Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 12
PETITIONER:
JOGINDER SINGH
Vs.
RESPONDENT:
STATE OF HIMACHAL PRADESH
DATE OF JUDGMENT:
30/11/1970
BENCH:
VAIDYIALINGAM, C.A.
BENCH:
VAIDYIALINGAM, C.A.
SHELAT, J.M.
CITATION:
1971 AIR 500 1971 SCR (2) 851
1970 SCC (3) 513
CITATOR INFO :
R 1971 SC1120 (20)
ACT:
Army Act, 1950, ss. 70, 125 & 126(1)--Criminal Court and
Court-Martial (Adjustment of Jurisdiction) Rules 1952, r.
4-Army mancharged with rape-Concurrent jurisdiction of Court
Martial and Criminal Court-Offender handed over by military
authorities to Civil Authorities--Tried and convicted by
Assistant Sessions Judge-Trial is legal and--valid-When
discretion under s. 125 to hold Court Martial is not exer-
cised by military authorities and offender is handed over to
Civil authorities provisions of s. 126(1) and r. 4 are not
attracted.
HEADNOTE:
The appellant was a Lance Naik in a military regiment. He
was appointed as Granthi of a temple used by military
personnel. While working as such he was charged with an
offence under s. 376 of the Indian Penal Code. The police
officer investigating offence held an identification parade
with the permission of the military authorities and there-
after the appellant was handed over to the civil authorities
to stand his trial. The Assistant Sessions Judge convicted
him. The Sessions Judge dismissed his appeal. The
appellant then filed a criminal revision in the High Court
where it was contended on his behalf that according to noti-
fication dated November 28, 1962 issued by the Ministry of
Defence, Government of India, the appellant must be
considered to have been on active service on the material
date and consequently the appellants’ trial should have been
before a court martial. It was further urged that if the
Assistant Sessions Judge decided to proceed with the trial
it was obligatory on him to have given notices to the
Commanding Officer of The Army under s. 126(1) of the Army
Act read with r. 4, and since these provisions had not been
complied with the appellant’s trial and conviction were null
and void. The High Court dismissed the revision petition.
With certificate the appellant appealed to this Court.
HELD : Since the appellant was alleged-to have committed
rape in relation to a person who was not subject to
military, naval or air law, under s. 70 of the Army Act he
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 12
would be normally, triable by the ordinary criminal court
but by virtue of notification dated November 28, 1962 he
must be deemed to have been on active service on the
material date. Therefore. this was a case where both the
court martial and the ordinary criminal court had concurrent
jurisdiction to try the appellant. [863 H]
The provisions of the Army Act and the decisions of this
Court make it clear that in respect of an offence which
could be tried both by a criminal court as well as a court
martial, ss. 125, 126 and- the rules have made suitable
provisions to avoid a conflict of jurisdiction between the
ordinary criminal court and the court martial. But it is to
be noted that in the first instance the discretion is left
to the officer mentioned in s 125 to decide before which
court the proceedings should be instituted. Hence the
officer commanding the army, army corps, division or inde-
pendent brigade in which the accused person is serving, or
such other officer as may be prescribed, will have to
exercise his discretion and’ decide under s. 125 in which
court the proceedings shall be instituted.
858
It is only when he has so exercises his discretion and
decides that the proceedings should be instituted before the
court martial that the provisions of s. 126(1) come into
operation. If the designated officer does not exercise his
discretion and decide that the proceedings should be
instituted before a court martial the Army Act would not be
in the way of criminal court exercising its ordinary
jurisdiction in the manner provided by law. [865 H-866 C]
In the present case surrender of the accused by the
military authorities to the civil authorities to be dealt
with the latter, after being made aware of the nature of the
offence alleged against the appellant was clear indication
that the decision of the military authorities was that the
appellant need not be tried by a court martial and that his
trial could take place before the criminal court. Under
these circumstances there was no occasion to follow the
procedure under s. 126 or r. 4 as the military authorities
had made abundantly clear that the appellant need not be
tried by the court martial. That being so it would have
been altogether superfluous for the magistrate to give
notice as required by the said provisions. [870 A-D]
The High Court was therefore right in holding that there had
been substantial compliance with the provisions of the Act
and the rules and hence the trial of the appellant and his
conviction by the Assistant Sessions Judge we’re valid and
legal. [870 D-E]
Som Datt Datta v. Union of India, [1969] 2 S.C.R. 177, Major
F. G. Barsay v. State of Bombay, [1962] 2 S.C.R. 195 and Ram
Sarup v. Union of India, [1964] 5 S.C.R. 931, applied.
In re Captain Hugh May Stollery Mundy & Anr. A.I.R. 1945
Mad. 289, In re Major F. K. Mistry, 1949 2 M.L.J. 44, C.
Ramanujan v. State of Mysore, A.I.R. 1962 Mys. 196, Major
Gopinathan v. State of Madhva Pradesh A.I.R. 1963 M.P. 249,
Awadh Behari Singh v. State, A.I.R. 1967 Calcutta 323 and
Ajit Singh v. State of Punjab, A.I.R. 1970 Punjab & Haryana
351, referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 34 of
1969.
Appeal from the judgment and order dated July 26, 1968 and
September 27’ 1968 of the Delhi High Court, Himachal Bench
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 12
at Simla in Cr. Revision No. 26 of 1968.
R. L. Kohli, for the appellant.
V. C. Mahajan and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by
Vaidialingam J. In this appeal, on certificate issued by the
Delhi High Court, the appellant who is governed by the Army
Act, 1950 (hereinafter refered to as the Act) challenges the
legality of his trial and conviction for an offence under s.
376 I.P.C. by the Assistant Sessions Judge, Nahan.
The main attack levelled against the proceedings is that
the material provisions of the Army Act read with the
Criminal Courts
859
and Court-Martial (Adjustment of Jurisdiction) Rules, 1952
(hereinafter referred to as the Rules) framed by the Central
Government under S. 549 (1) Cr. P.C. have not been complied
with by the Assistant Sessions Judge. The prosecution case
is briefly as follows :
The appellant was a military personnel attached to Punjab
Regiment No. 24, which moved to Nahen on March 3, 1967. The
appellant was a Lance Naik and was appointed as a temporary
Granthi of the Katcha-Johar temple used by the military
personnel. One Jiwa Nand with his wife and children was
living close by the temple. On March 8, 1967 at about 8.30
a.m. Gayatri Devi aged about 10 years and daughter of Jiwa
Nand was called by the appellant and when she came near him
she was taken inside the adjoining room where the appellant
had forcible sexual intercourse with her. The victim
narrated the occurrence to her mother and sister. When
Gayatri Devi, her mother and certain others were proceeding
towards the Cantonment to complain to the military
authorities, they met 4 or 5 Sikh gentlemen and Gayatri Devi
pointed out the appellant in that group as the one who had
misbehaved with her. The Sikh gentlemen, who were in
military uniform declined to permit Gayatri Devi and others
to go inside the Cantonment area on the ground that the
entry into the same was prohibited to nonmilitary personnel.
Later on the father of Gayatri Devi took her to the police
station and lodged a report Ex. 12/A. The accused pleaded
alibi and denied the offence. He also let in defence
evidence. The learned Assistant Sessions Judge accepted the
prosecution case and disbelieving the plea of the appellant
convicted him of the offence under s. 376 I.P.C. and
sentenced him to three years rigorous imprisonment. The
appeal filed by the appellant was dismissed by the learned
Sessions Judge, who confirmed the conviction and sentence.
The appellant filed a criminal revision No. 26 of 1968
before the Delhi High Court, challenging his conviction and
sentence passed by the learned Assistant Sessions Judge and
as confirmed by the learned Sessions Judge. The learned
Chief Justice before whom the criminal revision came for
hearing held that, the conviction of the appellant for the
offence under S. 376 I.P.C. and the sentence imposed on
him by the two subordinated courts on facts were justified
and did not require any interference. However, a plea was
taken before the learned Chief Justice on behalf of the
appellant that according to a notification issued by the
Ministry of Defence, Government of India dated November 28,
1962, the appellant on the material date must be considered
to have been on active service. Based on this notification
it was further urged that the appellants trial should have
been before a Court Marbal and that if the Assistant
Sessions Judge decided to
860
proceed with the trial, he should have given the required
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 12
notice to the Commanding Officer of the Army as is mandatory
under s. 126(1) of the Act read with r. 4. As those
provisions have not been complied with, the appellant’s
trial and conviction were illegal and null and void. The
learned Chief Justice was, however, inclined to take the
view that the omission by the Assistant Sessions Judge to
follow the procedure indicated above does not affect his
jurisdiction to conduct the trial.
In view of certain decisions of the High Courts wherein an
opinion has been expressed that non-compliance with the
provisions of the Act and the Rules vitiates the trial of a
military personnel by the criminal courts, the learned Chief
Justice referred the matter, by his order dated June 25,
1968, to a Full Bench. The Full Bench which consisted of
the learned Chief Justice Kapoor and Tatachari, JJ. heard
the criminal revision case. The learned Chief Justice and
Tatachari, J. after a very elaborate reference to the
material provisions of the Act and the relevant Rules held
that the magistrates, before conducting a trial of a
military personnel and to normally, conform to the relevant
provisions of the, Act and the Rules. But they held that in
respect of offences for the trial of which both the Court
Martial and an ordinary Criminal Court had concurrent
jurisdiction, the mere omission by a magistrate, before
conducting the trial, to issue the necessary notice under r,
4 will not vitiate the proceedings as being illegal.
Kapoor, J., on the other hand, disagreed with the majority
opinion and held that under the Act read with the Rules, the
first option to try a military personnel lies with the Army
authorities and they have to decide the forum of the trial
and that the magistrate will get jurisdiction only after a
decision in his favour by the Central Government in case of
a conflict between the army authorities and the Magistrate.
The learned Judge further held that a magistrate cannot
assume jurisdiction straightaway without providing an op-
portunity to the military authorities, to decide the forum.
The learned Judge accordingly held that the observance of
the Rules is obligatory and non-observance thereof makes the
trial illegal. In accordance with the majority judgment,
the High Court by its order dated July 26, 1968 held that
nonobservance of rr. 3 and 4 of the Rules does not by itself
deprive the magistrate of his inherent jurisdiction or make
the proceedings conducted by him null and void. The High
Court further held that the effect of the violation isto be
determined on the facts and circumstances of each case
keepingin view the nature of the violation and all other
relevant factors. After expressing opinion on the legal
aspects, the case was remitted to the Single Judge for final
disposal.
The matter came again before the learned Chief Justice, who
by his order dated September 27, 1968 held that the trial by
the
861
Assistant Sessions Judge without conforming to the
provisions of r. 4 has not caused any failure of justice to
the appellant in this case. The learned Chief Justice
further held that in view of certain circumstances it is
legitimate to infer that there has been substantial
compliance with,the statutory provisions. Finally the
learned Chief Justice hold that the conviction of the
appellant was proper and dismissed the revision filed by the
appellant.
Mr. Kohli, learned counsel for the appellant, has reiterated
the same objections taken on behalf of the appellant before
the Delhi High Court. According to Mr. Kohli, the offence
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 12
in this case being one which could be tried, both by the
Court Martial and the ordinary Criminal Court, it was for
the competent officer to decide, in the first instance,
whether the appellant is to be tried by a Court Martial. If
the criminal court was of the opinion that, the proceedings
should be instituted before itself in respect of the offence
alleged, it should have followed the, mandatory provisions
contained in s. 126 of the Act read with rr. 3 and 4.
Under s. 549(1) Cr. P.C. the magistrate was bound to have
regard to the rules. In this case inasmuch as the said
procedure had not been followed and the appellant accused
was tried straightaway by the criminal court, the trial is
illegal and void. Being a question of jurisdiction the
objection raised by the appellant before the High Court goes
to the root-of the matter and vitiates the entire
proceedings.
Mr. V. C. Mahajan, learned counsel for the State, on the
other hand, urged two contentions : (i) as held by the High
Court there has been a substantial compliance with the
provisions of the Act and the Rules in this particular case
and hence the trial by the Assistant Sessions Judge is legal
and valid, and (ii) even assuming that there has been a
breach of the rules, such a violation is at the most only an
irregularity and not on illegality, and as no prejudice has
been shown to have been caused to the accused by such an
irregular proceeding held by the Assistant Sessions Judge,
the conviction is legal.
At the outset we may state that the question regarding the
competency of the criminal court to try the appellant does
not appear to have been raised before the learned Assistant
Sessions Judge. It is no doubt seen, that the learned
Assistant Sessions Judge, appears to have made enquiries
from the counsel appearing for the appellant and the State,
regarding the position of the appellant who was in military
employ. The public prosecutor drew the attention of the
Court to S. 70 of the Act and appears to have pointed out
that as the Punjab Regiment No. 24 to which the appellant
was attached was not on active service’, the appellant
could be tried by the ordinary criminal court.
862
On behalf of the appellant it was urged that in view of the
declaration of Emergency, the appellant must be deemed to be
on active service’. But this contention was not accepted by
the Court. Nahan station where the Punjab Regiment was then
stationed being a rest station, the court proceeded with the
trial reserving liberty to the counsel for both the parties
to raise any further point before the close of the trial to
establish that the appellant must be considered to be on
active service. Obviously neither party cared to place any
material before the Court and the trial was proceeded with
resulting in the conviction of the appellant
Mr. Kohli, learned counsel for the appellant, has drawn our
attention to certain decisions of the High Courts in support
of his contention that a trial held by a magistrate without
conforming to the provisions of the Act and the Rules is
illegal and not a mere irregularity. Those decisions are :
In re Captain Hugh May Stollery Mundy and another(1), Major
F. K., Mistry (2) C. Ramanujan v. State of Mysore(3), Major
Gopinathan v. The State of Madhya Pradesh and another(4) and
Awadh Behari Singh v. The State (5).
On the other hand, Mr. Mahajan drew our attention to the
Full Bench decision of the Punjab and Haryana High Court re-
ported in Ajit Singh v.State of Punjab (6) wherein the High
Court has held that the trial suffers not from an illegality
but only an irregularity. Such an irregularity does not
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 12
render the trial liable to be set aside, unless it is shown
that prejudice has been caused to the accused.
In view of certain decisions of this Court, to which we will
presently refer and having regard to the particular
circumstances of this case, we do not think it necessary to
consider the question whether non-observance of the Rules by
the magistrate trying and convicting a person who is
governed by the Act is illegal or only irregular. The
scheme of the Act and the Rules have been considered in
three decisions of this Court, which are being referred to
presently and hence we do not think it necessary to either
quote ss. 125 and 126 or S. 549 Cr. P.C. We will, however,
refer to the relevant rules at the appropriate stage. They
have been referred to in particular in the latest decision
of this Court in Som Datt Datta v. Union of India and
others(7).
There. is no controversy that the appellant is one subject
to the Act as a person enrolled under the Act under S.
2(1)(b), Sec-
(1) A.I.R. 1945 Madras 289.(2) 1949 2 M.L.J. 44.
(3) A.I.R. 1962 Mysore 196. (4) A.I.R. 1963 M.P. 249.
(5) A.I.R. 1967 Calcutta 323
(6) A.I.R. 1970 Punjab & Haryana 351.
(7) [1969] 2 S.C.R. 177
863
tion 3, (i) defines on active service’. Over and above
that power is given to the, Central Government under s. 9,
by notification, to declare any person or class of persons
subject to the Act and who may be deemed to be on active
service’ within the meaning of the Act. The Government of
India, Ministry of Defence, had issued the following
notification on November 28, 1962
"In exercise of the powers conferred by
Section 9 of the Army Act, 1950 (46 of 1950),
the Central Government hereby declare that all
persons subject to that Act, who are not on
active service under clause(1) of section 3
thereof, shall, where ever they may be serving
be deemed to be on active service within the
meaning of that Act for the purpose of the
said Act and of any other law for the time
being in force."
By virtue of this notification it follows that
on the material date Punjab Regiment No. 24,
to which the appellant was attached though. it
was at Nahan, which was a rest station, must
be considered to have been on active service.
This notification was issued in the year 1962.
Unfortunately, it was not brought to the
notice of the learned Assistant Sessions
Judge, notwithstanding the specific enquiry he
made about the position of the accused.
Section 70 of the Act runs as follows
"A person subject to this Act who commits ail
offence of murder against a person not subject
to military, naval or air force law, or of
culpable homicide not amounting to murder
against such a person or of rape in relation
to such a person, shall not be deemed to be
guilty of An offence against this Act and
shall not be tried by a court-martial, unless
he commits any of the said offences-
(a) while on active service, or
(b) at any place outside India, or
(c) at a frontier post specified by the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 12
Central Government by notification in this
behalf."
As the appellant was alleged to have committed rape in rela-
tion to a person who was not subject to military, naval or
air law, under s. 70, normally he could be tried by the
ordinary criminal court, but inasmuch as he was on active
service at the time of the alleged offence, the court-
martial also get jurisdiction to try the appellant.
Therefore. this is a case where both the court-martial and
the ordinary criminal court had concurrent jurisdiction to
try the appellant. To meet such a situation suitable
provisions have been made in ss. 125,’126 of the Act and the
Rules framed under
864
s.549 Cr.P.C. In Major E. G. Barsay v. The State of
Bombay(1) the jurisdiction of the Special Judge to try an
officer who was subject to the, Army Act was questioned. No
doubt the ultimate decision of the Court rested on a
construction of the provisions of the Prevention of
Corruption Act, 1947 and the jurisdiction of the Special
Judge to try the military officer in that case was upheld.
But in dealing with the contention- raised on behalf of the
appellant therein that the Special Judge had no jurisdiction
to take cognizance of, the offences with which the accused
was charged and that he should have been tried only by a
court-martial under the Act, this Court had to consider the
scheme of the Act.
After holding that the Act does not expressly bar the
jurisdiction of the criminal court in respect of the acts or
omission punish.able under the Act if they are also
punishable under any other law in force in India, this Court
held that ss. 125, 126 and 127 excluded any inference about
prohibition regarding jurisdiction of the criminal courts
and those sections in express terms provide not only for
resolving conflict of jurisdiction between a criminal court
and a court-martial in respect of the same offence, but also
provide for successive trials. of an accused in.respect of
the same offence.. This Court has further laid down that
ss. 125 and 126 provide a satisfactory machinery to resolve
the conflict of jurisdiction having regard to the exigencies
of the situation. This decision in our opinion, lays down
that there is no exclusion of jurisdiction of the ordinary
criminal courts in respect of. offences which are triable
also by the court-martial.
In dealing with the Act, this Court in Rain Sarup v. The
Union of India and another(2) has observed that there, could
be a variety of circumstances which may influence the
decision as to whether the offender is to be tried by the
court-martial or by the ordinary criminal court and the
military officers, who are charged with the duty of
exercising discretion are to be guided by the circumstances
and the exigencies of the service, maintenance of discipline
in the army, speedier trial, nature of the offence and the
person against whom the offence is committed.
In Som Datt Datta v. Union, of India ad others (3) this
Court has again elaborately considered the scheme of the
Act as well as the Rules. Dealing with sections 125 and
126, at page 183 this Court observes
"Section 125 presupposes that in respect of an
offence both a criminal court as well as a
court-martial have each concurrent
jurisdiction. Such a situation can arise in
the case of an act "or omission punishable
both
(1) [1962] 2S.C.R.195. (2) [1964] 5
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 12
S.C.R.931.
(3) [1969] 2 S.C.R. 177.
865
under the Army Act as well as under any law in
force in India. It may also arise in the case
of an offence deemed to be an offence under
the Army Act. Under the scheme of the two
sections, in the first instance, it is left to
the discretion of the officer mentioned in s.
4 25 to decide before which court the
proceedings shall be instituted, and, if the,
officer, decides that they should be
instituted before a court-martial, the accused
person is to be detained. in military custody;
but if a criminal court is of opinion that the
said offence shall be tried before itself it
may issue the requisite notice under S. 126
either to deliver over the offender to the,
nearest magistrate or to postpone the
proceedings pending a reference to the
Central Government. On receipt of the said
requisition, the officer may either deliver
over the offender to the said court or refer
the question of proper court for the de-
termination of the Central Government whose
order shall be final. These two sections of
the Army Act provide a satisfactory machinery
to resolve the conflict of jurisdiction having
regard to the exigencies of the situation in
any particular case."
A reference to the Act particularly to Chapter VI, which
comprises of ss. 34 to 70, under the heading offences’,
the, position that emerges according to the above decisions
is that under Chapter VI there are three categories of
offences, namely, (1) offences committed by a person subject
to the Act, triable a court-martial in respect whereof
specific punishments have be unassigned; (2) civil offences
committed by the said person at any place in or beyond
India, but deemed to be offences committed; under the Act
and, if charged under S. 69 of the Act, triable by a court-
martial; and (3) offences of murder and culpable homicide
not amounting to murder or rape committed by a person
subject to the Act against a person not subject to the
military law. Subject to a few exceptions, they are not
triable by court-martial, but are triable only by ordinary
criminal courts. The said categorisation of offences and
tribunals necessarily bring about a conflict of
jurisdiction. Where an offence is for the first time
created by the Army Act, such as those created by ss. 34,
35, 36, 37 etc., it would be exclusively triable by a court-
martial; but where a civil offence is also an offence under
the Act or deemed to be an offence. under the Act, both an
ordinary criminal court as well as a court matrial would
have jurisdiction to try the person committing the. offence.
It is further clear that in respect of an offence which
could be tried both by a criminal court as well as a court-
martial sections 125, 126 and the Rules, have made suitable
provisions to avoid a.
13-L694Sup CI/71
866
conflict of jurisdiction between the ordinary criminal
courts and the court-martial. But it is to be noted that in
the first instance, discretion is left to the officer
mentioned in s. 125 to decide before which court the
proceedings should be instituted. Hence the Officer
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 12
commanding the army corps, division or independent brigade
in which the accused person is serving or such other officer
as may be prescribed will have to exercise his discretion
and decide under s. 125 in which court the proceedings shall
be instituted. It is only when he so exercises his
discretion and decides that the proceedings should be
instituted before a court-martial, that the provisions of s.
126(1) come into operation. If the designated officer does
not exercise his discretion and decide that the proceedings
should be instituted before a court-martial, the Army Act
would not obviously be in the way of a criminal court
exercising its ordinary ex-jurisdiction in the manner
provided by law.
We will presently show that in the case before us the desig-
nated officer in s. 125 has not chosen to exercise his
discretion and decided before which court the proceedings
should be instituted and in particular he has also not
decided that the proceedings should be instituted before, a
court-martial. When that is so, in our opinion, there was
no occasion for the Criminal Court in this case to adopt the
procedure laid down in s. 126 of the Act. This view finds
support from the second part of s. 126(1) which requires the
criminal court to issue a notice to the officer designated
:in S. 125 of the Act to deliver over the offender to the
nearest magistrate or to postpone the proceedings pending a
reference to the Central Government. This is a clear
indication that s. 126(1) presupposes that the designated
officer has decided under s. 125 that the proceedings shall
be instituted before a court-martial and has also directed
that the accused person shall be detained in military
custody.
As the facts on which we are basing our conclusion that
there was no necessity for the criminal. court in question
to adopt the procedure laid down in s. 126 of the Act, will
have also bearing on the construction of the relevant rules,
it is desirable to refer to the relevant rules relied on by
the appellant.
The rules have been framed by the Central Government under
s. 549(1) Cr. P.C. That section provides for the Central
Government making rules consistent with the Criminal
Procedure Code and the Acts mentioned therein in respect of
offences which could be tried by an ordinary criminal court
or by a court-martial. It enjoins upon a magistrate when
any person is brought before him, in respect of such an
offence, to have due regard to the rules and to deliver him
in proper cases to the appropriate officers mentioned
867
therein, for being tried by a court-martial. The material
rules that are to be referred are rr. 2, 3, 4, 5 and 8.
Rule 2 defines the expressions "commanding officer",
"competent military authority", "competent naval authority"
and "competent Air Force authority". Rules 3, 4,5, and 8
axe as follows
Rule 3. "Where a person subject to military,
naval or Air Force law is brought before a
Magistrate and charged with an offence for
which he is liable to be tried by a court-
martial, such magistrate shall not proceed to
try such person or to inquire with a view to
his commitment for trial by the Court of
Sessions or the High Court for any offence
triable by such Court, unless
(a)he is of opinion, for reasons to be
recorded, be should so proceed without being
moved thereto by competent military, naval or
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 12
Air Force Authority, or
(b) he is moved thereto by such authority.
Rule 4. Before proceeding under clause (a) of
rule 3, the Magistrate shall give a written
notice to the Commanding Officer of the
accused and until the expiry of a period of-
"(i) three weeks, in the case of a notice
given to a Commanding Officer in command of a
unit, or detachment located in any of the
following areas of the hill districts of the
State of Assam, that is to say-
(1) Mizo,
(2) Naga Hills,
(3) Garo Hills,
(4) Khasi and Jaintia Hills; and
(5) North Cachar Hills.
(ii) seven days, in the case of a notice
given to any other Commanding Officer in
command of a unit or detachment located
elsewhere in India.
from the date of the service of such notice,
he shall not-
(a) convict or acquit the accused under
section 243, 245, 247 or 248 of the Code of
Criminal Procedure, 1898 (Act 5 of 1898), or
hear him in his defence under section 244 of
the said Code; or
868
(b) frame in writing a charge against the
accused under section 254 of the said Code; or
(c) make an order committing the accused for
trial by the High Court or the Court of Ses-
sions under section 213 of the said Code; or
(d) transfer the case for inquiry or trial
under section 192 of the said Code.
Rule 5. Where within the period of seven days
mentioned in rule 4, or at any time thereafter
before the Magistrate has done any act or made
any order referred to in that rule, the
Commanding Officer of the accused or competent
military, naval or, Air Force authority, as
the case may be, gives notice to the
Magistrate that in the opinion of such
authority, the accused should be tried by a
court-martial, the Magistrate shall stay pro-
ceedings and if the accused is in his power or
under his control, shall deliver him, with the
statement prescribed in sub-section (1) of
section 549 of the said Code to the authority
specified in the said sub-section.
Rule 8. Notwithstanding anything in the
foregoing rules, where it comes to the notice
of a Magistrate that a person subject to
military, naval or Air Force law has committed
an offence, proceedings in respect of which
ought to be instituted before him.,and that
the reasons of such person cannot be procured
except 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 person to a
Magistrate to be named in the said notice for
being proceeded against according to law, or
to stay the Central Government for
determination as to the martial, if since
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 12
instituted, and to make a reference to the
Central Government for determination as to the
Court before which proceedings should be
instituted."
The main contention that has been urged by Mr. Kohli, on
behalf of the appellant is that in this case the Assistant
Sessions Judge had no jurisdiction to proceed with the trial
of the appellant as he has not complied with the provisions
of rr. 3 and 4. From a perusal of rr. 3 and 4, the scheme of
these two rules appears to us to be that the magistrate
shall not proceed to try a military personnel unless he
forms an opinion for reasons to be recorded to proceed with
the trial without being moved by the competent authority or
the magistrate has-been so moved by the com-
869
petent military authority; but before a magistrate decides
to proceed with the trial without being moved by the
competent authority, he is obliged to give a written notice
to the Commanding Officer of the accused and is further
enjoined not to pass any of the orders enumerated as (a) to
(d) in Rule 4, till the expiry of the said period of the
notice mentioned in clauses (1) and (2).
According to Mr. Kohli the criminal court has not been moved
by the competent military authority to conduct the trial
before it. The magistrate has not also framed an opinion
that he should try the accused without being moved by the
competent military authority. Even assuming that he has
formed such an opinion, he has not given the requisite
notice and waited for the required period under r. 4. Hence
it is argued that the criminal court has acted illegally in
proceeding with the trial of the appellant. We are not
inclined to accept this contention of the learned counsel.
Rule 4 is related to cl. (a) of r. 3 and will be attracted
only when the magistrate proceeds to conduct the trial
without having been moved by the competent military
authority. It is no doubt true that in this case the
Assistant Sessions Judge has not given a written notice to
the Commanding Officer as envisaged under r. 4. But, in our
view, that was unnecessary. When the competent military
authorities, knowing full well the nature of the offence
alleged against: the appellant, had released him from mili-
tary custody and handed him over to the civil authorities,
the magistrate was justified in proceeding on the basis that
the military authorities had decided that the appellant need
not be tried by the court-martial and that he could be tried
by the ordinary criminal court.
We will now refer in some detail to the particular
circumstances in this case which will show that there has
been no violation of the Act or the Rules. The High Court
has pointed out that the District Inspector of Police. P.W.
12, has stated that after recording the statements of some
of the witnesses he proceeded to the Cantonment area and
contacted the officer commanding the Punjab Regiment No. 24.
The said witness has also stated that with the permission of
the said officer he interrogated’ the accused and examined
his person. The Commanding Officer was not willing to hand
over the accused till he obtained permission from the head-
quarters. The Commanding Officer assisted P.W. 12 in
carrying out the identification parade of the accused. The
High Court has further stated that after having full
knowledge of the charge against the appellant and the
investigation that was being conducted by the police, the
competent authority ultimately released the appellant from
military custody and delivered him to the civil authorities
for being tried according to law.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 12
870
From these circumstances, in our opinion, it is legitimate
to hold that the competent authority had Handed over the
appellant to the civil authorities for being tried after the
former had considered the question of so handing him over
after consultations with the headquarters. In these
circumstances, it follows that the designated officer under
s. 125, who had the discretion in the first instance to
decide that the appellant should be tried before a court-
martial had decided to the contrary. Surrender of the ac-
cused to the civil authorities to be dealt with by the
latter, after being made aware of The nature of the offence
against the appellant, is a clear indication that the
decision of the military authorities was that the appellant
need not be tried by a. court-martial and that his trial can
take place before the criminal court. Under these
circumstances there was no occasion to follow the procedure
under r. 126 or r. 4 as the military authorities had made
abundantly clear that the appellant need not be tried by the
court-martial, That being so, it would have been altogether
superfluous for the magistrate to give the notice as
required by the said provisions, Rules 5 and 8 have no
application to the facts of this case.
We agree with the High Court that there has been a substan-
tial compliance with the relevant provisions of the Act and
the Rules and hence the trial of the appellant and his,
conviction by the learned Assistant Sessions Judge are valid
and legal.
In the result, the. appeal fails and is dismissed.
G.C. Appeal dismissed.
871