the case, learned counsel for
the appellants has raised a more fundamental question before
us. That question is whether it is open to the Army authori-
ties to constitute a Court of Inquiry, enter upon an inves-
tigation of the charges under Rule 22 of the Army Rules and
determine whether there is a case for trial by a Court
Martial. Learned Counsel contends that the proceedings
already taken by the Additional Chief Judicial Magistrate
must be ignored for the purpose and the Army authorities are
not bound to try the accused by a Court Martial. Although
the point was not taken before the High Court we have per-
mitted it to be raised before us and it has been argued by
learned counsel at length.
It is apparent from the provisions of the Code of Crimi-
nal Procedure that it is open to a Magistrate to inquire
into a complaint of an offence alleged to have been commit-
ted by a military person, where it fails within its juris-
diction, and to take proceedings either for his trial or for
committing the case to the Court of Sessions for trial.
Likewise, there is power under the Army Act in a duly con-
stituted Army authorities to investigate into a charge
against a military person accused of an offence triable
under the Army Act, and after such hearing to decide whether
his trial by a Court Martial should be ordered. In the
former case, ss. 200 to 203 of the Code of Criminal Proce-
dure provide the procedure to be followed by Magistrates
taking cognizance of an offence on a complaint. The Magis-
trate is required to examine on oath the complaint and the
witnesses present and reduce the substance of such examina-
tion to writing to be subsequently signed by the complainant
and the witnesses and by the Magistrate. That is the proce-
dure except when the complaint is made in writing by a
public servant or the Magistrate makes over the case for
trial or inquiry to another Magistrate. The Magistrate may
either inquire into the case himself or direct an investiga-
tion to be made by a police officer or by such other person
as he thinks fit for the purpose of deciding whether or not
there is sufficient ground for proceeding. Where, however,
it appears to the Magistrate that the offence complained of
its triable exclusively by the Court of Session no such
direction for investigation can be made by him. For the
purpose of inquiry be may take evidence of witnesses on
oath. If the Magistrate is of opinion that the offence
complained of is triable exclusively by the Court of Session
he must call upon the complainant to produce all his wit-
nesses and examine them on oath. If after considering the
statement on oath of the complainant and of the witnesses
and the result of the inquiry or investigation directed by
him the Magistrate is of opinion that there is no sufficient
ground for proceeding he must dismiss the complaint. Where
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465
the Magistrate is of opinion that there is sufficient ground
for proceeding he must adopt the procedure setforth in
sections 204 onwards. He must issue process for the attend-
ance of the accused. In certain cases he may dispense with
the personal attendence of the accused and permit him to
appear by his pleader. Where, however, the proceeding is
taken by an Army authority under the Army Act reference must
be made to the provisions of Rule 22 onwards of the Army
Rules. The Rules provide for the hearing of a charge, in
which the accused has liberty to cross examine any witness
against him and to call any witnesses and make any statement
in his defence. If the Commanding Officer investigating the
charge finds no offence has been committed he must dismiss
the charge. He may also do so if, in his discretion, he is
satisfied that the charge has not to be proceeded with. If
the charge is to be proceeded with he may pass any of the
orders detailed in Rule 22(3). They include proceedings for
trial by a Court Martial. It is clear that these provisions
of the Army Rules run parallel to the provisions of the Code
of Criminal Procedure adverted to earlier.
Now inasmuch as there is always a possibility of the
same offence being triable either by a Criminal Court or by
a Court Martial the law has attempted to resolve the compet-
ings claims of the civil authority and the military authori-
ty in such cases. Section 475 of the Code of Criminal Proce-
dure empowers the Central Government to make rules as to
cases in which persons shall be tried by a Court to which
the Code applies or by a Court Martial, and the section
provides that whenever a person is brought before a Magis-
trate and charged with an offence for which he is liable to
be tried either by a Court to which the Code applies or by a
Court Martial such Magistrate must have regard to such rules
and must, in proper cases, deliver the person together with
a statement of the offence of which he is accused to the
Commanding Officer of the unit to which he belongs for the
purpose of being tried by a Court Martial. The language used
in s. 475 is significant. It refers to a person who "is
brought before a Magistrate and charged with an offence." In
other words, he must be a person respecting whom the Magis-
trate has taken the proceedings envisaged by ss. 200 to 204
of the Code. He will be a person in respect of when the
Magistrate has found that there is a case for trial. It is
for that reason that s. 475 goes on to say that when such
person is delivered to the Commanding Officer of the unit to
which he belongs it will be "for the purpose of being tried
by a Court Martial". When he is so delivered, a statement of
the offence of which he is accused will also be delivered to
the Commanding Officer. The relevance of delivering such
statement can be easily understood, for it is to enable the
Army authority to appreciate the
466
circumstances in which a Court Martial is required by the
law.
We now turn to the Criminal Courts and Court-martial
(Adjustment of Jurisdiction) Rules, 1978. These Rules have
been framed under s. 475 of the Code of Criminal Procedure.
When a person subject to military, naval or air force law or
any other law relating to the Armed Forces is brought before
a Magistrate and charged with an offence for which he is
also liable to be tried by a Court Martial, the Magistrate
will not proceed to try such person or to commit the case to
the Court of Session unless (a) he is moved to that effect
by a competent military, naval or air force authority or (b)
he is of opinion for reasons to be recorded, that he should
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so proceed or to commit without being moved thereto by such
authority. Rule 3, in our opinion, comes into play at the
point where the person has been brought before a Magistrate
and charged with an offence. That is the stage adverted to
earlier where the accused is directed to appear before the
Magistrate and is charged with an offence after the Magis-
trate has determined that there is a case for trial. Before
proceeding further with the case and either proceeding to
try the accused or to commit the case to the Court of Ses-
sion the Magistrate must, under Rule 4, give written notice
to the Commanding Officer of the accused and refrain for a
period of 15 days from doing any of the acts or making any
of the orders in relation to the trial of the accused speci-
fied in Rule 4. In the event of the Magistrate entering upon
the trial of the accused or committing the case to the Court
of Session at the instance of the military, naval or air
force authority it is open to such authority or the Command-
ing Officer of the accused to give notice subsequently under
Rule 5 to such Magistrate that, in the opinion of such
officer or authority the accused should be tried by a Court
Martial. Upon such notice, the Magistrate, if he has not
taken any action or made any order referred to specifically
in Rule 4 before receiving such notice, must stay the pro-
ceedings and deliver the accused together with the statement
referred to in s. 475(1) of the Code to the Officer speci-
fied in that subsection. In the other kind of case, where
the Magistrate intends to proceed to try the accused or to
commit the case to a Court of Session without being moved in
that behalf by the military, naval or air force authority,
and he has given notice under Rule 4 to the Commanding
Officer or the military, naval or air force authority of his
intention to do so, Rule 6 empowers the Commanding Officer
or the competent authority to give notice to the Magistrate
within the aforesaid period of 15 days or in any event
before the Magistrate takes any action or makes any order
referred to in that Rule, that in the opinion of such offi-
cer or authority the accused should be tried by a Court
Martial.
467
Upon such notice the Magistrate must stay the proceedings
and deliver the accused together with the statement referred
to in s. 475(1) of the Code to the officer specified in that
sub-section. It is clear that when the accused is made over
by the Magistrate to the Commanding Officer or the competent
military, naval or air force authority it is for the purpose
of trial by a court martial or other "effectual proceedings"
to be taken or ordered to be taken against him. For Rule
7(1) provides that when an accused has been delivered by a
Magistrate under Rule 5 or 6 the Commanding Officer or the
competent military, naval or air force authority must, as
soon as may be, inform the Magistrate whether the accused
has been tried by a Court Martial or other effectual pro-
ceedings have been taken or ordered to be taken against him.
The communication of such information is mandatory. When the
Magistrate is informed that the accused has not been tried
or other effectual proceedings have not been taken or or-
dered to be taken against him, he is obliged to report the
circumstance to the State Government and the State Govern-
ment, in consultation with the Central Government may take
appropriate steps to ensure that the accused person is dealt
with in accordance with law. The policy of the law is clear.
Once the Criminal Court determines that there is a case for
trial. and pursuant to the aforesaid rule, delivers the
accused to the Commanding Officer or the competent military,
naval or air force authority, the law intends that the
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accused must either be tried by a Court Martial or some
other effectual proceedings must be taken against him. To
ensure that proceedings are taken against the accused the
Rules require the Commanding Officer or the competent au-
thority to inform the Magistrate of what has been done. Rule
7(2) appears to envisage the possibility that the Commanding
Officer or the competent military, naval or air force au-
thority may not try the accused or take effectual proceed-
ings against him even where the Magistrate has found a case
for trial. To cover that exigency it provides that the State
Government in consultation with the Central Government, on a
report from the Magistrate to that effect, may take appro-
priate steps to ensure that the accused does not escape the
attention of the law. The policy of our Constitutional
polity is that no person should be regarded as being above
the law. Military. naval or air force personnel are as much
subject to the law as members of the civil population. It is
significant that Rule 8 empowers the Magistrate. on coming
to know that a person subject to the military. naval or air
force law or any other law relating to the Armed Forces has
committed an offence and proceedings in respect of which
ought to be instituted before him and that the presence of
such person cannot be procured except through military.
navel or air force authorities. to require the Commanding
Officer of
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such person either to deliver such person to a Magistrate
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. Reference may also be
made to s. 127 of the Army Act. It is an important provi-
sion. It provides that a person convicted or acquitted by a
Court Martial, may, with the previous sanction of the Cen-
tral Government, be tried again by a Criminal Court for the
same offence or on the same facts. This provision is an
exception to Article 20 of the Constitution which provides
that no person shall be prosecuted and punished for the same
offence more than once. The provision has been made possible
by reason of Article 33 of the Constitution which confers
power on Parliament to modify any Fundamental Right in its
application to the members of the Armed Forces. It is to
enable the operation and application of s. 127 of the Act
that Rule 7(1) of the Criminal courts and Court Martial
(Adjustment of Jurisdiction) Rules, 1978 requires the Com-
manding Officer or the competent military, naval and air
force authority to inform the Magistrate whether the accused
has been tried by a Court Martial or other effectual pro-
ceedings have been taken against him.
Our attention has been drawn by learned counsel for the
appellants to s. 125 of the Army Act. Section 125 provides
that when a Criminal Court and a Court Martial have each
jurisdiction in respect of an offence it will be in the
discretion of the Commanding Officer of the accused to
decide before which Court the proceedings shall be institut-
ed. This provision is of no assistance in deciding whether
it is open to the Army authority to take proceedings for
determining prima facie whether there is substance in the
allegations made against the accused and decline to try him
by a Court Martial or take other effectual proceedings
against him even where a Magistrate has taken cognizance of
the offence and finds that there is a case for trying the
accused.
On the aforesaid analysis we are of opinion that the
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Army authority is not entitled to ignore the proceeding
taken by the Additional Chief Judicial Magistrate and to
invoke the provisions of Rule 22 and related rules of the
Army Rules. The Additional Chief Judicial Magistrate having
hold that there is a case for trying the two accused offi-
cers and having directed their appearance, the Army authori-
ty must proceed to held a court martial for their trial or
take other effectual proceedings against them as contemplat-
ed by the law. The
469
contention advanced by learned counsel for the appellants to
the contrary must be rejected.
We have also been referred to the provisions of the Army
Rules relating to Courts of Inquiry, and learned counsel for
the appellants urges that notwithstanding the proceeding
taken by the Additional Chief Judicial Magistrate it is open
to the Army authority to hold a Court of Inquiry and deter-
mine whether there is any case for trying the accused by a
Court Martial. We have been taken through Rule 177 and the
connected Rules which deal with the institution and conduct
of Courts of Inquiry, but we see nothing in those provisions
which can support the contention now raised before us. If,
on the analysis detailed earlier, it is not open to the Army
authority to have recourse to Rule 22 and investigate the
charge directed against the accused officer in this case.
for the same reason it is not open to it to hold a Court of
Inquiry and supersede the proceedings already taken by the
Additional Chief Judicial Magistrate.
We may mention that learned counsel for the parties
placed a number of cases before us, but having carefully
perused the judgments in those cases we do not find any
declaration of law therein which is inconsistent with the
view taken by us.
Accordingly, the appeal is dismissed.
In the Criminal Writ Petition Major S.K. Sharma prays
for a number of reliefs. The material reliefs are that a
direction be issued to the Army authorities to postpone the
return of the petitioner to the Unit to which he has been
posted and direct the Army authorities to stay all parallel
proceedings against the petitioner until the hearing and
disposal of their Special Leave Petition.
So far as the first submission as concerned it refers to
the mental and physical stress suffered by the petitioner,
apparently necessitating his treatment at a hospital with
sychiatric facilities. We do not think it necessary to issue
any direction because, we think, it is a matter which can be
adequately and humanely dealt with by the Army authorities.
If indeed the petitioner should be given a posting where the
requisite medical facilities are available we have no reason
to doubt that the Army authorities will afford such posting
to the petitioner. In doing so it will be open to the Army
authorities to obtain the latest medical report respecting
the condition of the petitioner.
470
As regards the second relief, we have already disposed
of the special leave petition today and, therefore, no order
need be passed in respect of that relief.
In the result the writ petition is dismissed.
H.L.C. Petition
dismissed.
471