Orissa High Court
Adm Commandant vs State Of Odisha And Others .... Opposite ... on 2 December, 2020
Equivalent citations: AIRONLINE 2020 ORI 140
Author: B.P.Routray
Bench: B.P.Routray
HIGH COURT OF ORISSA: CUTTACK
CRLMC No.1507 of 2020
In the matter of an application under Section 482 of the Code of Criminal
Procedure.
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Adm Commandant .... Petitioner
Versus
State of Odisha and others .... Opposite parties
For Petitioner -- Mr.Gyanaloka Mohanty,
Advocate
For Opp. Parties -- Mr.M.K.Mohanty,
Addl. Standing Counsel
(For O.P.No.1)
-- Mr.Gokulananda Mohapatra,
Advocate
(For O.P.No.2)
-- Mrs.Rajdipa Behura,
Advocate
(For O.P.No.3)
JUDGMENT
PRESENT:
THE HON'BLE SHRI JUSTICE B.P.ROUTRAY Date of Hearing :13.11.2020 : Date of Judgment:02.12.2020 B.P.ROUTRAY, J. The petitioner, who is officiating as Adm Commandant, For Station Commander, Station Headquarters, Bhubaneswar has challenged the impugned order dated 20.10.2020 passed by the learned Sessions 2 Judge, Khurda in Criminal Revision No.74 of 2020 by invoking jurisdiction under Section 482 of the Cr.P.C..
2. The necessary facts of the case, without unnecessary details, are stated as follows:-
Opposite party No.3, Soumya Ranjan Pati is presently serving as Major of 17 Sikh L.I. in Indian Army. He married to opposite party No.2, namely, Tejesmita Mohapatra in the year 2013. On 7.10.2020, she lodged the F.I.R. in Bhubaneswar Mahila P.S.Case No.58 dated 7.10.2020 against opposite party No.3 and others alleging commission of offences under Sections 498-A/323/326/307/ 406/506/34/120-B of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. On 8.10.2020, opposite party No.3 was arrested in connection with the said case and produced before the learned S.D.J.M., Bhubaneswar. Then a petition was filed by the present petitioner praying to deliver opposite party No.3 to military custody under the provisions of Section 104 of the Army Act read with Sections 475 and 167(2) of the Code of Criminal Procedure. The learned S.D.J.M., Bhubaneswar allowing the said prayer of the petitioner directed for handing over of military custody of opposite party No.3. The relevant portion of the said order of the learned S.D.J.M., Bhubaneswar is reproduced below:-
".....................The offences involved in this case come under the definition of civil offence as defined under the Act. As per 3 section 69 of the Army At, 1950 as accused alleged to have committed any of the civil offences is to be tried by the court martial. Further the section 475 of the Cr.P.C. directs a court to deliver such a person to the commanding officer of the unit to which he belongs or to the nearest commanding officer for the purpose of being tried by a court martial. Honoring the provision of section 475 Cr.P.C. the provisions of army act and the object of the special statute I hold it proper to hand over the accused to the military custody for the purpose of being tried by the court martial. But at the same time to maintain sanctity of section 70 of the army act it is directed if a prima facie case concerning any offence mentioned in section 70 comes forth the commanding officer shall produce the accused before this court immediately. However, it is made clear that this order shall not prejudice the investigation of the present case.........."
3. Then, opposite party No.2 filed the revision case before the learned Sessions Judge, Khurda challenging said order of the learned S.D.J.M., Bhubaneswar in handing over military custody of opposite party No.3. The learned Sessions Judge in the impugned order set aside the order of the learned S.D.J.M., Bhubaneswar. The operative portion of the order of the learned Sessions Judge is reproduced below:
"15. In the result, therefore, the criminal revision is allowed on contest against the opposite parties. Consequently, the impugned order dated 9th October, 2020 passed by the learned SDJM, Bhubaneswar in C.T.Case No.4312 of 2020 is hereby set aside. O.P.No.2 is directed to produce O.P.No.3 before the learned Court below on 02.11.2020 positively and in the event of his production, the learned Court below shall dispose of the petition dated 09.10.2020 filed by O.P.No.2 relating to the custody of O.P.No.3 in accordance with law."
4. This order of the learned Sessions Judge, Khurda is impugned before this Court. The main thrust of argument of the petitioner before this Court is in two folds. First, the order of the learned S.D.J.M. being pure 4 interlocutory in nature, the revision application filed under Section 397 of the Cr.P.C. before the learned Sessions Judge is not maintainable. Secondly, the learned Sessions Judge has erred in law by applying the provisions of Sections 125 and 126 of the Army Act, whereas the case of the petitioner to take custody of opposite party No.3 is under Section 104 of the Army Act.
5. Opposite party No.2, on the other hand, contends that learned S.D.J.M., Bhubaneswar has committed illegality by handing over the custody of opposite party No.3 to military before the accused is charged for the offences, which was rectified by the learned Sessions Judge in the revision application. He, thus supports the finding of the learned Sessions Judge made in the impugned order.
6. Opposite party No.3, who is accused in the criminal case, argues in the same line with the petitioner supporting the order of the learned S.D.J.M., Bhubaneswar. In addition, it is also submitted on behalf of opposite party No.3 that he is a cancer patient and presently undergoing treatment in the cancer Hospital of Army at Delhi, and therefore, he should be allowed to remain in military custody to facilitate his better treatment.
7. On the backdrop of such controversy relating to custody, the admitted facts remain that opposite party No.3 is a subject to the Army Act and he is an accused in Bhubaneswar Mahila P.S.Case No.58 of 2020 for the 5 offences aforestated. Undoubtedly, the offences alleged against opposite party No.3 are "civil offences" within the meaning of Section 3 (ii) of the Army Act. Further, the definition of 'offence' described in Section 3(xvii) includes the civil offence. Section 475 of the Cr.P.C. read with Sections 125, 126, 69 and 70 of the Army Act and the provisions of Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules 1978 authorizes the Army authority for military custody of a subject of Army Act for the purpose of Court-martial.
8. The sole controversy revolves round the question, whether the custody of a subject of the Army Act accused of commission of civil offences against a non-subject of Army, can be handed over to military at the stage pending investigation?
9. The decision of the Hon'ble Supreme Court rendered in the case of Som Datt Datta vs. Union of India and others, reported in AIR 1969 SC 814 is relied on in this regard by all parties. In addition to the same, opposite party No.3 further relies on a decision of the Hon'ble Supreme Court in the case of S.K.Jha Commodre vs. State of Kerala and another, reported in 2011(15) SCC 492, whereas the case of Chandra Mohan Shukla of Guahati High Court reported in 2007 CriLJ 4516 has been relied on by the petitioner as well as opposite party No.3.
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10. In the case of Som Datt Datta (supra), the Hon'ble Supreme Court has observed as follows:-
"It was argued on behalf of the petitioner that there was no notice given by the Commanding Officer to the Magistrate under Rule 5 that the petitioner should be tried by a Court- martial and hence the criminal court alone had jurisdiction under Rule 3 to conduct proceedings against the petitioner for the offences charged. In our opinion, the argument on behalf of the petitioner is misconceived. The rules framed by the Central Government under Section 549 of the Criminal Procedure Code apply to a case where the proceedings against the petitioner have already been instituted in an ordinary criminal court having jurisdiction to try the matter and not at a stage where such proceedings have not been instituted. It is clear from the affidavits filed in the present case that the petitioner was not brought before the Magistrate and charged with the offences for which he was liable to be tried by the Court-Martial within the meaning of Rule 3 and so the situation contemplated by Rule 5 has not arisen and the requirements of that rule are therefore, not attracted. It was pointed out by Mr.Dutta that after the First Information Report was lodged at Palavaran police station a copy thereof should have been sent to the Magistrate. But that does not mean that the petitioner "was brought before the Magistrate and charged with the offences"
within the meaning of Rule.3. It is manifest that Rule 3 only applies to a case where the police had completed investigation and the accused is brought before the Magistrate after submission of a charge-sheet. The provisions of this rule cannot be invoked in a case where the police had merely started investigation against a person subject to military, naval or air force law. With regard to the holding of the inquest of the dead-body of Spr. Bishwanath Singh it was pointed out by the Attorney-General that Regulation 527 of the Defence Services Regulations has itself provided that in cases of unnatural death that is death due to suicide, violence or under suspicious circumstances information should be given under Section 174, Criminal Procedure Code to the Civil authorities, and the conduct of Maj. Agarwal in sending information to the Civil Police was merely in accordance with the provisions of this particular regulation. For these reasons we hold that Counsel for the petitioner is unable to make good his argument on this aspect of the case."
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11. In the case of Chandra Mohan Shukla, which was rendered on 17th July, 2007, it is observed by the Guahati High Court, as follows:-
"70. What crystallizes from the above discussion is that even when an investigation by police into an offence alleged to have been committed by a person subject to the Army Act is in progress, there is no impediment, on the part of the competent military authority, to either investigate the case in terms of Chapter V of the Army Rules or in holding. Court-martial if the accused is not in the custody of the Criminal Court or in the custody of the police on the orders of the Criminal Court. The decision in Som Datt Datta 1969(Cri LJ 663 (supra) is a case of this nature, where the Army Officer was put to trial even when the investigation by police was pending. If, however, the accused is arrested during investigation and brought before a Magistrate, Rule 4 gets, attracted and a notice to the competent military authority to exercise their option to try the accused has to be given."
12. But every confusion has been cleared by the Hon'ble Supreme Court in the case of S.K.Jha Commodre (supra). It is a short judgment of the Hon'ble Supreme Court, which is produced below in entire.
"O R D E R
1. Heard the learned counsel for the parties in extenso.
2. It is clear to us that the judgment of the High Court is in conformity with the judgment of the Constitution Bench of this Court in Som Dutt Datta vs. Union of India. The Constitution Bench while construing Rule 3 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules 1952 read with Section 549 of the CrPC,1898 (now Section 475 CrPC,1973) held that the option as to whether the accused be tried before the criminal court or by a Court Martial could be exercised only after the police had completed the investigation and submitted the charge-sheet and that the provisions of the Rule could not be invoked in a case where the police had merely started an investigation against a personnel subject to military, naval or air Force law.8
3. The facts of the present case indicate that three naval officers were arrested on 10-1-2008 for offences punishable under Sections 143, 147, 148, 452, 307, 326 and 427 read with Section 149 IPC and some other penal laws. They were produced before the Magistrate on the 11-1-2008 who remanded them to judicial custody. An application was filed on 14-1-2008 by the Commanding Officer of the Naval Unit to which they belonged for handing over the accused for trial under the Navy Act, 1957. This application was rejected by the Magistrate holding that the stage of consideration of the application would arise only on the completion of the police investigation which was still at a preliminary stage and that the request of the Commanding Officer was premature. The order of the Magistrate was challenged before the High Court of Kerala in revision. This too has been dismissed on similar grounds.
4. We see from the facts that the observations of the Constitution Bench in Som Datt Datta case apply fully to the facts herein. The stage at which the option can be exercised by the Commanding Officer (as to whether the accused should be tried before a Court Martial or a criminal court) cannot be examined at this stage as the investigation has not been completed and a charge-sheet has yet to be submitted.
5. The appeal is accordingly dismissed."
13. In the factual aspects of the present case at hand, the same is found squarely covered by the decision of the Hon'ble Supreme Court in the case of S.K.Jha (supra). Here is a case, the F.I.R. was lodged on 7.10.2020, opposite party No.3(accused) was arrested and produced on the next day before the learned S.D.J.M., Bhubaneswar and then on the same day the Military custody of the accused (opposite party No.3) was sought for by the Army authority and it was allowed. It is thus clear that, the custody of the accused was handed over to the Army authority pending investigation and before submission of the police report under Section 173(2) of the Cr.P.C.. What is contended on behalf of the petitioner as well as opposite party No.3 9 that, the custody of opposite party No.3 pending investigation is in terms of provision under Section 104 of the Army Act and not under Sections 125 and 126 or under the provisions of the Criminal Procedure Code is not seen with substance. It is for the reason that the provisions of Section 104 has to be read in coherence with the provisions of 125 of the Amy Act, Section 475 of the Code and the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules 1978. The provisions under Section 104 cannot stand alone to decide the custody of the accused in respect of the civil offences committed against a civilian or non-subject of Army Act. Moreover, the decision rendered by the Hon'ble Supreme Court in the case of S.K.Jha leaves no scope or any confusion with regard to custody of opposite party No.3 in the present context.
14. It is thus clear that, the custody of opposite party No.3 cannot be examined at this stage pending investigation and the stage to exercise the option by the petitioner for custody of opposite party No.3 has not reached yet awaiting submission of police report U/s.173(2) of the Cr.P.C.. Accordingly, I do not see any merit in the present Criminal Misc. Case to interfere with the order of the learned Sessions Judge.
15. So far as the objection raised by the petitioner regarding maintainability of revision application before the learned Sessions Judge is 10 concerned, the same is not found sustainable and in my humble opinion, the revision is maintainable. It is for the reason that, the question of custody of the accused is a matter of substantial right and the law is settled that any order which substantially decides certain rights of the parties cannot be said to be interlocutory order so as to bar the revisional jurisdiction under Section 397(2). Therefore, no impropriety or illegal exercise of jurisdiction is found with the learned Sessions Judge.
16. With regard to the submission of opposite party No.3 that he is a cancer patient and undergoing treatment at Army Hospital, Delhi, he is at liberty to make appropriate prayer in this regard before the concerned court.
17. In view of the discussions made above, the CRLMC is dismissed and the petitioner is directed to produce opposite party No.3 on any suitable date to be fixed by the learned S.D.J.M., Bhubaneswar within a period of one month from the date of production of a copy of this order, and consequently the learned S.D.J.M., Bhubaneswar is directed to proceed with the case in accordance with law.
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B.P.Routray, J.
Orissa High Court, Cuttack.
The 2nd December, 2020/CRB 11