Madras High Court
R.K.Yadav vs The State Rep. By on 20 June, 2007
Author: S.Nagamuthu
Bench: S.Nagamuthu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 20/06/2007 CORAM The Honourable Mr.Justice S.NAGAMUTHU Crl O.P (MD) No.9268 of 2006 and M.P.(MD)Nos.1 and 2 of 2006 1. R.K.Yadav 2. Indu Yadav .. Petitioners vs. The State rep. by The Inspector of Police, Vijaya Narayanam Police Station, Tirunelveli District. .. Respondent Prayer This petition filed under Sec. 482 Cr.P.C., is to call for the entire records in C.C.No.266 of 2006 pending on the file of the District Munsif cum Judicial Magistrate, Nanguneri, Tirunelveli District and to quash the same. !For Petitioners ... Mr.R.Anand ^For Respondent ... Mr.P.Rajeendran Govt. Advocate (Crl.side) :O R D E R
The petitioners, who are the accused in C.C.No.226 of 2006, on the file of the learned District Munsif cum Judicial Magistrate, Nanguneri, Tirunelveli District facing prosecution under Sections 323 and 325 r/w 34 I.P.C., have come forward with this petition under Sec. 482 Cr.P.C., seeking to quash the said criminal proceedings against them.
2. Heard the learned counsel for the petitioners and the learned Government Advocate (Crl.Side) appearing for the respondent.
3. Brief facts of the case are as follows:-
The first petitioner is working in Indian Navy and the second petitioner is his wife. During the year 2006, they were living in a flat at I.N.S.Kattabomman Vijayanarayanan in Tirunelveli District. The defacto complainant one Mr.G.S.Thanvar was then residing in the neighbouring house with his wife and he was also then working in Indian Navy as L.M Engineer. On 20.02.2006, there was a quarrel between the second petitioner herein and the wife of Mr.Thanvar by name Gopal Thanvar near their house. The defacto complainant who had just returned to his house found the quarrelling ladies and intervened in support of his wife. On 22.02.2006 at about 10.00 p.m when the defacto complainant Mr.Thanvar was returning to his house, his wife was standing in front of his house. When Mr.Thanvar was entering into his house, these petitioners 1 and 2 attacked the defacto complainant. The first petitioner attacked him with wooden log and the second petitioner attacked him on his head with hands. The defacto complainant sustained severe injuries and he raised alarm. The petitioners thereafter fled away from the place of occurrence. The injured was taken to Tirunelveli Medical College Hospital for treatment and thereafter, he was taken to Navy Hospital in Bangalore where he underwent treatment till 02.03.2006. While he was in the Navy Hospital, a statement was recorded from him by the Sub Inspector of Police, Ulsoor, Bangalore, within whose jurisdiction the Navy hospital is situated. On the said information, a case in Crime No.68 of 2006 was registered by the Sub Inspector of Police, Ulsoor, Bangalore under Sections 341, 324, r/w 34 I.P.C., dated 05.03.2006.
Subsequently, the said case was transferred to the file of the respondent police herein for investigation as the alleged occurrence had taken place within the jurisdiction of the respondent police. On completing the investigation, the respondent has filed a final report before the learned District Munsif cum Judicial Magistrate, Nanguneri for alleged offences under Sections 323 and 324 r/w 34 I.P.C., on which the learned Magistrate has taken cognizance and has issued process to the petitioners for their appearance. It is the said criminal case which the petitioners seek to quash.
4. The contention of the petitioners in this petition is that the first petitioner is governed by the Indian Navy Act of 1957, as he is working in the Indian Navy and therefore, the ordinary criminal Court namely, the learned District Munsif cum Judicial Magistrate, Nanguneri, in this case, has no jurisdiction either to take cognizance of the offence or to try the first petitioner. In so far as the second petitioner is concerned, the contention is that the materials available on record do not make out any case against her so as to proceed further.
5. Since, an important question of law that the Criminal Court has no jurisdiction to try the offender, who shall be subject to the naval law is raised, it requires a great deal of discussion in respect of various provisions of the India Navy Act of 1957, the Indian Army Act of 1950 and the Indian Air Force Act, 1950 and also the relevant Rules.
6. Admittedly, in this case, the offences for which the petitioners have been charged were not committed while the first petitioner was discharging his official duty as a Navy person but, these offences were allegedly committed while he was at his home.
7. Now, the question is whether the jurisdiction of a criminal court stands ousted either expressly or impliedly by the Navy Act. To decide the same, it is necessary to analyse the various provisions of the Navy Act. The definitions of "civil offence" and "navy offence" as defined in Sec. 3(3) and Sec. 3(13) of the Navy Act, require consideration.
"Sec.3(3). "Civil Offence" means an offence triable by a court of ordinary criminal jurisdiction in India;"
Sec.3(13). "naval offence" means any of the offences under Sec. 34 to 76;"
8. If the above two definitions are considered, there will be no doubt that the offences said to have been committed by the petitioners in this case are not "naval offences" as defined in Sec. 3(13) but they are only "civil offences" as defined in Sec. 3(3) of the Navy Act.
9. Sec. 77 of the Navy Act deals with punishment with reference to the "civil offences" which reads as follows:-
"Sec.77. Civil Offences - (1) Every person subject to naval law who commits a civil offence punishable with death or with imprisonment for life shall be punished with the punishment assigned for that offence.
(2) Every person subject to naval law who commits any other civil offence shall be punished either with the punishment assigned for the offence or with imprisonment for a term which may extend to three years or such other punishment as is hereinafter mentioned."
10. Sec. 78 is an important provision which deals with the jurisdiction, which is as follows:-
"Sec.78. Jurisdiction as to place and offences - (1) Subject to the provisions of sub-Sec. (2), every person subject to naval law who is charged with a naval offence or a civil offence may be tried and punished under this Act regardless of where the alleged offence was committed.
(Emphasis supplied) (2) A person subject to naval law who commits an offence of murder against a person not subject to army, naval or air force law or an offence of culpable homicide not amounting to murder against such person or an offence of rape in relating to such person shall not be tried and punished under this Act unless he commits any of the said offences-
(a) while on active service; or
(b) at any place outside India ; or
(c) at any place specified by the Central Government by notification in this behalf."
11. A close reading of Sec. 78(1) would show that a person who is subject to navy law and who has committed a civil offence may be tried and punished under the said Act, regardless, of the place of alleged offence. Here the word "may" employed in Sec. 78 gives a clear indication that this provision does not either expressly or impliedly oust the jurisdiction of the ordinary criminal court. As per Sec. 93 of the said Act, all the offences triable under the said Act may be tried and punished by Court-martial. Hereagain, the word "may" once again gives an indication that the jurisdiction of the ordinary Criminal court is not ousted.
12. To draw an analogy, the relevant provisions contained in the Army Act require to be dealt with. In the Army Act, Sec. 3 (ii) and (viii) defines "civil offence" and "criminal court", which are as follows:-
"3(ii) "civil offence" means an offence which is triable by a criminal court;"
3(viii) "criminal court" means a court of ordinary criminal justice in any part of India,"
13. Similar to Sec. 78 of the Navy Act, there are provisions contained in Sections 69 and 70 of the Army Act, which deal with the jurisdiction which read as follows:-
"Sec.69. Civil offences.- Subject to the provisions of Sec. 70, any person subject to this Act who at any place in or beyond India, commits any civil offence, shall be deemed to be guilty of an offence against this Act and, if charged therewith under this Sec., shall be liable to be tried by a court- martial and, on conviction, be punishable as follows, that is to say,-
(Emphasis supplied)
(a) if the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment, other than whipping, 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, other than whipping, 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 is in this Act mentioned.
Sec.70. Civil offences not triable by court-martial.- A person subject to this Act who commits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be tried by a court-martial, unless he commits any of the said offences-
(a) while on active service, or
(b) at any place outside India, or
(c) at a frontiers post specified by the Central Government by notification in this behalf."
14. Here, in Sec. 69, the word employed is "shall" which gives an impression that all civil offences committed by an offender other than the offences covered under Sec.70 shall be tried only by a Court-martial.
15. But, Sec. 125 of the Army Act obviates the said impression created by Sec.69 and makes it clear that the Court-martial and the Criminal Court have concurrent jurisdiction.
"Sec.125. Choice between criminal court and court-martial.- When a criminal court and a court-martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer commanding the army, army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which court the proceedings shall be instituted, and, if that officer decides that they should be instituted before a court-martial, to direct that the accused person shall be detained in military custody."
16. A close reading of Sec. 125 of the Army Act, would make it manifestly clear that both Court-martial as well a the criminal Court as defined in Sec. 3(III) have got concurrent jurisdiction to try an offender who has committed a civil offence as defined in the Army act. Thus in the Army Act, there is an express provision indicating that the jurisdiction of the Criminal Court is not ousted whereas in the Navy Act, as discussed above, there is no such express provision. However, under the Army Act, a discretion has been given to the officer commanding army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which court the proceedings shall be instituted. For any reason if the Officer decides that they should be instituted before a Court-martial he may direct that the accused person shall be detained in military custody.
17. Sec. 126 of the Army Act, deals with the power of criminal Court to require delivery of offender.
"Sec.126. Power of criminal court to require delivery of offender.- (1) When a criminal court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged offence, it may, by written notice, require the officer referred to in Sec. 125 at his option, either to deliver over the offender to the nearest magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central Government.
(2) In every such case the said officer shall either deliver over the offender in compliance with the requisition, or shall forthwith refer the question as to the court before which the proceedings are to be instituted for the determination of the Central Government, whose order upon such reference shall be final."
18. A close scrutiny of the said provision would show that if a criminal Court having jurisdiction is of the opinion, that the proceedings shall be instituted before itself, it requires a written notice from the said court to the officer referred to in Sec. 125 either to deliver the offender to the nearest Magistrate to be proceeded against him according to law, or to postpone proceedings pending a reference to the Central Government.
19. A conjoint reading of Sections 125 and 126 of the Army Act, would make it manifestly clear that the ordinary Criminal Court as well as the Court- martial have got concurrent jurisdiction to try an offender who has committed a civil offence and power has been given to an Officer referred to in these two Sections to choose between the Court-martial and the Criminal Court.
20. In the Air Force Act also provisions akin to Sec. 3(ii) & (viii), 125, 126 of the Army Act are found and so, there is no need to deal with the same here repeatedly.
21. It is to be noted here that similar to Sections 3(viii), 125 and 126 of the Army Act and Air Force Act, there are no provisions in the Navy Act. As stated above, by going through these provisions contained in the Army Act and Air Force Act, one cannot have any doubt that the ordinary Criminal Court and the Court-martial have got concurrent jurisdiction to try an offender who has committed civil offences, whereas, by going through the provisions of Navy Act, such a conclusion cannot be arrived at for want of provisions in the Navy Act, like Sections 125 and 126 of the Indian Army Act and Indian Air Force Act. So, to find an answer to the question whether the jurisdiction of the Criminal Court has been ousted by implication of the Navy Act, the provision contained in sec.475 Cr.P.C., should be analysed.
22. A close scrutiny of Sec.475 Cr.P.C., and the Rules issued thereunder would definitely lead to the conclusion that in respect of civil offences under the Navy Act also, the Criminal Courts and Court-martial have got concurrent jurisdiction and the jurisdiction of the Criminal Courts has not been ousted.
23. At this juncture, therefore, it is necessary to refer to Sec. 475 Cr.P.C.
"Sec.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 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-martial."
24. In exercise of the said power conferred on the Central Government under Sec. 475 Sub-clause (1) of the Code of criminal procedure 1973, the Central Government has made Rules for the trial of persons subject to military, naval or air force law, or any other law relating to the Armed Forces of Union by means of Ministry of Home Affairs, Notification No.S.O 488 dated February 9, 1978, published in Gazette of India Part II, Section (ii), dated 25th February 1978 and the same is known as "Criminal Courts and Court-martial (Adjustment of jurisdiction) Rules 1978".
25. Rules 3 and 4 are as follows:-
"3. Where a person subject to military, naval or air force law, or any other law relating to the Armed Forces of the Union for the time being in force is brought before a Magistrate and charged with an offence for which he is also liable to be tried by a Court-martial, such Magistrate shall not proceed to try such person or to commit the case to the Court of Session, unless-
(a) he is moved thereto by a competent military, naval or air force authority; or
(b) he is of opinion, for reasons to be recorded, that he should so proceed or to commit without being moved thereto by such authority.
4. Before proceeding under clause (b) of Rule 3, the Magistrate shall give a written notice to the Commanding officer or the competent military, naval or air force authority, as the case may be, of the accused and until the expiry of a period of fifteen days from the date of service of the notice he shall not-
(a) convict or acquit the accused under Sec. 252, sub-Sections (1) and (2) of Sec. 255, sub-Sec. (1) of Sec. 256 or Sec. 257 of the Code of Criminal Procedure, 1973 (2 of 1974), or hear him in his defence under Sec. 254 of the said Code; or
(b) frame in writing a charge against the accused under Sec. 240 or sub- Sec. (1) of Sec. 246 of the said Code; or
(c) make an order committing the accused for trial to the Court of Session under Sec. 209 of the said Code; or
(d) make over the case for inquiry or trial under Sec. 192 of the said Code."
25. Rule 3 leaves no doubt that a Magistrate taking congnizance of a civil offence committed by a person who is subject to the above laws should not proceed further except moving him to the competent military authority. The competent military authority has been defined in 2(c) of the Rules.
"Rule 2(c). "competent military authority" means the Chief of Army Staff or Officer Commanding the army, army crops, division, area, sub-area or independent brigade in which the accused person is serving, and, except in cases falling under Sec. 69 of the Army Act, 1950 (46 of 1950) in which death has resulted, the officer commanding the brigade or sub-area or station in which the accused person is serving;"
26. If the Magistrate forms an opinion that the accused should be proceeded with by him, then, he has to do so after recording his reasons for the said opinion. So, to proceed either to try the offender or to commit him to the court of Session, the learned Magistrate is required to first of all form an opinion and then record the reasons for the same. Again Rule 4 mandatorily requires the Magistrate to give a written notice to the Commanding officer or the competent military, naval or air force authority, as the case may be and until the expiry of a period of 15 days from the date of service of notice, he shall not either frame charges or make over the case for inquiry, or commit the case for trial. So having formed an opinion under sub-clause(b) of Rule 4, after recording his reasons for such opinion, the learned Magistrate is required to serve notice on the Officer or the Authority and wait for 15 days.
27. Rule 6 also requires consideration, which is as as follows:-
"6.Where within the period of fifteen days mentioned in Rule 4, or at any time thereafter but before the Magistrate takes any action or makes any order referred to in that rule, the commanding officer of the accused or the competent military, naval or air force authority, as the case may be, gives notice to the Magistrate that in the opinion such officer or authority, the accused should be tried by a Court-martial, the Magistrate shall stay the proceedings, and if the accused is in his power or under his control, shall deliver him together with the statement referred to in sub-Sec. (1) of Sec. 475 of the said Code to the officer specified in the said sub-Sec."
28. Under this rule, after service of notice by the Magistrate, if the officer or the authority expresses opinion that the accused should be tried by the Court-martial, then, the Magistrate has no option but to hand over the accused and the papers to the said officer or the authority. Of course, under Rule 7, the commanding officer of the accused or the competent military, naval or air force authority shall inform the Magistrate whether the accused has been tried by a Court-martial or other effectual proceedings have been taken or ordered to be taken against him.
29. Rule 7(2) states that, if the Magistrate has been informed that the accused has not been tried or other effectual proceedings have not been taken or ordered to be taken against him, the Magistrate shall report the circumstances to the State Government who in consultation with the Central Government, may take appropriate steps to ensure that the accused person is dealt with in accordance with law.
30. A close reading of the above provisions contained in the rules, which govern all the three forces namely, army, navy and air force, would now make it undoubtedly clear that with reference to any civil offence committed by any person, who is subject to any of the above Acts, namely the Army Act, the Navy Act, and the Air Force Act, the accused could be tried either by the ordinary Criminal Court or by a Court-martial as provided in the respective Acts. The jurisdiction of the criminal court in respect of civil offences as defined in all the three Acts has not been ousted either expressly or impliedly. But at the same time, the ordinary Criminal Courts cannot try an offender on their own without following the above procedure which are mandatory in nature.
31. At this juncture, I have to refer to some of the decided cases on this question. In Major E.G. Barsay v State of Bombay reported in AIR 1961 SUPREME COURT 1762, the Hon'ble Supreme Court has dealt with elaborately the scope of Sections 52, 69, 125 and 126 of the Army Act, and in paragraph No.18 of the said Judgment, the Hon'ble Supreme Court has stated as follows:-
"18......It does not expressly bar the jurisdiction of criminal courts in respect of acts or omissions punishable under the Act, if they are also punishable under any other law in force in India; nor is it possible to infer any prohibition by necessary implication. Sections 125,126 and 127 exclude any such inference, for they in express terms provide not only for resolving conflict of jurisdiction between a criminal court and a court martial in respect of a same offence, but also provide for successive trials of an accused in respect of the same offence......"
32. In another case, in Union of India v. S.K.Sharma 1987 Supreme Court Cases (Cri.) 584 the Hon'ble Supreme Court had an occasion to deal with the Army Act, and Sections 475, 190, 200 to 204 Cr.P.C., and also the Criminal Courts and Court-martial (Adjustment of Jurisdiction) Rules, 1978. In paragraph No.11 of the said Judgment, the Hon'ble Supreme Court has held as follows:-
"11.....The policy of the law is clear. Once the criminal court determines that there is a case for trial, and pursuant to the aforesaid rule, delivers the accused to the Commanding Officer or the competent military, naval or air force authority, the law intends that the accused must either be tried by a court martial or some other effectual proceedings must be taken against him. To ensure that proceedings are taken against the accused the Rules require the Commanding Officer or the competent authority to inform the Magistrate of what has been done........."
33. The Hon'ble Supreme Court has clearly held that for taking congnizance by a Magistrate, and to proceed to issue summons to the accused, after following the provisions contained in Sections 200 to 204 Cr.P.C., there is no bar at all. Like wise, for taking cognizance on a police report under Sec. 190 Cr.P.C. also, there is no bar for the Magistrate in respect of an offence committed by any person who is subject to either Army Act, Navy Act or Air Force Act, in respect of civil offence as defined in the respective Acts.
34. As held by the Hon'ble Supreme Court in the above two Judgments, it is only after taking cognizance, the Magistrate is required to follow the procedure contained in Criminal courts and Court-martial (Adjustment of Jurisdiction) Rules of 1978, as discussed elaborately supra.
35. A Division Bench of the Kerala High Court also had an occasion to deal with a similar situation in Mangal Singh v Union of India reported in 1993 CRI.L.J. 3070.
36. The next question which arises for consideration is, at what stage the criminal court is required to form an opinion as required under Rule(3). To answer the said question, Sec.475 Cr.P.C., again require scrutiny.
37. A close reading of Sec. 475 Cr.P.C., would show that occasion for a Magistrate to form an opinion to try the case on his own or to commit the case for trial, or not, as stated in Rule 3 of the Criminal courts and Court-martial (Adjustment of Jurisdiction) Rules of 1978, would arise only when the accused is brought before a Magistrate and charged with an offence. The Hon'ble Supreme Court in AIR 1987 SCC (Cri.) 584 (cited supra) in paragraph No.11 has held as follows:-
"Rule 3, in our opinion, comes into play at the point where the person has been brought before a Magistrate and charged with an offence. That is a stage adverted to earlier where the accused is directed to appear before the Magistrate and is charged with an offence after the Magistrate has determined that there is a case for trial. Before proceeding further with the case and either proceeding to try the accused or to commit the case to the Court of Session the Magistrate must, under Rule 4, give written notice to the commanding officer of the accused and refrain for period of 15 days from doing any of the acts or making any of the orders in relation to the trial of the accused specified in Rule 4."
38. The above observation of the Hon'ble Supreme Court has laid down the law that the appropriate stage at which the Magistrate is required to take a decision framing charges, is immediately after framing charges in cases not exclusively triable by Court of Session and in other cases triable exclusively by Court of Session, immediately before committal under Sec.209 Cr.P.C.,
39. Now, coming to the facts of the case on hand, as stated above, there are two accused of whom the first accused alone is subject to the Navy Act. The second accused is not subject to the Navy Act. Applying the conclusions arrived at supra, if the case on hand is approached, it has to be necessarily held that the Magistrate has acted well within his jurisdiction and power to take cognizance of the offences punishable under Sections 323 and 325 r/w 34 I.P.C., against both the petitioners as empowered under Sec. 190 Cr.P.C., and there is nothing erroneous or illegal on the part of the learned Magistrate.
40. At this juncture, I am not informed whether the learned Magistrate has framed any charges against the accused or not. If he has already framed charges against the accused, the learned Magistrate shall immediately follow the Criminal courts and Court-martial (Adjustment of Jurisdiction) Rules of 1978, in so far as the first petitioner is concerned. If he has not framed charges so far, he shall frame charges first and then proceed to follow the said Rules. Since the second petitioner is not subject to Navy Act, the learned Magistrate can proceed in accordance with law as against her. The contention of the learned counsel for the petitioners that there are no materials to proceed against the petitioners is rejected as there are enough materials against them as found in the records.
41. In the above stated circumstances, the case against both the petitioners in C.C.No.266 of 2006, pending on the file of the learned District Munsif cum Judicial Magistrate, Nanguneri, Tirunelveli District, cannot at all be quashed as it is prayed for by the petitioners. As indicated above, it is for the learned Magistrate to follow the appropriate procedure in so far as the first petitioner is concerned and to proceed with the trial as against the second petitioner in accordance with law.
42. In the result, the criminal original petition fails and the same is dismissed. Consequently, connected M.Ps are closed.
S.NAGAMUTHU,J.
To The District Munsif cum Judicial Magistrate, Nanguneri, Tirunelveli District.