Gauhati High Court
I C 62912 F, Major Sowmithri S vs The State Of Assam And Ors on 5 June, 2012
Equivalent citations: 2012 CRI. L. J. 4278, (2012) 115 ALLINDCAS 770 (GAU), 2012 (115) ALLINDCAS 770, 2012 (78) ALLCRIC 18 SOC, (2012) 4 GAU LR 487, (2012) 3 GAU LT 665
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
P-1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR,
TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
Crl. Pet. No. 43 of 2010
Petitioner:
IC 62912 F, Major Sowmithri,
S, S/o. Sri M. L. Sheshadri No.
4 FID/16 CISU C/O HQ CIF(U)
Pin-934757, C/O 56 APO,
Head Quarters, Northern Command(Dv.)
By Advocate :
Mr. N. K. Barua, Adv.
Respondents :
(1) State of Assam.
(2) Union of India, Ministry of Defence,
New Delhi.
(3) Officer-in-Charge, Geleky Police
station, Sivasagar, Assam.
(4) Sri Krishna Bahadur Chetry, S/o.
Late Lal Bahadur Chetry. Borhola (Nepali
Basti), P.S-Geleky, District-Sivasagar,
Assam.
By Advocates :
Mr. Z. Kamar, P.P, Assam.
Mr. S. Barua, C.G.S.C.
BEFORE
THE HON'BLE MR. JUSTICE UJJAL BHUYAN.
Date of hearing : 28th March, 2012
Date of Judgment : 05-06-2012
J U D G M E N T AND O R D E R
This is an application u/s 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.). The petitioner is a serving Major in the Indian Army. He seeks quashing of proceeding in G. R. Case No.965/2004 arising out of Geleky P.S. Crl. Pet. No. 43 of 2010 Page 1 of 11 P-2 Case No.54/2004 u/s 302 of the Indian Penal Code (IPC) pending in the Court of the learned Chief Judicial Magistrate, Sivasagar. (2) The case of the petitioner is that at the relevant time, he was the Post Commander of 8 Madras Regiment deployed at Geleky, district-Sivsagar, Assam to carry out army operations against insurgents and terrorists under the Armed Forces (Special Powers) Act, 1958 (1958 Act). (3) On 20-11-2004, an FIR was lodged by one Shri Krishna Bahadur Chetry before the Geleky police station alleging that on that day at about 1 PM while his son Shri Dilip Kumar Chetry was returning home, some army personnel along with two / three persons in civil dress questioned him on the Borholla road near Ishai river. They beat him with bamboo stick. When he cried out and shouted, the informant tried to come to his rescue but was prevented by two of them. When the army personnel went away in two vehicles, the informant came near his son and found him lying on the bank of the river in an injured condition. With the help of his neighbours, he tried to arrange medical treatment for his son but after five / ten minutes, he expired. (4) On the basis of the said FIR, Geleky P.S. Case No.54/2004 u/s 302 IPC was registered. Subsequently, G.R. Case No.965/2004 was registered in the Court of the learned Chief Judicial Magistrate, Sivasagar. (5) The police after completion of the investigation filed charge- sheet, being charge-sheet No.27 dated 30-09-2007 wherein the petitioner was named as accused but shown as absconder. The case, it appears, is yet to be committed.
Crl. Pet. No. 43 of 2010 Page 2 of 11
P-3 (6) Though summons were issued to the petitioner, according to him, he did not receive the same and was also not aware of the pendency of the criminal case as in the meanwhile, he was posted outside Assam. This compelled the Criminal Court to issue warrant of arrest against the petitioner, which was received and attended to by his higher authorities. (7) Feeling aggrieved, the petitioner is before this Court questioning the legality and validity of the entire criminal proceeding on the ground that no previous sanction of the Central Government has been obtained for his prosecution.
(8) This Court by order dated 19-02-2010 had issued notice and in the interim, stayed operation of the order dated 04-01-2010 whereby the learned Chief Judicial Magistrate had directed issuance of fresh warrant of arrest against the petitioner in his new address.
(9) Heard Mr. N. K. Baruah, learned Counsel for the petitioner. Also heard Mr. Z. Kamar, learned Public Prosecutor, Assam and Mr. S. Baruah, learned Central Government Counsel.
(10) Learned Counsel for the petitioner submits that the petitioner was on active duty and was operating under the 1958 Act. According to him, the petitioner is protected u/s 6 of the said Act. Since no previous sanction of the Central Government has been obtained to prosecute the petitioner, the criminal proceeding against him cannot be continued. He further submits that the petitioner is also entitled to the protection u/s 45 and 197 (2) Cr.P.C. Since previous sanction has not been obtained from the Central Government under the aforesaid provisions, the same has vitiated the criminal proceeding Crl. Pet. No. 43 of 2010 Page 3 of 11 P-4 against the petitioner and, therefore, this Court should not allow further continuation of the criminal case instituted against the petitioner. On merits also, learned Counsel submits that the petitioner is unconnected with the unfortunate incident.
(11) Mr. S. Baruah, learned Central Government Counsel, referring to the affidavit filed by the Army on 09-06-2011 submits that the petitioner was deployed to carry out army operations against insurgents and terrorists under the general operation called "operation rhino" carried out under the 1958 Act. It is stated that the deceased had good rapport with the army people and had visited the petitioner's company post about six/seven times where he was also provided food. It is further stated that there was no provision or permission to conduct operations in civil dress by army personnel. Moreover, it is stated from the record that there was no patrol of 8 Madras Regiment in the area of the incident on 21-11-2004.
(12) Mr. Kamar, learned P.P. submits that no case for quashing of the criminal case has been made out by the petitioner, that too, when the charge is as serious as murder.
(13) The rival submissions have been duly considered. (14) For better appreciation of the rival submissions, the prosecution case as projected in the charge-sheet may now be noticed, which for ready reference is extracted hereunder(translated copy furnished by the petitioner):-
" Column No.7 (Translated) The brief facts of the case is that on 20-11- 2004 the complainant Sri Krishna Bahadur Chetri Crl. Pet. No. 43 of 2010 Page 4 of 11 P-5 had lodged an ejahar in the Police Station informing that on 20-11-2004 at about 1:00 PM when the son of the complainant Sri Dilip Chetri was coming home from the Singhibil Weekly Bazar, Army personals alongwith two / three persons in Civil dress had beat him up with lathis near the Eti River at Borholla Gaon. The complainant tried to go forward to save his son, but the other Army personals prevented him. After sometime the Army personals left the place of occurrence in two vehicles leaving Sri Dilip Kumar Chetri in a half dead condition on the bank of the river. When the complainant with the help of other people tried to take him to the hospital, Sri Dilip Kumar Chetri died. During investigation it has come to light that at the relevant time the 8th Madrass Regiment which was camping at Gelaki and under the leadership of Captain IC62912F Sowmithri S. a group of Army Personals had committed the aforesaid murder and to evade arrest had fled from the Camp. Therefore, a case has been registered u/s 302 IPC against the aforesaid Captain of 8th Madrass Regiment IC62912F Sowmithri S. and charge-sheet has been filed.
On the other hand after committing the murder the army team which was camping at Geleki left the camp under the leadership of the aforesaid Army Officer and thereafter on making communications on many occasions he could not be arrested. So, he may be declared as absconder and Non-Bailable Warrant of Arrest may be issued against him. A P.M. Report, one sketch map, three seizure lists, 9 Nos. of copies of statement of witnesses and two letters from Captain Anoop Joshi, Admn. Officer are enclosed herewith.
The witness named in column 6 will prove the case before the Hon'ble Court.
It is therefore prayed that summons may be issued to the accused.
Sd/-
Illegible A.S.I. Police 30-09-2007 "
(15) The petitioner being an Army Officer is subject to the provisions of the Army Act, 1950 (the Army Act). Section 69 of the Army Act provides that any person subject to this Act who commits any civil offence would be deemed to be guilty of an offence under the Army Act and if charged, would be liable to be tried by a Court Martial and if convicted, would be punished as prescribed. Section 69 is, however, subject to section 70, which provides that if a person subject to the Army Act commits an offence of murder or of culpable homicide not amounting to murder or of rape against a person not Crl. Pet. No. 43 of 2010 Page 5 of 11 P-6 subject to the military, naval or air force law, would not be deemed to be guilty of an offence under the Army Act and would not be tried by a Court Martial unless he commits any of the above 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 a notification in this behalf. Civil offence is defined in section 3(ii) of the Army Act which means an offence which is triable by a Criminal Court. Active service as defined in section 3(i) of the Army Act means the time during which such person, amongst others, is attached to or forms part of a force which is engaged in operations against an enemy. As per section 3(x), enemy includes armed rebels etc. (16) A conjoint reading of the aforesaid provisions of the Army Act would indicate that a person governed by the Army Act, if he commits the offence of murder, he would be guilty of commission of a civil offence which would be triable only by the competent Criminal Court and not by a Court Martial. However, for such offence, he can still be tried by a Court Martial provided it can be shown that the offence was committed while on active service (or the other two situations, which is however not relevant for the present case).
(17) Having noticed the relevant provisions of the Army Act, the affidavit filed by the army may now require a closer look. According to the army affidavit, the petitioner was attached with 8 Madras Regiment from January, 2003 to November, 2005 and during this period, he was the Post Commander of 8 Madras Regiment and deployed at Geleky since August 12, 2004 to carry out operations against insurgents and terrorists under the 1958 Act. The affidavit acknowledges that the deceased had good rapport with the Crl. Pet. No. 43 of 2010 Page 6 of 11 P-7 army personnel. The affidavit, however, makes two significant statements, viz., firstly, there was no provision or permission to conduct operations in civil dress by the army personnel, and, secondly, as per unit record there was no patrol of 8 Madras in the area of incident on November 21, 2004 i.e., on the next day of the incident.
(18) From a careful reading of the charge-sheet and the army affidavit, it is clearly evident that the accusation against the petitioner has nothing to do either with his discharge of duty while on active service or with his exercise of power conferred by the 1958 Act. Had it been so, there would have been a specific statement to that effect by the army. On the contrary, from the two statements referred to above, the incident or occurrence appears to be totally unrelated to either active service or the exercise of power under the 1958 Act.
(19) The army affidavit acknowledges that the army authorities are fully aware of the criminal case. They are in receipt of a copy of the letter of the District Police, Sivasagar dated 21-11-2004, written statement of the petitioner dated 07-12-2004, copy of letter from the Superintendent of Police, Sivasagar received on 21-03-2005, copy of letter of Superintendent of Police, Sivasagar sent in April, 2007 which was forwarded vide the unit's letter dated 15-05-2007 and the warrant of arrest issued against the petitioner. In spite of having such information, the army affidavit does not disclose that the army authorities have taken any decision whether to initiate Court Martial proceeding or not by accepting the petitioner's contention that the incident had occurred while he was on active service. That being the position, the only course open is trial by the competent Criminal Court. Crl. Pet. No. 43 of 2010 Page 7 of 11
P-8 (20) The protection u/s 6 of the 1958 Act would be available only in respect of anything done or purported to be done in exercise of the powers conferred by this act. As already noticed above, the accusation made in the charge-sheet and the averments made in the army affidavit does not indicate any relation or nexus of the incident with the exercise of power under the 1958 Act. If that be so, no previous sanction of the Central Government is necessary for prosecution of the petitioner.
(21) Likewise, the protection u/s 197(2) Cr.P.C., which provides that no Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces while acting or purporting to act in the discharge of his official duty accept with the previous sanction of the Central Government, shall not be available as there is no connection of the incident with the discharge of official duty by the petitioner. Therefore, no such previous sanction of the Central Government is required. (22) Coming to the protection of members of the Armed Forces from arrest as provided under section 45 Cr.P.C., the occasion for such protection has not yet arisen. Therefore, the said submission is considered premature. (23) Without commenting on the merit of the accusation, this Court would like to point out that the provisions of the 1958 Act is to ensure protection to the personnel of the Armed Forces when they are fighting against terrorists and anti-national elements to protect the unity and integrity of the country. The provisions of this Act are not meant to shield any member of the Armed Force charged with commission of an offence which is unconnected with the exercise of power conferred by this Act or unconnected Crl. Pet. No. 43 of 2010 Page 8 of 11 P-9 with the discharge of official duty under the Army Act as well as under the Cr.P.C. To take a hypothetical case, can an armed force personnel operating under the 1958 Act charged with commission of an offence under Section 498(A) IPC or 304(B) IPC seek the protection of Section 6 of the said Act? The answer to this would certainly be in the negative. (24) The constitutional validity of the 1958 Act was questioned before the Hon'ble Supreme Court in Naga People's Movement of Human Rights Vrs. Union of India; reported in AIR 1998 SC 431. While upholding the constitutionality of the said Act, a Constitution Bench of the Hon'ble Supreme Court held in paragraph 52 of the said judgment that the protection given under Section 6 cannot be regarded as conferment of an immunity on the persons exercising powers under the said Act. Section 6 only gives protection in the form of previous sanction of the Central Government before a criminal prosecution or a civil suit or other legal proceeding is instituted against such person. In so far such protection against prosecution is concerned, the Hon'ble Supreme Court held the said provision to be similar to that contained in Section 197 Cr. P.C. which covers an offence alleged to have been committed by a public servant "while acting or purporting to act in the discharge of his official duty", adding that Section 6 only extends this protection in the matter of institution of a suit or other legal proceeding. (25) The law relating to grant of sanction under section 197 Cr. P.C is now well settled. The Hon'ble Supreme Court in the case of Romesh Lal Jain Vrs. Naginder Singh Rana & Others; reported in (2006) 1 SCC 294 after examining the previous decisions on the subject held that an order of sanction under Section 197 Cr. P.C is required to be obtained when the Crl. Pet. No. 43 of 2010 Page 9 of 11 P-10 offence complained of against the public servant is attributable to the discharge of his public duty or has a direct nexus therewith. Such sanction is not necessary when the offence complained of has nothing to do with the discharge of his public duty.
(26) In a recent decision of the Hon'ble Supreme Court delivered on 01-05-2012 in Criminal Appeal No. 257 of 2011 (General Officer Commanding Vrs. CBI & Anr.) and another case, reiterating the above proposition, it has been held that the Section (197 Cr.P.C) does not extend its protective cover to every act or omission done by a public servant in service. If the act or omission has reasonable connection with discharge of his duty, then it must be held to be official to which applicability of Section 197 Cr. P.C cannot be disputed. There must be a discernable connection between the act complained of and the powers and duties of the public servant. Observing that the question of sanction would depend upon the facts of each case, the Hon'ble Supreme Court held in the facts and circumstances of that case (it is a case of death in encounter), sanction of the Central Government is required.
(27) As has already been noticed above, there is no discernable connection between the accusation made against the petitioner in the charge- sheet and the exercise of power under the 1958 Act or even under the Army Act.
(28) For the foregoing reasons, there is no merit in the criminal petition and the same is accordingly dismissed. The stay order passed on 19- 02-2010 stands vacated.
Crl. Pet. No. 43 of 2010 Page 10 of 11
P-11 (29) The petitioner shall now appear before the learned Chief Judicial Magistrate, Sivasagar on 09-07-2012.
(30) No cost.
JUDGE
Ors./d.de.
Crl. Pet. No. 43 of 2010 Page 11 of 11