Patna High Court
Umesh Singh Alias Umesh Prasad Singh vs State Of Bihar on 15 March, 2002
Equivalent citations: 2003CRILJ2215
Author: Shiva Kriti Singh
Bench: Shiva Kriti Singh
ORDER Shiva Kriti Singh, J.
Heard the parties in detail at the stage of admission itself.
1. In this criminal revision application the petitioner, an accused in sessions trial No. 2047 of 1994 pending before the Addl. Sessions Judge XI, Saran at Chapra, has challenged the order dated 16-1-2002 by which the trial Court has rejected petitioner's prayer under Section 475 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') to separate his trial from that of other accused persons in a case under Sections 307/149, 435/149, 447/149 of the IPC and under Section 27 of the Arms Act on the ground that he is an Army Personnel.
2. The undisputed relevant facts in this case are as follows. Petitioner along with others was named as an accused in Taraiya PS case No. 64/93 for an occurrence dated 18-6-1993. The investigation by the police was followed by cognizance by the Magistrate under the provisions of the Code and thereafter petitioner was committed to the Court of sessions along with other accused persons to face trial for offences Indicated above. After the entire stage of trial was over, at the last stage of final arguments, a petition under Section 475 of the Code was filed on behalf of the petitioner which has been rejected by the impugned order.
3. Petitioner's case is that he is an Army Personnel hence Section 475 of the Code is applicable to his case which in turn requires application of Sections 3 and 4 of the Rules framed under Section 549(1) of the Code of Criminal Procedure, 1898 (its equivalent being Section 475(1) of the Code) known as Criminal Courts and Court Marital (Adjustment of Jurisdiction) Rules, 1952 (hereinafter referred to as 'the Rules'). According to petitioner, as per judgment of the Apex Court in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Usha Ranjan, AIR 1986 SC 1655 : (1986 Cri LJ 1248), the relevant provisions of the Rules are mandatory and in a case like the present one where offences are such that both, the ordinary criminal Court and the Court martial have concurrent jurisdiction, the ordinarily criminal Court would have no jurisdiction to take cognizance of the case and try the accused when the procedure prescribed by the Rules has not been complied with.
4. The offences in this case are covered by Section 69 of the Army Act and hence triable by court-martial as well as by ordinary criminal Courts. There is no dispute that the procedure prescribed under the Rules which have been held to be mandatory, has not been followed by the Magistrate either at the stage of cognizance or at the stage of commitment of the case to the Court of Sessions. The Court of Sessions has rejected petitioner's prayer to separate his trial and deal with his case as per mandate of Section 475 of the Code of and Rules 3 and 4 of the Rules on the ground that such protest against proceeding before the ordinary criminal Court should have been raised before the Magistrate at the earlier stage or even in the Sessions Court at the time of framing of charge but the same was never done. On behalf of the petitioner it has been alleged that in a bail petition, petitioner had mentioned about his being an Army Personnel but it is also admitted that even till the framing of the charge, no objection to the continuance of the proceeding before the ordinary criminal Court was ever taken.
5. Learned Sessions Court has relied upon a Full Bench decision of Punjab and Haryana High Court in the case of Ajit Singh v. State of Punjab, 1970 Cri LJ 1119 : (AIR 1970 Pun) 351), to hold that accused person cannot take benefit of the aforesaid provisions of the Code and the Rules after he has gone through the trial.
6. In the case of Superintendent and Remembrancer of Legal Affairs, West Bengal (1986 Cri LJ 1248) (supra), the Supreme Court affirmed the decision of the Calcutta High Court to the effect that (i) Section 549(1) of the Code of Criminal Procedure 1898 and provisions of the rules applied even to a Judge presiding over a special Court in view of specific amendment effect by virtue of Central Act XXII of 1966 and such amendment apply to West Bengal also, (ii) expiry of period of three years of limitation prescribed for court-martial proceeding by Section 122 of the Army Act, 1950 would not confer jurisdiction upon the ordinary criminal Court if it did not have initial jurisdiction due to non compliance as required by the Code and the Rules and (iii) a letter by the Brigadier of the Division concerned to the police officer for investigating the offences, in the facts of the case did not imply that the Army authorities had opted for trial of the case by the ordinary civil Court.
7. The first and the second issues noticed above as decided by the Apex Court laid down principles of law which are not falling for determination in this case. In this case, neither the proceedings were pending before a special Court nor the effect of Section 122 of the Army Act arises for consideration. In the aforesaid case, the Apex Court reiterated certain principles of law laid down by the Supreme Court in the case of Delhi Special Police Establishment New Delhi v. S.K. Loraiya, AIR 1972 SC 2548 : (1973 Cri LJ 33). In that case, the accused challenged the charges framed against him by the Special Judge. The High Court quashed the charges, inter alia, on the ground that charges were framed by the Special Judge without following the procedure specified in the Rules made under the provisions of the Code. This view of the High Court was affirmed by the Supreme Court. Evidently, in this case also the Apex Court did not decide nor there was any occasion to decide, as to at what stage and before which Court accused could take objections for alleged non compliance with provisions of Section 475 of the Code and of the Rules. No other judgment was cited on behalf of the petitioners.
8. No doubt, the law has been clearly laid down by the Apex Court that where the offences are such, as in the present case, over which the ordinary criminal Court as well as the court-martial has concurrent jurisdiction then further proceedings by the Magistrate or the Special Court must be in accordance with Section 475 of the Code and Rules 3 and 4 of the Rules. For further consideration of the relevant issue in this case it is necessary to take a look at the aforesaid provisions :--
Code Section 475. Delivery to commanding officers of persons liable to be tried by Court-marital -- (1) The Central Government may make Rules consistent with this Code and 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 belongs or to the commanding officer of the nearest Military, Naval or Air Force station, as the case may be, for the purpose of being tried by a Court-marital."
Rules -- Rule 3. Where a person subject to military, naval or Air Force law is brought before a Magistrate and charged with an offence for which he is liable to be tried by a Court-marital, such Magistrate shall not proceed to try such person or to issue orders for his case to be referred to a Bench, or to inquire with a view to his commitment for trial by the Court of Sessions or the High Court for any offence triable by such Court, unless
(a) he is of opinion, for reasons to be recorded, that he should so proceed without being moved thereto by competent Military, Naval or Air Force authority, or
(b) he is moved thereto by such authority.
Rule 4. Before proceeding under Clause (a) of Rule 3 the Magistrate shall give written notice to the Commanding Officer of the accused and until the expiry of a period of seven days from the date of the service of such notice he shall not --
(a) convict or acquit the accused under Sections 243, 245, 247 or 248 of the Code of Criminal Procedure, 1898 (V of 1898), or hear him his defence under Section 244 of the said Code; or
(b) frame in writing a charge against the accused under Section 254 of the said Code; or
(c) make an order committing the accused for trial by the High Court or the Court of Sessions under Section 213 of the said Code.
9. Section 475 as well as Rules 3 and 4 clearly apply to a proceeding before the Magistrate (or the Special Judge as per Central Act XXII of 1966). These provisions do not create obligation upon the Court of sessions to enquire into the collateral issue relating to jurisdiction as to whether the person (accused) is subject to Military, Naval or Air Force law or not and whether such a person is charged with an offence for which he is liable to be tried by a Court-marital or not. As per provisions noted above, such issues must be raised at appropriate stage before the Magistrate or the special Court concerned and only then it will be obligatory for the Magistrate or the special Court to enquire into and decide such issues. Jurisdictional issue like other issues has to be decided at the initial stage on the basis of materials available on record. In the case of Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621 a Constitution Bench of the Supreme Court in paragraph 15 of the report observed as follows :
"The question whether a tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has to enquire, or upon the correctness of its findings on these facts but upon their nature, and it is determinable at the commencement, not at the conclusion, of the inquiry (Rex v. Boltan (1841) 1 QB 66 at p 74)."
10. The Magistrate's order committing the case of the petitioner for trial by the Court of Sessions cannot be faulted because the petitioner never raised the relevant issue before him. He also never challenged the said order before the higher Courts. In such circumstances, there was no lack of jurisdiction in the Magistrate to commit the case to the Court of sessions and in any event, the Court of Sessions at the end of the trial rightly refused to entertain an application under Section 475 of the Code because under this provision of law and also under the Rules all the duties are cast upon the Magistrate.
11. In the facts of the case, it is useful to refer to a judgment of the Supreme Court in the case of Major E.G. Barsay v. State of Bombay, AIR 1961 SC 1762 : (1961 (2) Cri LJ 828) in which the Apex Court held that the provisions of the Army Act do not expressly or impliedly bar jurisdiction of criminal Courts in respect of offences punishable both under the Army Act and other laws. The Court further held that when the offences are triable both by an ordinary criminal Court and a Court-marital then to such a situation, Sections 125 and 126 of the Army Act are intended to apply and if designated officer in Section 125 of the Army Act has not chosen to exercise his discretion to decide before which Court the proceeding shall be instituted, there is no occasion for the criminal Court to invoke the provisions of Section 126 of the Army Act. In other words, if no decision was arrived at under Section 125 of the Army Act then the Army Act could not come in the way of a criminal Court exercising its ordinary jurisdiction in the manner provided by law. The aforesaid judgment, at the minimum, clearly lays down that there is no inherent lack of jurisdiction in the ordinary criminal Court in trying an offence for which it has jurisdiction under ordinary law when the designated officer has not curtailed this jurisdiction by a decision under Section 125 of the Army Act.
12. In view of all the aforesaid discussions of this Court finds no good ground to interfere with the impugned order of the sessions Court. This revision application is found to be without merit and it is accordingly dismissed as such.