Himachal Pradesh High Court
In The Main Police Station vs State Of H.P. Through on 1 September, 2021
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 1st DAY OF SEPTEMBER, 2021 .
BEFORE HON'BLE MR. JUSTICE ANOOP CHITKARA CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC No. 680 OF 2019 BETWEEN:-
BABITA KUMARI D/O LATE SHRI KESHO RAM R/OVILL. MANJHOLI NEAR VIKRAM CASTLE, NAHAN, P.O. & TEHSIL NAHAN, DISTRICT SIRMAUR, H.P., RESENTLY WORKING AS A HEAD CONSTABLE NO.298 IN THE MAIN POLICE STATION NAHAN, DISTRICT SIRMAUR, H.P. .... PETITIONER (BY SHRI SANJEEV BHUSHAN, SENIOR ADVOCATE WITH SHRI RAJESH KUMAR, ADVOCATE) AND
1. STATE OF H.P. THROUGH SECRETARY (HOME), SHIMLA -2.
2. COMMANDING OFFICER, 1ST BATTALION, THE PARACHUTE REGIMENT (SPECIAL FORCES) PIN-911801 C/O 56 APO.
3. PARAMJEET R.P. HAWALDAR NO.13625077.
4. SHRI LAXMAN SINGH, NAIB SUBEDAR NO.13621388.
BOTH C/O 1ST BATTALION, THE PARACHUTE REGIMENT (SPECIAL FORCES) PIN-911801 C/O 56 APO.
.... RESPONDENTS ::: Downloaded on - 31/01/2022 22:59:30 :::CIS 2 (SHRI NAND LAL THAKUR, ADDITIONAL ADVOCATE GENERAL, SHRI KUNAL THAKUR, DEPUTY ADVOCATE GENERAL, .
SHRI RAM LAL THAKUR ASSISTANT ADVOCATE GENERAL, FOR R-1.
SHRI LOKENDER PAUL THAKUR, SENIOR PANEL COUNSEL FOR R-2 TO R-4 MS. SUNITA SHARMA, SENIOR ADVOCATE WITH MS. LEENA GULERIA, & MS. MEERA ADVOCATE AS AMICUS CURIAE.
Reserved on : 10th August, 2021
Decided on : 1st September, 2021.
This petition coming on for orders this day, the Court passed the following:
r ORDER
FIR No. Dated Police Station Sections
37/17 24.03.2017 Nahan, District 341, 354(A)(1), 504, 506 read
Sirmaur with 34 IPC
A middle-aged lady, posted as Head Constable with Himachal Police, and who is an alleged victim of sexual harassment, wrongful restraint, insult, and criminal intimidation, has come up before this Court against the impugned order passed by Ld. Chief Judicial Magistrate, Sirmaur at Nahan, HP, transferring the above-captioned Trial to the Court-Martial, accepting the request of Competent Authority under S. 125 of Army Act, 1950.
2. While filing this petition, the victim has revealed her identity and did not conceal the same. Section 228(2)(A), IPC provides for the exemption from printing or publication of the name of the victim, which may know her identity. As per Section 228(2)(3) IPC, the penal provision does not apply when the publication is by or with the authorization in writing of the victim. Since the victim has revealed her identity in this petition, she explicitly does not call for concealment of her identity. Given above, there is no need to change her name in the memo of parties by substituting her name and concealing her identity with a fictitious name.
3. The facts of the case relevant to adjudicate the present controversy are that on 24th March 2017, the victim gave a written complaint to the Superintendent of Police, District Sirmaur. She stated that due to her mother's ill health, she could not ::: Downloaded on - 31/01/2022 22:59:30 :::CIS 3 report the matter on time. However, the incident pertains to 9th March 2017. She alleged that on 9th March 2017, after discharging her duties, she was returning to her home on a Scooty. At around 7.15-7.30 p.m., when she reached near RP-II gate, the .
sentry stopped her and inquired where she was going. She told him that she was going to her house. On this, the sentry demanded ID proof. However, the victim told him that at that time, she had not ID proof with her. However, she told him the address of her house and also about the ill health of her mother. She requested to cross the gate. After that, the said sentry started insulting her and hurling abuses at her. In between, more army officials came, and eventually, A-1(R-3) and A-2 (R-4) indulged in sexual harassment, criminal intimidation, wrongful restrain, which led to the registration of FIR captioned above.
4. Despite the petitioner's silence, the contents of this FIR impliedly reveal that there was some passage to the house of the victim, which passes through the restricted army area. The insistence of the victim to pass through the said way, led to some incidents. As revealed from Annexure R-2, a cross FIR was also registered against the present petitioner at the instance of Commanding Officer for using criminal force to deter public servant from discharging his official duty, which is punishable under Section 353 IPC. This FIR was also registered on 24th March 2017, i.e., the date of registration of the complaint by the victim.
5. Ld. Counsel for the 2nd respondent contends that the FIR by the petitioner was a counterblast. However, in my considered view, since the complaint of a Commanding officer had reached with the concerned authorities on 24th March 2017 itself, it is immaterial that which complaint was prior in time. Whether the complaint by the petitioner was a counterblast to the FIR registered at the instance of the Commanding Officer is subject to judicial scrutiny during the trial, and it is not the right stage for this Court to make any observation.
6. After completing the investigation in FIR No. 37 of 2017, registered at the instance of the petitioner, the official in charge of the police station, launched prosecution by filing a police report under Section 173(2) CrPC.
7. As revealed from order dated 20.2.2019, learned Chief Judicial Magistrate, Sirmaur at Nahan, found sufficient grounds to proceed against the accused persons and thus took cognizance of the offences punishable under Section 341, 354-A, 504, ::: Downloaded on - 31/01/2022 22:59:30 :::CIS 4 506 read with Section 34 IPC and summoned the accused. The case was registered as Case No. 36-2 of 2019 in the said Court.
8. Vide office order dated 29th May 2019, Commanding Officer of the concerned .
Battalion, requested learned Chief Judicial Magistrate to deliver the offenders together with a statement referred under Section 475(1) Cr.P.C. for trial by Court Martial. It was also communicated that the competent authority under powers vested under Section 125 of Army Act 1950 and Rule 5 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules 1978 has decided that the accused shall be put to trial by the Court Martial and to be detained in military custody.
9. After receipt of such request, vide order dated 29th May 2019, learned Chief Judicial Magistrate acceded to the Commanding officer's request and delivered the custody of both the accused to him as desired in the said letter. Learned Magistrate also handed over the copies of challan and other documents to such officer and closed the application.
10. Challenging this order of transferring the trial to be conducted by the Court Martial, the victim has come up before this Court by filing a petition under Section 482 Cr.P.C., and seeking the following two interventions; first to examine the legality and propriety of the proceedings and the impugned order dated 29th May 2019, passed by learned Chief Judicial Magistrate; and secondly, that she has no faith if the trial is conducted by the Commanding officer, as mentioned in paragraph 8 of the petition, which is extracted as follows:
"b) That both the accused i.e., Respondent No.3 and 4 are working in Indian Army and now the case has been transferred to the respondent No.2 for proceeding under Court Martial against the accused respondents. The petitioner/complainant is serving as a Head Constable in police department and petitioner has apprehension that the proceedings regarding the allegations made by her in the complaint are not be trialed fairly by the respondent No.2 because both the accused are under the command of respondent No.2 and is also the superior officer as well as the Commanding Officer of the accused Respondent No.3 &
4. So petitioner cannot expect the fair trial on her complaint from the Respondent No.2 being a superior officer of the accused and petitioner has apprehension that respondent No.2 will acquittal the accused from the offence punishable under Section 341, 354-A, 504 & 506 of IPC.
Hence the impugned order (Annexure P-3) may kindly be set aside and the trial of the case may kindly be transferred to the Ld. CJM Sirmour at Nahan and further proceedings of the case may kindly be taken by the Ld. CJM Sirmour at Nahan in the fair manner and in the interest of justice.
::: Downloaded on - 31/01/2022 22:59:30 :::CIS 5c) That the petitioner has apprehension that being complainant and a lady she will harass by the respondent No.2 for filing the complaint against the accused and she has no faith for fair trial being .
given to her complaint by the respondent No.2. As such the petitioner is also not able to lead proper evidence in support of her complaint against the accused and she will feel harass being a complainant if the further proceedings is carried out by the respondent No.2 in the present case. Hence the impugned order dated 29-05-2019 be set aside and case may kindly be recalled from the Respondent No.2 and be ordered to be tried by the Ld. CJM in his Court in the interest of justice and fair trial.
d) That the main principle of criminal trial that when some allegations were made out against the accused, the court has duty bound to make a deep scrutiny into the allegations and a deeper scrutiny of the evidence, both oral and documentary and thereafter accepting or otherwise of the acquisition. It is apparent that the serious allegations were made against the accused and there was a ample evidence against the accused to prove the case of the petitioner as such the impugned order passed by the Ld. CJM to transfer the case to Respondent No.2 will suppress the sole purpose of the criminal jurisprudence and no fair hearing will be given to the petitioner by the respondent No.2 and she will not able to lead any evidence before the respondent No.2 to prove her case and in these circumstances no justice will be done to the petitioner and she will feel harass being a complainant. In these circumstances the impugned order dated 29.05.2019 may kindly be recalled from the Respondent NO.2 and ordered to be tried by the Ld. CJM Sirmaur at Nahan in the interest of justice and fair trial"
11. I have heard learned counsel for the parties as well as learned Amicus Curiae and gone through the records.
ANALYSIS AND DISCUSSION.
12. To examine the legality and propriety of the proceedings and the impugned order, this Court has gone through the trial Court records, pleadings, and response filed by respondents No.1 and 2. The stand taken by the Superintendent of Police of District Sirmaur, H.P., is that the learned Magistrate has transferred the case following the provisions of law and thus, seeks the dismissal of the petition filed by the victim.
13. The second respondent, the Commanding officer, has filed a detailed response. In paragraph 5, the said respondent referred to a cross FIR No.38 of 2017 registered ::: Downloaded on - 31/01/2022 22:59:30 :::CIS 6 at their instance for offences punishable under Section 353 IPC. Their reply to paragraph 7 reads as follows:
"That in reply to the contents of para 7 of the petition, it is most .
respectfully submitted that, since, the subject case has been transferred to Army Authorities under Army Act Section 125 and Rule 5 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules 1978 and thus the summons are being issued to the petitioner. However, it is to be noted that the petitioner despite belonging to such a disciplined force has never bothered to present herself even once and is casting aspersions on integrity of Respondent No.2 without any evidence to prove the same."
14. Section 475 CrPC, 1973, reads as follows:
475. Delivery to commanding officers of persons liable to be tried by Court-martial :-
(1) The Central Government may make rules consistent with this Code and the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957), and the Air Force Act, 1950 (45 of 1950), and any other law, relating to the Armed Forces of the Union, for the time being in force, as to cases in which persons subject to military, navel or air force law, or such other law, shall be tried by a Court to which this Code applies or by a Court-
martial, and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which this Code applies or by a 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 unit to which he belongs, or to the commanding officer of the nearest military, naval or air-force station, as the case may be, for purpose of being tried by a Court-martial. Explanation. -In this section-
(a) "unit" includes a regiment, corps, ship, detachment, group, battalion or company. (b) "Court-martial" includes any tribunal with the powers similar to those of a Court-martial constituted under the relevant law applicable to the Armed Forces of the Union.
(2) Every Magistrate shall, on receiving a written application for that purposes by the commanding officer of any unit or body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavours to apprehend and secure any person accused of such offence. (3) A High Court may, if it thinks fit, direct that a prisoner detained in any jail situate within the State be brought before a Court-martial for trial or to be examined touching any matter pending before the Court-martial.
15. It would be relevant to refer the following provisions of Army Act, 1950:
Section 3 (ii) of Army Act, 1950, states that "civil offence" means an offence which is triable by a criminal Court.
S. 125. Choice between criminal court and court-martial :- When a criminal court and a court-martial have each jurisdiction in respect of an ::: Downloaded on - 31/01/2022 22:59:30 :::CIS 7 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.
S. 126. Power of 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 lection 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.
16. Rule 5 of Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978, reads as follows:
5. Where a Magistrate has been moved by the competent military, naval or air force authority, as the case may be, under clause (a) of Rule 3, and the commanding officer of the accused or the competent military, naval or air force authority, as the case may be, subsequently gives notice to such Magistrate that, in the opinion of such officer or authority, the accused should be tried by a Court-martial, such Magistrate if he has not taken any action or made any order referred to in clauses (a), (b), (c) or
(f) of Rule 4, before receiving the notice shall stay the proceedings and, if the accused is in his power or under his control, shall deliver him together with the statement referred to in sub-section (1) of Section 475 of the said Code to the officer specified in the said sub-section.
17. In E G Barsay, Major v. State of Bombay, AIR 1961 SC 1762, Hon'ble Supreme Court holds, [16] ... 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-martial would have jurisdiction to try the person committing the offence. Such a situation is visualized and provided for by Ss. 125 and 126 of the Act...
18. In Ram Sarup v Union of India, AIR 1965 SC 247, a Constitutional bench of Hon'ble Supreme Court holds, ::: Downloaded on - 31/01/2022 22:59:30 :::CIS 8 [26] It is clear therefore that the discretion to be exercised by the military officer specified in S. 125 of the Act as to the trial of accused by Court- Martial or by an ordinary court, cannot be said to be unguided by any policy laid down by the Act or uncontrolled by any other authority.
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Section 125 of the Act therefore cannot, even on merits, be said to infringe the provisions of Art. 14 of the Constitution.
19. In Som Datt Datta v. Union of India, AIR 1969 SC 414, Constitutional bench of Hon'ble Supreme Court holds, [4] 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 a case of an act or omission punishable both under the Army Act as well as under any law in force in indict 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. 125 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 determination 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.
20. In Ajit Singh v. State of Punjab, 1970 CrLJ 1119, a Full Bench of High Court of Punjab and Haryana observed, [6] Where a Magistrate has been moved by competent military, naval or air force authority, as the case may be, under Clause (b) of Rule 3, and the Commanding Officer of the accused or competent military, naval or air force authority, as the case may be, subsequently gives notice to such Magistrate that, in the opinion of such authority, the accused should be tried by a Court-Martial, such Magistrate, if he has not before receiving such notice done any act or made any order referred to in Rule 4, shall stay proceedings and, if the accused is in his power or under his control, shall in the like manner 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.
21. In Joginder Singh v. State of Himachal Pradesh, (1971) 3 SCC 86, Hon'ble Supreme Court holds, ::: Downloaded on - 31/01/2022 22:59:30 :::CIS 9 [17] As the appellant was alleged to have committed rape in relation to a person who was not subject to military, naval or air law, under Section 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 gets 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.
[22] 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 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 Section 125 to decide before which Court the proceedings should be instituted. Hence 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 will have to exercise his discretion and decide under Section 125 in which court the proceedings shall be instituted. It is only when he so exercises his discretion and decides that the proceeding should be instituted before a court-martial, that the provisions of Section 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 jurisdiction in the manner provided by law.
22. In S K Kashyap, Lt Col v. State of Rajasthan, (1971) 2 SCC 126, Hon'ble Supreme Court holds, [12] Sections 125 and 126 of the Army Act are framed for the purpose of ensuring that there is no conflict between the criminal Court and the Court Martial. Section 125 confers discretion on the Officer Commanding of the army corps, division or brigade in which the accused is serving to decide before which Court the proceedings shall be instituted in respect of an offence alleged to be committed by the accused. If the decision will be for institution of proceedings before the Court Martial direction is given for detention of the accused in military custody. Section 126 provides that where a criminal Court having jurisdiction is of opinion that proceedings shall be instituted before it in respect of any alleged offence, the criminal Court, may require the Officer Commanding mentioned in Section 125 of the Army Act either to deliver the offender to the Magistrate or to postpone proceedings pending a reference to the Central Government. Section 126 (2) of the Army Act provides that the Officer Commanding shall either deliver the offender to the Magistrate or shall refer the question to the Central Government whose order upon such reference shall be final. These two sections of the Army Act do not leave any room for doubt that is after commencement of Court Martial proceedings the ordinary criminal Court intends to proceed against an accused who is subject to the control of the Army Act, the ::: Downloaded on - 31/01/2022 22:59:30 :::CIS 10 criminal Court will have to adopt either of the two courses mentioned. The order of the Central Government shall be final in cases of reference by the criminal Court to the Government.
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23. In Delhi Special Police Establishment v. Lt. Col. S.K. Loraiaya, 1972 (2) SCC 692, a three-Judge bench of Hon'ble Supreme Court holds, [7] Section 122 (1) of the Army Act, 1950, provides that no trial by court-
martial of any person subject to the Army Act for any offence shall be commenced after the expiry of the period of three years from the date of the offence. The offences are alleged to have been committed by the respondent in November-December, 1962. So more than three years have expired from the alleged commission of the offence. It is claimed that having regard to S. 122 (1), the respondent is not liable to be tried by court-martial.
[9] As regards the trial of offences committed by army men, the Army Act draws a threefold scheme. Certain offences enumerated in the Army Act are exclusively triable by a Court-martial; certain other offences are exclusively triable by the ordinary criminal courts; and certain other offences are triable both by the ordinary criminal court and the court- martial. In respect of the last category both the courts have concurrent jurisdiction. Section 549 (1), Cr. P. C. is designed to avoid the conflict of jurisdiction in respect of the last category of offences. The clause "for which he is liable to be tried either by the Court to which this Code applies or by a court-martial" in our view, qualifies the preceding clause "when any person is charged with an offence" in S. 549 (1). Accordingly the phrase "is liable to be tried either by a court to which this Code applies or a court-martial" imports that the offence for which the accused is to be tried should be an offence of which cognizance can be taken by an ordinary criminal court as well as a court-martial. In our opinion, the phrase is intended to refer to the initial jurisdiction of the two courts to take cognizance of the case and not to their jurisdiction to decide it on merits. It is admitted that both the ordinary criminal court and the court-
martial have concurrent jurisdiction with respect to the offences for which the respondent has been charged by the Special Judge. So, S. 549 and the rules made thereunder are attracted to the case at hand.
[10] Again, sub-section (3) of S. 122 of the Army Act provides that while computing the period of three years specified in sub-section (1), any time spent by the accused as a prisoner of war or in enemy territory, or in evading arrest after the commission of the offence, shall be excluded. On a conjoint reading of sub-ss. (1) and (3) of S. 122, it is evident that the court martial and not the ordinary criminal court has got jurisdiction to decide the issue of limitation.
[11] Section 125 of the Army Act provides that when a criminal court and a court-martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer commanding the army, army corps, ::: Downloaded on - 31/01/2022 22:59:30 :::CIS 11 division or independent brigade in which the accused person is serving to decide before which court the proceedings shall be instituted, and if that officer decides that they should be instituted, and if that officer decides that they should be instituted before a court-martial, he will direct that the .
accused person shall be detained in military custody. Sections 122 (1) and 125 both find place in Chapter X of the Army Act. Section 125 supports our view that the court-martial alone has jurisdiction to decide the issue of limitation under S. 122 (1). The word "jurisdiction" in S. 125 really signifies the initial jurisdiction to take cognizance of a case. To put it in other words, it refers to the stage at which proceedings are instituted in a court and not to the jurisdiction of the ordinary criminal court and the court-martial to decide the case in merits. It appears to us that S. 549 (1) should be construed in the light of S. 125 of the Army Act. Both the provisions have in mind the object of avoiding a collision between the ordinary criminal court and the court-martial. So both of them should receive a similar construction.
24. In Union of India v. Major S K Sharma, (1987) 3 SCC 490, Hon'ble Supreme Court holds, [11] 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 so proceed or to commit without being moved thereto by such authority...
xxx... 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 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 authority 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 authority may not try the accused or take effectual proceedings 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 appropriate 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 R. 8 ::: Downloaded on - 31/01/2022 22:59:30 :::CIS 12 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, naval or air force authorities, to require the Commanding Officer of such person either to deliver such person to a Magistrate for being proceeded against according to law or 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 provision. It provides that a person convicted or acquitted by a court-martial, may, with the previous sanction of the Central Government, be tried again by a Criminal Court for the same offence or on the same facts. This provision is an exception to Art. 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 Art. 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 R. 7(1) of the Criminal Courts and Court-martial (Adjustment of Jurisdiction) Rules, 1978 requires the Commanding 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 proceedings have been taken against him.
25. In Balbir Singh v State of Punjab, (1995) 1 SCC 90, Hon'ble Supreme Court holds, [15] The next question that arises for our consideration is as to what the ordinary criminal court is required to do when a person on "active service" of the Air Force is brought, before it for trial for any of the offences listed in Section 72 of the Act (supra). It is here that Section 475 Criminal Procedure Code, the 1952 Rules and S. 124 and 125 of the Air Force Act come into operation. Section 475 Criminal Procedure Code reads as follows: ...............................?
[17] A conjoint reading of the above provisions shows that when a criminal court and court-martial each have jurisdiction in respect of the trial of the offence, it shall be in the discretion of the officer commanding the group, wing or station in which the accused is serving or such other officer as may be prescribed, in the first instance, 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 persons shall be detained in air force custody. Thus, the option to try a person subject to the Air Force Act who commits an offence while on "active service" is in the first instance with the Air Force Authorities. The criminal court, when such an accused is brought before it shall not ::: Downloaded on - 31/01/2022 22:59:30 :::CIS 13 proceed to try such a person or to inquire with a view to his commitment for trial and shall give a notice to the Commanding Officer of the accused, to decide whether they would like to try the accused by a court- martial or allow the criminal court to proceed with the trial. In case, the .
Air Force Authorities decide either not to try such a person by a court-
martial or fail to exercise the option when intimated by the criminal court within the period prescribed by Rule 4 of the 1952 Rules (supra) , the accused can be tried by the ordinary criminal court in accordance with the Code of Criminal Procedure. On the other hand if the Authorities under the Act opt to try the accused by the 'court-martial', the criminal court shall direct delivery of the custody of the accused to the Authorities under the Act and to forward to the Authorities a statement of the offence of which he is accused. It is explicit that the option to try the accused subject to the Act by a court-martial is with the Air Force Authorities and the accused person has no option or right to claim trial by a particular forum. The option appears to have been left with the Air Force Authorities for good and proper reasons. There may be a variety of circumstances which may influence the decision of the Air Force Authorities as to whether the accused be tried by a court-martial or by a criminal court...
26. In General Officer Commanding v. CBI, (2012) 6 SCC 228, Hon'ble Supreme Court holds, [94] Undoubtedly, the court-martial proceedings are akin to criminal prosecution and this fact has been dealt with elaborately by this Court in Union of India & Ors. v. Major A. Hussain, 1998 AIR(SC) 577. However, once the matter stands transferred to the Army for conducting a court-martial, the court-martial has to be as per the provisions of the Army Act. The Army Act does not provide for sanction of the Central Government.
27. In Extra Judicial Execution Victim Families Association (EEVFAM) v.
Union of India, 2016 (14) SCC 536, Hon'ble Supreme Court holds, [188] Section 125 and Section 126 of the Army Act are of considerable importance in this context and as far as this case is concerned. These Sections ought to be read in conjunction with Section 4 and Section 5 of the Cr.P.C. These Sections provide that when both a criminal court and a Court Martial have jurisdiction in respect of an offence, the first option would be with the Army to decide whether the accused person should be proceeded against in a criminal court or before a Court Martial. However, if the criminal court is of opinion that the proceedings should be instituted before itself, it may require the Army to send the alleged offender to the nearest Magistrate to be proceeded against or to postpone the proceedings pending a reference to the Central Government. In other words, in the event of a conflict of jurisdiction, whether an alleged offender should be tried by a criminal court constituted under the Cr.P.C.
::: Downloaded on - 31/01/2022 22:59:30 :::CIS 14or by a Court Martial constituted under the Army Act, that conflict shall be referred to the Central Government for passing an appropriate order.
[189] In this context, it is necessary to refer to the Criminal Courts and .
Court Martial (Adjustment of Jurisdiction) Rules, 1978. These Rules provide, inter alia, that when a person subject to the Army Act is brought before a Magistrate and is charged with an offence also triable by a Court Martial, then such Magistrate shall not proceed to try that person or commit the case to the Court of Session unless he is moved thereto by a competent Army authority or the Magistrate records his opinion in writing that he should so proceed without being so moved. In the latter event, the Magistrate shall give a written notice of fifteen days to the Commanding Officer of that person and shall until then effectively stay his hands.
28.
(a).
A survey of these judicial precedents leads to the following inference:
Sections 125 and 126 of the Army Act are framed for the purpose of ensuring that there is no conflict between the criminal Court and the Court Martial. -(In S K Kashyap, Lt Col v. State of Rajasthan, (1971) 2 SCC 126);
(b). As regards the trial of offences, the Army Act draws a threefold scheme. Certain offences enumerated in the Army Act are exclusively triable by a Court-martial; certain other offences are exclusively triable by the ordinary criminal courts; and certain other offences are triable both by the ordinary criminal court and the court-martial. In respect of the last category both the courts have concurrent jurisdiction. -(Delhi Special Police Establishment v. Lt. Col. S.K. Loraiaya, 1972 (2) SCC 692);
(c). 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-martial would have jurisdiction to try the person committing the offence. -(E G Barsay, Major v. State of Bombay, AIR 1961 SC 1762);
(d). Under the scheme of the two sections in the first instance, it is left to the discretion of the officer mentioned in S. 125 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. Still, suppose a criminal court believes that the said offence shall be tried before itself. In that case, it may issue the requisite notice under ::: Downloaded on - 31/01/2022 22:59:30 :::CIS 15 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 to the proper court for the determination of the Central Government, whose order shall be final. These two sections of the Army Act provide good machinery to resolve the conflict of jurisdiction regarding the exigencies of the situation in any particular case. -( Som Datt Datta v. Union of India, AIR 1969 SC 414);
(e). Sections 125 and Section 126 of the Army Act ought to be read in conjunction with Section 4 and Section 5 of the CrPC. In other words, in the event of a conflict of jurisdiction, whether an alleged offender should be tried by a criminal court constituted under the Cr.P.C. or by a Court Martial constituted under the Army Act, that conflict shall be referred to the Central Government for passing an appropriate order. -(Extra Judicial Execution Victim Families Association (EEVFAM) v. Union of India, 2016 (14) SCC
536);
(f). Section 125 of the Army Act provides that when a criminal court and a court-martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer commanding the army, army corps, division or independent brigade in which the accused person is serving to decide before which court the proceedings shall be instituted, and if that officer decides that they should be instituted before a court-martial, they will direct that the accused person shall be detained in military custody. -(Delhi Special Police Establishment v. Lt. Col. S.K. Loraiaya, 1972 (2) SCC 692);
(g). 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 so proceed or to commit without being moved thereto by such authority. -( Union of India v. Major S K Sharma, (1987) 3 SCC 490);
::: Downloaded on - 31/01/2022 22:59:30 :::CIS 16(h). The Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978, provide that when a person subject to the Army Act is brought before a Magistrate and is charged with an offence also triable by a Court .
Martial, then such Magistrate shall not proceed to try that person or commit the case to the Court of Session unless he is moved thereto by a competent Army authority or the Magistrate records his opinion in writing that he should so proceed without being so moved. In the latter event, the Magistrate shall give a written notice of fifteen days to the Commanding Officer of that person and shall until then effectively stay his hands. -(Extra Judicial Execution Victim Families Association (EEVFAM) v. Union of India, 2016 (14) SCC 536);
(i). When in the opinion of the competent military, naval, or air force authority, the accused should be tried by a Court-Martial, such Magistrate, if he has not before receiving such notice done any act or made any order referred to in Rule 4, shall stay proceedings and, if the accused is in his power or under his control, shall in the like manner deliver him, with the statement prescribed in Sub-section (1) of Section 549 of the said Code to such an authority. -(Ajit Singh v. State of Punjab, 1970 CrLJ 1119, Full Bench of High Court of Punjab and Haryana);
(j). When an offence could be tried both by a criminal court and a Court-
martial, Sections 125,126 and the Rules have made suitable provisions to avoid a 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 Section 125 to decide before which court the proceedings should be instituted. Hence 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 will have to exercise his discretion and decide under Section 125 in which court the proceedings shall be instituted. It is only when he so exercises his discretion and decides that the proceeding should be instituted before a court-martial that the provisions of Section 126 (1) come into operation. If the designated officer does not exercise his discretion and does not decide that the proceedings should be instituted before a Court-martial, the Army Act would not be in the way of a criminal Court ::: Downloaded on - 31/01/2022 22:59:30 :::CIS 17 exercising its ordinary jurisdiction in the manner provided by law. -(Joginder Singh v. State of Himachal Pradesh, (1971) 3 SCC 86);
(k). The court-martial proceedings are akin to criminal prosecution.
.
However, once the matter stands transferred to the Army for conducting a court-martial, the court-martial has to be as per the provisions of the Army Act, which does not provide for sanction of the Central Government. -(General Officer Commanding v. CBI, (2012) 6 SCC 228);
(l). To ensure that proceedings are taken against the accused, the Rules require the Commanding Officer or the competent authority 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 authority may not try the accused or take effectual proceedings against him even where the Magistrate has found a case for trial. To cover that contingency, it provides that the State Government, in consultation with the Central Government, on a report from the Magistrate to that effect, may take appropriate 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. -( Union of India v.
Major S K Sharma, (1987) 3 SCC 490);
(m). The discretion exercised by the military officer specified in S. 125 of the Act as to the trial of accused by Court-Martial or by an ordinary court cannot be said to be unguided by any policy laid down by the Act or uncontrolled by any other authority. Thus, Section 125 of the Act does not infringe the provisions of Art. 14 of the Constitution. -(Ram Sarup v Union of India, AIR 1965 SC 247);
(n). The accused person has no option or right to claim trial by a particular forum. The option appears to have been left with the competent authority for good and proper reasons. There may be various circumstances that may influence the Authorities' decision as to whether the accused be tried by a court-martial or by a criminal court. -(Balbir Singh v State of Punjab, (1995) 1 SCC 90).
::: Downloaded on - 31/01/2022 22:59:30 :::CIS 1829. An analysis of the legal provisions mentioned above makes it clear that it was the prerogative of the commanding officer and well within the domain of law to take a decision about trial of the accused through Court Martial. Thus, there is no .
illegality or impropriety in the aforesaid order. Therefore, the order calls for no interference by this Court. Given above, the first point fails and the same is accordingly closed.
30. The next point/question that needs an answer is that when an accused has no right to choose a forum between the Court-martial and Civilian Courts, then can the victim of such crime have such right or not?
31. S. 2 (wa) of CrPC, 1973, defines 'Victim' as follows, "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir.
32. It would be relevant to refer to S. 301 CrPC, 1973, which reads as follows:
301. Appearance by public prosecutors: - (1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal. (2) If any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.
33. However, vide proviso of S. 372 CrPC, 1973, the Legislature gave a right to the victim. The right to file such appeal are restricted against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation.
34. In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka, 2019 (2) SCC 752, per majority view of three-member bench, Hon'ble Supreme Court holds, ::: Downloaded on - 31/01/2022 22:59:30 :::CIS 19 [73] In our opinion, the proviso to section 372 of the Cr.P.C., 1973 must also be given a meaning that is realistic, liberal, progressive and beneficial to the victim of an offence. There is a historical reason for this, beginning with the Declaration of Basic Principles of Justice for Victims .
of Crime and Abuse of Power, adopted by the General Assembly of the United Nations in the 96th Plenary Session on 29th November, 1985. The Declaration is sometimes referred to as the Magna Carta of the rights of victims. One of the significant declarations made was in relation to access to justice for the victim of an offence through the justice delivery mechanisms, both formal and informal. In the Declaration it was stated as follows:
"4. Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.
5. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.
6. The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:
(a) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information;
(b) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system;
(c) Providing proper assistance to victims throughout the legal process;
(d) Taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;
(e) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.
7. Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims."
::: Downloaded on - 31/01/2022 22:59:30 :::CIS 20[74] Putting the Declaration to practice, it is quite obvious that the victim of an offence is entitled to a variety of rights. Access to mechanisms of justice and redress through formal procedures as provided for in national legislation, must include the right to file an appeal against an order of .
acquittal in a case such as the one that we are presently concerned with.
Considered in this light, there is no doubt that the proviso to section 372 of the Cr.P.C., 1973 must be given life, to benefit the victim of an offence.
35. In Balbir Singh v State of Punjab, (1995) 1 SCC 90, (supra) Hon'ble Supreme Court holds that the accused person has no option or right to claim trial by a particular forum. The option appears to have been left with the competent authority for good and proper reasons. There may be various circumstances that may influence the Authorities' decision as to whether the accused be tried by a court-martial or by a criminal court. r
36. An analysis of the legal provisions and the Judicial precedents reveals that neither the victim's definition nor the proviso to S. 372 CrPC bestows any right upon the victim to choose a forum between Court-Martial and Civilian Criminal Courts for the trial of the accused of that crime.
37. To answer the second point/question, it is relevant to extract paragraphs 8(b) to
(d) of the reply filed on behalf of respondents No. 2 to 4:
"8(b) That the contents of para 8(b) of the grounds of the petition, it is most humbly submitted that under Army Act Section 125 and Rule 5 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules 1978, Chief Judicial Magistrate, Nahan, District Sirmour transferred the case to Army authorities and delivered the sentries in performance of military duty of Commanding Officer as they shall be tried by court Martial and be detained in military custody being subject of Army Act, and in view of the above provision of Army Act, the case is under progress, However, the hearing could not be completed due to non-availability of petitioner, who has not appear before the Court on the one pretext or the other, owing to which the hearing was rescheduled again and again from 04 September, 11 September, 28 September, 04 November, and finally to 15th November, 19. The following summons had been issued to the petitioner by this Unit through CJM, Nahan, District Sirmour (HP) for hearing. However, the petitioner has not appeared for any hearing after giving inappropriate reasons every time.
Sr. No. Summon date Hearing Date
(aa) Form of Summons (IAFD-931A) dt 04th September, 19
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21
17 Aug 19
(ab) This Unit letter No.A1262/BK dt 04 11th September, 19
Sep 19
.
(ac) Form of Summons (IAFD-931A) dt 28th September, 19
16 Sep 19
(ad) Summons (IAFD-931A) dt 04 Oct 04th November, 19
19
(ae) Summons (IAFD-931A) dt 07 Nov 15th November, 19
19
It is also submitted that the petitioners contention is totally not agreeable to, as it is false and is being brought forth before the Hon'ble Court with an intention to discredit Respondent No.2 and to shake up the very foundation of ethos of Indian Army, which functions on laid down honour code for which entire Nation is proud of the Army. Also the petitioner has been discrediting the office of Respondent No.2 without attending even a single hearing in his office. The same could have had some merit if the complainant had attended even one or two hearings before making such malafide contentions. The Chair of superior Officer or Commanding Officer never has been an impediment in delivery of Justice, but it has always helped in delivery of quick justice in Indian Army. Both parties have filed FIRs against each other and the area wherein the entire incident happened falls in Army area that is to say Defence Land which is well within the jurisdiction of Respondent No.2 considering the safety and security of the vital Special forces base. Therefore, the petition be rejected as it is based on malafide intention blaming that Respondent No.2 will be partial during the entire case or hearings.
8(c) That the contents of para 8(c) of the grounds of petition, it is most humbly submitted that the allegations are totally wrong and bring forth the wrong intent with which the petitioner is trying to defame the office of Respondent NO.2. The Indian Army is the last line of defence of the Nation and as part of its Chivalrous traditions gives utmost respect to women. It is assured that entire proceedings will be in front of adequate number of witnesses and lady police representatives so that the petitioner cannot claim to have been harassed. Since, the individuals of Army were on sentry duty within the army area and being subject of Army Act, the Commanding Officer is a competent authority by virtue of the power under Army Act Section 125 and Rule 5 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules 1978, and is empowered to deal with all personnel under him for trial in military court only. Thus, transferring the offender to civil court will not be as per law.
8(d) That the contents of para 8(d) of the grounds of the petition, it is most humbly submitted that the allegations have been made against ::: Downloaded on - 31/01/2022 22:59:30 :::CIS 22 each other both by Army personnel on duty and petitioner. Therefore, to say that military personnel in question are guilty beyond doubt is totally false and the justice can be delivered to the petitioner if evidences conclusively prove her point or contention. Also, it should be noted that .
number of letters were forwarded by Army Authorities on insistence of Superintendent of Police, Nahan to resolve the issue between the parties considering the entire issue to be effecting the entire security of Nahan Cantonment. The copies of letters regarding meetings are produced at Annexure R-2. Also, copy of complaint filed by petitioner/Army are also at Annexure R-3. Since, the individuals were on duty in the Army Area and not outside and are subject to Army Act, therefore, should not be tried Civil Court as they wee doing a bonafide military duty and transferring such cases to civil courts will demoralize the Country's last line of defence."
38. The petitioner herself is working as Head Constable in a disciplined force. If the job of the police is to maintain law and order inside the territory of the country and at the same time, it is the armed forces, which protect the borders of the country and infiltrators, who sneak through the borders. Given the allegations of sexual harassment leveled by the victim, this Court would refrain and restrain from commenting any further.
39. In the entirety of the facts and circumstances peculiar to this case, there is neither any illegality in the impugned order nor has the petitioner any right to challenge the same.
40. Petition dismissed. Interim orders stand automatically vacated and all pending applications, if any, closed.
(Anoop Chitkara) Judge.
September 1, 2021 (ps).
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