Tripura High Court
Sri Shibu Limbu [Jc-E/388007(N) vs The Union Of India on 13 March, 2018
Author: S. Talapatra
Bench: S. Talapatra
Page 1 of 40
IN THE HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) No.710 of 2017
Sri Shibu Limbu [JC-E/388007(N), Subedar],
[Building and Road] of Head Quarters, 10
Sector, Assam Rifles, attached to Head Quarters,
7 Sector, Assam Rifles, C/O 99 APO
......... Petitioner
-Versus-
1. The Union of India,
represented by the Secretary Government of
India, Ministry of Home Affairs, North Block, New
Delhi-110011
2. The Director General of Assam Rifles,
Directorate General of Assam Rifles, Laitkor,
Shillong-10, Meghalaya
3. The Inspector General of Assam Rifles,
North, C/O 99 APO
4. The Inspector General of Assam Rifles,
East, C/O 99 APO
5. The Sector Commander,
HQ 7 Sector, Assam Rifles, C/O 99 APO
6. The Sector Commander,
HQ 21 Sector, Assam Rifles, C/O 99 APO
7. The COL. Ops & CORD,
Ex-Officio Commandant, HQ 7 Sector, Assam
Rifles, C/O 99 APO
8. IC 65988M-MAJ. Deepak Bayala,
Recording Officer, SOE, HQ 7 Sector, Assam
Rifles, C/O 99 APO
......... Respondents
For the petitioner : Mr. P.K. Biswas, Sr. Advocate
Mr. P. Majumder, Advocate
For the respondents
[
: Mr. Bidyut Majumder, CGC
Date of hearing : 20.11.2017
Date of delivery : 13.03.2018
of Judgment & Order
Whether fit for reporting : Yes No
√
Page 2 of 40
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
Judgment
The petitioner who is serving in Assam Rifles as
Subedar [BNR] by means of this writ petition has challenged the
findings of the Court of Inquiry and the resultant chargesheet
dated 16.05.2017.
[2] The core ground of challenge, as alleged, is that General
Assam Rifles Court, the GARC in short, does not have the
jurisdiction to take cognizance of and try the offence punishable
under Section 7 of the Prevention of Corruption Act, 1988.
[3] The perspective of the challenge as laid by the petitioner
may briefly be stated at the outset.
There is no dispute that after entering in the service, the
petitioner, now has been serving as the Subedar [Building and
Road] of Headquarters, 10 Sector, Assam Rifles, attached to the
Headquarters, 7th Sector, Assam Rifles, was attached to the
Headquarters, 21 Sector, Assam Rifles, which falls within the
territorial jurisdiction of this court at the time of filing the writ
petition. The petitioner has averred that based on a telecast
alleging corruption in Assam Rifles, a court of inquiry was
convened by the Headquarters, DGAR by the order
No.12015/A(Disp.)/ Mathru Bhumi News/2014/1129 dated
29.09.2014 followed by an amendment order dated 01.10.2014 to
the convening order in respect of the court of inquiry. Further, a
corrigendum dated 07.10.2014 was issued pertaining to the
convening order dated 29.09.2014 by HQ, DGAR. Pursuant to the
Page 3 of 40
said convening order, a court of inquiry was conducted by HQ,
IGAR [East] at Srikona, Silchar, Assam from 09.10.2014 and on
the subsequent dates followed by recording of Summary of
Evidence at HQ, 7th Sector, Assam Rifles at Tuensang, Nagaland.
According to the petitioner, he was not given any opportunity to
cross the prime witness, namely Mr. C.C. Mathew and thus, the
respondents had contravened the provisions of Rule 183(8) and
Rule 49(2) of the Assam Rifles Rules, 2010 and the court of
inquiry, improperly and in contravention of the mandatory rule was
brought to its end. The authorised officer has recorded the
Summary of Evidence. The petitioner has averred also as under:
―More so, basing upon purported videography said to be string
operation, which is not recognised method for crime detection
in India, the convening authority has also taken the
cognizance issuing chargesheet dated 16th May, 2017 to the
petitioner under Section 55 of the Assam Rifles Act, 2006 for
committing offence punishable under Section 7 of the
Prevention of Corruption Act, 1988 with alternative charge
under Section 49 of the Assam Rifles Act, 2006 and the
petitioner was also charged under Section 49 of the Assam
Rifles Act, 2006 as second charge and further, the said
convening authority without application of mind has ordered
for general Assam Rifles Court on which (sic.) has assembled
on 8th June, 2017.‖
The statements of the witnesses have been initially
recorded during the court of inquiry. In Para-5 of the writ petition,
the petitioner has given the narrative of contradictory statements
by the various witnesses but in Para-6 of the writ petition, the
petitioner has alleged that the Presiding Officer [of the court of
inquiry] in utter disregard to the provisions of law and in violation
thereof, did not allow the person, namely Mr. C.C. Mathew who has
claimed to have given bribe to the petitioner to be cross-examined.
The denial, according to the petitioner was in gross violation of
Rule 183 of Assam Rifles Rules, 2010. It would be apposite to
extract Rule 183 [Chapter XV] of the Assam Rifles Rules, 2010.
Page 4 of 40
―183. Procedure of courts of inquiry.- (1) The proceedings of a
court of inquiry shall not be open to the public and only such
persons may attend the proceedings as are permitted by the
court to do so.
(2) The evidence of all witnesses shall be taken on oath or
affirmation and signed by them after the same has been read
over and explained to them.
Explanation. The court shall administer the oath or affirmation
to witnesses as if the court were a Force Court.
(3) Evidence given by witnesses shall be recorded in narrative
form unless the court considers that any question and answers
may be recorded as such.
(4) The court may take into consideration any documents even
though they are not formally proved.
(5) The court may ask witnesses any questions, in any form,
that it considers necessary to elicit the truth and may take into
consideration any evidence, whether the same is admissible
under the Indian Evidence Act, 1872 (1 of 1872) or not.
(6) No counsel or legal practitioner shall be permitted to
appear before a court of inquiry.
(7) Provisions of section 111 shall apply for procuring the
attendance of witnesses before the court of inquiry.
(8) (i) Save in the case of a prisoner of war who is still absent
whenever the subject matter of inquiry is the conduct,
character or reputation of particular person, such person shall
be associated throughout with the inquiry and be given full
opportunity of making any statement, or giving any evidence,
he may wish to make or give, and of cross-examination of any
witness whose evidence, in his opinion, affects his character
or reputation.
(ii) In other cases, before giving opinion against any person
subject to the Act, the court shall afford that person the
opportunity to know all that has been stated against him,
cross-examine any witness who has given evidence against
him, and make a statement and call witnesses in his defence.
(9) The court may be reassembled as often as the officer who
assembled the court may direct, for the purpose of examining
additional witnesses, or further examining any witness, or
recording further information and in such a case the court may
record fresh opinion if considered necessary after complying
with the provisions of clause (ii) of sub rule (8).‖
[Emphasis added]
[4] The petitioner has further alleged that ignoring the report
from Central Forensic Science Laboratory [the CFSL in short] and
other reports relating to the purported video, the court of inquiry
has completed its proceeding. The petitioner since was not given
the reasonable opportunity to defence, the very foundation of the
Summary of Evidence as formulated based on the court of inquiry
proceeding, is illegal and suffers from infirmity. Further, it is
Page 5 of 40
vitiated for contravention of the provisions of law as stated. On
25.02.2015, the tentative chargesheet in terms of Rule 46 of the
Assam Rifles Rules, 2010 was served on the petitioner. Then, the
date was fixed for hearing of the charge under Rule 47 of the
Assam Rifles Rules, 2010 which reads as under:
―47. Hearing of charge- (1) Every charge against a person
subject to the Act shall be heard by the Commandant in the
presence of the accused and the proceedings shall be reduced
to writing in the form set out in Appendix-V and the accused
shall have full liberty to cross-examine any witness against
him, and to call such witness and make such statement as may
be necessary for his defence:
Provided that where the charge against the accused arises as
a result of investigation by a court of inquiry, wherein the
provisions sub-rule (8) of rule 183 have been complied with in
respect of that accused, the Commandant may dispense with
the procedure in sub-rule (1).
(2) Notwithstanding anything contained in sub rule (1) above,
a specified officer under section 62 may proceed against an
enrolled person if -
(a) the charge can be summarily dealt with;
(b) the case has not been reserved by the Commandant
for disposal by himself; and
(c) the accused is not under arrest;
and after hearing the charge under sub-rule (I) above, the
specified officer may either award any of the punishment
which he is empowered to award in the form set out in
Appendix-VI, or refer the case to the Commandant for further
disposal.
(3) The Commandant shall dismiss a charge brought before
him if, in his opinion, the evidence does not show that an
offence under the Act has been committed, an may do so if, he
is satisfied that the charge ought not be proceeded with:
Provided that the Commandant shall not dismiss a charge
which he is debarred to try under sub-section (2) of section 96
without reference to superior authority as specified therein :
Provided further that, in case of all offences punishable with
death, the Commandant shall remand the case for recording of
summary of evidence.
(4) After compliance of sub-rule (I), if the Commandant is of
opinion that the charge ought to be proceeded with, he shall
within a reasonable time -
(a) dispose of the case under section 62 in accordance
with the manner and form in Appendix-VI; or
(b) refer the case to the proper superior authority; or
(c) adjourn the case for the purpose of having the
evidence against the accused, reduced to writing; or
(d) order his trial by a Summary Assam Rifles Court:
Provided that the Commandant shall not order trial by a
Summary Assam Rifles Court without reference to the officer
Page 6 of 40
empowered to convene a petty Assam Rifles Court for the trial
of the alleged offender unless -
(a) the offence is one which he can try by a Summary
Assam Rifles Court without any reference to that
officer; or
(b) he considers that there is grave reason for
immediate action and such reference cannot be made
without detriment to discipline.
(5) Where the evidence taken in accordance with sub-rule (4)
of this rule discloses an offence other than the offence which
was the subject of the investigation, the Commandant may
frame suitable charge(s) on the basis of the evidence so taken
as well as the investigation of the original charge.‖
[5] The petitioner has further averred that during recording
of Summary of Evidence, the petitioner had urged the Recording
Officer to produce the prime witness, Mr. C.C. Mathew for his
cross-examination by the petitioner inasmuch as the said witness
had filed the complaint brining the allegation against the petitioner
for having illegal gratification [as alleged] but surprisingly the
petitioner was not given that opportunity to cross-examine that
witness in contravention of the provisions laid down in Rule 49 (2)
which clearly postulates that the witnesses shall give their
evidence in the presence of the accused and the accused shall
have right to cross-examine all witnesses who give evidence
against him, and the questions together with the answers thereto
shall be added to the evidence recorded.
The petitioner has repeatedly averred that there had
been gross violation of the Rule 183(8) (i) of the Assam Rifles
Rules, 2010 as the petitioner was deprived of cross-examining the
prime accused. A statutory safeguard has been denied to the
petitioner to his serious detriment inasmuch as on the basis of the
report of the court of inquiry, the person proceeded against is
liable to disciplinary action, penal deduction or censure in contrast
to the provisions of Rules 49(2) of the Assam Rifles Rules, 2010,
Page 7 of 40
which has consolidated right to cross-examination of an accused.
On such denial, the recording of Summary of Evidence had
proceeded. According to the petitioner, apparently the respondents
have taken resort to the provisions of Rule 49(6) of the Assam
Rifles Rules, 2010 which reads as under:
―(6) Where a witness cannot be compelled to attend or is not
available or his attendance cannot be procured without an
undue expenditure of time or money and after the officer
recording the evidence has given a certificate in this behalf, a
written statement signed by such witness may be read to the
accused and included in the summary of evidence.‖
[6] In Para-14 of the writ petition, the petitioner has averred
that the petitioner has been charge-sheeted under Section 55 of
the Assam Rifles Act, 2006 and under Section 7 of the Prevention
of Corruption Act, 1988. But the Prevention of Corruption Act
provides that any offence thereunder is triable by a Special Judge.
Thus, the GARC, as stated by the petitioner, cannot have any
jurisdiction to try or award punishment under Section 7 of the
Prevention of the Corruption Act, 1988 and hence, convening of
the GARC for trying the offence punishable under Section 7 of
Prevention of Corruption Act, 1988 is highly illegal and
unsustainable. Further, the petitioner has averred that 'the persons
abetting the offence are none other than Mr. C.C. Mathew and Mr.
Shyju Maruthumpilly, who are civilians' and hence, Rule 45(i) and
(ii) of Assam Rifles Rules would come into play. The said rules read
as under:
―45. Cases which may not be tried by Force Court- Without
prejudice to the provisions of sub-rule(1) of Rule 44, an
offender may not ordinarily be claimed for trial by a Force
Court-
(i) where the offence is committed by him along with
any other person not subject to the Act whose identity
is known; or
(ii) where the offence is committed by him while on
leave or during absence without leave.‖
Page 8 of 40
Thus, the petitioner has firmed up the ground by
reiterating that the issuance of chargesheet against the petitioner
under Assam Rifles Act for committing offence punishable under
Section 7 of the Prevention of Corruption Act or convening of the
GARC are without sanction of law and without jurisdiction. Since
there was gross violation of the statutory safeguard in respect of
cross-examination of the prime witness, as stated, even the
findings of the court of inquiry cannot be sustained.
[7] In the reply, filed by the respondents, the respondents
have asserted that the cognizance has been taken by the Director
General, Assam Rifles to verify the authenticity of the allegations
made therein and to investigate the involvement of personnel of
Assam Rifles shown on tape and certain connected aspects as
reflected in the convening order dated 29.09.2014 [Annexure-R/1
to the reply] which was subsequently amended by the order dated
01.10.2014 [Annexure-R/2 to the reply] and the order dated
07.10.2014 [Annexure-R/3 to the reply]. The convening authority
has relied only on materials collected in the court of inquiry and no
extraneous material was taken into consideration in arriving at the
inference. Sufficient materials were gathered in the court of inquiry
to blame the petitioner for lapses on his part. The materials were
not only from Mr. C.C Mathew. In respect of the cross-examination
of Mr. C.C. Mathew, the respondents have stated as follows:
―(a) As per record at the said Court of Inquiry, provisions of
Assam Rifles Rule 183(8) were invoked in respect of the
petitioner;
(b) At the said Court of Inquiry, the petitioner was examined
as witness No.5 and was given every opportunity as per sub
Rule 8 of Assam Rifles Rule 183 including to cross examine as
also to call witnesses in his defence, the petitioner's own
signed certificate available in the Court of Inquiry proceeding
Page 9 of 40
(on page 405 of the Court of Inquiry proceeding) would testify
to that effect;
......................................................................
(Copy of the own signed certificate is marked as Annexure- R/4)
(c) At the Court of Inquiry under Assam Rifles Rule 183(8) one can cross examine only that witness who was examined at the inquiry as a witness. Mr. C.C. Mathew was not examined as a witness at the said Court of Inquiry. Hence, for obvious reasons, the petitioner could not cross examine him;
(d) However, if the petitioner felt that examination of Mr. C.C. Mathew at the Court of Inquiry was so material, he was at liberty to produce him as his own witness as per the provisions of Rule 183 of the Assam Rifles Rule, 2010.‖ [Emphasis added] [8] The respondents have further submitted that the petitioner's allegations of denying him the opportunity of cross- examining Mr. C.C. Mathew is unfounded inasmuch as on commencement of the recording of Summary of Evidence Mr. C.C. Mathew was summoned through the District Magistrate, Kottayam but when he did not report he was again summoned but he did not turn up, instead he sent the written statement dated 27.04.2015. The said statement together with summon dated 28.03.2015 are made part of the Summary of Evidence as Exbt.IX. Having considered the matter, the officer recording Summary of Evidence recorded a certificate under sub Rule 6 of Rule 49 of the Assam Rifles Rules, 2010 and took the statement of Mr. C.C. Mathew on record. The respondents have further asserted that invoking the provisions of sub Rule 2 Rule 49 of the said rules, the officer recording the Summary of Evidence gave opportunity to the petitioner to cross-examine the said witness through the written questionnaire. However, the petitioner declined to do so insisting his physical presence. Thereafter, the officer recording the Summary of Evidence in the interest of justice adjourned recording of evidence for a day to enable the petitioner to rethink. Even Page 10 of 40 thereafter the petitioner has declined to avail the said opportunity. In these circumstances, the petitioner cannot be allowed to raise the ground of denial of opportunity to cross-examine Mr. C.C. Mathew. The respondents have clearly stated that Mr. Shyjue Marathumpilly [PW-2] who had conducted the sting operation along with Mr. C.C. Mathew remained present at the Summary of Evidence to show the existence of prima-facie case against the petitioner and in the Summary of Evidence, so recorded, total seven witnesses were examined and only the manuscripts of Mr. C.C Mathew being taken on record of the Summary of Evidence in terms of Rule 49(6). The said statement [manuscript] was admitted in the Summary of Evidence and marked as Exbt.IX. Hence, it cannot be stated that there was contravention of the procedural rules. Even if the statement of Mr. C.C. Mathew is excluded from consideration, still the evidence exists against the petitioner, according to the respondents. The respondents have further stated in their reply as under:
―It is pertinent to mention herein that the Court of Inquiry which stands concluded and the statements of Mr. C.C. Mathew which has been marked as Exbt.IX in the Court of Inquiry proceeding was taken into consideration with full opportunity to cross examine the petitioner, as stated hereinbefore in compliance with Rule 49(II) of the Assam Rifles Rules, 2010 and Mr. C.C. Mathew in person shall be made available for cross-examination during the General Assam Rifles Court [GARC].‖ In the different context, the respondents have stated that the GARC may be convened in terms of Section 87 of the Assam Rifles Act, 2006. The statement made in this regard is not well thought and highly purposive, inasmuch as the right to cross-
examination, if available, before the trial court cannot be denied Page 11 of 40 showing the reason that that person would get such opportunity in the subsequent phase.
[9] Having referred to the objection as regards the competence of the GARC to try the charge under Section 7 of the Prevention of Corruption Act, 1988, the respondents have contended that Section 28 of Prevention of Corruption Act, 1988 lays down that provisions of the Prevention of Corruption Act, 1988 are in addition to, and not in derogation of, any other law for the time being in force, and nothing contained therein shall exempt any public servant from any proceeding which might, apart from this act, be instituted against him. According to the respondents, the GARC is competent enough to try the charge under Section 7 of the Prevention of Corruption Act, 1988. According to them, Section 25 of the Prevention of Corruption Act, 1988 has on the statute that nothing in the Prevention of Corruption Act, 1988 shall affect the jurisdiction exercisable by, or the procedure applicable to, any court of authority under the Army Act, 1950, the Air Force Act, 1950, the Navy Act, 1957, the Border Security Force Act, 1968 and Coast Guard Act, 1978 and the National Security Guard Act, 1986. Thus, according to the respondents, the Assam Rifles Act protects the jurisdiction exercisable by the specific Armed Forces Act enumerated therein. They have desperately stated as follows in their reply:
―However, since this section could have been read as exhaustive, meaning thereby that jurisdiction of no other Act was protected, it might create difficult situations for future acts, like ITBP Act, Assam Rifles Act, etc., which came into existence later but provided for provisions similar to the Acts enumerated in Section 25 of the Prevention of Corruption Act.‖ Page 12 of 40 Hence, a general provision in the form of Section 28 of the Prevention of Corruption Act, 1988 has been legislated. For purpose of reference, Section 28 of the Prevention of Corruption Act, 1988 is extracted hereunder:
―28. Act to be in addition to any other law- The provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force, and nothing contained therein shall exempt any public servant from any proceeding which might, apart from this Act, be instituted against him.‖ [10] According to the respondents, civil offence is a distinct and substantive offence which has been defined and made punishable under the Assam Rifles Act, 2006. Under Section 55 of Assam Rifles Act, 2006 the power to try civil offence has been given to the GARC. For purpose of reference, Section 55 of the Assam Rifles Act is reproduced hereunder:
―55. Civil offences- Subject to the provisions of section 56, 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 an Assam Rifles Court and, on conviction, be punishable as follows, that is to say-
(a) if the offence is one which would be punishable under any law in force in India with death, he shall be liable to suffer any punishment assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and
(b) in any other case, he shall be liable to suffer any punishment assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as in this Act mentioned.‖ [11] In Paras-10.2 & 10.3 of the reply, the respondents have further averred as follows:
―10.2. That I say that the term ‗Assam Rifles Court' has been defined in Section 2(b) of Assam Rifles Act, 2006 to mean ‗a Court referred to in Section 86'. Since, the Courts mentioned in Section 86 are specific to Assam Rifles Act, these are special Courts created under the Act. Further, the term ‗offence' is defined in Section 2(r) to mean ‗any act or omission punishable under this Act and includes a civil offence.' As per the provisions of Sections 55 and 56 of Assam Rifles Act, 2006, all civil offenses except three excluded by Section 56 are triable under Assam Rifles Act. The term ‗Civil Offence' has been defined in Section 2(e) to mean ‗an offence triable by Criminal Court'. The term ‗Criminal Court' has been defined in Page 13 of 40 Section 2(h) to mean ‗a Court of ordinary criminal justice in any part of India.' A combined reading of Section 2(e) and Section 2(h) would show that only that offence can be designated as Civil offence which is triable by a Court of ordinary criminal justice in any part of India. Therefore, a conjoint reading of Section 94 and Section 2(r) would show that a General Assam Rifles Court (GARC) can try any offence, including a civil offence punishable under Assam Rifles Act. Further, civil offences provide concurrent jurisdiction to both the General Assam Rifles Court (GARC) and ordinary Criminal Court. Section 475 Cr.P.C. read with Adjustment of Jurisdiction Rules framed thereunder provide that the primary jurisdiction to decide before which Court the trial to be held is vested with the Assam Rifles authorities.
10.3. That, as per Section 4(1) of the Prevention of Corruption Act, offences under the Prevention of Corruption Act which includes offences in section 7 thereof, are to be tried by Special Judge appointed under Section 3(1) thereof. As per Section 5(1) of the Prevention of Corruption Act, Special Judge has to follow the procedure prescribed by the Cr.P.C. for the trail of warrant cases by Magistrates. And as per Section 5(3) of Prevention of Corruption Act a special Judge shall be deemed to be a Court of Session. And Section 5(4) of the Prevention of Corruption Act unambiguously states that the provisions of ‗Section 475 of the Code of Criminal Procedure, 1973 shall so far as may be, apply to the proceedings before a special Judge and for the purposes of the said provisions, a special Judge shall be deemed to be a Magistrate.' This provision, thus, makes the offences under the Prevention of Corruption Act as concurrent jurisdiction as envisaged by Section 475 of the Cr.P.C. Therefore, the General Assam Rifles Court (GARC) can try the offences under the Prevention of Corruption Act as civil offences.‖ [12] The respondents thereafter have contented in their reply that the Army Act is made applicable to certain forces under the Central Government by invoking the power as provided by Section 4 of the Army Act. In exercise of power conferred by sub Section (1) of Section 4 of the Army Act, the Central Government has issued Special Routine Order [SRO] 318 dated 06.12.1962. SRO 318 has been subsequently amended by SRO 325 dated 31.08.1977. SRO 318 reads as follows:
―In exercise of the powers conferred by sub-Section (1) of Section 4 of the Army Act, 1950 and the supersession of the notification of the Government of India in the late External Affairs Department No.93-X dated 25.06.1942, as subsequently amended, the Central Government hereby-
(a) applies to every unit of Assam Rifles, being a force SRO raised and maintained in India under the authority of the 318 Central Government, all the provisions of the said Act, as except those specified in part A of the Schedule annexed referred hereto, subject to the notifications set forth in Part B of that Schedule, when attached to or acting with anybody of the regular army; and Page 14 of 40
(b) Suspends, while this notification remains in force, the operation of Sections 6,7,8 and 9 of the Assam Rifles Act, 1941 (5 of 1941).‖ Thus, it has been contended by the respondents that by virtue of Section 4(1) of the Army Act read with SRO 318 dated 06.12.1962 as amended by SRO 325 dated 31.08.197, the Army Act has been made applicable to the Assam Rifles. Thus, Section 25 of the Prevention of Corruption Act, 1988 has to be read in conjunction to the SROs 318 & 325. In respect of contravention of Rules 45(i) and (ii) of Assam Rifles Rules, 2010, it has been categorically stated that Rule 45 is not applicable in the context inasmuch as Section 102 of Assam Rifles Act, 2006 confers discretion on the authorities to decide before which court the proceeding shall be instituted. In the present case, the cognizance was taken by the DG, Assam Rifles for the purpose as stated before to verify the materials of sting 'operation hill top'. The respondents have mentioned that co-delinquents namely, Ranjit Kr. Saha and Subrata Deb filed two writ petitions challenging the proceedings of the GARC before the Gauhati High Court. The learned Single Judge of the Gauhati High Court by the common judgment and order dated 10.02.2017 allowed the writ petitions.
Against the said judgment, the Union of India has preferred the writ appeals. In one of the writ appeals being W.A. No.51 of 2017, the writ petitioner prayed for staying of the GARC proceeding vide I.A.[Civil] No.1216 of 2017]. By the order dated 05.05.2017, the Gauhati High Court had rejected that prayer by observing as under:
―The applicants have, therefore, filed the present application for staying the proceedings of the General Assam Rifles Court, till the final decision of writ appeal. The applicants have also placed reliance on a decision of the Supreme Court in Shree Page 15 of 40 Chamundi Mopeds Ltd. vs. Church of South India Trust Association CSI Cinod Secretariat, Madras, (1992) 3 SCC 1. The Union of India, in its reply, has vehemently opposed the prayer for stay.
The record reveals that applicants are being prosecuted on serious charges of corruption in the General Assam Rifles Court. The trial is virtually at the fag end. It has repeatedly being held by the Supreme Court that in the cases of corruption, the court should refrain from staying the proceedings. We, therefore, reject the application, with an observation that final proceedings in the General Assam Rifles Court shall be subject to the final judgment in W.A. No.57 of 2017.‖ [13] No rejoinder has been filed by the petitioner against the said reply. It is no denying fact that before the Gauhati High Court the said two delinquents had raised the similar ground of objection in the writ petitions filed separately being W.P.(C) No.7950/2016 and W.P.(C) No.7963/2016 that the GARC has no jurisdiction and the jurisdiction lies with the Special Judge appointed under Section 3 of Prevention of Corruption Act.
[14] Having keenly appreciated the averments and the submissions advanced by the learned counsel for the parties, the following two pertinent questions emerged for response for this court:
(i) Whether by denying the opportunities to cross-
examination in the Court of Inquiry the respondents had violated any substantive right of the petitioner to his serious detriment and whether the opportunity of cross-examination by means of questionnaire in writing in respect of the ‗manuscripts' statement of Mr. C.C. Mathew at the time of recording Summary of Evidence is adequate to meet the requirement of affording the opportunity of cross-examination as prescribed? and
(ii) Whether the GARC has the jurisdiction to try the offence punishable under Section 7 of the Prevention of Corruption Act, 1988?
[15] There is no controversy that on the basis of the findings of the court of inquiry, the Summary of Evidence was prepared. Page 16 of 40 Even there is no controversy that the petitioner is 'subject' in terms of the Assam Rifles Act, 2006 or Assam Rifles Act, 1941. The Assam Rifles Court generally is empowered to try the civil offence and on conviction punish them. Section 55 of the Assam Rifles Act provides that subject to provisions of Section 56 of the said act, any person, subject of this Act, who at any place in, or beyond, India commits any civil offence shall be deemed to be guilty of an offense against this Act and, if charged therewith under this section, shall be liable to be tried by an Assam Rifles Court and, on conviction, be punishable. If the offence is one which would be punishable under any law in force in India with death, he shall be liable to suffer any punishment assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned and in any other case he shall be liable to suffer any punishment assigned for the offence by the law in force in India, or imprisonment for a term which may extend seven years, or such less punishment as in this Act mentioned. Section 56 of the Assam Rifles Act, 2006 has made the provision where even the civil offences cannot be tried by the Assam Rifles Court. For purpose of reference, Section 56 of the Assam Rifles Act is reproduced hereunder:
―56. Civil offences not triable by an Assam Rifles Court.--A person subject to this Act who commits an offence of murder or of culpable homicide not amounting to murder against, or of rape in relation to, a person not subject to this Act shall not be deemed to be guilty of an offence against this Act and shall not be tried by an Assam Rifles Court, unless he commits any of the said offences,--
(a) while on active duty; or
(b) at any place outside India; or
(c) at any place specified by the Central Government, by notification in this behalf.‖ Page 17 of 40 A bare reading of Section 56 read with the allegations brought against the petitioners it is apparent that the alleged offence has been committed by the petitioner while on active duty.
As such, the petitioner cannot come under the exception curved under Section 56 of the Assam Rifles Act. Even the petitioner has not advanced such argument.
[16] For purpose of convenience, it would be expedient to take up the question relating to the jurisdiction of the GARC to try the offence punishable under Section 7 of Prevention of Corruption Act, 1988 first.
[17] Mr. B. Majumder, learned CGC appearing for the respondents has submitted that being public servant, accepting gratification other than the legal remuneration in respect of official act is punishable under Section 7 of the Prevention of Corruption Act, 1988. The charge framed against the petitioner has been framed under Section 49 of the Assam Rifles Act, 2006 which reads as under:
―49. Violation of good order and discipline- Any person subject to this Act who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and discipline of the Force shall, on conviction by an Assam Rifles Court, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.‖ [18] What appears from the tentative chargesheet [Annexure-
3 to the writ petition] that along with the said charge, the charge against the petitioner has also been framed for committing a civil offence within the purview of Section 55 of the Assam Rifles Act, 2006 for accepting gratification other than legal remuneration in respect of official act, the charge has also been framed under Page 18 of 40 Section 7 of the Prevention of Corruption Act, 1988. The challenge of the petitioner hinges on absence of jurisdiction of the GARC to try the offence punishable under Section 7 of the Prevention of Corruption Act, 1988.
[19] Mr. Majumder, learned CGC has further submitted that that the Assam Rifles Act, 2006 is a special act and as such, it has pervasive jurisdiction in terms of Section 5 of the Cr.P.C. which provides that nothing contained in the Cr.P.C. shall in absence of a specific provision to the contrary affect any special or local law for the time being in force or any special jurisdiction or power conferred or any special form of procedure prescribed, by any other law for the time being in force. In this regard, Mr. Majumder, learned CGC has referred a decision of the apex court in Ajmer Singh and Ors. Vs. Union of India (UOI) and Ors., reported in AIR 1987 SC 1646 where the apex court has held as under:
―7. Section 5 of the Code of Criminal Procedure lays down that nothing contained in the said Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. The relevant Chapters of the Army Act, the Navy Act and the Air Force Act embody a completely self-contained comprehensive Code specifying the various offences under those Acts and prescribing the procedure for detention and custody of offenders, investigation and trial of the offenders by Courts Martial, the punishments to be awarded for the various offences, confirmation and revision of the sentences imposed by Courts-Martial, the execution of such sentences and the grant of pardons, remissions and suspensions in respect of such sentences. These enactments, therefore, constitute a special law in force conferring special jurisdiction and powers on Courts-Martial and prescribing a special form of procedure for the trial of the offences under those Acts. The effect of Section 5 of the Code of Criminal Procedure is to render the provisions of the Code of Criminal Procedure inapplicable in respect of all matters covered by such special law. Since in the four cases before us we are concerned with convictions by General Courts-Martial under the provisions of the Army Act, we shall refer specifically to the relevant provisions contained in the Army Act (hereinafter called the 'Act').‖ [Emphasis added] Page 19 of 40 [20] Reference has also been made to the following passage from Ajmer Sing (supra):
―10. As we have already indicated, we are unable to accept as correct the narrow and restricted interpretation sought to be placed on Section 5 of the Code by the Counsel appearing on behalf of the appellants. In our opinion the effect of Section 5 of the Code is clearly to exclude the applicability of the Code in respect of proceedings under any special or local law or any special jurisdiction or form of procedure prescribed by any other law. Whatever doubt might otherwise have existed on this point is totally set at rest by Section 475 of the Code of Criminal Procedure which furnishes a conclusive indication that the provisions of the Code are not intended to apply in respect of proceeding before the Courts-Martial. That Section is in the following terms:
‗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, Naval 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 28-02-2018 (Page 3 of 5) www.manupatra.com Judges Library belongs, or to the commanding officer of the nearest military, navel or air force station, as the case may be, for the 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 purpose 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 situated within the State be brought before a Court-martial for trial or to be examined touching any matter pending before the Court-martial.' The distinction made in the Section between ‗trial by a Court to which this Code applies' and by a Court-Martial conclusively indicates that Parliament intended to treat the Court-Martial as a forum to the proceedings before (sic) which the provisions of the Code will have no application.‖ Page 20 of 40 [21] According to Mr. Majumder, learned CGC that the special jurisdiction created by the Prevention of Corruption Act, 1988 cannot override the jurisdiction created by the Assam Rifles Act, 2006 in view of the interpretation as made by the apex court of Section 5 of the Cr.P.C. in Ajmer Singh (supra). Further, Mr. Majumder, learned CGC has contended that the Central Government in exercise of the power conferred by sub Section 1 of Section 4 of the Army Act has issued SRO 318 dated 06.12.1962 as amended subsequently by SRO 325 dated 31.08.1977. By virtue of Section 4 of the Army Act read with SRO 318 dated 06.12.1962, as amended by SRO 325 dated 31.08.1977, the Army Act has been made applicable to the Assam Rifles. SROs 318 and 325 have not been repealed as yet. Hence, Section 25 of the Prevention of Corruption Act, 1988 has to be read in conjunction with SROs 318 and 325. Section 25 of the Prevention of Corruption Act preserves the jurisdiction exercisable by the Military, Naval and Air Force or other such forces. For purpose of reference, Section 25 of the Prevention of Corruption Act, 1988 is reproduced hereunder:
―25. Military, Naval and Air Force or other law not to be affected.--
(1) Nothing in this Act shall affect the jurisdiction exercisable by, or the procedure applicable to, any court or other authority under the Army Act, 1950 (45 of 1950), the Air Force Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957), the Border Security Force Act, 1968 (47 of 1968), the Coast Guard Act, 1978 (30 of 1978) and the National Security Guard Act, 1986 (47 of 1986).
(2) For the removal of doubts, it is hereby declared that for the purposes of any such law as is referred to in sub-section (1), the court of a special Judge shall be deemed to be a court of ordinary criminal justice.‖ Sub Section 2 of Section 25 of the Prevention of Corruption Act, 1988 has clearly laid down that for purpose of laws relating to those forces as referred in sub Section 1 of Section 25 Page 21 of 40 of the Prevention of Corruption Act, 1988 'the court of a Special Judge' shall be deemed to be a 'court of ordinary criminal justice'.
For purpose of reference, the provisions of the SRO 325 as referred by Mr. Majumder, learned CGC are deemed apposite to be reproduced:
―In exercise of the powers conferred by sub-section (1) of Section 4 of the Army Act, 1950 (46 of 1950), the Central Government hereby makes following amendment in the notification of the government of India in the Ministry of Defence, No. SRO 318 dated the 6th December, 1962, namely-
SRO In Part B of the schedule to the said notification after the 325 existing entries, the following shall be inserted, namely-
as referred In Section 113, the words ‗each of whom has held a commission for not less than three whole years and shall be omitted'.
In Section 114, the words ‗each of whom has held a commission for not less than two whole years' shall be omitted.' ‖ [22] Mr. Majumder, learned CGC has with sufficient emphasis submitted that since SROs 318 and 325 have not been repealed, Section 25 of the Prevention of Corruption Act, 1988 has to be read with conjunction with SROs 318 and 325.
[23] To buttress his contention, Mr. Majumder, learned CGC has placed his reliance on Municipal Corporation of Delhi vs. Shiv Shankar, reported in AIR 1971 SC 815, where the apex court had occasion to observe that when there is no inconsistency between the general and the special statute, the latter may well be construed as supplementary. The pages as referred by Mr. Majumder, learned CGC is extracted hereunder:
―5.............The legislature, which may generally be presumed to know the existing law, is not expected to intend to create confusion by its omission to express its intent to repeal in clear terms. The Courts, therefore, as a rule, lean against implying a repeal unless the two provisions are so plainly repugnant to each other that they cannot stand together and it is not possible on any reasonable hypothesis to give effect to both at the same time. The repeal must, if not express, flow from necessary implication as the only intendment. The provisions must be wholly incompatible with each other so Page 22 of 40 that the two provisions operating together would lead to absurd consequences, which intention could not reasonably be imputed to the legislature. It is only when a consistent body of law cannot be maintained without abrogation of the previous law that the plea of implied repeal should be sustained. To determine if a later statutory provision repeals by implication an earlier one it is accordingly necessary to closely scrutinise and consider the true meaning and effect both of the earlier and the later statute. Until this is done it cannot be satisfactorily ascertained if any fatal inconsistency exists between them. The meaning, scope and effect of the two statutes, as discovered on scrutiny, determines the legislative intent as to whether the earlier law shall cease or shall only be supplemented. If the objects of the two statutory provisions are different and the language of each statute is restricted to its own objects or subject, then they are generally intended to run in parallel lines without meeting and there would be no real conflict though apparently it may appear to be so on the surface. Statutes in pari materia although in apparent conflict should also so far as reasonably possible, be construed to be in harmony with each other and it is only when there is an irreconcilable conflict between the new provision and the prior statute relating to the same subject matter, that the former, being the later expression of the legislature, may be held to prevail, the prior law yielding to the extent of the conflict. The same rule of irreconcilable repugnancy controls implied repeal of a general by a special statute. The subsequent provision treating a phase of the same general subject matter in a more minute way may be intended to imply repeal pro tanto of the repugnant general provision with which it cannot reasonably co-exist. When there is no inconsistency between the general and the special statute the latter may well be construed as supplementary.
******** *********
11........... In view of the foregoing discussion it seems to us that the two statutory provisions can harmoniously operate without causing confusion or resulting in absurd consequences and the scheme of the Adulteration Act and Rules can without difficulty fit into the scheme of the Fruit Order under the Essential Commodities Act. The challenge on the ground of implied repeal must, therefore, be rejected.‖ [24] Mr. Majumder, learned CGC has also contended that the interpretation as advanced in the writ petition in respect of the jurisdiction is in effect would repeal the substantive provision of the Assam Rifles Act [read with the SROs as issued under Section 4 of the Army Act]. There is a presumption against repeal by implication. In this regard, the reference has been made to Union of India and another vs. Venkateshan S. and another., reported in AIR 2002 SC 1890, where the apex court has observed as under:
―12. Further, if the view taken by the High Court and the contentions raised by learned counsel for the respondent are accepted, it would result in implied repeal of substantial part Page 23 of 40 of Section 3 of COFEPOSA Act. One of the established principles of interpretation of the statutory provisions is that courts as a rule lean against implied repeal unless the provisions are plainly repugnant to each other. There is also a presumption against repeal by implication; and the reason of this rule is based on the theory that the legislature while enacting a law has complete knowledge of the existing laws on the same subject matter and, therefore, when it does not provide a repealing provision it gives out an intention not to repeal the existing legislation. In Municipal Council, Palai v. T.J. Joseph : AIR 1963 SC 1561, the Court discussed the principles with regard to the 'implied repeal' and held thus:-
‗10. It must be remembered that at the basis of the doctrine of implied repeal is the presumption that the legislature which must be deemed to know the existing law did not intend to create any confusion in the law by retaining conflicting provisions on the statute book and, therefore, when the court applies this doctrine it does no more than give effect to the intention of the legislature ascertained by it in the usual way i.e., by examining the scope and the object of the two enactments, the earlier and the later.' ‖ [Emphasis added] [25] In T.J. Joseph (supra) as referred to in Venkateshan S.(supra), the apex court has shed light on the apparent dichotomy by the observation as reproduced hereunder:
―9. It is undoubtedly true that the legislature can exercise the power of repeal by implication. But it is an equally well-settled principle of law that there is a presumption against an implied repeal. Upon the assumption that the legislature enacts laws with a complete knowledge of all existing laws pertaining to the same subject and the failure to add a repealing clause indicates that the intent was not to repeal existing legislation. Of course, this presumption will be rebutted if the provisions of the new act are so inconsistent with the old ones that the two cannot stand together. As has been observed by Crawford on Statutory Construction, P. 631, para 311 :
‗There must be what is often called 'such a positive repugnancy between the two provisions of the old and the new statutes that they cannot be reconciled and made to stand together'. In other words they must be absolutely repugnant or irreconcilable. Otherwise, there can be no implied repeal.........for the intent of the legislature to repeal the old enactment is utterly lacking.' The reason for the rule that an implied repeal will take place in the event of clear inconsistency or repugnancy, is pointed out in Crosby v. Patch, 18 Calif 438 quoted by Crawford ‗Statutory Construction' P. 633., and is as follows:-
‗As laws are presumed to be passed with deliberation, and with full knowledge of all existing ones on the same subject, it is but reasonable to conclude that the Legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. Bowen v. Lease 5, Hill 226. It is a rule, says Sedgwick, that a general statute without negative words will not repeal the particular provisions of a former one, unless the two acts are irreconcilably inconsistent. ‗The reason and philosophy of the rule,' says the author, 'is, that when the mind of the legislator has been turned to the details of a subject, Page 24 of 40 and he has acted upon it, a subsequent statute in general terms or treating the subject in a general manner, and not expressly contradicting the original act, shall not be considered as intended to affect the more particular or positive previous provisions, unless it is absolutely necessary to give the latter act such a construction, in order that its words shall have any meaning at all.' For implying a repeal the next thing to be considered is whether the two statutes relate to the same subject matter and have the same purpose. Crawford has stated at p. 634 :
‗And, as we have already suggested, it is essential that the new statute covers the entire subject matter of the old; otherwise there is no indication of the intent of the legislature to abrogate the old law. Consequently, the later enactment will be construed as a continuation of the old one'.
The third question to be considered is whether the new statute purports to replace the old one in its entirety or only partially. Where replacement of an earlier statute is partial, a question like the one which the court did not choose to answer in the Commissioners Sewers case, (1862) E.R. 1104, would arise for decision.‖ [26] Further, reliance has placed by Mr. Majumder, learned CGC is on State of M.P. vs. Kedia Leather & Liquor Ltd. and others, reported in AIR 2003 SC 3236 where the apex court while dwelling on the presumption against a repeal by implication has enunciated the law as under:
―13. There is presumption against a repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject matter, and therefore, when it does not provide a repealing provisions, the intention is clear not to repeal the existing legislation. (See: Municipal Council, Palai through the Commissioner of Municipal Council, Palai v. I.J. Joseph : 1963 SC 1561; Northern India Caterers (Private) Ltd. and Anr. v. State of Punjab and Anr. : AIR 1967 SC 1581, Municipal Corporation of Delhi v. Shiv Shanker: (1971) 1 SCC 442 and Ratan Lal Adukia and Anr. v. Union of India: AIR 1990 SC 104 . When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle expressio unius (Personal vel rei) est exclusio alterius. (The express intention of one person or thing is the exclusion of another), as illuminatingly stated in Garnett v. Bradley: (1878) 3 AC 944.
The continuance of existing legislation, in the absence of an express provision of repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act and that the two cannot stand together. But, if the two can be read together and some application can be made of the words in the earlier Act, a repeal will not be inferred. (See: A.G. v. Moore (1878) 3 Ex. D 276, Ratanlal's case (supra) and R.S. Raghunath v. State of Karnataka and Anr. : AIR 1992 SC 81 .
14. The necessary questions to be asked are:
Page 25 of 40
(1) Whether there is direct conflict between the two provisions.
(2) Whether the Legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law;
(3) Whether the two laws occupy the same field.
[See: Pt. Rishikesh and Anr. v. Salma Begum (Smt.):
(1995) 4 SCC 718 , and Shri A.B. Krishna and Ors. v.
The State of Karnataka and Ors.: 1998 (1) JT (SC) 613]
15. The doctrine of implied repeal is based on the theory that the Legislature, which is presumed to know the existing law, did not intend to create any confusion by retaining conflicting provisions and, therefore, when the court applies the doctrine, it does not more than give effect to the intention of the Legislature by examining the scope and the object of the two enactments and by a comparison of their provisions. The matter in each case is one of the construction and comparison of the two statutes. The Court leans against implying a repeal, ‗unless two Act are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied, or that there is a necessary inconsistency in the two Acts standing together.' (See Craies on Statute Law, Seventh Edition, page 366, with reference to Re: Barry (1936) Ch. 274. To determine whether a later statute repeals by implication an earlier, it is necessary to scrutinize the terms and consider the true meaning and effect of the earlier Act. Until this is done, it is impossible to ascertain whether any inconsistency exists between the two enactments. The area of operation in the Code and the pollution laws in question are different with wholly different aims and objects; and though they alleviate nuisance, that is not of identical nature. They operate in their respective fields and there is no impediment for their existence side by side.‖ [Emphasis added] [27] To illustrate the correctness of the position taken by the respondents in respect of their wielding the jurisdiction of trial on the charge under Section 7 of the Prevention of Corruption Act, 1988, Mr. Majumder, learned CGC has placed his reliance on Shiv Parshad Pandey vs. C.B.I. through Director, New Delhi, reported in AIR 2003 SC 1974, where the apex court had occasion to observe as under:
―13. This section prima facie supports the argument of the appellant to the extent when a Criminal Court and a Security Force Court both have jurisdiction in respect of the same offence the discretion to proceed or not to proceed under the BSF Act lies with the Director General, or other officers specified therein, within whose command the accused person is serving. It must be noticed herein that this Section applies only to such persons who ‗is serving' in the Border Security Force and not to a person who ceases to be an officer of the BSF at the relevant time. On facts we have noticed that the Special Court, CBI took cognizance of the complaint only after the appellant ceased to be subject to the Act and after he was repatriated to his parent department that too much later than Page 26 of 40 six months of the period mentioned in Section 77(2) of the BSF Act. Therefore, even this Section 80 would not apply to the facts of this case.‖ [28] So far the application of Section 4 of the Army Act by virtue of SRO 318, the reliance has been place on Union of India and others vs. Dinesh Prasad, reported in (2012) 12 SCC 63, where the apex court has observed as under:
―16. It may be immediately stated that by virtue of Section 4 of the Army Act read with S.R.O. 318 dated 6.12.1962 (as amended by S.R.O. 325 dated 31.08.1977), the Army Act has been made applicable to the Assam Rifles. The Respondent was thus subject to the provisions of the Army Act.‖ [29] Thus, Mr. Majumder, learned CGC has submitted that in accordance with Section 102 of the Assam Rifles Act, the DIG has exercised his jurisdiction, made the choice and convened the Assam Rifles Court. For purpose of reference, Section 102 of the Assam Rifles Act, 2006 is gainfully reproduced hereunder:
―102. Choice between criminal court and Assam Rifles Court- When a criminal court and an Assam Rifles Court each have jurisdiction in respect of an offence, it shall be in the discretion of the Director General, or the Inspector-General or the Deputy Inspector-General within whose command the accused person is serving or such other office as may be prescribed, to decide before which court proceedings shall be instituted, and, if that officer, decides that they shall be instituted before an Assam Rifles Court, to direct that the accused person shall be detained in Force custody.‖ [30] From the other side, Mr. P.K. Biswas, learned senior counsel has quite emphatically submitted that the GARC does not have any jurisdiction to try the offence punishable under Section 7 of the Prevention of Corruption Act, 1988. According to him, by Section 4 of the Prevention of Corruption Act, 1988 the operation of the Cr.P.C. has been taken away by specifically laying down that the offences punishable under Section 3 (1) shall be tried by Special Judges only. Section 3(1) of the Prevention of Corruption Act, 1988 provides that the Central Government or the State Page 27 of 40 Government may by notification in the official gazette, appoint as many Special Judges as may be necessary for such area or areas or such case or group cases as may be specified in the notification to try the following offences namely; (a) any offence punishable under the Prevention of Corruption Act, 1988 and (b) any conspiracy to commit or any attempt to commit or any abetment or any of the offences specified in clause (a). Since the offence punishable under Section 6 comes within the meaning of Section 3(1)(a) of the Prevention of Corruption Act, 1988 only the Special Judges will have the jurisdiction to try such offence in terms of the provisions made under Section 4 of the Prevention of Corruption Act.
[31] Mr. Biswas, learned senior counsel has submitted that the similar controversy had fallen for decision before the High Court of Meghalaya. In Dipak Chakraborty vs. Union of India and others [judgment and order dated 15.06.2017 delivered in W.P.(C) No.129 of 2017] a Single Bench of Meghalaya High Court has observed as under:
―On perusal of Section 25 of the Prevention of Corruption Act, 1988, nowhere is it found mentioned that the Assam Rifles Authority has the power to try the case under the Prevention of Corruption Act, 1988. Further, it is an undisputed fact that any case under the Prevention of Corruption Act, 1988 can only be tried by a Special Court constituted by the Central Government or the State Government, therefore the question of General Assam Rifles Court trying the instant case under Section 55 of the Assam Rifles Act, 2006 in conjunction with Section 28 of the Prevention of Corruption Act, 1988 is rejected.‖ It is also gathered from the said judgment that the corruption cases shall only be dealt with in terms of Sections 3 & 4 of the Prevention of Corruption Act, 1988, the Assam Rifles cannot Page 28 of 40 invoke their power reading the said offence within Section 55 of the Assam Rifles Act, 2006.
[32] Mr. Biswas, learned senior counsel has raised a unique objection that SRO 318 dated 06.12.1962 and SRO 325 dated 31.08.1997 were issued when the Assam Rifles Act, 1941 was in force and thereafter, no fresh SRO, in exercise of the powers conferred by sub Section (1) of Section 4 of the Army Act has not been issued and as such no aid from SROs as reproduced above can be availed to wield the jurisdiction to try an offence punishable under Section 7 of the Prevention of Corruption Act, 1988.
[33] In rejoinder, Mr. Majumder, learned CGC has referred to Delhi Special Police Establishment, New Delhi vs. Lt. Col. S.K. Loraiya, reported in AIR 1972 SC 2548 for placing his reliance on the following passage:
―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 Section 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, Section 549 and the rules made thereunder are attracted to the case at hand.‖ Mr. Majumder, learned CGC has further submitted that it is the elementary rule that construction of a sentence is to be Page 29 of 40 made of all parts together, it is not permissible to omit any part of it [Balasinor Nagrik Cooperative Bank Ltd. vs. Babubhai Shankerlal Pandya and Ors. : AIR 1987 SC 849]. He has further submitted that the Meghalaya High Court has not enunciated the law correctly and as such, this court may not be persuaded by the said judgment. That apart, the said judgment is under challenge.
[34] According to Mr. Majumder, learned CGC that the judgment of the Meghalaya High Court is per in curium in view of the law laid down by the apex court in Siddharam Satlingappa Mhetre vs. State of Maharashtra and others, reported in AIR 2011 SC 312:
―139. Now we deem it imperative to examine the issue of per incuriam raised by the learned counsel for the parties. In Young vs. Bristol Aeroplane Company Limited (1994) ALL ER 293 the House of Lords observed that ‗incuria' literally means' carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The ‗quotable in law' is avoided and ignored if it is rendered, in ignoratium of a statute or other binding authority. The same has been accepted, approved and adopted by this court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.
............. In Halsbury's Laws of England (4th Edn.) vol. 26:
Judgment and Orders : Judicial Decisions as Authorities (pp. 297-98, para 578) per incuriam has been elucidated as under:
‗A decision is given per incuiam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow (Young vs. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729: (1944) 2 All ER 293 at 300.
In Huddersfield Police Authority v. Watson, 1947 KB 842 : (1947) 2 ALL ER 193; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force.
140. Lord Godard, C.J. in Huddersfield Police Authority v.
Watson (1947) 2 ALL ER 193 observed that where a case or statute had not been brought to the court's attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be decision rendered in per incuriam.‖ [Emphasis added] Page 30 of 40 [35] Before this courts embarked on appreciation of the rival contentions as projected by the parties, it would be apposite to reproduce Section 4 of the Army Act, 1950 whereby the Central Government has been authorised to apply with or without modification of all or any of the provisions of the said act to any force raised and maintained in India.
―4. Application of Act to certain forces under Central Government-
(1) The Central Government may, by notification, apply, with or without modifications, all or any of the provisions of this Act to any force raised and maintained in India under the authority of that Government and suspend the operation of any other enactment for the time being applicable to the said force.
(2) The provisions of this Act so applied shall have effect in respect of persons belonging to the said force as they have effect in respect of persons subject to this Act holding in the regular Army the same or equivalent rank as the aforesaid persons hold for the time being in the said force. (3) The provisions of this Act so applied shall also have effect in respect of persons who are employed by or are in the service of or are followers of or accompany any portion of the said force as they have effect in respect of persons subject to this Act under [clause (i) of sub- section (1) of section (2)]. (4) While any of the provisions of this Act apply to the said force, the Central Government may, by notification, direct by what authority any jurisdiction, powers or duties incident to the operation of these provisions shall be exercised or performed in respect of the said force.‖ [36] In respect of the jurisdiction, the main plank of objection as raised by the petitioner is that Section 25 of the Prevention of Corruption Act cannot be applied in the present context inasmuch as the savings of the jurisdiction as made thereunder does not include the Assam Rifles Act. So far the Section 25 of the Prevention of Corruption Act is concerned, that would eclipse the operation of Section 5 of the Cr.P.C. Even if, Section 5 of the Cr.P.C. is applied, it would not confer any jurisdiction to the GARC for exclusion of the Assam Rifles Act from the list of savings. The statutes which are excluded from, by Section 25 of the Prevention Page 31 of 40 of Corruption Act would keep their effect undented. Any offence under Section 3(1) of the Prevention of Corruption Act shall only ordinarily be tried by the Special Judges and for purpose of trial of any offence under the Prevention of Corruption Act those Special Judges would be deemed to be court of ordinary criminal justice. But the statutes which are excluded, those would not be affected by any provisions of the Prevention of Corruption Act, meaning the jurisdiction under those statutes or the procedures as laid down therein would remain unhindered. There is no dispute that the Army Act, 1950 has been applied to the Assam Rifles by the competent notification issued under Section 4(1) of the Army Act, 1950. By SRO 318, (ii), the Central Government has suspended during the force of the notification, the operation of Section 6,7,8 & 9 of the Assam Rifles Act, 1941. Similarly, under Schedule Part- A, exception has been made in respect of 10-17, 22-24, 4 & 44 whereas the necessary modifications have been made under Part- B. By SRO 325, the further modification has been made in the Part-B of SRO 318 by inserting some words under Section 313 and 314 of the Assam Rifles Act, 1941. There is no controversy at all that after the new enactment [the Assam Rifles Act, 2006] which came into force w.e.f. 03.11.2006 neither a fresh SRO nor the amendment to the existing SRO has been made by the Central Government, in exercise of the power conferred by Section 4 (1) of the Army Act, 1950. The question therefore, emerges whether SRO 318 and SRO 325 can be read along with the Assam Rifles Act, 2006.
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To have the answer to that question, this Court has to read Section 204 of the Assam Rifles Rules, 2010 which reads as under:
―204. Transitory provision - Any rule or order applicable to the Force on commencement of these rules shall, unless repugnant to these rules, continue to apply unless and until abrogated or modified by the Central Government or any other competent authority.‖ [37] Rule 203 of the Assam Rifles Rules, 2010 has repealed all rules and orders relating to the matters covered by the said rule in so far as they are inconsistent with any provisions of those rules.
Rule 203 has further provided the actions taken under the provisions of the rules or orders so repealed notwithstanding such repeal, in so far as such thing or action is not inconsistent to the provisions of those rules be deemed to have been done or taken under the provisions of those rules as if the said provisions were in force when such thing was done or such action was taken and shall continue in force accordingly unless superseded by anything done or any action taken under those rules. A conjoint or segregated reading of these Rules of 203 & 204 of the Assam Rifles Rules, 2010 would lead to the principle of repugnancy and express repeal by excluding the implied repeal. None of the learned counsel has made any reference to those rules even though those are paramount in the context. As such, learned counsel appearing for the petitioner has not asserted repugnancy of SRO 318 and SRO 325 vis-a-vis the Assam Rifles Act, 2006 and the rules made thereunder in exercise of the power conferred by Section 165 of the Assam Rifles Act, 2006. As such, this Court is of the considered opinion that the applicability of SROs 318 and 325 has not been made inoperative nor repealed. On the contrary, by way Page 33 of 40 of the said transitory provision in Rule 204 of the Assam Rifles Rules the applicability of SROs 318 & 325 has been saved and as such, there is no legal hurdle in reading Section 25 of the Prevention of Corruption Act, 1988 in conjunction with the SROs 318 & 325 qua Section 4(1) of the Army Act, 1950. When by issuance of SRO 318 read with SRO 325 the Army Act has been applied to the Assam Rifles, exception as provided under Section 25(1) of the Prevention of Corruption Act, 1988 shall equally apply to the jurisdiction, exercisable by, or the procedure applicable to, as if under the Army Act, 1950. Hence, the GARC does have the jurisdiction to try an offence punishable under Section 7 of the Prevention of Corruption Act. The other offences having been covered under Section 55 of the Assam Rifles Act, 2006, there is no hindrance in holding trial by the GARC. Unless abrogated or modified by the Central Government or any other competent authority, SROs 318 & 325 or it is held that they are repugnant to these rules, those are continue to apply in the Assam Rifles. It is to be noted further that the transitory provision in Rule 204 of the Assam Rifles Rules has to be read mutatis mutandis. Thus, the objection in respect of the jurisdiction of the GARC to try an offence punishable under Section 7 of the Prevention of Corruption Act, 1988 falls through. It is declared that in the present arrangement, meaning unless SROs 318 and 325 are revoked, the GARC will have its jurisdiction to try an offence punishable under the Prevention of Corruption Act, 1988. Thus, this Court is in respectful disagreement with the proposition as laid down in Dipak Chakraborty (supra).Page 34 of 40
[38] The other question whether by denying the opportunities of cross-examination to the petitioner in the court of inquiry the respondents have violated the substantive right of the petitioner to his serious detriment and whether the opportunity of cross- examination by means of questionnaire in writing in respect of the manuscript statement of Mr. C.C Mathew at the time of recording of the Summary of Evidence is adequate to meet the requirement of cross-examination as prescribed.
[39] Chapter XV of the Assam Rifles Rules, 2010 deals with the courts of inquiry including composition, assembly and procedure of the court of inquiry etc. Rule 184 of the Assam Rifles Rules, 2010 clearly provides as follows:
―184. Proceedings of court of inquiry not admissible in evidence -The proceedings of a court of inquiry, or any confession, statement, or answer to a question made or given at a court of inquiry, shall not be admissible in evidence against a person subject to the Act, nor shall any evidence respecting the proceedings of the court be given against any such person except upon the trial of such person for wilfully giving false evidence before the court:
Provided that nothing in this rule shall prevent the proceedings from being used by the prosecution or the defence for the purpose of cross-examining any witness.‖ [40] From a bare reading of Rule 184 of the Assam Rifles Rules, 2010, it would be apparent that it is a mere inquiry and it is at the discretion of the court of inquiry whether the person against whom the inquiry is directed would be examined or he would be allowed to cross-examine the persons who are examined in the course of inquiry. Even Rule 183(5) of the Assam Rifles Rules, 2010 provides that the court of inquiry may ask witnesses any question, in any form that is considered necessary to elicit the truth and may take into consideration any evidence whether the same is admissible under the Indian Evidence Act or not. The only Page 35 of 40 exception has been curved out in Rule 183(8) of the Assam Rifles Rules, 2010. Rule 183(8) of the Assam Rifles Rules, 2010, provides that save in case of a prison of war, who is still absent and whenever the subject matter of inquiry is the conduct, character or reputation of a particular person, such person shall be associated throughout the inquiry and be given full opportunity of making any statement, or giving any evidence, he may wish to make or give, and of cross-examination of any witness whose evidence, in his opinion, affects his character or reputation. In other cases, the court of inquiry or the recording officer shall afford that person adequate opportunity of cross-examining the whiteness who are adduced against him. Further opportunity be given for making statement and/or calling witnesses in his defence.
[41] It is apparent from the averments of the respondents that the petitioner was given such opportunity to cross-examine. Since Mr. C.C. Mathew was not examined by the court of inquiry, there is no question of denying cross-examination of Mr. C.C. Mathew.
Even Mr. Shyju Marathumpilly [PW-2] who conducted the sting operation was examined while recording the Summary of Evidence and the petitioner was given opportunity to cross-examine him in terms of Rule 49(2) of the Assam Rifles Rules, 2010. As such, the petitioner cannot plead the denial of substantive opportunity of cross-examination during the inquiry or in the course of recording Summary of Evidence, so far PW-2 is concerned. But that cannot be stated in respect of Mr. C.C. Mathew who made a statement [manuscript] without appearing before the recording officer. Rule 49 (2) & (3) of the Assam Rifles Rules, 2010 clearly spell out how Page 36 of 40 to record the testimony of the witnesses. For purpose of reference, those provisions are extracted hereunder:
―(2) The witnesses shall give their evidence in the presence of the accused and the accused shall have right to cross-examine all witnesses who give evidence against him, and the questions together with the answers thereto shall be added to the evidence recorded.
(3) After all the witnesses against the accused have been examined, he shall be cautioned in the following terms:
(i) ‗Do you wish to make any statement?
(ii) You are not obligated to say anything unless you wish to do so, but whatever you state shall be taken down in writing and may be given in evidence.' Any statement thereupon made by the accused shall be taken down and read to over him, but he will not be cross-examined upon it and the accused may then call his witnesses in defence and the officer recording the evidence may ask any question that may be necessary to clarify the evidence given by such witnesses.‖ [Emphasis added] [42] Rule 49(5) of the Assam Rifles Rules, 2010 provides further that provision of Section 111 of the Assam Rifles Act shall apply for procuring the attendance of the witnesses before the officer recording the Summary of Evidence. Section 111 of the Assam Rifles Act, 2006 deals with summoning of witness. It provides that the convening officer, the presiding officer of any of the Assam Rifles Courts or the Court of Inquiry or the Law Officer or, as the case may be, the officer, approved under Section 105, or the Commandant of the accused person may, by summons under his hand, require the attendance or the appointment time and place to be mentioned in the summons either to give evidence or to produce any document or other things. Even the officer recording the Summary of Evidence may refer to the Magistrate concerned to give effect of that summons as if the witnesses were required in the court of such Magistrate. Therefore, appearance of the witness is mandatory. The witness cannot be allowed to make any statement make or send any statement in absentia. The Page 37 of 40 witness has to testify in presence of the accused person.
Therefore, the acceptance of the statement [manuscript] cannot be equated with 'a written statement signed by such witnesses' as per Rule 49(6) of the Assam Rifles Rules, 2010. The said statement is a statement which has not been recorded by the officer recording evidence, but that officer has given the certificate on that behalf as the written statement, signed by the said witness. That has been read to the accused and included in the Summary of Evidence. Rule 49(7) provides the form of the certificate that will be given by the officer who recorded the evidence. The said form is as under:
―Certified that the record of evidence ordered by ......... was made in the presence and hearing of the accused and the provisions of sub rule (3) 49 have been complied with.‖ [43] The basic tenet based on which the principle of cross-
examination has been structured is that the cross-examination is the process whereby a party seeks (a) to test the veracity and accuracy of evidence in chief given by a witness called for another party and (b) to elicit from that witness any relevant facts which may be favourable to the case of the cross-examiner. Cross-
examination designed solely to discredit the witness and to destroy or reduce his credibility, is something known as 'impeachment' and is perfectly permissible. A witness is compellable to answer any question put in cross-examination whether directed to an issue in the case i.e. to the substance of evidence or to his credit as the witness subject to the rule of evidence. The conjoint reading of the entire Rule 49 of the Assam Rifles Rules, 2010 would lead to a dichotomy and as such, it requires a harmonious construction. The words appearing in Rule 49(6) of the Assam Rifles Rules, 2010 Page 38 of 40 where the phrase, a witness cannot be compelled to attend cannot be interpreted as the person who has not attended the proceeding.
If any witness for any reason avoids summons to appear for recording of his evidence, the procedure as laid down in Section 111 of the Assam Rifles Act including sub Section 3 of Section 111, shall strictly be followed inasmuch as Rule 49 (2) of the Assam Rifles Rules, 2010 clearly provides that the witness shall give the evidence 'in the presence of the accused' and the accused 'shall have right to cross-examine' all witnesses who give evidence against him and the question together with the answers thereto shall be added to the evidence recorded. No interpretation of provision can be sustained if such interpretation renders another substantive provision otiose. If the procedure as adopted on the purported construction of Rule 49(6) is accepted by this court that would render Rule 49(2) of the said rules otiose. The exception that has been sought to be curved out, has to be interpreted harmoniously without doing any violence to the other provisions appearing under Rule 49 of the said rules. Thus, a witness who cannot be compelled to attend is the witness who suffers from such disability which deters him from attending the proceeding to testify. If the witness is not available or his attendance cannot be procured without any undue expenditure or money, the said provision has to be understood in terms of Section 33 of the Indian Evidence Act, substantively pari materia, where it has been provided that when the witnesses are dead or cannot be found or are incapable of giving evidence or are kept of the way by adverse party or if their presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Page 39 of 40 court considers unreasonable, their evidence can be utilized if the evidence given by a witness in a judicial proceeding or before any person authorized by law to take it, 'if the proceeding was between the same parties or their representative in interest. Thus, the proper interpretation of the words or the provision [Rule 49(6)] shall be that only if the officer authorized by law has recorded the statement in absence of the accused under any compelling circumstances and despite the accused being given the opportunity of cross-examining that witness, but the accused did not appear deliberately despite having received due notice, in that event the said statement so recorded and certified by the said officer may be placed in the Summary of Evidence. Otherwise, such evidence will have no value. That can be treated as the document which has, again to be admitted through the prescribed process of law.
[44] Having observed thus, this Court is of the considered opinion that the manuscript of Mr. C.C. Mathew has not been taken in the evidence [Summary of Evidence] as per the procedure laid down under Rule 49 of the Assam Rifles Rules, 2010 and hence, the said statement shall be taken out from the Summary of Evidence. However, the authorized officer who is recording the evidence is given liberty to procure attendance of Mr. C.C. Mathew following the procedure as laid down and to record his statement and to afford due opportunity to the petitioner for cross-examining the said witness before it is taken in the Summary of Evidence. The said statement [manuscript] of Mr. C.C. Mathew cannot be treated as the evidence within the meaning of Rule 49(2) of the Assam Rifles Rules, 2010.
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[45] In terms of what has been observed above, the writ petition stands disposed of.
Interim order staying the proceeding stands vacated. There shall be no order as to costs.
JUDGE Sujay