Jammu & Kashmir High Court - Srinagar Bench
Union Of India And Anr vs Special Judicial Magistrate And on 4 July, 2012
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR OWP No. 1658 of 2011 CMP No. 243 of 2012 Union of India and anr. Petitioners State of J&K and ors. Respondents !Mr. D. S. Thakur, Advocate Mr. K. S. Wazir, Advocate ^Mr. S. A. Naik, Advocate Mr. M. A. Qayoom, Advocate Honble Mr. Justice Hasnain Massodi, Judge Date:04/07/2012 : J U D G M E N T :
1. Shri Showkat Ahmad Khan S/o Ghulam Mohammad Khan Resident of Nadihal, on 20th April, 2010, lodged a written report with police Station, Panzalla, alleging therein that Shri Bashir Ahmad Lone S/o Ghulam Nabi Lone Resident of Nadihal about 24 days prior to lodging of the written report, persuaded Shazad Ahmad Khan S/o Ghulam Mohammad Khan and Riyaz Ahmad Lone S/o Mohammad Yousuf Lone Residents of Nadihal to accompany him to Sogam, Kupwara paying Rs. 5,000/- to each of them and also extended a promise to procure employment for them and that the duo were not heard of since then. The report further alleged that Shri Bashir Ahmad Lone, when approached to disclose the whereabouts of the two, refused to have any knowledge, giving rise to the suspicion that the two had been either eliminated by him or were kept in wrongful confinement, to endanger their lives. The receipt of the report prompted SHO, Police Station, Panzalla to register a case FIR No. 23 of 2010, under Section 364 RPC at Police Station Panzalla.
2. The investigation was taken over by Shri Shakeel Ahmad, Inspector 4459 NGO. The material collected during investigation allegedly revealed that Shri Bashir Ahmad Lone S/o Ghulam Nabi Lone Resident of Nadihal, Abdul Hamid Bhat S/o Abdul Gaffar Bhat Resident of Kawhar Sheeri and Abbas Hussain Shah S/o Kalander Shah Resident of Shadrah, Kamalkote, Uri, hatched a criminal conspiracy with Colonel D. K. Pathania Commanding Officer, Major Moriya, Adjutant, and Major Opendera, all belonging to 4th Rajput and five other members of the Armed Forces, to abduct/entice civilians using bait of employment, eliminate the abductees in a fake encounter and claim cash rewards and promotions and that in execution of criminal conspiracy so hatched Shri Bashir Ahmad Lone, Abdul Hamid Bhat and Abbas Hussain Shah abducted three civilians namely Shazad Ahmad Khan, Riyaz Ahmad Lone and Mohammad Shafi Lone, handed them over to Army Officers and eliminated them in a fake encounter at Sonapindi in Machil Sector and projected before the authorities that three civilians were militants and had been killed in a successful military operation, conducted by Colonel D. K. Pathania and others. The object was to collect the rewards and promotions that would come their way for eliminating the so called militants. S. Shri Bashir Ahmad Lone and his alleged accompanies party to the said conspiracy, were paid Rs. 1,50,000/- in cash. The material collected during investigation and the statements of the witnesses recorded, made the Investigating Officer to conclude that the accused08 Army personnel and three civilians had committed offence punishable under Section 364,302,120-B and 34 RPC. The investigation was concluded as proved against the accused and the charge-sheet presented in the Court of Chief Judicial Magistrate, Sopore, on 15th July, 2010.
3. Though the Superintendent of Police, Sopore, vide letters dated 24th June, 2010 and 30th June, 2010, made a request to the Commander, 53 INF Brigade to hand over Colonel D. K. Pathania, Commanding Officer, 4th Rajput and seven other Army personnel to the Investigating Officer, yet the Army personnel towards whom the needle of suspicion pointed were not handed over to the Investigating Officer. The Brigade Commanding Officer, in reply to the aforesaid communications informed the Superintendent of Police that a Court of Enquiry had been ordered by the Army authorities and the Army personnel sought to be handed over were essential witnesses in the said Court of Enquiry. The Officer however, volunteered to make available the aforesaid Army personnel for questioning/investigation within the Army premises. The stand was reiterated in communication dated 19th July, 2010 of Colonel Adjutant General for General Officer Commanding to the DIG, Baramulla. The charge-sheet in the circumstances was presented before the Chief Judicial Magistrate in absence of Colonel D. K. Pathania and other 07 Army personnel, listed as accused in Column 2 of the charge- sheet.
4. Learned Chief Judicial Magistrate on the date charge- sheet was presented passed the following order:-
(In) the facts and circumstance of the case the provisions of Section 69 Army Act have no application in relation to the accused persons 3 to 11 and instead the case stands in view of the provisions of Section 70 of the Army Act, 1950. The trial of the case in relation to the said accused persons too is necessarily to be conducted by a Civil Court.
In view of the conjoint reading of the Army Act, 1950, Section 549 Cr. PC and Court Martial adjustment of jurisdiction rules, the case falls beyond the option of its trial by Court Martial.
The Bdg. Commander of 53 Inf. Bdgr.
Machil and the present commanding Officer of the Unit concerned i.e. 4 Rajput are directed to ensure the production of accused 4 to 11 before this Court positively on next date of hearing i.e. 29.7.2010 so that proceedings in the case can be carried a head. The accused persons present in the Court are sent to Judicial custody in the Sub Jail Baramulla with the direction to Superintendent of Jail concerned to lodge them in his jail and ensure their production in this Court on the next date of hearing which is fixed on 29.7.2010.
Announced 15.07.2010 In terms of the order a communication was addressed to Brigade Commander, 13 Infantry Brigade, Machil and Commanding Officer 4th Rajput on 15th July, 2010 itself requiring them to ensure production of the accused before the Court on 29th July, 2010.
5. The order of Chief Judicial Magistrate dated 15th July, 2010, was assailed in revision petition before Sessions Judge, Baramulla. The Stand taken was that as the accused 4 to 11 were on active service at the time of alleged occurrence, Section 70 was not attracted and that learned Chief Judicial Magistrate was under statutory obligation to give the Commanding Officer concerned an opportunity to exercise the option as regards the Court Civil Court or Court Martial by which the accused were to be tried and proceedings were to be instituted, without insisting on personal appearance of the accused subject to the Army Act. The Revisional Court on 13.12.2010 dismissed the revision petition, observing that the alleged murder of three innocent civilians cannot be considered as part of active service within the meaning of Section 70(a) of the Army Act, 1950.
6. The Trial Court order dated 15th July, 2010 as well as the Revisional Court order dated 13.12.2010, are questioned in the present petition and their quashment sought in exercise of powers under Article 226/227, Constitution of India read with Section 104, Constitution of Jammu and Kashmir and Section 561-A Code of Criminal Procedure, on the grounds detailed therein. The petitioners also seek quashment of Rule 8 of Jammu and Kashmir Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1983, to the extent it according to the petitioners is in conflict with Section 549 Code of Criminal Procedure and the provisions of the Army Act, 1950.
7. The respondent questions the very maintainability of the writ petition on the ground that challenge to Rule 8 of Jammu and Kashmir Criminal Courts and Court- Martial (Adjustment of Jurisdiction) Rules, 1983, is belated and not maintainable under law. The respondent also questions the right of the petitioners to invoke writ jurisdiction of the Court, to question an order passed in criminal proceedings. It is pleaded that the Law, Rules and Regulations, are a protection to the Armed Forces against malicious prosecution and cannot be used to seek immunity from prosecution for killing innocent people in fake encounters so as to get rewards/promotions. The respondent further pleads that notification SRO 17-E dated 5th September, 1977 cannot over- ride the provisions of Army Act or the Rules made thereunder and active service cannot bring within its sweep offences like rape and murder alleged to have been committed by person/persons subject to Army Act.
8. I have gone through the pleadings and have heard counsel for the parties as also Mr. M. A. Qayoom, Advocate appearing for the intervenors.
9. It needs to be pointed out at the outset that the Union of India does not oppose trial of the accused Army personnel on the charge of having entered into a criminal conspiracy with accused 1 to 3 to lure innocent civilians on payment of cash and promise of providing employment, eliminate them in the name of anti militancy operations, show them to be militants and ask for reward and promotions for liquidating the so called militants. Shri D. S. Thakur, Senior Advocate, appearing for the petitioners states that the petitioners are keen to see the accused Army personnelColonel Pathania and seven others tried by Court-Martial at an earliest. Mr. Thakur during the course of arguments has even made an effort to convince the Court that the mechanism of Court- Martial is more efficient and result oriented as regards trial of and punishment to erring Army personnel and quoted the figures of Court-Martial trials and the rate of conviction recorded by the Court-Martial to reference his stand. The only grievances voiced in the petition and reiterated during the course of arguments is that the offence alleged to have been committed by Army personnel, are triable by Court-Martial as well as the Criminal Court, at the option of the Commanding Officer or the authority mentioned in Section 125 of the Army Act. Having, taken on record the stand taken by Mr. Thakur. Let us go to the pleadings.
10. The pleadings filed by the parties and their rival claims raise following questions.
(i) Whether the accused 4 to 11all Army Personnel and therefore subject to the Army Act, 1950, are to be deemed to have been on active service at the time of commission of the alleged offences and the matter to fall within the ambit of Section 70 (a) of the Army Act, 1950.
(ii) Whether the Chief Judicial Magistrate, Sopore in terms of Section 125 Army Act, 1950, Section 549 Code of Criminal Procedure and Rules 3 and 4 of Jammu and Kashmir Criminal Courts and Court- Martial (Adjustment of Jurisdiction) Rules, 1983 is required to give an opportunity to the Commanding Officer of the Brigade, to exercise option as regards the Court before which the proceedings against the accused are to be instituted, without insisting on presence of the accused before the Court.
(iii) Whether the Rule making authority, has exceeded its rule making power conferred under Section 549, by identifying the State Government as authority to which the reference is to be made by the Commanding Officer, in the event there is a conflict between the Civil Court and the Military authorities as regards jurisdiction to try the accused subject to the Army Act, 1950.
11. Before an endeavour is made, to find answer to the above questions, it would be appropriate to deal with the issue of maintainability of the petition.
12. The respondent questions the maintainability of the writ petition on the grounds that challenge to Rule 8 of Jammu and Kashmir Criminal Courts and Court- Martial (Adjustment of Jurisdiction) Rules, 1983, has been thrown thirty years after rules were framed; that the grounds taken in the writ petition are false and frivolous and that petitioners having exhausted their remedy by questioning the order of Chief Judicial Magistrate dated 15th July, 2010, has no right to invoke the writ jurisdiction of the Court. The Stand taken by the respondent is supplemented by learned counsel for the intervenors, insisting that Court in exercise of writ jurisdiction cannot interfere with the criminal proceedings or the orders passed at different stages of such proceedings.
13. The grounds urged by learned counsel for the respondent to question maintainability of the petition are specious and bereft of any merit. Merely because the respondent finds the grounds urged in the petition, as false and frivolous, does not render the petition not maintainable, so is the case with other grounds urged in the reply. The delay cannot stand in the way of petitioners to question Rule 8 of Jammu and Kashmir Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1983, to the extent it provides for reference to the State Government, on the ground that the Rule is in conflict with and beyond scope of the provision of the Act in exercise whereof, the Rules are framed. The petitioners cannot be held guilty of delay, when the cause to question vires of Rule 8 arose only after the impugned order was passed. The plea raised is not factual in character. It rather relates to vires of Rule and interpretation of Section 549 of the Code and does not deserve to be rejected at the threshold on the ground of latches, if any, attributable to the petitioners. Again, only because the petitioners pressed into service Section 435 Cr. P. C. to question legality of the order of Chief Judicial Magistrate dated 15th July, 2010, before the Sessions Court, Baramulla, does not deprive the petitioners of their right to make use of such other legal remedies including one under Article 227, Constitution of India read with Section 104, Constitution of Jammu and Kashmir to question an order that it finds amounting to abuse of process of Court. The Supreme Court in Pepsi Foods Limited and another versus Special Judicial Magistrate and others 1998 SCC (cri) 1400, while dealing with the powers of the High Court under Sections 226 and 227 Constitution of India and Section 482 Cr. P. C. has observed:-
It is settled that the High Court can exercise its power of judicial review in criminal matters. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226 Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses. The challenge to the maintainability of the writ petition, therefore, is destined to fail.
This takes us to main and more important aspect of the matter i.e. an endeavour to find answer to the questions (i) to
(iii) formulated above.
14. The controversy involved, makes it necessary to notice relevant provisions of the Army Act, 1950, Code of Criminal Procedure and Jammu and Kashmir Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1983. Section 2 of the Army Act, 1950 enumerates the persons subject to the Army Act, 1950 or to whom the Act is applicable. Chapter VI of the Act deals with offences against and punishable under the Act. The offences defined as regards the forum of trial may be classified into three categories.
i. The offences exclusively triable by the Court- Martial.
ii. The offences that may be tried by the Court-Martial or by a Criminal Court at the option of competent authority mentioned in Section 125 of the Act. iii. The offences though committed by the person subject to the Army Act, fall within exclusive jurisdiction of the Civil Court and are not to be tried by Court-Martial.
The first category of offences, are the offence that are against and punishable under Army Act, though these may not be offences under any law other than the Act. Sections 34 to 68 define and deal with such offences. These are exclusively triable by the Court-Martial. In terms of section 69 of the Act a Civil offence i.e. an offence triable by a criminal Court, committed by a person subject to the Act, is deemed to be an offence against the Army Act and such person liable to be tried by the Court- Martial or the criminal Court. These offences obviously, are the offences declared, as such, and punishable under a law other than the Army Act.
Section 70 of the Act carves out an exception to Section 69 of the Act. It provides that offences of murder, culpable homicide not amounting to murder and rape committed by a person subject to the Act against the person not subject to the military, naval or air force law would not be tried by the Court- Martial, unless the offence is committed while on active service or at any place outside India or at a frontier post specified by the Central Government. In all these cases the accused is to be tried by the Court-Martial or Civil Court at the option of the Commanding Officer in terms of Section 125 Army Act.
Sections 69 and 70 need to be noticed.
Section 69. Civil offences.Subject to the provisions of section 70, any person subject to this Act who at any place in or beyond India, commits any civil offence, shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be tried by a court-martial and, on conviction, be punishable as follows, that is to say,
(a) and
(b) .
Section 70. Civil offences not triable by court- martial. A person subject to this Act who commits an 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 Central Government by notification in this behalf.
15. The rationale behind, exception carved out to leave room for trial by Court-Martial, even where offence alleged is murder, culpable homicide not amounting to murder and rape against a person not subject to the military, naval or air force law, is not difficult to understand. The Criminal Court otherwise competent to conduct trial would not be available where the offence is committed at any place outside India and may not be available at a frontier post. In case of commission of offence while on active service, it would be appropriate to try the accused immediately after the offence is reported without delay come across in regular trials by criminal Courts and not in a routine manner.
16. Section 3 (i) defines active service as under:-
3 (i) active service, as applied to a person subject to this Act, means the time during which such person
(a) is attached to, or forms part of, a force which is engaged in operations against an enemy, or
(b) is engaged in military operations in, or is on the line of march to, a country or place wholly or partly occupied by an enemy, or (c ) is attached to or forms part of a force which is in military occupation of a foreign country; Section 9 empowers the Central Government to declare that any person or class of persons subject to the Act, with reference to any area in which they may be serving or with reference to any provisions of this Act or any other law for the time being in force, be deemed to be on active service within the meaning of the Act. It reads
9. Power to declare persons to be on active service. Notwithstanding anything contained in clause(i) of section 3, the Central Government may, by notification, declare that any person or class of persons subject to this Act shall, with reference to any area in which they may be serving or with reference to any provision of this Act or of any other law for the time being in force, be deemed to be on active service within the meaning of this Act.
17. The Central Government in exercise of powers under Section 9 of the Act, vide SRO 17-E dated 5th September, 1977 has declared areas where all persons subject to the Act, though not on active service in terms of Section 3 Clause (i), are deemed to be on active service within the meaning of the Act. The State of Jammu and Kashmir figures at serial No. 1 (a) in the list. Section 9 as evident from the text is an enabling provision and empowers the Central Government to declare any person or class of persons subject to the Army Act to be deemed to be on active service within the meaning of the Act. Expression with reference to any area in which they may be serving used in Section 9 is of utmost importance, because it indicates the parameters of power conferred on the Central government, under the provision. The provision does not empower the Central Government to declare any person or class of persons subject to the Army Act, to be deemed to be on active Service with reference to an act or omission. The Power rather relates to the area in which any person or class of persons subject to Army Act may be serving. In short, Section 9 has reference to the place of service/posting at the time of commission of alleged offence rather than the act or omission alleged. SRO 17-E dated 5th September, 1997 accordingly refers to the areas within which any person or class of persons subject to the Army Act while posted/ serving are to be deemed to be on active Service.
18. The Chief Judicial Magistrate, Sopore as well as Sessions Judge, Baramulla have misunderstood the scope of Section 9 Army Act and SRO 17-E issue thereunder. The Courts below have taken the view that acts alleged to have been committed by the accused Army Personnel i.e. abduction and murder, because of their very nature do not permit to declare the accused Army personnel on active service and Section 70 (a) of the Act accordingly was not applicable to the Army Personnel, found to have committed the offences alleged in the charge-sheet. The fact that the Sessions Court was influenced by nature or gravity of the act alleged to have been committed rather than the place of posting of the accused Army personnel or the area in which the act was committed, is borne out from its following observation.
Special and extra-ordinary privileges to the subjects of Army Act 1950, in view of sections 69 and 70 of the Act read with Criminal Courts and Court Martial (Adjustment of Jurisdiction Rules) 1984 framed by the State of J&K under Section 549 of the state code and notification under SRO 17-E of Central Act issued u/section 9 of the Army Act are deemed to have been so granted with the bonafide and legitimate motive, with a view to protect the subjects of the Act done in good faith by considering them as a part of their legitimate duty. As per the prosecution case accused persons who are subject to the Army Act are accused of murdering three innocent persons under a fake encounter as a result of a criminal conspiracy. Such acts by no stretch of judicial interpretation can be considered on active service. Therefore, in view of the seriousness of allegations against the accused, considering the accused 4 to 11 on active service will made the mandate of law containing under section 70 and Section 3 of the Army Act redundant.
The Sessions Court rushed to the said conclusion unmindful of law laid down in Pritam Singh versus State and others 1980 Criminal Law Journal 296, relied upon by the present petitioners and referred to by the Sessions Court in order dated 13.12.2010. Both, Chief Judicial Magistrate, Sopore as well as Sessions Judge, Baramulla have fallen in error while interpreting expression active service as mentioned in Section 9 of the Act and SRO 17-E dated 05.09.1997. The issue that ought to have attracted the attention of the Courts below was whether the accused Army personnel were posted in Jammu and Kashmir State at the time of alleged commission of the offences and the acts allegedly done by the Army Personnel were committed within the territory of State of Jammu and Kashmir and not the nature, seriousness or gravity of the act or omission alleged against the accused Army Personnel. So viewed, the Army personnel (accused 4 to 11) found by the Investigating Agency to have been posted in Jammu and Kashmir and involved in the occurrence that had taken place within the State, were to be taken on active service at the time of commission of the alleged offence within the meaning of Section 9 read with SRO 17-E dated 05.09.1997.
19. In Pritam Singhs case (supra), the Court while dealing with the expression active service observed:-
The expression service cannot be given a restricted meaning and equated with the expression on duty. When a person covered by Section 70 is on actual duty he must be on active service, but it is not essential that when on active service, he must always be on actual duty. He would be deemed to be on active service even when he is either off duty or availing casual leave. This Court again in General Officer Commanding, Cr Delta Force versus State through Advocate General 689 KLJ 1999 held that an Army Personnel serving in Jammu and Kashmir State is on active service and as such the option as regards the trial is to be exercised by his Commanding Officer. In the said case the Army Personnel were found by the Investigating Officer, to have committed offence punishable under Section 302 RPC. The Magistrate declined request made by their Commanding Officer to try the accused by Court-Martial on the ground that the accused Army Officers were not on active Service at the time of commission of offence and therefore, their custody could not be delivered to the Commanding Officer. This Court observing that as both the officers were posted in the State of Jammu and Kashmir, therefore, they were deemed to be on active service and as such Section 125 of the Army Act was attracted, set aside the Trial Court order.
The Supreme Court in Balbir Singh Vs. State of Punjab (1995) 1 SCC 90, while interpreting Sections 4 and 9 Air Force Act, 1950 and SRO 8-E dated 05.12.1962 held that the effect of notification is that whether a person is covered or not covered by the definition of active service as spelt out in Section 4 (1) of the Act, they still would be deemed to be deemed on active service wherever they may be serving.
Referring to leave Rules governing the force, the Court, held that Air Force personnel, while on casual leave, would be deemed to be on active Service within meaning of SRO 8-E dated 05.12.1962.
20. It emerges from the above discussion that all persons subject to the Army Act, who though not on active service within the meaning of Section 3 of the Act, would be deemed to be on active service while serving in the State of Jammu and Kashmir and other areas detailed in SRO 17-E dated 05.09.1997.
21. The order of Chief Judicial Magistrate dated 15th July, 2010 and that of Revisional Court dated 13.12.2010 are therefore, liable to be set aside for the reason that two Courts have held the accused Army Personnel exclusively triable by the Civil Court on an erroneous assumption that they were not on active service at the time they allegedly committed offences and thus their case did not fall within the ambit of Section 70 (a) of the Army Act.
22. This takes us to the second question.
The offence/s alleged to have been committed by a person subject to the Army Act, as pointed out earlier may be exclusively triable by the Court-Martial or by Court-Martial as well as Civil Court or only by the Civil Court. There is no controversy as regards the offences exclusively triable by Court-Martial or by the Civil Court. The difficulty may arise where both the Court-Martial as well as Civil Court have jurisdiction to try the accused Army personnel. The controversy has surfaced and re-surfaced in a number of cases before the High Courts and the Supreme Court. It is to clear the confusion that the Government in exercise of powers under Section 549 of the Code has made Jammu and Kashmir Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1983.
It would be advantageous to extract Ss. 125 and 126 of the Army Act, 1950, Section 549 Criminal Procedure Code and rules 3 and 4 Adjustment of Jurisdiction Rules:
A 125. Choice between Criminal Court and Court- Martial. 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 or such other officer as may be prescribed to decide before which Court the proceedings shall be instituted and, If that officer decides that they should be instituted before a Court-Martial, to direct that the accused person shall be detained in military custody.
126. Power to Criminal Court to require delivery of offender. (1) when a Criminal Court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged offence, it may, by written notice, require the officer referred to in Sec. 125 at his option, either to deliver over the offender to the nearest magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central government.
(2) In every such case the said officer shall either deliver over the offender in compliance with the requisition, or shall forthwith refer the question as to the Court before which the proceedings are to be instituted for the determination of the central Government, whose order upon such reference shall be final. B 549 Cr. P.C. Delivery to military authorities of persons liable to be tried by Court-martial (1) The Government may make rules consistent with this Code and the Army Act in force in the State or any similar law for the time being in force as to the cases in which persons subject to military law, shall be tried by a Court to which this Code applies, or by Court-martial, and when any person is brought before a Magistrate and charged with an offence for which he is liable, under the Army Act in force in the State to be tried by a Court- martial, such Magistrate shall have regard to such rules, and shall in proper 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.
(2) xxxxxx C Rule 3. Where a person subject to Military, Naval or Air Force Law, or any other law relating to the Armed Forces of the Union for the time being in force is brought before a Magistrate and charged with an offence for which he is also liable to be tried by a Court Martial, such Magistrate shall not proceed to try such persons or to commit the case to the Court of Sessions unless:-
(a) He is moved thereto by a competent Military, Naval or Air Force Authority, or.
(b) He is of opinion, for reasons to be recorded, that he should so proceed or to commit without being moved thereto by such authority.
Rule 4. Before proceeding under clause (b) of rule 3, the Magistrate shall give a written notice to the Commanding Officer or the competent Military, Naval or Air Force authority, as the case may be, of the accused and until the expiry of a period of fifteen days from the date of service of the notice he shall not:-
(a) Convict or acquit the accused under sections 243,245,247 or 248 of Code of Criminal Procedure 1989, or hear him in his defence under section 244 of the said Code; or
(b) Frame in writing a charge against the accused under sub-section (3) of section 251-A or 254 of the said Code; or
(c) Make an order committing the accused for trial to the Court of Sessions under section 205-D of the said Code; or
(d) Make over the case for inquiry or trial under section 192 of the said Code.
23. A bare look at Section 125 of the Army Act, 1950 makes it clear that where a person subject to the Army Act is alleged to have committed offence triable by the Civil Court and Court Martial. It is the officer commanding the army, army corps, division or independent brigade, in which the accused person is serving or such other officer as may be prescribed, who has power to decide before which Court the proceeding shall be instituted, and in case such officer decides that the proceedings should be instituted before Court-Martial, he is further empowered to direct, the accused person be detained in military custody. Where the officer referred to in Section 125 of the Army Act, has taken a decision to institute the proceedings before the Court-Martial, the decision is to be communicated to the Magistrate before whom the charge- sheet, if any, is presented, in response to or before notice in terms of Rule 4 is received by the Commanding Officer. However, if the Civil Court having jurisdiction, is of the opinion that proceedings should be instituted before itself, it may require the officer referred to in Section 125, to either deliver the offender to the nearest Magistrate to be proceeded against under law or ask such officer, in case he does not agree with the trial before the Criminal Court, to stay the proceedings pending a reference made by the Officer to the Central Government for a decision as regards the Court before which the proceedings are to be instituted. The order on such reference is to be final.
24. Section 549 of the Code lays down that when a person is brought before the Magistrate and charged with an offence for which he is liable under the Army Act, to be tried by the Court-Martial, the Magistrate having regard to the rules, is to deliver him to the Commanding Officer of the regiment which he belongs, or to the Commanding Officer of the nearest military station for the purpose of being tried by Court-Martial. In terms of Rule 3, Jammu and Kashmir Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1983, where a person subject to the Army Act or any other law relating to armed forces is brought before a Magistrate and charged with an offence for which he is also liable to be tried by Court- Martial, such Magistrate has not to proceed with the case unless he receives a request from the competent officer to so proceed or where he does not receive such a request but he is of opinion, for reasons to be recorded, that he should so proceed without being moved thereto by such authority. However, before proceeding in the matter in the later case he has to give a notice to the Commanding Officer or other Competent officer, as the case may be, of the accused and desist from proceeding in the matter until the expiry of 15 days from the date of service of the notice. The Commanding Officer or other Competent Officer may in terms of rules 5 give notice to the Magistrate that the accused should be tried by Court-Martial, even after such officer initially moved the Magistrate for his trial before the Magistrate, in terms of Rule 3
(a). Such notice may also be given in terms of Rule 6 within fifteen days from the date notice contemplated by Rule 4 is served or even thereafter informing the Magistrate that in the opinion Commanding Officer or other competent officer, the accused should be tried by Court-Martial. The Magistrate in such cases is required to deliver the accused to such Commanding Officer along with the statements of offences of which he is accused. The duty cast on the Magistrate to deliver the accused to the Commanding Officer or other competent officer in terms of Section 549 Cr. P. C. or the Rules, is independent of and not contingent upon the decision taken by the Commanding Officer or other competent officer under Section 125 of the Army Act. In other words the duty cast on the Magistrate under Rule 4 to 6 is not contingent on exercise of discretion by the Commanding Officer or such other competent officer under Section 125 of the Army Act and is to be discharged where the Commanding Officer is yet to take a decision.
Rule 8 visualizes a situation where a person subject to the Army Act and accused of civil offence has not been brought before the Magistrate and his Commanding Officer has taken a decision in terms of Section 125 of the Army Act, to try the accused before the Court-Martial. In such a situation the Magistrate by a written notice may require the Commanding Officer of such person either to deliver such person to the Magistrate for being proceeded against under law and in case the Commanding Officer sticks to his stand to try the person before the Court-Martial, the Magistrate may require the Commanding Officer to stay the proceedings against such person before the Court-Martial, if already instituted and to make a reference to the State Government for determination as to the Court before which proceedings should be instituted. In case the State Government on reference decides that proceedings against such person should be instituted before Magistrate, the Commanding Officer of such person is to give a notice to the Magistrate and deliver such person to the Magistrate for his trial.
25. In the present case Chief Judicial Magistrate, Sopore has not adhered to the procedure maped out in Rules 3 and 4 on an erroneous assumption that accused Army personnel had allegedly committed the offence while not on active service and that in terms of Section 70 of the Army Act, the offences for which they were charged, were exclusively triable by the Civil Court. The Revisional Court failed to appreciate that the Chief Judicial Magistrate fell in error and rushed to the conclusion unmindful of SRO 17-E dated 05.09.1997 read with Section 9 of the Army Act and failed to appreciate that the Army personnel were in terms of Section 9 read with SRO 17- E to be deemed to be on active service at the time commission of alleged offence though in terms of Section 3 they might not have been on active service at the relevant time. The order passed by the Chief Judicial Magistrate, is also not one under Rule 8, inasmuch as it does not ask for a reference to the State Government. The Chief Judicial Magistrate has therefore, not followed the procedure maped out in the Code and Rules of 1983 which as laid down in a plethora of cases, is mandatory in character and invariably to be followed before the matter is proceeded and dealt with. To sum up the order passed by the Chief Judicial Magistrate cannot be said to be one under Rule 3 (b) as erroneously presumed by the Revisional Court as neither the Commanding Officer had taken or was given an opportunity to take a decision under Section 125 at the time the order was made or one under Rule 8 as the Commanding Officer was not informed that in the event he differed with opinion of the Magistrate, he may make a reference to the State Government and pending decision on such reference, stay proceedings. Looking from any angle the order of the Chief Judicial Magistrate, Sopore as also the Revisional Court is in conflict with Section 9 of the Army Act, SRO 17-E, Section 549 of the Code and Jammu and Kashmir Criminal Courts and Court- Martial (Adjustment of Jurisdiction) Rules, 1983. The order of the Chief Judicial Magistrate dated 15th July, 2010 and that of Sessions Judge, Baramulla, dated 13.12.2010 are therefore, liable to be set aside.
26. This does not end the controversy. The question remains whether the Chief Judicial Magistrate is required to proceed in the matter in accordance with the procedure laid down in Jammu and Kashmir Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1983 and in particular Rule 3 in absence of the accused or a decision is to be taken only after the accused Army personnel are brought before Court. It may be recalled that the accused Army personnel were not handed over to the Investigating Agency, though request was made by the Superintendent of Police during investigation. They were not brought before the Chief Judicial Magistrate on the date charge-sheet was presented or thereafter. It is insisted by learned counsel for the respondents that the Chief Judicial Magistrate can exercise power under Section 549 of the Code and Rule 3 of Jammu and Kashmir Criminal Courts and Court- Martial (Adjustment of Jurisdiction) Rules, 1983 only after the accused are brought before him. It is stated that unless and until the accused Army personnel are brought before the Chief Judicial Magistrate, he can neither proceed with the matter nor issue notice in terms of Rule 4 to the Commanding Officer so as to enable him to exercise option in terms of Section 125 Army Act or Rule 6 of Jammu and Kashmir Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1983. The answer to the question whether the Magistrate can exercise powers under Rule 3 of Jammu and Kashmir Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1983 only when the accused are physically present before the Magistrate, hinges on interpretation of expression brought before a Magistrate. In case the expression is taken to mean that the accused Army Personnel should be physically present before the Magistrate, the plea raised by learned counsel for respondents and learned counsel for intervenors is to be accepted and the petitioners asked to ensure presence of the accused Army personnel before the Chief Judicial Magistrate so that he may proceed in the matter in accordance with the Jammu and Kashmir Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1983. However, in case the expression is taken to include presentation of the charge-sheet against the accused Army Personnel, the Chief Judicial Magistrate is to be held to be competent to proceed in the matter, issue notice to the Commanding Officer in accordance with rules regardless of physical presence of accused Army personnel before him.
27. The expression brought before the Magistrate used in Rule 3 is to be read with the expression, if the accused is in his power or under his control used in Rules 5 and 6 of Jammu and Kashmir Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1983. Once the Magistrate gives notice to the Commanding Officer in terms of Rule 4 and the Commanding Officer either after he initially moved the Magistrate to proceed against the accused Army personnel or after he receives the notice from the Magistrate issued under Rule 4 of Jammu and Kashmir Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1983, within after the notice period, issues notice to the Magistrate that in his opinion the accused Army personnel should be tried by the Court-Martial, the Magistrate in terms of Rules 5 and 6 is required to deliver the accused Army personnel to the Commanding Officer only if the accused is in his power or under his control. When the expressions brought before the Magistrate in Rule 3 (a) and if the accused is in his power or under his control shall deliver him are read conjointly, it becomes abundantly clear that physical presence of the accused Army personnel before the Magistrate is not sine- qua-non for exercise of powers under Rule 3 of Jammu and Kashmir Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1983. The use of expression, if the accused is in his power or under his control in rules 5 and 6 Jammu and Kashmir Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1983, makes it abundantly clear that the Rule Makers visualized that the accused for one or other reason may not be brought before the Magistrate at the time charge-sheet is presented. In terms of Rule 6, when Commanding Officer in response to the notice from Magistrate signifies his intention to get the accused Army personnel tried by Court-Martial, the Magistrate is required to hand over the accused Army personnel only if such accused was in his power or under his control. Section 549 of the Code in the like manner deals with situation where the accused personnel is actually brought before the Magistrate and requires the Magistrate to deliver such accused Army personnel to the Commanding Officer where the conditions laid down therein are satisfied. It does not rule out a situation where the accused may not be produced before the Magistrate at the time charge-sheet is produced. It would be not therefore, proper to interpret Section 549 of the Code and Rule 5 and 6 Jammu and Kashmir Criminal Courts and Court- Martial (Adjustment of Jurisdiction) Rules, 1983, in a way to hold that the Magistrate lacks power to proceed in the matter in case the accused Army personnel is not physically present before the Magistrate. The argument that the accused Army personnel is necessarily to be physically presented before the Chief Judicial Magistrate, before he proceeds in the matter in accordance with Rule 3, is in the circumstance bereft of merit. It follows that the Magistrate is competent to proceed in the matter in accordance with the procedure laid down in Section 549 of the Code read with Rule 3 and 4 of Jammu and Kashmir Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1983, even in absence of the accused Army personnel.
28. Let us now deal with the petitioners case that Rule 8 of Jammu and Kashmir Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1983, is ultra-vires of Section 549 of the Code to the extent it identifies the State Government as authority to which the reference is to be made by the Commanding Officer, in the event he has reservations about the order of the Magistrate that the proceedings against the accused Army personnel be initiated before the Civil Court. Section 549 of the Code empowers the State Government to make rules consistent with the Code and the Army Act, in force in the State or similar law for the time being in force for the purpose mentioned therein. The Rules to be made by the Government in exercise of power under Section 549 (1) of the Code obviously are to be consistent with the Code and the Army Act. Section 126 of the Army Act, provides for reference to the Central Government, in the event the Commanding Officer does not agree with the decision of the Magistrate that proceedings against accused Army personnel shall be instituted before the Magistrate. The decision of the Central Government in terms of Section 126 (2) is to be final in the matter. Rule 8 of Jammu and Kashmir Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1983, as against Section 126 Army Act, provides for reference to the State Government. There is, therefore, merit in the argument advanced by Mr. Thakur, Senior Advocate, that Rule 4 is inconsistent with Section 126 Army Act to the extent it identifies the State Government as the authority to which the reference is to be made and therefore liable to be struck down. The Government while exercising Rule making power has travelled beyond the scope of Section 549 of the Code. However, as the fate of the present petition does not hinge on outcome of this issue, I deem it proper not to strike down Rule 8 of Jammu and Kashmir Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1983,to the extent it provides for reference by the Commanding Officer to the State Government, but to leave it to the legislature or the State Government to either amend Section 549 (1) of the Code by deleting the requirement of the Rules being consistent with the Army Act or to suitably amend Rule 8 of Jammu and Kashmir Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1983, to bring it in conformity with Section 549 of the Code repository of the Rule making power on the subject and Section 126 of the Army Act.
29. For the reasons discussed, the writ petition is allowed and the orders of Chief Judicial Magistrate, Sopore, dated 15th July, 2010 as also the Sessions Court, dated 13.12.2010, are quashed. The Chief Judicial Magistrate is directed to proceed in the matter in accordance with Rules 3 and 4 and issue notice to the Commanding Officer of the Brigade/Authority under Section 125 Army Act, in terms of Rule 4, within one week from the receipt of copy of the order. The Commanding officer of the Brigade/Authority under Section 125 Army Act, shall take a decision as regards the Court where the accused Army personnel namely D. K. Pathania Commanding Officer, Major Moriya, Adjutant, Major Opendera, Sobhidar Satbir Singh, Havaldar Bir Singh, Sepoy Chandarban, Sepoy Naginder Singh and Sepoy Narinder singh are to be tried, within two weeks from the date of receipt of notice and communicate/notify the decision so taken to the Chief Judicial Magistrate. In the event the Commander of the Brigade/ Authority fails to take a decision in the matter, the Magistrate shall proceed with the matter and pass order, he in the circumstance, would be competent to make in terms of Rule 4 of Jammu and Kashmir Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1983. The charge-sheet as against the accused 1 to 3 namely Bashir Ahmad Lone S/o Ghulam Nabi Lone Resident of Nadihal, Abdul Hamid Bhat S/o Abdul Gaffar Bhat Resident of Kawhar Sheeri and Abbas Hussain Shah S/o Kalander Shah Resident of Shadrah, Kamalkote, Uri, Shall be dealt with by Chief Judicial Magistrate in accordance with law. Since the Chief Judicial Magistrate in terms of Section 549 read with Rules 3 and 4 is only to forward a statement of the offences of which the accused Army personnel are accused, it may not be necessary to ask the SHO Police Station, concerned to file supplementary (Zamima) charge-sheet against the accused Nos. 1 to 3. However, the Chief Judicial Magistrate would be free to pass such directions in the matter as regards filing of supplementary charge-sheet as he may deem proper in the facts and circumstances of the case.
The Registry shall send down the record with copy of the order immediately.
The parties to appear before Chief Judicial Magistrate on 12th July, 2012.
(Hasnain Massodi) Judge Srinagar 04.07.2012 M.Yasin Dar