Patna High Court - Orders
Ram Padarath Singh vs The State Of Bihar Through The Principal ... on 22 October, 2014
Author: Anjana Mishra
Bench: Anjana Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.535 of 2013
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1. Ram Padarath Singh S/O Late Suryadeo Singh Resident Of Mohalla-
New Area Nawadah, P.S-Town Nawadah, District- Nawadah.
.... .... Petitioner
Versus
1. The State Of Bihar Through The Principal Secretary Department Of
Home, Govt. Of Bihar, Patna.
2. The Director General Of Police, Bihar, Patna.
3. The Inspector General Of Police, Patna Zone, Patna. Null Null
4. The Deputy Inspector General Of Police, Magadh Division, Gaya.
5. The Superintendent Of Police, Nawadah.
6. The Officer- In- Charge,Town Police Station, Nawadah., District-
Nawadah.
7. Amresh Kumar S/O Ramanuj Singh Resident Of Village- Chomar, P.S-
Tankuppa, District- Gaya.
8. Ramanuj Singh S/O Resident Of Village- Chomar, P.S- Tankuppa,
District- Gaya.
9. Bittu Pandit, Resident Of Village- Chomar, P.S- Tankuppa, District-
Gaya.
10. Mannu Kumar S/O Resident Of Village- Chomar, P.S- Tankuppa,
District- Gaya.
11. Ashutosh Kumar S/O Presently Depty Chairman, Gaya Municipality,
Resident Of Mohalla- A.P. Colony, P.S- Gaya, Town, District- Gaya.
.... .... Respondents
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Appearance :
For the Petitioner : Mr. Arun Kumar, Advocate
For the State : Mr. Vikash Kumar, Advocate
For Resp. Nos. 12 & 13 : Mr. Sanjay Kumar, A.S.G.
For Resp. No. 7 : Mr. Ravindra Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI
AND
HONOURABLE JUSTICE SMT. ANJANA MISHRA
CAV ORDER
(Per: HONOURABLE MR. JUSTICE I. A. ANSARI)
29 22-10-2014PREFATORIAL REMARKS Article 21 of the Constitution of India guarantees fair trial. A fair trial is impossible if there is no fair investigation. In order to be a fair investigation, the Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 2 investigation must be conducted thoroughly, without bias or prejudice, without any ulterior motive and every fact, surfacing during the course of investigation, which may have a bearing on the outcome of the investigation and, eventually, on the trial, must be recorded contemporaneously by the Investigating Officer at the time of investigation. A manipulated investigation or an investigation, which is motivated, cannot lead to a fair trial. Necessary, therefore, it is that the Courts are vigilant, for, it is as much the duty of the Court commencing from the level of the Judicial Magistrate to ensure that an investigation conducted is proper and fair as it is the duty of the Investigating Officer to ensure that an investigation conducted is proper and fair. A fair investigation would include a complete investigation. A complete investigation would mean an investigation, which looks into all aspects of an accusation, be it in favour of the accused or against him.
2. Article 21 of the Constitution of India, undoubtedly, vests in every accused the right to demand a fair trial. This right, which is fundamental in nature, casts a corresponding duty, on the part of the State, to ensure a fair trial. If the State is to ensure a fair trial, it must ensure a fair investigation. Logically extended, this would mean that every victim of offence has the right to demand a fair Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 3 trial meaning thereby that he/she has the right to demand that the State discharges its constitutional obligation to conduct a fair investigation so that the investigation culminates into fair trial. The State has, therefore, the duty to ensure that every investigation, conducted by its chosen agency, is not motivated, reckless and that the Investigating Officer acts in due obedience to law. It is only when the State ensures that the investigation is fair, can it (the State) be able to say, when questioned, that the trial conducted was a fair trial. Article 21 of the Constitution of India, therefore, does not vest in only an accused the right to demand fair trial, but it also vests an equally important right, fundamental in nature, in the victim, to demand a fair trial. Article 21 of the Constitution of India does not, thus, confer fundamental right on the accused alone, but it also confers, on the victim of an offence, the right, fundamental in nature, to demand fair trial. (See, Sri Rana Sinha @ Sujit Sinha v. The State of Tripura, reported in 2011 (2) GLT 610).
3. The alleged violation of the above-stated principles is at the heart of the controversy in the present writ petition, wherein the writ petitioner is the unfortunate father, whose son was allegedly abducted and murdered.
4. The present one is a classic case Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 4 demonstrating insensitive disinclination, on the part of the police, to exercise its power of investigation and disregard thereby the performance of the corresponding duty, which the law casts, in this regard, on the police. The insensitivity, so demonstrated, has adversely affected proper and effective investigation of the case.
5. As the days rolled by, a question has arisen, in this writ petition, and the question is: If a police officer, while investigating alleged commission of an offence of abduction of a civilian, his murder and/or causing disappearance of his dead body by an army personnel, can obtain custody of the person, who is subject to the Army Act, 1950, for the purpose of investigation of such a case? Yet another question, this writ petition has given rise to, is:
If a demand is made by police for custody of such an accused person in order to have effective investigation by way of his custodial interrogation, can the Army Authorities resist handing over of the army personnel to the police, on the spacious plea of alibi, particularly, when no decision is taken till date by the competent Army Authority to take over, under Section 125 of the Army Act, 1950, the case, which the police has started investigating?
BACKGROUND FACTS
6. In order to fully appreciate the significance Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 5 of the questions, which have arisen in the present writ petition, and consequential impact thereof on the criminal justice system, material facts and various stages, which have led to the present writ petition, need to be taken note of and are, therefore, set out, in a nutshell, as follows:
(i) The writ petitioner lodged an information, in writing, with the police, at Nawadah Town Police Station, the information being, in brief, thus:
(a) The private respondent Nos. 7 to 11 herein, namely, Amresh Kumar, Ramanuj Singh, Bittu Pandit, Mannu Kumar and Ashutosh Kumar respectively, were known to the writ petitioner from before. On 06.03.2013, at about 8.00 A.M., the said five accused persons, who have been named in the First Information Report, came to the petitioner‟s house, at Nawadah, in a vehicle. The said five persons remained at the house of the petitioner till about 12.00 noon and, then, they took away, along with them, the Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 6 petitioner‟s son, Vijay Krishna, on some pretext.
(b) On the following day, i.e.,
07.03.2013, the petitioner was
informed that his son, Vijay Krishna, had met with an accident at Dumka and when the petitioner reached Dumka, he was informed that his son, Vijay Krishna, had been taken away by the said five persons in a Scorpio vehicle.
(c) The petitioner, then, returned to his home at Nawadah. On the next day, i.e., on 08.03.2013, the petitioner received, on his mobile, a call from his son, the call by his son, Vijay Krishna, having been made from his own mobile bearing No. 9546083543.
By the said call, the petitioner‟s son, Vijay Krishna, informed the petitioner that he had been kept confined by the said five persons, who were demanding Rs. 10 lakhs, as ransom, and were also threatening him with Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 7 dire consequences if the payment for ransom was not made. While the petitioner was still talking to his said son, the cell phone was switched off.
(d) Soon thereafter, on the same day, i.e. on 08.03.2013, the petitioner lodged an information, in writing, at Nawadah Town Police Station, specifically naming therein respondent Nos.7, 8, 9, 10 and 11 herein, namely, Amresh Kumar, Ramanuj Singh, Bittu Pandit, Mannu Kumar and Ashutosh Kumar respectively, as accused persons, and stating therein, inter alia, that his said son had been kept, as indicated hereinbefore, in illegal confinement by the accused persons named therein and that the demand for ransom were being raised.
(ii) For reasons unknown to the petitioner, the police, according to the petitioner, kept the information, so lodged by him, pending until, on the protest of the local residents, Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 8 the police had to register, and did register, as late as on 12.03.2013, a case bearing Nawadah Town Police Station Case No. 112 of 2013, under Section 364 read with Section 34 of the Indian Penal Code, against the said 5 (five) named accused persons. While, however, so registering the case, the police erased the date of the written information, which the petitioner had lodged, by making the date as 12.03.2013 instead of retaining the originally written date of 08.03.2013.
(iii) The petitioner, thereafter, according to the petitioner, ran from pillar to post, between 24.03.2013 and 02.05.2013, for recovery of his son and made earnest requests and representations, in this regard, to the Director General of Police, Bihar, Deputy Inspector General of Police, Gaya, and the Superintendent of Police, Nawadah, seeking effective action to be taken in the case; but no action was taken by them and as the private respondents herein were, according to the petitioner, Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 9 seen moving freely and, at the same time, putting pressure on the petitioner for payment of ransom, the petitioner came to this Court with the present writ petition, made under Article 226 of the Constitution of India, seeking, inter alia, issuance of a writ, in the nature of habeas corpus, directing the State-respondents herein to produce the petitioner‟s son, Vijay Krishna, aforementioned.
7. In his writ petition, the petitioner alleged that despite the fact that two months had elapsed, there was no progress in the investigation and though there was threat to the life of his said son, who had been under illegal confinement of the accused persons, the police had been dealing with the case in a most insensitive manner and since the accused concerned were moving freely, he (i.e., the petitioner) apprehended that the respondent police officials were hand in glove with the accused persons.
8. As the record of this writ petition discloses, the State of Bihar, initially, sought for, and was granted, an adjournment for four weeks so as to enable them to file counter affidavit on behalf of the respondent Nos. 5 and 6, namely, the Superintendent of Police, Nawadah, and the Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 10 Officer-in-Charge, Nawadah Town Police Station, respectively.
9. However, after taking as many as four adjournments, on 18.07.2013, 26.07.2013, 21.10.2013 and 03.12.2013, further adjournment was obtained, even, on 06.02.2014, by the State-respondents, contending that the State-respondents had been trying their level best to trace out and recover the alleged victim and would be filing a counter affidavit in this regard.
10. Eventually, as the record reveals, the Court directed the Superintendent of Police, Nawadah, to be present, in person, in the Court, along with the relevant case diary, with further direction that the Court shall be informed as regards the steps taken by the police to apprehend the five accused persons, who had been named in the First Information Report, and also what had been done with regard to the recovery of the alleged victim.
11. On 18.02.2014, Superintendent of Police, Nawadah, along with the Officer-in-Charge, Nawadah Town Police Station, who had been investigating Nawadah Town Police Station Case No. 112 of 2013, appeared, in person, in the Court and submitted before the Court to the effect that four of the accused persons, namely, Amresh Kumar, Bittu Pandit, Mannu Kumar and Ashutosh Kumar, had been Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 11 found located, as per their mobile details, around Wazirganj on 08.03.2013, and efforts were being made to interrogate accused Amresh Kumar (i.e., respondent No.7 herein), who serves at the Army Camp, Deepatoli, Ranchi, and accused Ashutosh Kumar, who is the Deputy Mayor, Municipal Corporation, Gaya. The police officers also informed the Court that the Army Authorities had not been co-operating; rather, the Authorities, at the Army Camp, Deepatoli, Ranchi, had given a certificate, dated 26.03.2013, indicating therein that accused Amresh Kumar had not gone on leave since after 31.12.2012 intending to show thereby that accused Amresh Kumar aforementioned could not have been involved in the alleged occurrence of abduction of the petitioner‟s son, Vijay Krishna, on 06.03.2013 and/or thereafter.
12. The Court, taking a serious note of the fact, that the mobile details of accused Amresh Kumar showed that he was located, around Wazirganj, on 08.03.2013 and this was indicative of the fact that the certificate granted by the Lt. Colonel, Major Battery Commander, was, perhaps, not correct, directed, on 18.02.2014 itself, that a Special Investigating Team (hereinafter referred to as the "SIT") be constituted by the Superintendent of Police, Nawadah, to investigate the case, in question, and the attention of the Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 12 Army Authorities be drawn to the investigation being made in the case, particularly, with regard to the materials available showing presence of accused Amresh Kumar, around Wazirganj, on 08.03.2013. The Court also directed, on 18.02.2014, that the Army Authorities shall co-operate with the investigation to be conducted by the SIT. The Court further directed, on 18.02.2014, that the Superintendent of Police, Nawadah, and the Investigation Officer of Nawadah Town Police Station Case No. 112 of 2013 shall appear, in Court, on 12.03.2014 and if, by then, the accused persons were either arrested or the victim was recovered, the Superintendent of Police, Nawadah, may not appear.
13. On 12.03.2014, the Court was informed that neither the four accused persons, against whom the case appeared to be true, had been arrested nor the vehicle, which was alleged to have been used in abducting the informant‟s said son, had been recovered and that one of the accused persons was holding the office of Deputy Mayor, Municipal Corporation, Gaya. The Court, in order to facilitate investigation, directed the Deputy Inspector General of Police, Magadh Range, Gaya, to appear on 14.03.2014.
14. On the date so fixed, i.e. 14.03.2014, the Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 13 Deputy Inspector General of Police, Magadh Range, Gaya, along with Superintendent of Police, Nawadah, and the Investigation Officer of Nawadah Town Police Station Case No. 112 of 2013, appeared, in person, in Court and informed the Court, as the record reveals, that out of the five accused persons, who had been named in the First Information Report, four accused persons had been apprehended, but accused Amresh Kumar, who stood posted at the Army Camp, Deepatoli, Ranchi, had not been apprehended so far.
15. The Court, then, directed, on 14.03.2014, that the matter be placed on 04.04.2014 and, in the meanwhile, the Major Battery Commander, 3323/332, Medium Range, shall make available Nayak Amresh Kumar, as early as possible, for interrogation by the police. The Court further directed that if by the said date, i.e., by 04.04.2014, substantial progress was made in the investigation, the police officers, present in the Court, need not appear, again, in Court, but an affidavit indicating therein the stage of investigation and also the status of the case, with regard to arrest of the accused Amresh Kumar, must be filed.
16. On 04.04.2014, two supplementary counter affidavits were filed by the Investigation Officer of Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 14 Nawadah Town Police Station Case No. 112 of 2013. From the materials available before the Court, it transpired that the SIT claimed to have discovered that the petitioner‟s said abducted son, Vijay Krishna, had been put to death by the accused persons named in the First Information Report including accused Amresh Kumar. Annexure-H to the counter affidavit had the copy of the warrant of arrest issued by the learned Chief Judicial Magistrate, Nawadah, against accused Amresh Kumar. Annexure-I disclosed that the warrant of arrest issued against Amresh Kumar by the learned Chief Judicial Magistrate, Nawadah, had been brought to the notice of the Major Battery Commander, 3323/332, Medium Range, inasmuch as the Major Battery Commander, 3323/332, Medium Range, had written letter, dated 26.03.2014, addressed to the Superintendent of Police, Nawadah, stating therein that the police officers of Nawadah Town Police Station had come to the Army Unit, on 26.03.2014, with a warrant of arrest, but it had already been clarified that accused Amresh Kumar was on duty since 31st of December, 2012 (Forenoon), when he rejoined the Unit on expiry of his 30 (thirty) days of casual leave with effect from 01st of December, 2012, to 30th of December, 2012.
17. The Court, however, noticed, in its order, Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 15 dated 04.04.2014, that the letter, dated 26.03.2013, issued by the Major, Battery Commander, 3323/332, Medium Range, was wholly silent on the steps taken by the concerned Army Authorities with regard to execution of the warrant of arrest issued by the Court.
18. The Court also recorded in its order, dated 04.04.2014, that pursuant to its order, dated 14.03.2014, the police, again, approached the Army Authorities, on 20.03.2014, and made a written request to allow arrest of accused Amresh Kumar enclosing, with their written request, a copy of the warrant of arrest issued by the competent Court and in reply thereto, the Major, Officiating Adjutant for Commanding Officer, 332 Medium Regiment, wrote a letter, dated 20th March, 2014, addressed to the Superintendent of Police, Nawadah, stating to the effect that that the accused Amresh Kumar was not evading arrest and that all possible assistance, regarding the case, would be provided to the police authority as and when required and that pursuant to the direction of the Court, the said Amresh Kumar had been made available for interrogation, on 20th March, 2014, to the SIT inside the army campus. The Court, once again, noticed in its order, dated 04.04.2014, that the Army Authorities had remained completely silent with regard to Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 16 execution of the warrant of arrest, which had been issued by the competent Court.
19. A further development took place, on 04.04.2014, as can be seen from the order passed on 04.04.2014. That is, the respondent No.7, i.e., accused Amresh Kumar, appeared suo motu in this writ petition and submitted that he (accused Amresh Kumar) had been co- operating with the police in the investigation and that the hearing of his anticipatory bail petition was being deferred only because of the pendency of the present writ petition.
20. The reaction of the Court and the observations made by the Court, on 04.04.2014, to the submissions made by accused Amresh Kumar, as noted above, are reproduced below:
"This Court is conscious of the fact that investigation in the matter by the police was a mere formality till the end of 2013 and only when the Court intervened, by passing the order dated 18.02.2014 onwards, the investigation appears to have proceeded in the right direction. However, this Court would not like to further go into the merits of the investigation so as not to prejudice the case of either of the parties. However, in view of the letters written by Shri Abhimanyu Singh, the army officer Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 17 concerned, dated 26th March, 2013 and 20th March, 2014, we deem it appropriate that he be added as respondent no. 12 in the application so that he can appear before this Court and be heard."
( Emphasis is supplied)
21. The Court further directed, on 04.04.2014, that the Union of India be impleaded as a party to the writ petition.
22. Though the Court had issued notice to respondent No.12, namely, Abhimanyu Singh, Major Battery Commander, he chose not to appear before the Court and, hence, bailable warrant of arrest was directed to be issued for ensuring presence of respondent No. 12 before the Court through respondent No. 9, namely, Commanding Officer, 332 Medium Regiment.
23. It was thereafter that this Bench came in seisin of the present writ petition and, having taken notice of the orders and materials on record available till then and the directions, which had been passed from time to time in this writ petition, this Court passed an order, on 08.07.2014, fixing the case, on 15.07.2014 (as requested on behalf of the parties concerned), with direction that respondent Nos .12 and 13, namely, Abhimanyu Singh, Major Battery Commander, 3323/332 Medium Regiment, and the Commanding Officer, 332, Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 18 Medium Regiment, C/O 56 APO, respectively shall ensure that respondent No. 7, namely, Amresh Kumar, be produced before the Officer-in-Charge, Town Police Station, Nawadah, in connection with Nawadah Town Police Station Case No.112 of 2013, pursuant to the warrant of arrest, which already stood issued against respondent No. 7 and report compliance in terms of the directions so issued by this Court.
24. When the writ petition was taken up on 15.07.2014, this Court was informed, on the basis of letter, dated 13.07.2014, issued by Lieutenant Colonel, Officiating Adjutant, 332, Medium Regiment, that respondent No.7, namely, Amresh Kumar, had gone, on leave, on 18th of June, 2014, and was to remain on leave till 17th of July, 2014, but he had become non-responsive and, thus, the Regiment had not been able to contact him.
25. The Court, in the circumstances indicated above, recorded in its order, dated 15.07.2014, that the perusal of the entire materials on record, including the observations made, and directions given, by the order, dated 04.04.2014, passed by a Division Bench of this Court, indicate that respondent Nos. 12 and 13, namely, Abhimanyu Singh, Major Battery Commander, 332 Medium Regiment, and the Commanding Officer, 332, Medium Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 19 Regiment, C/O 56 APO, respectively had obstructed the SIT in the discharge of its official duties and had also not handed over accused Amresh Kumar despite warrant of arrest having been issued against accused-respondent No.7, namely, Amresh Kumar, and that the resistance, so given to the execution of warrant of arrest, constitutes offence(s) punishable under the Indian Penal Code.
26. The order, dated 15.07.2014, aforementioned, passed in this case, also records that despite the fact that warrant of arrest stood issued against respondent No. 7, namely, Amresh Kumar, yet respondent Nos. 12 and 13, namely, Abhimanyu Singh, Major Battery Commander, and the Commanding Officer, 332, Medium Regiment, C/O 56 APO, respectively knowing fully well that respondent No. 7, namely, Amresh Kumar, was an accused wanted in connection with Nawadah Town Police Station Case No. 112 of 2013 and warrant of arrest stood issued against him, have consciously allowed respondent No.7, namely, Amresh Kumar, to go, on leave, on 18th of June, 2014, without informing this Court or the jurisdictional subordinate Court and/or the SIT that accused Amresh Kumar was being allowed to go on leave despite the fact that warrant of arrest stood issued against him and it was, now, being submitted, on behalf of respondent No. 12 and Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 20 the Commanding Officer, 332, Medium Regiment, C/O 56 APO, that respondent No. 7, namely, Amresh Kumar, was allowed to go on leave as indicated above and his Regiment has not been able to contact him.
27. Situated thus, the Court observed, in its order, dated 15.07.2014, that if the Court was prima facie satisfied that Abhimanyu Singh, Major Battery Commander, 332 Medium Regiment (respondent No.12) and the Commanding Officer, 332, Medium Regiment, C/O 56 APO (respondent No. 13), had committed Contempt of this Court by willfully disobeying the directions passed, on various dates, in this case and that it (Court) is also of the view, albeit tentatively, that Abhimanyu Singh, Major Battery Commander, 332 Medium Regiment (respondent No.12) and the Commanding Officer, 332, Medium Regiment C/O 56 APO (respondent No. 13), are required to be proceeded against for commission of offences under the Indian Penal Code by letting accused Amresh Kumar go away ignoring the warrant of arrest issued against him.
28. The Court, therefore, ordered, on 15.07.2014, that notices be issued directing Abhimanyu Singh, Major Battery Commander, 332 Medium Regiment (respondent No.12) and the Commanding Officer, 332, Medium Regiment, C/O 56 APO (respondent No. 13), to Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 21 show cause, if any, as to why action, in accordance with law, be not taken against them for willful disobedience of the order of this Court and for allowing respondent No. 7, namely, Amresh Kumar, to leave without having him handed over to the investigating police officer and by helping him thereby to run away from law despite the fact that warrant of arrest stood issued against him.
29. For an effective decision of the present matter, the Court, on 15.07.2014, directed personal appearance not only of Abhimanyu Singh, Major Battery Commander, 332 Medium Regiment (respondent No.12), but also of the Commanding Officer, 332, Medium Regiment, C/O 56 APO (respondent No. 13), and fixed the case, for further orders, on 31st of July, 2014, making it clear that on the appointed day, Abhimanyu Singh, Major Battery Commander, 332 Medium Regiment (respondent No.12), and the Commanding Officer, 332, Medium Regiment, C/O 56 APO (respondent No. 13), shall appear, in person, and also present their reply, if any, to the notices, which had been directed to be issued to them.
30. In compliance with the directions issued by the order, dated 15.07.2014, read with the order, dated 01.08.2014, respondent Nos. 12 and 13, namely, Major Battery Commander, 332 Medium Regiment, C/O 56 APO, Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 22 and the Commanding Officer 332, Medium Regiment, C/O 56 APO, respectively, appeared, in person, in the Court, on 11.08.2014, and submitted their reply to the order directing them to show cause, wherein they tendered unconditional apology by pointing out that Amresh Kumar had already been granted leave before the controversy in the present case arose and, hence, by allowing Amresh Kumar to go on leave in terms of the leave, which has already been granted, they had not willfully disobeyed the orders of this Court.
31. By its order, dated 03.09.2014, this Court pointed out that respondent No.7, namely, Amresh Kumar, who is an Army personnel and an accused in Nawadah Town Police Station Case No.112 of 2013, was directed, on 08.07.2014, in this writ petition, to be produced by respondent No. 12, namely, Abhimanyu Singh, Major Battery Commander, 332 Medium Regiment, C/O 56 APO, and respondent No.13, namely, the Commending Officer 332, Medium Regiment, C/O 56 A P O, before the Officer- in-Charge, Town Police Station, Nawadah, in connection with Nawadah Town Police Station Case No.112 of 2013, pursuant to the warrant of arrest, which already stood issued against respondent No.7, and report compliance; but on 15.07.2014, it was brought to the notice of this Court Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 23 by the learned Assistant Solicitor General, appearing for respondent Nos. 12 and 13, that respondent No.7 had gone, on leave, on 18.06.2014 and was to remain on leave till 17th of July, 2014, but thereafter, he had not been responding to 332, Medium Regiment, and his Regiment had not been able to establish contact with him despite efforts made to establish contact with him.
32. Shorn of other details, what is material to note, points out the Court, in its order, dated 03.09.2014, that though, according to respondent Nos.12 and 13, respondent No.7 had already been declared an absconder and a deserter roll had been published against him making him liable to be arrested, wherever he was found, respondent No.7 had made interlocutory application, bearing I.A. No.1815 of 2014, in this writ application, seeking modification of the directions given by the order, dated 26.08.2014.
33. Coupled with the above, notes the Court, in its order, dated 03.09.2014, that respondent No.7 had applied for pre-arrest bail, under Section 438 of the Code of Criminal Procedure (hereinafter referred to as "the Code"), giving rise to Cr. Misc. No. 29406 of 2013, which had been rejected by order, dated 18.06.2014, by a learned single Judge of this Court and, thereafter, on the basis of some Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 24 additional materials, respondent No.7 moved an application for Special Leave to Appeal and the same came to be registered as Special Leave to Appeal (Crl.) No. 5283 of 2014, wherein permission had been granted to respondent No.7 to move this Court afresh for grant of anticipatory bail and he had accordingly applied, once again, for pre-arrest bail and his application, so made, had given rise to Cr. Misc. No.32142 of 2014 and by order, dated 08.08.2014, passed in Cr. Misc. Case No.32142 of 2014, the Court has called for the case diary within a period of four weeks with further direction that on receipt of the case diary, the said application for pre-arrest bail be placed before the Court.
34. In the backdrop of the facts, as indicated above, this Court indicated, on 03.09.2014, that respondent No.7, with the help of I.A. No.1815 of 2014, now, seeks modification of the order, dated 26.08.2014, passed by this Court, whereby respondent No.7 was directed to appear, in person, before this Court. Thereafter, the Court observed and directed, on 03.09.2014 itself, as under:
"Without entering into the
merit of the present writ petition,
interlocutory application, namely, I.A.
No.1815 of 2014 and truthfulness or
otherwise of the averments made in
various affidavits, which have been filed by Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 25 respondent Nos.12 and 13, we notice that respondent No.7 has been declared an absconder and a deserter roll has been published against him and he is open to arrest at any place, wherever he is found, but no action, as warranted by law, appears to have been taken by respondent Nos.12 and 13, more so, when applications are being made by respondent No.7 in this Court and the Indian Army claims that they have not been able to establish contact with respondent No.7. The explanations, therefore, offered by respondent Nos.12 and 13 for their omission to produce respondent No.7 before the Officer-in-Charge, Town Police Station, Nawadah, in connection with Nawadah Town Police Station Case No.112/2013, does not, prima facie, inspire confidence and the explanation cannot, therefore, be treated, at this stage, in our tentative view, plausible and convincing.
With regard to the prayer for modification of the order, dated 26.08.2014, which has been made by respondent No.7, suffice it to point out, at this stage, that since the anticipatory bail application of respondent No.7 has, now, been filed on the permission granted by the Supreme Court and though it entirely remains to the Court, which is in seisin of Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 26 Cr.Misc. No.32142 of 2014, to grant or not to grant, or issue or not to issue, any direction for pre-arrest bail of respondent No.7, we have serious reservation, though tentative, about the genuineness of the submissions, which have been made by respondent Nos.12 and 13 before this Court, and though we do not want, at this stage, to make any comments on the conduct of respondent No.7 inasmuch as his anticipatory bail application is pending for consideration, we direct that unless he is arrested, in the meanwhile, he shall appear, in this Court, on 09th of September, 2014, at 10:30 A.M., and till then, direction given by order, dated 26.08.2014, shall remain in abeyance. On the date fixed, i.e., 09th of September, 2014, this writ petition shall be listed for further orders, when respondent No.12 shall remain present, in person, in this Court.
Registry is hereby directed to list Cr.Misc. No.32142 of 2014, before appropriate Bench, as soon as the relevant case diary is received.
A copy of this order be placed on the record of Cr. Misc. No.32142 of 2014.
If any order is made in Cr.Misc.
No.32142 of 2014 on or before 09th of September, 2014, a copy of the Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 27 order/orders, made in Cr. Misc. No.32142 of 2014, shall be placed on the record of this writ petition."
(Emphasis is added)
35. On 09.09.2014, this Court, on the submissions made on behalf of respondent No.7 that respondent No.7, would appear on the next date, because he had met with an accident, fixed this writ petition, for orders, on the next date, i.e., 10.09.2014.
36. When this writ petition came for order, on 10.09.2014, this Court made the following order:
"Heard Mr. Arun Kumar, learned Counsel for the petitioner, and Mr. Sanjay Kumar, learned Assistant Solicitor General, appearing on behalf of the Union of India (respondent Nos. 12 and 13).
Heard also Mr. Vikas Kumar, learned Assistant Counsel to Advocate General, appearing for respondent Nos. 1 to 6, Mr. Rabindra Kumar, learned Counsel, appearing for respondent Nos. 8, 9 and 10, and Mr. Sanjay Kumar Singh, learned Counsel for respondent No. 7.
Respondent No. 12 is present and so is respondent No. 7, namely, Amresh Kumar.
Despite the fact that respondent No. 7 is present and so is respondent No. 12, no action has been taken or is proposed to be taken by the Army Authorities to take into custody respondent No. 7, who, according to the submissions made on behalf of the Army Authorities, is a deserter, a deserter roll has been issued against him and there is an existence of warrant of arrest against him. This prima facie gives us an impression, albeit tentatively, that Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 28 there may be collusion and/or connivance on the part of the Army Authorities concerned and respondent No. 7. This aspect of the matter would, however, be looked into and decided in course of the proceedings.
What is relevant, at this stage, to point out is that by order, dated 08.07.2014, respondent No. 7, namely, Amresh Kumar, who is an Army Personnel and is an accused in Nawadah Town Police Station Case No. 112 of 2013, was directed to be produced by respondent No. 12, namely, Abhimanyu Singh, Major Battery Commander, 323/332 Medium Regiment, Commanding Officer, 332, Medium Regiment, C/o 56 APO, and respondent No. 13, namely, Union of India, before the Officer-in-Charge, Town Police Station, Nawadah, in connection with Nawadah Town Police Station Case No. 112 of 2013, pursuant to the warrant, which already stands issued against respondent No. 7.
Despite the clear direction, as indicated above, respondent No. 7 was not produced before the Officer-in-Charge, Town Police Station, Nawadah. The explanation for not producing respondent No. 7 before the Officer-in-Charge, Town Police Station, Nawadah, which was assigned by the Army Authorities, becomes clear from the order, dated 03.09.2014, which is re-produced hereinbelow.
"Heard Mr. Arun Kumar, learned counsel, for the petitioner, and Mr Sanjay Kumar, learned Assistant Solicitor General, appearing on behalf of the Union of India (respondent Nos.12 and 13).
Heard also Mr. Vikas Kumar, learned Assistant Counsel to Advocate General, for respondent Nos.1 to 6, Mr. Ravindra Kumar, learned counsel, appearing for respondent Nos.8, 9 and 10, and Mr. Sanjay Kumar Singh, learned counsel, for respondent No.7.Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 29
Respondent No.7, namely, Amresh Kumar, who is an Army personnel and an accused in Nawadah Town Police Station Case No.112/2013, was directed, on 08.07.2014, in this writ petition, to be produced by respondent No.12, namely, Abhimanyu Singh, Major Battery Commander, 332 Medium Regiment, C/O 56 APO and respondent No.13, namely, the Commending Officer 332, Medium Regiment, C/O 56 A P O, before the Officer-in-Charge, Town Police Station, Nawadah, in connection with Nawadah Town Police Station Case No.112/2013, pursuant to the warrant, which already stood issued against respondent No.7, and report compliance.
On 15.07.2014, it was brought to the notice of this Court by the learned Assistant Solicitor General, appearing for respondent Nos.12 and 13, that respondent No.7 had gone, on leave, on 18.06.2014 and remained on leave till 17th of July, 2014, but thereafter, he had not reported back and 332, Medium Regiment, had not been able to establish contact with him despite efforts made to establish contact with him.
Shorn of other details, what is material to note is that though, according to respondent Nos.12 and 13, respondent No.7 has already been declared an absconder and a deserter roll has been published against him making him liable to be arrested, wherever he is found, respondent No.7 has made interlocutory application, bearing I.A. No.1815 of 2014, in this writ application, seeking modification of the directions given by the order, dated 26.08.2014.
Coupled with the above, respondent No.7 had applied for pre-Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 30
arrest bail, under Section 438 Cr.P.C., giving rise to Cr. Misc. No.29406 of 2013, which had been rejected by order, dated 18.06.2014, by a learned single Judge of this Court. Thereafter, on the basis of some additional materials, respondent No.7 moved an application for Special Leave to Appeal and the same came to be registered as Special Leave to Appeal (Crl.) No.5283 of 2014, wherein permission has been granted to respondent No.7 to move this Court afresh for grant of anticipatory bail and he has accordingly applied, once again, for pre-arrest bail and his application, so made, has given rise to Cr. Misc. No. 32142 of 2014.
What is also important to note is that by order, dated 08.08.2014, passed in Cr. Misc. Case No.32142 of 2014, the Court has called for case diary within a period of four weeks with further direction that on receipt of the case diary, the said application for pre-arrest bail be placed before the Court.
In the backdrop of the above facts, as indicated above, respondent No.7, with the help of I.A. No.1815 of 2014, now, seeks modification of the order, dated 26.08.2014, passed by this Court, whereby respondent No.7 was directed to appear, in person, before this Court.
Without entering into the merit of the present writ petition, interlocutory application, namely, I.A. No.1815 of 2014 and truthfulness or otherwise of the averments made in various affidavits, which have been filed by respondent Nos.12 and 13, we notice that respondent No.7 has been declared an absconder and a deserter roll has been published Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 31 against him and he is open to arrest at any place, wherever he is found, but no action, as warranted by law, appears to have been taken by respondent Nos.12 and 13, more so, when applications are being made by respondent No.7 in this Court and the Indian Army claims that they have not been able to establish contact with respondent No.7. The explanations, therefore, offered by respondent Nos.12 and 13 for their omission to produce respondent No.7 before the Officer-in-Charge, Town Police Station, Nawadah, in connection with Nawadah Town Police Station Case No.112/2013, does not, prima facie, inspire confidence and the explanation cannot, therefore, be treated, at this stage, in our tentative view, plausible and convincing.
With regard to the prayer for modification of the order, dated 26.08.2014, which has been made by respondent No.7, suffice it to point out, at this stage, that since the anticipatory bail application of respondent No.7 has, now, been filed on the permission granted by the Supreme Court and though it entirely remains to the Court, which is in seisin of Cr.Misc. No.32142 of 2014, to grant or not to grant, or issue or not to issue, any direction for pre-arrest bail of respondent No.7, we have serious reservation, though tentative, about the genuineness of the submissions, which have been made by respondent Nos.12 and 13 before this Court, and though we do not want, at this stage, to make any comments on the conduct of respondent No.7 inasmuch as his anticipatory bail application is pending for consideration, we direct that unless he is arrested, in the meanwhile, he shall appear, in this Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 32 Court, on 09th of September, 2014, at 10:30 A.M., and till then, direction given by order, dated 26.08.2014, shall remain in abeyance. On the date fixed, i.e., 09th of September, 2014, this writ petition shall be listed for further orders, when respondent No.12 shall remain present, in person, in this Court.
Registry is hereby directed to list Cr. Misc. No. 32142 of 2014, before appropriate Bench, as soon as the relevant case diary is received.
A copy of this order be placed on the record of Cr. Misc. No.32142 of 2014.
If any order is made in Cr. Misc. No.32142 of 2014 on or before 09th of September, 2014, a copy of the order/orders, made in Cr. Misc. No.32142 of 2014, shall be placed on the record of this writ petition."
Though respondent No. 7 was directed to appear, in person, on 09.09.2014, yet when this writ petition was called yesterday (i.e., on 09.09.2014), it transpired that the respondent No. 7 was not present;
rather, his wife filed affidavit and, upon taking into account the material facts, this Court observed, by its order, dated 09.09.2014, as under:
"Heard Mr. Arun Kumar, learned Counsel for the petitioner, and Mr. Sanjay Kumar, learned Assistant Solicitor General, appearing on behalf of the Union of India (respondent Nos.12 and 13).
Heard also Mr. Vikas Kumar, learned Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 33 Assistant Counsel to Advocate General, appearing for respondent Nos. 1 to 6, Mr. Rabindra Kumar, learned Counsel, appearing for respondent Nos. 8, 9 and 10, and Mr. Sanjay Kumar Singh, learned Counsel for respondent No.7.
Respondent No.12 is present. However, respondent No.7 was also directed to appear before this Court, but he has not appeared and a supplementary counter affidavit has been filed by his wife averring to the effect that motorcycle of respondent No.7 had slipped near Belaganj, Gaya, and as he received some injuries, he could not appear in this Court, in person.
It is, however, submitted by learned counsel for respondent No.7 that respondent No.7 will appear, in person, before this Court tomorrow and this writ petition may be taken up tomorrow.
In view of the facts indicated above and in the interest of justice, this writ petition is directed to be listed, on 10th September, 2014, at 10.30 A.M."
Considering, now, the fact that there is no stay on the execution of the warrant of arrest, which has been issued against respondent No. 7, Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 34 and considering also the fact that he has already been declared an absconder on account of the fact that he is a deserter, we are of the view that respondent No. 7 cannot be allowed to move freely inasmuch as it would be mockery of the criminal justice system if a person, placed in the situation as the respondent No. 7 stands placed, is allowed to move around, when he, having been held to be deserter, has already been declared absconder and there is a warrant of arrest issued against him.
At this stage, however, Mr. Sanjay Kumar, learned Assistant Solicitor General, submits that with leave of the Court, the Army Authorities are willing to take into custody respondent No. 7 inasmuch as respondent No. 7 has already been declared deserter and he also agrees to surrender to the military custody.
In the backdrop of the facts as indicated above and in the attending circumstances of the case, we hereby, in the interest of justice, allow the Army Authorities to take respondent No. 7 into custody on account of respondent No. 7 having been declared as a deserter. This shall not preclude the Army Authorities from producing respondent No. 7 Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 35 before the Officer-in-Charge, Town Police Station, Nawadah, in terms of this Court's earlier order nor shall it cause any hindrance, on the part of this Court, to direct production of respondent No. 7 before the Officer-
in-Charge, Town Police Station,
Nawadah, in connection with
Nawadah Town Police Station Case
No. 112 of 2013, if the situation so
warrants.
Considering, however, the
matter in its entirety, we direct that this writ petition shall be listed on 18.09.2014 and, in the meanwhile, the outcome of anticipatory bail of respondent No. 7 shall be communicated to this Court by respondent No. 7.
List this writ petition, on 18.09.2014, for further necessary order."
(Emphasis is supplied)
37. On 18.09.2014, the respondents sought for an adjournment and therefore, this Court directed this writ petition to be listed on 23.09.2014.
38. On 23.09.2014, this Court made the following order:
"Heard Mr.Arun Kumar, learned counsel for the petitioner, Mr. Ravindra Kumar, learned counsel for respondent No.7 and Mr. Sanjay Kumar, learned ASG, Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 36 appearing for respondent Nos. 12 and 13.
It is submitted by Mr. Ravindra Kumar Singh, learned Counsel for the respondent No. 7, namely, Amresh Kumar that the respondent No. 7, who is one of the accused in Nawada Town P.S. Case No. 112 of 2013, has already surrendered to the custody of the Army, who, in turn, has handed over respondent No. 7 to the Officer-in- charge, Nawada Town Police Station, Nawada, and that the application, for pre- arrest bail, which had been filed earlier by respondent No. 7 aforementioned, has, now, been withdrawn.
Considering the fact that the person, who had been allegedly abducted, is claimed to be dead, the question of issuance of a writ, in the nature of habeas corpus, does not arise.
Considering, however, the nature of investigation, conduct of the investigating agency, the conduct of respondent No. 7, the conduct of the army authorities and also the conduct of the Police officers concerned, this Court, in the light of the previous orders, passed in the writ petition, has been looking into the progress of the investigating from time to time.
While, therefore, no writ, in the Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 37 nature of habeas corpus, can, now, be issued, this Court has to take a decision if a writ, in the nature of mandamus, is required to be issued for the purpose of proper investigation of the case aforementioned.
In view of the above and in the interest of justice, this writ petition is directed to be listed, on 20.10.2014, under the heading 'For Orders' and the Officer-in-Charge, Nawada Town Police Station, along with Investigating Officer of the case aforementioned shall appear, in person, in this Court, on that day, and produce the relevant case diary so that further course of action can be decided by this Court.
As far as respondent No. 12 is concerned, he shall also be personally present, in this Court, on the date fixed.
Let a copy of this order be sent, forthwith, to the Superintendent of Police, Nawada, who shall ensure that the Police Officer aforementioned appear in this Court and produce the relevant case diary on the date already fixed."
39. From the narration of facts, as depicted above, what emerges, in substance, may be described thus:
(a) The petitioner lodged an information, in Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 38 writing, with the police, at Nawadah Town Police Station, alleging, inter alia, that his son, Vijay Krishna, had been abducted, on 06.03.2013, in the circumstances as already indicated above. This written information, treated as the First Information Report, led to the registration of Nawadah Town Police Station Case No. 112 of 2013, under Section 364/34 of the Indian Penal Code, against, amongst others, accused Amresh Kumar, a person subject to the Army Act, 1950. The written information, according to the writ petitioner, had been lodged, at Nawadah Town Police Station, on 08.03.2013, but the police allegedly registered the said written information as First Information Report on 12.03.2013.
(b) The petitioner came to this Court with the present writ petition and, as observed, in its order, dated 04.04.2014, by the Court, the investigation, conducted by the police, was a mere formality till end of 2013 and only when the Court intervened, in the writ petition, by making various orders from time to time that the investigation appeared to have proceeded in accordance with law. The investigation, so conducted, reveals, according to the Investigating Agency, that accused Amresh Kumar was involved not only in the abduction of the petitioner‟s said son, but in causing his death and in making disappear the Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 39 dead body of petitioner‟s said son.
(c) At the instance of the Investigating Agency, learned Chief Judicial Magistrate, Nawadah, issued a warrant of arrest against accused Amresh Kumar and though the Army Authorities concerned were approached by the Investigating Agency so as to take accused Amresh Kumar into custody with the aid of the said warrant of arrest, respondent Nos.12 and 13, namely, Major Battery Commander, 332 Medium Regiment, C/O 56 APO, and the Commanding Officer 332, Medium Regiment, C/O 56 APO, respectively, resisted the police in executing the warrant of arrest and merely allowed interrogation of accused Amresh Kumar, at the Army Unit, on the plea that since after 31.12.2013, accused Amresh Kumar had not left the Army Unit and could not have, therefore, been present at the place of occurrence between 06.03.2013 and 08.03.2013, pre-judging thereby the question as to whether accused Amresh Kuamr wa or was not involved in the occurrence aforementioned.
(d) This apart, while the warrant of arrest issued against accused Amresh Kumar was still pending for execution, respondent Nos.12 and 13, namely, Major Battery Commander, 332 Medium Regiment, C/O 56 APO, and the Commanding Officer 332, Medium Regiment, C/O Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 40 56 APO, respectively, allowed accused Amresh Kumar to avail leave on the basis of the fact that leave had already been granted, though respondent Nos.12 and 13, namely, Major Battery Commander, 332 Medium Regiment, C/O 56 APO, and the Commanding Officer 332, Medium Regiment, C/O 56 APO, respectively, were well aware of the fact that a warrant of arrest was still pending, for execution, against accused Amresh Kumar. When the Court reiterated its direction that accused Amresh Kumar be handed over by respondent Nos.12 and 13, namely, Major Battery Commander, 332 Medium Regiment, C/O 56 APO, and the Commanding Officer 332, Medium Regiment, C/O 56 APO, respectively, to the Officer-in-Charge, Nawadah Town Police Station, respondent Nos.12 and 13, namely, Major Battery Commander, 332 Medium Regiment, C/O 56 APO, and the Commanding Officer 332, Medium Regiment, C/O 56 APO, respectively, informed this Court that accused Amresh Kumar had become untraceable.
(e) In course of time, the Army Authorities concerned published a deserter roll against accused Amresh Kumar showing him as a deserter. While the warrant of arrest had been pending for execution against accused Amresh Kumar, accused Amresh Kumar applied for grant of anticipatory bail; but the same was rejected and, Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 41 thereafter, accused Amresh Kumar re-applied for pre-arrest bail on the basis of the materials, which the accused aforementioned claimed to be new materials. While the second anticipatory bail application, filed by accused Amresh Kumar, was pending consideration, accused Amresh Kumar surrendered and was accordingly taken into custody by the Army as a deserter and, in course of time, when accused Amresh Kumar was handed over to the Officer-in-Charge, Nawadah Town Police Station, the accused withdrew his second anticipatory bail application.
(f) It is in the backdrop of the above facts, which we have set out, as briefly as possible, that the various issues, which have arisen in the present writ petition, need to be answered and decided in accordance with law.
SCHEME FOR RESOLVING CONFLICT OF THE JURISDICTION BETWEEN ORDINARY CRIMINAL COURT AND COURT- MARTIAL:
40. While dealing with the present writ petition, the provisions of the Army Act, 1950 (in short, "the Army Act") and the Army Rules, 1954 (in short, 'the Army Rules') vis-a-vis the provisions contained in the Code of Criminal Procedure (in short, 'the Code'), relating to investigation and enquiry leading up to the stage of putting an accused, on trial, need to be carefully noted.
HOW AN ACCUSED IS BROUGHT TO TRIAL BY Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 42 ORDINARY CRIMINAL COURT UNDER THE CODE OF CRIMINAL PROCEDURE:
41. The Code perceives two distinct, but closely inter-related, streams bringing a person for trial before a Criminal Court. Investigation by police is envisaged, when information, under Section 154(1) of the Code, relating to commission of a cognizable offence is given, either orally or in writing, to the Officer-in-Charge of a Police Station. A police investigation is also possible, when a Magistrate, who is empowered to take, on the basis of a complaint, cognizance of an offence under Section 190 of the Code, directs the police to investigate a case in exercise of its power under Section 156 of the Code. Section 173(2) of the Code perceives submitting of a report by the police to the Magistrate on completion of investigation. It may be pointed out that the report, so submitted, may be, as commonly called, a charge-sheet, when incriminating materials are found against accused, or a final report, when no incriminating material or insufficient incriminating material is found against accused. Sub-section (8) of Section 178 of the Code permits further investigation after a report, as envisaged under Section 173(2) of the Code, is received by the Magistrate.
42. Section 190 of the Code empowers a Magistrate to take cognizance of an offence on the basis of Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 43 the report, which the police may submit, in terms of Section 173 of the Code, to the Magistrate on completion of investigation.
43. In fact, under Section 190 of the Code, there are three modes of taking cognizance of an offence by a Magistrate.
44. For better appreciation of the question as to how and when a Magistrate can take cognizance of an offence, it is appropriate to take note of the provisions of Section 190 of the Code, which run as follows:
"190. Cognizance of offences by Magistrates.- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class especially empowered in this behalf under Sub-section (2) may take cognizance of any offence-
(a) upon receipt of a complaint of facts, which constitute such offence,
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed."
45. A bare reading of Sub-section (1) of Section 190 of the Code clearly shows that a Magistrate can take cognizance of an offence in three different modes, Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 44 namely, (a) upon receipt of a complaint of facts, which constitute such offence, (b) upon a police report of such facts, and (c) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. When a Magistrate, however, takes cognizance of an offence under Clause (c) aforementioned, it is, in the light of the provisions of Section 191 of the Code, a duty cast upon the Magistrate to inform the accused, who is to be proceeded against, that he (accused) is entitled to have the case enquired into and tried by another Magistrate and if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate, who takes cognizance, the case shall be transferred to another Magistrate as may be specified by the Chief Judicial Magistrate in this behalf.
46. Let us, now, turn to Section 200 of the Code, which, we notice, reads as follows:
"200. Examination of complainant.- A Magistrate, taking cognizance of an offence on a complaint, shall examine, upon oath, the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that when the
Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 45
complaint is made in writing, the
Magistrate need not examine the
complainant and the witnesses-
(a) if a public servant acting or
purporting to act in the discharge of his official duties or a Court has made the complain, or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them."
47. A careful reading of Section 200 of the Code makes it clear that a Magistrate, taking cognizance of an offence on a complaint, shall examine, upon oath, the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate. Such examination can be dispensed with under two contingencies, namely, (a) if a public servant, acting or purporting to act in the discharge of his official duties, has made the complaint or a Court has made the complaint, or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 46 Section 192 of the Code.
48. We will deal with Section 192 of the Code, which is of utmost importance in the present case, a little later. What is, however, necessary to point out is that what Section 200 of the Code lays down is the procedure, which a Magistrate shall follow, when he takes cognizance of an offence on receiving a complaint of the facts, which constitute such offence. This, in turn, clearly reveals that under Section 192 of the Code taking of cognizance by the Chief Judicial Magistrate must precede making over of the case by a Chief Judicial Magistrate to another competent Magistrate.
49. Whether a Magistrate has or has not taken cognizance of an offence will depend on the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate. The Supreme Court, in R.R. Chari v. The State of Uttar Pradesh, reported in (1951) SCR 312 : 1951 (52) Cri LJ 775, quoted with approval the observations made by Kulada Charan Das Gupta, J., in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerji (AIR 1950 Cal 437), with regard to the question as to when a Magistrate can be said to have taken cognizance. The relevant observations read thus:
"What is taking cognizance has Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 47 not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter - proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence."
50. Broadly speaking, when, on receiving a complaint, the Magistrate applies his mind for the purpose of proceeding under Section 200 of the Code and the succeeding Sections contained in Chapter XV of the Code, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a) of the Code. If, instead of proceeding under Chapter XV, he has, in the judicial Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 48 exercise of his discretion, taken action of some other kind, such as, ordering investigation by the police under Section 156(3) of the Code, he cannot be said to have taken cognizance of any offence. (See, Devarapalli Lakshminarayana Reddy and Others v. Narayana Reddy and Others, reported in 1976 Cri.L.J. 1361 ).
51. What may also be pointed out is that when a complaint is presented before a Magistrate and even if the same discloses commission of an offence, cognizable or non-cognizable, the Magistrate still has the option, under Clause (a) of Section 190(1) of the Code, to either take cognizance of the offence or, if the complaint discloses commission of a cognizable offence, direct investigation to be conducted by police in terms of Section 156(3) of the Code.
52. In other words, what is of paramount importance to note is that when a Magistrate receives a complaint, he is not bound to take cognizance even if the complaint discloses commission of an offence. This is, as held in Devarapalli Lakshminarayana Reddy (supra), made clear from the use of words "may take cognizance", which cannot be equated with the expression "must take cognizance". Clarified the Supreme Court, in Devarapalli Lakshminaryana Reddy (supra), the position of law, in Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 49 this regard, as follows:
"...If on a reading of the complaint he finds that the allegation therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the magistrate from being wasted in inquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself."
53. What may, thus, be summarized is that when a Magistrate applies his mind to the contents of the complaint and decides to proceed in the manner as indicated in the subsequent provisions of the Code, namely, Chapter XV and, particularly, Section 200 of the Code, he can be said to have taken cognizance.
54. In other words, it is only upon taking cognizance of an offence that it is, under Sub-section (1) of Section 200 of the Code, open to Magistrate to examine the complainant on oath and also complainant's witnesses present, if any. The proviso to Section 200 of the Code Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 50 makes it abundantly clear that the examination of the complainant and his witnesses is not necessary, when a complaint is made, in writing, by a public servant or the Magistrate makes over the case for inquiry and trial by another Magistrate under Section 192 of the Code. If a Magistrate takes cognizance of an offence, he must (i) examine, on oath, the complainant, though the complaint may be in writing, and the witnesses present, if any, and
(ii) reduce the substance of such examination to writing. By examining the complainant and the witnesses present, if any, what the Magistrate essentially does is to determine as to whether there are sufficient grounds for proceeding against the accused. If the Magistrate is of the opinion, on examining the complainant and his witnesses under Section 200 of the Code, that there are sufficient grounds for proceeding against the accused, he can issue process in terms of Section 204 of the Code. If, on examining the complainant and his witnesses under Section 200 of the Code, the Magistrate finds that there are some materials against the accused, but not sufficient to warrant issuance of process, the Magistrate may, in terms of Section 202 of the Code, either hold an enquiry or direct an investigation to be made by the police. This inquiry or investigation is really for the purpose of determining as to whether there Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 51 are sufficient grounds for proceeding. If the Magistrate chooses to hold inquiry himself under Section 202 of the Code, this inquiry may result either, as already mentioned above, issuance of processes against the accused under Section 204 of the Code or dismissal of the complaint under Section 203 of the Code, for, Section 203 of the Code makes it clear that if, upon considering the statements on oath, if any, of the complainant and his witnesses and the result of the inquiry or investigation, if any, under Section 202 of the Code, the Magistrate is of the opinion that sufficient grounds do not exist for proceeding further, it is obligatory on his part to dismiss the complaint, though, while dismissing the complaint, the Magistrate is duty bound to record reasons.
55. We, now, revert to and take note of Section 192 of the Code, which reads as under:
"192. Making over of cases to Magistrates.- (1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him.
(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to such other Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 52 competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial."
56. From a careful reading of Section 192 of the Code, what becomes clear is that when a Chief Judicial Magistrate or any Magistrate, empowered in this regard by the Chief Judicial Magistrate, takes cognizance of an offence, he may make over the case for enquiry or trial to a Magistrate and, thereafter, the Magistrate, who may so receive the complaint, hold enquiry or trial. This enquiry is really under Section 202 of the Code. As already indicated hereinabove, Section 202 of the Code empowers the Magistrate not only to hold enquiry, but also direct investigation. What, thus, the scheme of the Code discloses is that when a Magistrate receives a complaint under Section 192 of the Code, he may either hold enquiry under Section 202 of the Code or he may direct an investigation by the police. Thus, Section 192 of the Code may come into play even before an investigation by police has been launched on an order having been made under Section 202 of the Code.
57. What is, now, necessary to note is that when an accused is served with summons issued under Section 204 of the Code, it becomes his duty to appear in Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 53 the Court of the Magistrate, who, if the case is exclusively triable by a Court of Session, shall commit the case to the Court of Session under Section 209 of the Code and if, upon consideration of the record of the case and the document submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Sessions Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record reasons for his so doing. If, however, upon such consideration and hearing as aforesaid, the Sessions Judge is of the opinion that there is ground for presuming that the accused has committed an offence, which is not exclusively triable by the Court of Session, he may frame charge(s) against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate and, thereupon, the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report. If, however, the Sessions Judge finds that there are grounds for presuming that the accused has committed an offence, which is exclusively triable by Sessions Court, Sessions Judge shall frame, in writing, charge(s) against the accused. Where the Judge frames any charge, the charge shall be read over and explained to the accused, and the Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 54 accused shall be asked whether he pleads guilty to the offence charged or claims to be tried. While a charge, in a case exclusively triable by a Court of Session, is framed, as indicated hereinbefore, the trial of warrant procedure case by the Magistrate stands divided, under Chapter XIX of the Code, into two distinct parts. While one part governs trial of an accused of a case by a warrant procedure instituted on a police report, the other part of warrant triable cases relates to those, which are instituted otherwise than on the police report. While, in a case triable by a procedure meant for trial of warrant cases, Magistrate shall frame charge(s) if he has ground to presume that the accused has committed an offence triable under Chapter XIX of the Code, the framing of charge, in the cases instituted otherwise than on police report, requires that in order to enable a Magistrate to frame charge, he must be satisfied that if the evidence, recorded before the charge, remains unrebuted, it would warrant conviction of the accused. As far as trial of summons cases are concerned, there is no formal framing of charge, but only substance of accusations has to be stated to the accused, when the accused appears or is brought before a Magistrate.
HOW AN ACCUSED IS BROUGHT TO TRIAL BY COURT- MARTIAL UNDER THE ARMY ACT, 1950, READ WITH ARMY RULES, 1954:
Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 55
58. We, now, come to the scheme of the Army Act, 1950, and the Army Rules, 1954, with regard to investigation and trial. In this regard, what needs to be noted is that it is Chapter V of the Army Rules, which makes provisions for investigation of charges and trial by a Court-martial. For better appreciation of the scheme of investigation and trial, relevant provisions of Chapter-V of the Army Rules are reproduced hereinbelow:
"INVESTIGATION OF CHARGES AND TRIAL BY COURT-MARTIAL SECTION I-INVESTIGATION OF CHARGES AND REMAND FOR TRIAL Power of Commanding Officers
22. Hearing of Charge.-(1) Every charge against a person subject to the Act shall be heard by the commanding officer in the presence of the accused. 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 of Rule 180 have been complied with in respect of that accused, the commanding officer may dispense with the procedure in Sub-rule (1).
(2) The commanding officer shall dismiss a charge brought before him Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 56 if, in his opinion the evidence does not show that an offence under the Act has been committed, and may do so if, he is satisfied that the charge ought not to be proceeded with:
Provided that the commanding officer shall not dismiss a charge which he is debarred to try under Sub-section (2) of Section 120 without reference to superior authority as specified therein.
(3) After compliance of Sub-
rule (1), if the commanding officer is of opinion that the charge ought to be proceeded with, he shall within a reasonable time-
(a) dispose of the case under Section 80 in accordance with the manner and form in Appendix III of
(b) refer the case to the proper superior military authority; or
(c) adjourn the case for the purpose of having the evidence reduced to wilting; or
(d) if the accused is below the rank of warrant officer, order his trial by a summary Court-martial:
Provided that the commanding officer shall not order trial by a summary Court-martial without a reference to the officer empowered to convene a district Court-martial or on active service a summary general Court-martial for the trial of the alleged offender unless-Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 57
(a) the offence is one which he can try by a summary Court-martial 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.
(4) Where the evidence taken in accordance with Sub-rule (3) of this rule discloses an offence other than the offence which was the subject of the investigation, the commanding officer may frame suitable charge (s) on the basis of the evidence so taken as well as the investigation of the original charge.
23. Procedure for taking down the summary of evidence.- (1) Where the case is adjourned for the purpose of having the evidence reduced to waiting, at the adjourned hearing evidence of the witnesses who were present and gave evidence before the commanding officer, whether against or for the accused, and of any other person whose evidence appears to be relevant, shall be taken down in writing in the presence and hearing of the accused before the commanding officer or such officer as he directs.
(2) The accused may "put in cross-examination such questions as he thinks fit to any witness, and the questions together with the answers thereto shall be Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 58 added to the evidence recorded.
(3) The evidence of each witness after it has been recorded as provided in the rule when taken down, shall be read over to him, and shall be signed by him, or if he cannot write his name shall be attested by his mark and witnessed as a token of the correctness of the evidence recorded. After all the evidence against the accused has been recorded the accused will be asked: "Do you wish to make any statement? You are not obliged to say anything unless you wish to do so, but whatever you say will 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 him, but he will not be cross-
examined upon it. The accused may then call his witnesses, if he so desires, any witnesses as to character.
(4) The evidence of the witnesses and the statement (if any) of the accused shall be recorded in the English language. If the witness of accused, as the case may be, does not understand the English language, the evidence or statement, as recorded, shall be interpreted to him in a language which he understands.
(5) If a person cannot be compelled to attend as a witness, or if owing to the exigencies of service or any Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 59 other grounds (including the expense and loss of time involved), the attendance of any witness cannot in the opinion of the officer taking the summary (to be certified by him in writing), be readily procured, a written statement of his evidence purporting to be signed by him may be read to the accused and included in the summary of evidence.
(6) Any witness who is not subject to military law may be summoned to attend by order under the hand of the commanding officer of the accused. The summons shall be in the form provided in Appendix III.
24. Remand of accused.- (1) The evidence and statement (if any) taken down in writing in pursuance of Rule 23 (hereinafter referred to as the "summary of evidence"), shall be considered by the commanding officer, who thereupon shall either-
(a) remand the accused for trial by a Court-martial; or (b) refer the case to the proper superior military authority; or
(c) if he thinks it desirable, re-hear the case and either dismiss the charge or dispose of it summarily. (2) If the accused is remanded for trial by a Court-martial, the commanding officer shall without unnecessary delay either assemble a summary Court-martial (after referring to the officer empowered to convene a Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 60 district Court-martial when such reference is necessary) or apply to the proper military authority to convene a Court- martial, as the case may require.
25. omitted by S.R.O. 17 (E), dated 06.12.1993
26. Summary disposal of charges against officer, Junior Commissioned Officer or Warrant Officer-(1) Where an officer, a junior commissioned officer or a warrant officer is remanded for tile disposal of a charge against him by an authority empowered under Section 83, 84 or 85 to deal summarily with that charge, the summary of evidence 2(***) shall be delivered to him, free of charge, with a copy of the charge as soon as practicable after its preparation and in any case not less than twenty four hours before the disposal.
(2) Where the authority empowered under Section 83, 84 or 85, decides to deal summarily with a charge against an officer, junior commissioned officer or warrant officer, he shall unless he dismisses the charge, or unless the accused has consented in writing to dispense with the attendance of the witnesses, hear the evidence in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him and to call any witness and make a statement in his defence.
Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 61
(3) The proceedings shall be recorded as far as practicable in accordance with the form in Appendix-IV and in every case in which punishment is awarded, the proceedings together with the conduct sheet, summary 2(***) of evidence and written consent to dispense with the attendance of witnesses (if any) of the accused, shall be forwarded through the proper channel to the superior military authority as defined in Section 88.
27. xx xx xx
28. xx xx xx
29. xx xx xx
30. xx xx xx
31. Signature on charge-
sheet.- The charge-sheet shall be signed by the commanding officer of the accused and shall contain the place and date of such signature.
32. xx xx xx
33. xx xx xx
34. Warning of accused for trial.- (1) The accused before he is arraigned shall be informed by an officer of every charge for which he is to be tried and also that, on his giving the names of witnesses or whom he desires to call in his defence, reasonable steps will be taken for procuring their attendance, and those steps shall be taken accordingly.
The interval between his being so informed and his arraignment shall not Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 62 be less than ninety-six hours or where the accused person is on active service less than twenty-four hours.
(2) The officer at the time of so informing the accused shall give him a copy of the charge-sheet and shall if necessary, read and explain to him the charges brought against him. If the accused desires to have it in a language which he understands, a translation thereof shall also be given to him.
(3) The officer shall also deliver to the accused a list of the names, rank and corps (if any), of the officers who are to form the Court, and where officers in waiting are named, also of those officers in Courts-martial other than summary Courts-martial.
(4) If it appears to the Court that the accused is liable to be prejudiced at his trial by any non-compliance with this rule, the Court shall take steps and, if necessary, adjourn to avoid the accused being so prejudiced.
35. Joint trial of several accused persons.- (1) Any number of accused persons may be charged jointly and tried together for an offence averred to have been committed by them collectively.
(2) Any number of accused persons, although not charged jointly, may be tried together for an offence averred to Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 63 have been committed by one or more of them and to have abetted by the other or others.
(3) Where the accused are so charged under sub-rules (1) and (2), anyone or more of them may at the same time be charged with and tried for any other offence averred to have been committed individually or collectively, provided that all the said offences are based on the same facts, or form or are part of a series of offences of the same or similar character.
(4) In the cases mentioned above, notice of the intention to try the accused persons together shall be given to each of the accused at the time of his being informed of the charges, and any accused person may claim, either by notice to the authority convening the Court or, when arraigned before the Court, by notice to the Court, that he or some other accused be tried separately on one or more of the charges included in the charge sheet, on the ground that the evidence of one or more of the other accused persons proposed to be tried together with him, will be material to his defence, or that otherwise he would be prejudiced or embarrassed in his defence. The convening authority or Court, if satisfied that the evidence will be material or that the accused may be prejudiced or Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 64 embarrassed in his defence as aforesaid, and if the nature of the charge admits of this, shall allow the claim, and such accused person, or, as the case may be, the other accused person or persons whose separate trial has been claimed, shall be tried separately. Where any such claim has been made and disallowed by the authority convening the Court, or by the Court, the disallowance of such claim will not be a ground for refusing confirmation of the finding or sentence unless, in the opinion of the confirming authority, substantial miscarriage of justice has occurred by reason of the disallowance of such claim."
59. While considering Chapter-V of the Army Rules, what is of great significance to note is that Chapter- V of the Army Rules relates to investigation of charges and remand for trial. The word 'charges', appearing in Chapter- V of the Army Rules, means tentative charges, which mean accusations and not 'charges', which are formally framed by the Criminal Courts of ordinary jurisdiction. These tentative charges are, thus, accusations and it is the Commanding Officer, who has to decide whether or not the accusations, so made, are to be proceeded with or not.
60. What is of utmost importance to note, while considering the provisions contained in Chapter-V of the Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 65 Army Rules, is that Sub-rule (1) of Rule 22 of the Army Rules empowers, and, at the same time, makes it a duty of the Commanding Officer to hear every 'charge' against a person subject to the Army Act in the presence of the accused with liberty given to the accused to cross-examine the witnesses produced against him and also to call such witnesses as he may require and he may make such statement as may be necessary for his defence. The proviso to Sub-rule (1) of Rule 22 of the Army Rules has come to be added by SRO 17E, dated 6th December, 1993. This proviso dispenses with the requirement of hearing of 'charges' under Sub-rule (1) of Rule 22 of the Army Rules if the 'charges' have arisen against the accused as a result of enquiry conducted by a Court of Inquiry, which is held in terms of Rule 177 of the Army Rules, provided that the provisions of Rule 180 of the Army Rules have been complied with. The Court of Inquiry is nothing, but an assembly of officers, which is directed to collect 'evidence' and, if so required, to report with regard to any matter, which may even have been referred to them.
61. If, upon hearing of the 'charges' under Sub- rule (1) of Rule 22 of the Army Rules, the Commanding Officer is of the opinion that the 'evidence' does not show that an offence under the Act has been committed, he must Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 66 dismiss the 'charges'. The Commanding Officer may also dismiss the charges if he is satisfied that the 'charges' ought not to be proceeded with. If, however, the Commanding Officer is of the opinion that the 'charges' ought to be proceeded with, he shall, within a reasonable time, (i) dispose of the case summarily or he may refer the case to the superior military authority, or (ii) adjourn the case for the purpose of having the evidence reduced to writing or (iii) order, if the accused is below the rank of Warrant Officer, his trial by a Court-martial though the order for trial by the summary Court-martial shall not be passed without a reference to the officer empowered to convene district Court-martial.
62. When the Commanding Officer adjourns the case in terms of Clause (c) of Sub-rule (3) of Rule 22 of the Army Rules for the purpose of having the 'evidence' reduced to writing, a Summary of Evidence, is recorded in terms of Rule 23 of the Army Rules. At the stage of Summary of Evidence, as Rule 23 of the Army Rules conceives, 'evidence' given by the witnesses is recorded with liberty given to the accused to cross-examine the witnesses. The accused also has the right to make a statement in his defence and may even examine witnesses in his defence. The 'evidence', so collected, and the Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 67 statements, so recorded, under Rule 23 of the Army Rules, is called Summary of Evidence. Rule 24 of the Army Rules requires that the Commanding Officer shall consider the Summary of Evidence and remand the accused for trial by a Court-martial or refer the case to the appropriate superior military authority or, if he thinks it desirable, re-hear the case and either dismiss the 'charge' or dispose it of summarily. When the accused is remanded for trial, he is served with a charge sheet, which has to be signed by the Commanding Officer in terms of Rule 31 of the Army Rules, and it is Rule 37 of the Army Rules, which empowers the competent authority to convene a Court-martial. Where the Commanding Officer is not the officer competent to convene a Court-martial, the competent military authority can convene Court-martial if he is satisfied that the 'charges' to be tried by the Court-martial are offences within the meaning of the Army Act and that the 'evidence' justifies a trial on those 'charges' and if he is not so satisfied, he may order release of the accused or may even refer the case to the superior authority.
63. What is, now, imperative to note is that until the time a convening order is made by a competent military authority, the accused is not put to trial by a Court-martial. More importantly, though Rules 22, 23 and 24 of the Army Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 68 Rules use the expression 'evidence', the word 'evidence' is not really evidence as is understood under Section 3 of the Evidence Act and the expression 'charge', which appears in Rules 22, 23 and 24 of the Army Rules, is not really a formal 'charge', which an ordinary Criminal Court frames. The expression 'charge', as already indicated, means an accusation, which may be under enquiry or investigation. Though called as Summary of Evidence, none of the materials collected under Rule 23 of the Army Rules is 'evidence' stricto senso and Summary of Evidence stands on the same footing as do the previous statements of the witnesses and can be used for the purpose of contradicting a witness or impeaching the credibility of a witness in terms of Section 145 of the Evidence Act.
64. Thus, the scheme of the Army Act, 1950, and the Army Rules, 1954, if carefully read, clearly indicates that when an accusation made against a person, subject to the Army Act, is investigated in terms of Rules 22 or 23 of the Army Rules, the accusation is called 'charge' and Summary of Evidence is merely a collection of the statements of the witnesses recorded during investigation with, however, liberty given to the accused to examine witnesses and, hence, Summary of Evidence is not, legally speaking, 'evidence' as conceived under Section 3 of the Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 69 Evidence Act.
65. In the case of Courts of ordinary criminal jurisdiction, a person may appear or may be brought before the Court on accusations of his having committed an offence either on completion of investigation or on completion of enquiry. When an accused is brought before a Criminal Court with an accusation, there is no formal charge. Where, however, an accused is brought before a Court-martial, charge(s), on which the accused is to be tried, are charge(s) already framed by the Commanding Officer. In a Court-martial, unlike an ordinary Criminal Court, it is not the Court, which frames charges, though in both the cases (i.e., in a trial by a Court-martial as also in a trial by an ordinary Criminal Court), the accused is asked if he pleads guilty to the charges or not. If a Commanding Officer has, upon hearing under Rule 22 of the Army Rules and upon considering the Summary of Evidence, dismissed a 'charge', it bars the trial of the accused as reflected by Rule 53 of the Army Rules. That is to say, an accused will not be triable by a Court-martial if the Commanding Officer has, under Rule 22 or 24 of the Army Rules, dismissed the 'charge' (i.e., the accusations) brought against the accused. In short, dismissal of even a tentative charge against an accused under Rule 22 of the Army Rules bars, by virtue of Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 70 Rule 53 of the Army Rules, subsequent trial of the accused by Court-martial.
POSSIBILITY OF CONFLICT BETWEEN ORDINARY CRIMINAL COURT AND COURT-MARTIAL ▬ WHEN, ORDINARILY ARISES:
66. In the backdrop of the various stages, which lead to the trial of an accused in the Court of ordinary criminal jurisdiction or by a Court-martial, one has to, now, ascertain as to when, if any, possibility of conflict of jurisdiction arises between the two Courts, namely, the Court-martial and the ordinary Court of Criminal Jurisdiction.
67. In order to appreciate as to when such a conflict of jurisdiction may arise and what mechanism or provisions of law have been made for resolving such conflicts, one has to take note of the relevant provisions of the Army Act, the Army Rules, the Indian Penal Code, the Code of Criminal Procedure and the Adjustment of Jurisdiction Rules.
68. Section 2 of the Army Act, describes different categories of army personnel, who are subject to the Army Act; Section 3(ii) of the Army Act defines civil offence to mean an offence, which is triable by a Criminal Court; Section 3(vii) of the Army Act defines Court-martial to mean a Court-martial held under the Army Act; Section Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 71 3(viii) of the Army Act defines Criminal Court to mean a Court of Ordinary Criminal Jurisdiction in any part of India; Section 3(xviii) of the Army Act defines offence to mean any act or omission punishable under the Army Act and obviously includes a civil offence as defined hereinbefore.
69. Chapter V of the Army Act defines offence and also prescribes punishments therefor. No wonder, therefore, that the heading of this Chapter reads "offence". This Chapter comprises of Sections 34 to 70 of the Army Act. Sections 34 to 68 of the Army Act define offence under the Army Act triable by a Court-martial and also prescribe punishment for such offence. Sections 69 and 70 of the Army Act deal with civil offences.
70. We have already indicated above that a 'civil offence' means an offence, which is triable by a Criminal Court, and an offence, under the Army Act, means not only any act or omission punishable under the Army Act, but also includes a civil offence.
71. Thus, when a 'civil offence' is also an offence under the Army Act, it is triable not only by a Court of ordinary criminal jurisdiction, but also by a Court- martial. Almost all civil offences are triable by Court-martial and it is Section 69 of the Army Act, which specifies such offences. But Section 69 of the Army Act is subject to Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 72 Section 70 of the Army Act and Section 70 of the Army Act specifies those offences, which are not triable by Court- martial except in three specified cases.
72. Let us, first, take note of Section 69 of the Army Act, which reads as follows:
"69. Subject to the provisions of Section 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 section, shall be liable to be tried by a Court-martial 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 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."
73. Close on the heels of Section 69 of the Army Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 73 Act, Section 70 of the Army Act provides:
"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 frontier post specified by the Central Government by notification in this behalf.
Explanation.- In this section and in Section 69, "India" does not include the Stale of Jammu and Kashmir."
74. A careful reading of Section 69 of the Army Act shows that any person, subject to the Army Act, who, at any place in or beyond India, commits a civil offence, shall be deemed to be guilty of an offence under the Army Act and, if charged therewith under this Section, such a person shall be liable to be tried by a Court-martial and, on conviction, be punishable as provided for the offence under any law, in force, in India or such less punishment as is in the Army Act mentioned.
Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 74
75. However, Section 70 of the Army Act, as quoted above, shows that a person, subject to the Army Act, who commits offence of murder against a person not subject to military, naval or air force laws, or of culpable homicide not amounting to murder against such a person (i.e. a civilian), or of rape in relation to such a person (i.e. a civilian), shall not be deemed to be guilty of an offence under the Army Act and shall not be tried by a Court- martial.
76. As can be seen, there are three exceptions to Section 70 of the Army Act. These exceptions, as quoted hereinabove, indicate that though, ordinarily, Court-martial would not be held in respect of the offences covered by Section 70 of the Army Act, a Court-martial would have the jurisdiction to try a case if a person, subject to the Army Act, is alleged to have committed the offences aforesaid, while on active service, or at any place outside the India or a frontier post specified by the Central Government by notification issued in this regard.
77. To put it a little differently, almost all civil offences are triable by Court-martial and it is Section 69 of the Army Act, which has specified the civil offences, which are triable by Court-martial. There are, however, three specified offences, when Court-martial will, ordinarily, have Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 75 no jurisdiction unless the accused, a person subject to the Army Act, was on active service at the time of commission of the offence. The three offences, which are, ordinarily, not triable by Court-martial, are: (i) offence of murder against a person not subject to military, naval or air force laws (i.e., a civilian), or (ii) offence of culpable homicide not amounting to murder against such a person (i.e. a civilian), or (iii) offence of rape in relation to such a person (i.e. a civilian), shall not be deemed to be guilty of an offence under the Army Act and shall not be tried by a Court-martial. However, any of the said three offences can be tried by a Court-martial if the offence is committed, while on active service, or at any place outside the India or a frontier post specified by the Central Government by notification issued in this regard provided that the competent authority takes a decision, in this regard, under Section 125 of the Army Act.
78. A careful survey of Sections 34 to 68 of the Army Act, on the one hand, and Sections 69 to 70 of the Army Act, on the other, clearly reveals that there are three categories of offences, which the Army Act deals with, namely, (i) offences, committed by a person, subject to the Army Act, triable by a Court-martial in respect whereof, specific punishments have been prescribed; (ii) civil Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 76 offences committed by such a person at any place in or beyond India, but deemed to be offences committed under the Army Act and, if charged under Section 69 of the Act, triable by a Court-martial; and (iii) Offences of murder, culpable homicide not amounting to murder or rape committed by a person, subject to the Army Act, against a person not subject to the military, naval or air force law (i.e., a civilian). Subject to the three exceptions as indicated hereinbefore, these offences are not triable by Court-martial, but are triable only by ordinary Criminal Courts.
79. In short, when a civil offence becomes triable by both ordinary Criminal Court as well as Court- martial, possibility of conflict of jurisdiction arises. Having visualized such a situation, the legislature has enacted a scheme for resolution of such a conflict by making provisions under Sections 125 and 126 of the Army Act and Section 475 of the Code of Criminal Procedure.
80. We pause at this stage and take note of what Sections 125 and 126 of the Army Act provide.
81. Section 125 of the Army Act reads as under:
"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 Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 77 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."
82. Closely connected with Section 125 of the Army Act, Section 126 thereof reads as follows:
"(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 Section 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 forth-' with 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."
83. From a bare reading of Section 125 of the Army Act, it becomes evident that Section 125 of the Army Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 78 Act conceives of a situation, wherein both a Criminal Court as well as a Court-martial would have jurisdiction in respect of an offence. Such a situation can obviously arise, when an act or omission is an offence not only under the Army Act, but also under the Indian Penal Code or any other law, in force, in India and triable by an ordinary Criminal Court. As Section 125 of the Army Act reflects, the scheme of the Army Act is that it is left to the discretion of the officers, mentioned in Section 125 of the Army Act, to decide before which Court the proceedings shall be instituted and if the officer concerned decides that the proceedings shall be instituted before a Court-martial, the accused person shall be detained in military custody; but if a Criminal Court is of the opinion that the offence shall be tried before the Criminal Court, it may issue requisite notice, under Section 126 of the Army Act, either to deliver over the offender to the nearest Magistrate or to postpone the proceedings and refer the matter to the Central Government for its decision as to who shall try the accused. Sub-section (2) of Section 126 of the Army Act makes it clear that when such a notice is given by the ordinary Criminal Court, the officer, mentioned in Section 125 of the Army Act, shall either deliver over the offender in compliance with the requisition of the Criminal Court or shall forthwith refer to the Central Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 79 Government the question as to before which Court the proceeding shall be instituted and the answer given by the Central Government on the question so referred shall be final.
HOW THE CONFLICT BETWEEN ORDINARY CRIMINAL COURT AND COURT-MARTIAL IS RESOLVED:
84. A careful and dispassionate reading of the provisions of Sections 125 and 126 of the Army Act leaves no room for doubt that when a Criminal Court intends to proceed against an accused, who is subject to the Army Act for alleged commission of any offence in respect whereof, the Army Act empowers the officers, mentioned in Section 125 of the Army Act, to institute a Court-martial, the Criminal Court would have no jurisdiction to proceed except after giving a notice to the officers, referred to in Section 125 of the Army Act, to either deliver over the offender to the nearest Magistrate or to postpone the proceedings pending a reference to be made to the Central Government.
There can also be no room for doubt that the order of the Central Government, given in such a case, shall be final.
85. Thus, Sections 125 and 126 of the Army Act provide a cool and satisfactory mechanism to resolve the conflict of jurisdiction having regard to exigency of situation in a given case. (See, Som Datt Datta v. Union of India and Ors. reported in 1969 Cri.L.J 663; Major E.G. Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 80 Barsay v. State of Bombay, reported in 1961 Cri.L.J. 828 and Lt. Col. S.K. Kashyap and Another v. State of Rajasthan, reported in 1971 Cri.L.J. 832).
86. There appears to be, as observed by the Supreme Court, in Balbir Singh and Another v. State of Punjab, reported in (1995) 1 SCC 90, some logic in giving first option to the Army authorities to decide as to whether the accused should be tried by a Court-martial or by Criminal Court. The defence of the country, being of paramount importance, the authorities, under the Army Act, would know best as to whether the accused should be tried by Court-martial or by ordinary Criminal Court, for, trial, by an ordinary Criminal Court, would necessarily involve a member of the armed force concerned. The Supreme Court has also made it clear, in Balbir Singh (supra), that when a Criminal Court is of the opinion, for reasons to be recorded, that instead of giving option to the authorities under the Army Act, it is the Criminal Court, which should proceed with the trial of the accused, the Criminal Court shall give notice to the authorities under the Army Act, as indicated in Section 126(2) of the Army Act, requiring the Army to either deliver the accused for trial by the Criminal Court or to keep the proceeding pending until a reference, to be made in this regard, to the Central Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 81 Government, is decided by the Government.
87. Section 125 of the Army Act shows that in exercise of his power under Section 125 of the Army Act, when an officer decides that the proceedings against an accused person be instituted before Court-martial, the officer shall direct that the accused person be detained in military custody. The direction to detain an accused person is possible if the accused person is not already in the custody of the police or of the Criminal Court. Even if the accused person is in the custody of the police, it would still amount to custody in the Criminal Court. WHEN SECTION 475 OF THE CODE IS ATTRACTED:
88. The question, now, is: What will happen if, upon information of commission of an offence given to the police, the police takes the accused into custody during the course of investigation or accused is placed in the custody of the Criminal Court during the period of investigation?
89. In a case, as indicated above, the officer, authorized under Section 125 of the Army Act, has to obtain custody of such an accused person if the officer is of the view that the accused person needs to be tried by a Court-martial. It is in these circumstances that Section 475 of the Code gets attracted. For better appreciation, Section 475 of the Code is reproduced hereinbelow:
"475. Delivery to Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 82 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 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.
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 Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 83 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."
90. It is also worth noticing that the word "jurisdiction", in Section 125 of the Army Act, really signifies, as indicated in Delhi Special Police Establishment, New Delhi, v. Lt. Col. SK Loraiya, reported in 1973 Cri.L.J 33, the initial jurisdiction to take cognizance. In other words, the word jurisdiction, appearing in Sections 125 and 126 of the Army Act, refers to the stage at which the proceedings are instituted for holding a Court-martial or a trial by ordinary Criminal Court and not to the jurisdiction of the Court-martial and/or the Criminal Court to decide the case on merit and it is, in this light, that Section 475 of the Code shall be construed.
91. In fact, the Supreme Court has clearly pointed out, in Lt. Col. S. K. Loraiya (supra), that since the provisions of Sections 125 and 126 of the Army Act, on the one hand, and Section 475 of the Code, on the other, aimed at avoiding conflict of jurisdiction between the Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 84 Criminal Court and the Court-martial, both the said provisions shall receive similar construction.
92. If the provisions of Section 475 of the Code are kept in mind, there can be no difficulty in reaching the conclusion that when an offence is under investigation by police and the accused person, who is subject to the Army Act, is in the custody of the police or of the Magistrate and if he has to be proceeded against under the Army Act, the authorized officer, under Section 125 of the Army Act, has to obtain custody of such an accused by placing, in this regard, a requisition, under Section 475 of the Code, to the Magistrate within whose territorial jurisdiction the accused person is in custody.
WHAT IS THE SCHEME UNDER CRIMINAL COURTS AND COURT-MARTIAL (ADJUSTMENT OF JURISDICTION) RULES, 1952:
93. What is also of immense importance to note is that in exercise of its powers conferred by Section 475 of the Code, the Central Government had made rules, which were called Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1952, keeping in tune the changes, which were introduced by the Code of Criminal Procedure, 1973, these Rules, too, underwent amendment and the amended Rules are called the Criminal Courts and Court- Martial (Adjustment of Jurisdiction) Rules, 1978, (in short, Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 85 'Adjustment of Jurisdiction Rules'). For the sake of better understanding, the Adjustment of Jurisdiction Rules is reproduced hereinbelow:
"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 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 proceed or commit without being moved thereto by such authority.
4. Before proceedings 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 the service of the notice he shall not-
(a) convict or acquit the accused under Sections 252, Sub-sections (1) and (2) of Section 255, Sub-section (1) of Section 256 or Section 257 of the Code Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 86 of Criminal Procedure, 1973 (2 of 1974), or hear him in his defence under Section 254 of the said Code, or
(b) frame in writing a charge against the accused under Section 240 or Sub-section (1) of Section 246 of the said Code, or
(c) make an order committing the accused, for trial to the Court of Session under Section 209 of the said Code.
(d) make over the case for inquiry or trial under Section 192 of the said Code.
5. Where a Magistrate has been moved by competent military, naval or air force authority, as the case may be, under Clause (a) of Rule 3, and the Commanding Officer of the accused or competent military, naval or air force authority, as the case may be, subsequently gives notice to such Magistrate that in the opinion of such authority, the accused should be tried by a Court-martial, such Magistrate if he has not taken any action or made any order referred to in Clause (a), (b), (c) or (d) of Rule 4, before receiving the notice shall stay proceedings and, if the accused is in his power or under his control, shall deliver him together with the statement referred to in Sub-section (1) of Section 475 of the said Code to the officer specified in the said sub-section.
Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 87
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 of such officer or authority, the accused should be tried by a Court-martial, the Magistrate shall stay proceedings and if the accused is in his power or under his control shall deliver him together with the statement referred to in Sub-section (1) of Section 475 of the said Code to the officer specified in the said subsection.
7. (1) When an accused has been delivered by the Magistrate under Rule 5 or 6, the Commanding Officer of the accused or the competent military, naval or air force authority, as the case may be, shall, as soon as may be, 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.
(2) When the Magistrate has been informed under Sub-rule (1) 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 Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 88 to the State Government which may, in consultation with the Central Government, take appropriate steps to ensure that the accused person is dealt with in accordance with law.
8. Notwithstanding anything in the foregoing rules, where it comes to the notice of a Magistrate that 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 has committed an offence, proceedings in respect of which ought to be instituted before him and that the presence of such person cannot be procured except through military, naval or air force authorities, the Magistrate may by a written notice require the Commanding Officer of such person either to deliver such person to a Magistrate to be named in the said notice for being proceeded against according to law, or to stay the proceedings against such person before the Court-martial if since instituted, and to make a reference to the Central Government for determination as to the Court before which proceedings should be instituted.
9. 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 has committed an offence which in the opinion Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 89 of the competent military, naval or air force authority, as the case may be, ought to be tried by a Magistrate in accordance with the civil law in-force or where the Central Government has, on a reference mentioned in Rule 8, decided that proceedings against such person should be instituted before a Magistrate, the Commanding Officer of such person shall after giving a written notice to the Magistrate concerned, deliver such person under proper escort to that Magistrate."
94. Broadly speaking, the scheme of the Adjustment of Jurisdiction Rules is as under:
"Under Rule 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 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) the Magistrate is of the opinion, for reasons to be recorded, that he should proceed or commit without being moved thereto by such authority. However, when the Magistrate without being moved by the competent military, naval or air force authority decides to Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 90 proceed or commit the case to the Court of Session, he shall give written notice to the Commanding Officer of the accused or the competent military, naval or air force authority, as the case may be, and until expiry of a period of 15 days from the date of service of notice, he shall not (a) convict or acquit the accused under Sections 252, Sub-sections (1) and (2) of Section 255, sub-section 256 or Section 257 of the Code of Criminal Procedure, 1973, or hear him in his defence under Section 254 of the Code, or (b) frame, in writing, a charge against the accused under Section 240 or Sub-section (1) of Section 246 of the said Code or (c) make an order committing the accused for trial to the Court of Session under Section 209 of the Code, or (d) make over the case for inquiry or trial under Section 192 of the said Code."
95. Rule 5 of the Adjustment of Jurisdiction Rules provides that where a Magistrate has been moved by competent military, naval or air force authority, as the case may be, under Clause (a) of Rule 3 of the Adjustment of Jurisdiction Rules, and the Commanding Officer of the accused or the competent military, naval or air force authority, as the case may be, subsequently gives notice to such Magistrate that, in the opinion of such authority, the accused should be tried by a Court-martial, such Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 91 Magistrate, if he has not, before receiving the notice, taken any action or made any order referred to in Clause (a), (b),
(c) or (d) of Rule 4 of the Adjustment of Jurisdiction Rules, shall stay proceedings and, if the accused is in his power or under his control, shall deliver him, together with the statement referred to in Sub-section (1) of Section 475 of the Code, to the officer specified in the said sub-section.
96. Rule 6 of the Adjustment of Jurisdiction Rule makes it clear that where within the period of fifteen days mentioned in Rule 4 of the Adjustment of Jurisdiction Rule, or at any time thereafter, but before the Magistrate takes any action or makes any order referred to in that rule, i.e. (a) convict or acquit the accused, or (b) hear him in his defence, or (c) frame charge against him, or (d) commit him to the Court of Session for trial, or (e) make over the case for enquiry or trial under Section 192 of the Code, 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 of such officer or authority, the accused should be tried by a Court-martial, the Magistrate shall stay proceedings and, if the accused is in his power or under his control, shall deliver him together with the statement referred to in Sub- section (1) of Section 475 of the Code to the officer Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 92 specified in the said sub-section.
97. Sub-rule (1) of Rule 7 of the Adjustment of Jurisdiction Rule provides that when an accused has been delivered by the Magistrate under Rules 5 or 6 of the Adjustment of Jurisdiction Rules, the Commanding Officer of the accused or the competent military, naval or air force authority, as the case may be, shall, as soon as may be, 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.
98. Sub-rule (2) of Rule 7 of the Adjustment of Jurisdiction Rule makes it clear that when the Magistrate has been informed, under Sub-rule (l) of Rule 7 of the Adjustment of Jurisdiction Rule 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, which may, in consultation with the Central Government, take appropriate steps to ensure that the accused person is dealt with in accordance with law.
99. Rule 8 of the Adjustment of Jurisdiction Rule states that notwithstanding anything in the foregoing rules, where it comes to the notice of a Magistrate that a person, subject to military, naval or air force law, or any Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 93 other law relating to the Armed Forces of the Union, for the time being in force, has committed an offence, proceedings in respect of which ought to be instituted before him and that the presence of such a person cannot be procured except through military, naval or air force authorities, the Magistrate may, by a written notice, require the Commanding Officer of such person either to deliver such person to a Magistrate to be named in the said notice for being proceeded against according to law or to stay the proceedings against such person before the Court-martial if since instituted and to make a reference to the Central Government for determination as to the Court before which proceedings should be instituted.
100. Rule 9 of the Adjustment of Jurisdiction Rule makes it clear that 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, has committed an offence, which, in the opinion of the competent military, naval or air force authority, as the case may be, ought to be tried by a Magistrate in accordance with the civil law, in force, or where the Central Government has, on a reference mentioned in Rule 8 of the Adjustment of Jurisdiction Rule, decided that proceedings against such person should be instituted before a Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 94 Magistrate, the Commanding Officer of such person shall, after giving a written notice to the Magistrate concerned, deliver such person under proper escort to that Magistrate.
101. A conjoint reading of the provisions contained in Sections 125 and 126 of the Army Act, the Code and the Adjustment of Jurisdiction Rules, 1978, clearly shows that when a Criminal Court and Court-martial both have jurisdiction in respect of an offence, it shall be in the discretion of the officer, specified in Section 125 of the Army Act, to decide, at the first instance, as to the Court in which the proceedings shall be instituted and if such officer decides that the proceedings shall be instituted before a Court-martial, he shall direct that the accused be detained in military custody. But, when such an accused is brought before a Magistrate, he shall not proceed to try such an accused or commit him to the Court of Session without having been moved thereto by the competent authority under the Army Act. However, if the Magistrate is of the opinion, for reasons to be recorded, that he should, without having been moved to that effect by the competent military authority, proceed with the case or commit the case to the Court of Session for trial, he shall give a notice, in writing, to the Commanding Officer or the competent military authority and await their decision until expiry of a period of Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 95 fifteen days from the date of service of the notice on the authority concerned and shall not, during such period of fifteen days, explain to the accused the substance of accusations and ask him, in the light of Section 252 of the Code, as to whether he (accused) pleads guilty to the offence for the alleged commission whereof, he has been brought before the Magistrate.
102. Though in the case of petty offence, where summons has been issued to the accused and the accused desires to plead guilty without appearing before the Magistrate, the accused has, under Section 253 of the Code, the freedom to transmit to the Magistrate, by post or by messenger, a letter containing his plea and also the amount of fine specified in the summons, the Magistrate shall not, however, convict the accused or acquit the accused on such plea within the said period of fifteen days if the accused is subject to the Army Act.
103. In the light of the provisions of the Adjustment of Jurisdiction Rules, it also becomes abundantly clear that if, in a summons case, summons have already been issued on the complaint and on the appointed day for appearance of the accused or at any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, Magistrate shall not, in Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 96 exercise of his powers under Section 256 of the Code, acquit such an accused or hear the accused in his defence in exercise of powers under Section 254 of the Code. During such a period of fifteen days, the Magistrate cannot also frame, in writing, a charge under Section 240 of the Code against the accused in a warrant procedure case instituted on a police report or under Section 246 of the Code, when such a warrant procedure case has been instituted otherwise than on police report. The Magistrate is not also barred from committing, within the said period of fifteen days, the case to the Court of Session under Section 209 of the Code nor can he make over the case for inquiry or trial, under Section 192 of the Code, to another Magistrate.
104. A minute and cautious reading of the provisions of the Adjustment of Jurisdiction Rule, contained in Rule 3, clearly reveals that Rule 3 of the Adjustment of Jurisdiction Rule comes into play not necessarily when the charges have been framed, for, Rule 3 itself shows that even when the Magistrate decides to commit the case to the Court of Session, Rule 3 comes into play. A Magistrate is not empowered to frame charge against an accused if the offence alleged to have been committed by the accused is exclusively triable by a Court of Session. Viewed thus, it is Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 97 clear that Rule 3 of the Adjustment of Jurisdiction Rule warrants that in either case, that is, when the Magistrate finds that there is a case to frame a charge against the accused or decides to commit the case to the Court of Session, it is his duty to give a written notice to the officer specified in Rule 4 of the Adjustment of Jurisdiction Rule and shall not, until expiry of a period of 15 days from the date of service of notice, frame, (as Rule 4(b) reflects), charge against the accused or commit the case for trial.
105. From the discussion held above, what clearly emerges is that the Adjustment of Jurisdiction Rules come into play before charge is framed by a Criminal Court. WHO IS THE COMPETENTY AUTHORITY TO PROCEED AGAINST A PERSON, SUBJECT TO THE ARMY ACT:
106. The questions, now, are: (i) Whether a competent military authority is empowered to proceed against a person, subject to the Army Act, who is alleged to have committed an offence, which is triable by the Criminal Court and also by Court-martial, if the case is pending for investigation and (ii) Will the fact that the accused is in the custody of the Criminal Court or in the custody of the police, on the orders of the Criminal Court, make any difference in such a case?
107. While considering the questions posed above, what needs to be noted is that if the accused is not Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 98 in the custody of the Criminal Court or in the custody of the police, Section 125 of the Army Act empowers the competent military authority to detain the accused in military custody if such an authority decides to proceed against such an accused within the scheme of the Army Act and institute a Court-martial for trial of such an accused. However, when the accused is in the custody of the Criminal Court or in the custody of the police, is it possible for the competent military authority to obtain custody of such an accused? Does Section 475 of the Code come into play, always and invariably, only when an accused is brought before a Magistrate on the accusation of having committed an offence? Is it correct to suggest that if an accused is not brought before a Magistrate on accusations of having committed an offence, the question of taking resort to Section 475 of the Code does not arise?
108. Answers to the questions noted above are not very far to seek. Since the Adjustment of Jurisdiction Rules have been framed in exercise of powers under Section 475 of the Code, the Adjustment of Jurisdiction Rules do not create a bar for the competent military authority to proceed against the accused and take him into military custody if the accused is not already in the custody of the Criminal Court or under the control of the Criminal Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 99 Court. Where, however, such an accused is in the custody of the Criminal Court or in the custody of the police and the competent military authority decides to proceed against such an accused, Section 475 of the Code and the provisions of Adjustment of Jurisdiction Rules do get attracted. In this regard, it needs to be noted that in Som Datt Datta (supra), the Supreme Court has held that Rule 3 of the Adjustment of Jurisdiction Rules applies to such a case, where the police have, on complaint, laid charge- sheet and the accused has been brought before the Magistrate after the charge-sheet has already been submitted against him. The Constitution Bench, in Som Datt Datta (supra), had further held that Rule 3 Adjustment of Jurisdiction Rules cannot be invoked in a case, where the police had merely started investigation against a person subject to the Army Act and had not submitted charge-sheet against him and when the accused had not been brought before the Magistrate upon submission of such a charge-sheet. The relevant observations, made in this regard, in Som Datt Datta (supra), read thus.
"....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 Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 100 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."
109. If the above observations, made in Som Datt Datta (supra), are taken to its logical conclusion, there remains no room for doubt that as the law stood on the day the Constitution Bench decided Som Datt Datta (supra), Rule 3 of the Adjustment of Jurisdiction Rules could not have been invoked by the competent military authority to ask for the custody of an accused if the investigation was pending against such an accused or if the accused had not been brought before the Magistrate during the course of investigation.
110. What is, now, of utmost importance to note is that when the decision in Som Datt Datta (supra) was delivered, Rule 4 of the Adjustment of Jurisdiction Rules read as under:
"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 Section 243, 245, 247 or 248 of the Code of Criminal Procedure, 1898 (V of 1898), or hear him in his de-Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 101
fence 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 Session under Section 213 of the said Code."
111. Subsequent to the decision in Som Datt Datta (supra), Clause (d) has been added to Rule 4 by the Adjustment of Jurisdiction Rules, 1978, which reads, "make over the case for inquiry or trial under Section 192 of the Said Code."
112. As already indicated above, Section 190 of the Code comes into play, when a Chief Judicial Magistrate or a Magistrate, empowered in this regard, by the Chief Judicial Magistrate, makes over, upon taking cognizance of an offence, the case for enquiry or trial to some other competent Magistrate. It has already been pointed out above that when a Magistrate receives a case, in terms of Section 192 of the Code, he may hold an enquiry or trial. The enquiry, spoken of in Section 192 of the Code, relates to enquiry under Section 202 of the Code. This enquiry under Section 202 of the Code may, in a case, which is not exclusively triable by a Court of Session, lead to investigation by police on the orders of the Magistrate, for, Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 102 it is only with regard to those offences, which are exclusively triable by a Court of Session, that the Magistrate is prohibited by the proviso to Section 202(1) of the Code from directing investigation by police if, upon holding enquiry under Section 202 of the Code, he finds that the offence complained of is exclusively triable by a Court of Session. Section 202 of the Code also makes it clear that a Magistrate may receive a case under Section 192 of the Code after the Chief Judicial Magistrate or any Magistrate empowered, in this regard, by the Chief Judicial Magistrate, has merely taken cognizance of an offence, but has not recorded statement of the complainant and his witnesses in terms of Section 200 of the Code. At the stage of recording of statement under Section 200 of the Code or at the stage of holding of inquiry under Section 202 of the Code, the accused is not brought before the Magistrate. In fact, at the stage of recording of statement, under Section 200 of the Code or enquiry under Section 202 of the Code, the accused has no right of appearance in the proceedings.
113. What follows from the above discussion is that when Rule 4 of the Adjustment of Jurisdiction Rules requires giving of notice by a Magistrate before he makes over a case for enquiry or trial under Section 192 of the Code, it logically follows that Rule 4 of the Adjustment of Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 103 Jurisdiction Rules comes into play and a notice to the competent military authority is required to be given by the Magistrate in terms of Rule 4 of the Adjustment of Jurisdiction Rules even before a Magistrate records statement of the complainant under Section 200 of the Code or holds an enquiry under Section 202 of the Code or directs investigation by police under Section 202 of the Code.
114. Thus, Section 192 read with Section 202 of the Code make it abundantly clear that even before investigation, in an appropriate case, is ordered by a Magistrate under Section 202 of the Code, Rule 4 of the Adjustment of Jurisdiction Rules comes into play. These provisions leave no room for doubt that even at the stage of investigation, when a person, subject to the Army Act, is brought before a Magistrate with the accusation of having committed an offence for which the accused is liable to be tried by a Criminal Court and also by a Court-martial, the military authority concerned can, in exercise of its powers under Section 125 of the Army Act, not only take over the case, but also obtain the custody of the accused from the Criminal Court if it so becomes necessary and the fact that the case is still pending for investigation by police will not create a bar for the military authority to obtain custody of Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 104 the accused from the Magistrate nor will the pending investigation of the case with the police create any bar for the Magistrate to deliver custody of the offender to the military authority. However, what has, eventually, been done, in the matter, by the military authority must, in the light of the decisive pronouncement in Major S.K. Sharma (supra), be communicated to the Magistrate, who may, then, take such steps as required and permissible in law.
115. What logically follows from the above discussion is that when the decision in Som Datt Datta (supra) was rendered, the Adjustment of Jurisdiction Rules, 1978, had not existed and it was in the absence of Clause
(d) that the Constitution Bench had held that Rule 3 applies, where the police, on completion of investigation, has submitted charge-sheet and the accused is brought before the Magistrate and that the provisions of Rule 3 cannot be invoked in a case, where police had merely started investigation against a person subject to military, naval or air force law.
116. With the insertion of Clause (d) into Rule 4, the scope of Rule 3 has expanded and what Rule 4, now, reflects is that even when a Chief Judicial Magistrate receives a complaint, or any other Magistrate empowered in this regard, by the Chief Judicial Magistrate, receives a Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 105 complaint, and decides, at that stage, not to send the complaint to the police for investigation in exercise of his powers under Section 156(3) of the Code. of the Code, but decides to proceed further with the complaint as a complaint case, takes cognizance and makes over the case for enquiry or trial under Section 192 of the Code, Rule 4 gets attracted.
117. The effect of what has been discussed above is that if a Magistrate, on receiving a complaint, does not take cognizance but merely sends the complaint to the police for investigation in exercise of powers under Section 156(3) of the Code, the Magistrate need not give any notice to the competent military authority before sending the complaint for investigation to the police. When, however, the Magistrate takes cognizance under Section 190 of the Code, he cannot examine, in exercise of powers under Section 200 of the Code, the complaint and/or his witnesses present without giving a notice, in terms of Rule 4 of the Adjustment of Jurisdiction Rules, to the competent military authority and, on receiving notice, the competent military authority may take over the case for the purpose of instituting a Court-martial. Such institution of the Court- martial will be in exercise of powers under Section 125 of the Code. The fact that the accused has not been brought Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 106 before the Magistrate will not cause any impediment to the investigation, which is required to be done by the military authority in terms of Chapter V of the Army Act, which we have already discussed above.
118. In Som Datt Datta (supra), while the investigation was still pending with the police, the Army authority had held Court-martial and the Court-martial, having found the accused guilty, had convicted him accordingly and his conviction had been confirmed by the competent military authority. As the investigation had merely started and had not been completed and no charge- sheet had been laid before the Magistrate against the accused, the Supreme Court had held, in the absence of Clause (d) of Rule 4 of the Adjustment of Jurisdiction Rules, that Rule 3 of the Adjustment of Jurisdiction Rules comes into play only when the police, on completion of investigation, submits charge-sheet. In the face of Clause
(d) of Rule 4 of the Adjustment of Jurisdiction Rules, there can be no escape from the conclusion that even when an investigation is pending and the Army authority decides to institute a proceeding before a Court-martial, they can seek the custody of the accused if the accused is in the judicial custody or in the police custody on the orders of the Magistrate.
Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 107
119. We may also point out that the case of Major S.K. Sharma (supra) was decided on 29-6-1987, when Section 127 existed in the Army Act. Section 127, at the relevant point of time, read as under:
"127; Successive trials by a Criminal Court and Court-martial- (1)'A person convicted or acquitted by a Court- martial may, with the previous sanction of the. Central Government be tried again by a Criminal Court for the same facts.
(2) If a person sentenced by a Court-martial under this Act or punished under any of the Section 80, 83, 84 or 85 is afterwards tried and convicted by a Criminal Court for the same offence or on the same facts, that Court shall, in awarding punishment, have regard to the punishment he may already have undergone for the said offence."
120. Section 127 of the Army Act made it clear that even where a person, on being tried by a Court- martial, is acquitted or convicted, it was possible to try him with the sanction of the Central Government by a Court of ordinary criminal jurisdiction.
121. Though Section 127 of the Army Act was a departure from the Constitutional guarantee against double jeopardy as envisaged in Article 20 of the Constitution of India, which provides that no person shall be prosecuted Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 108 and punished for the same offence more than once, provisions for another trial under Section 127 of the Army Act had been made possible by reason of Article 33 of the Constitution of India, which confers on Parliament the power to restrict or abrogate any fundamental right (including Article 20) in its application to the members of the Armed Forces. Taking note of the provisions of Section 127 of the Army Act and on reading Rule 7 of the Adjustment of Jurisdiction Rules, 1978, the Supreme Court, in Major S.K. Sharma (supra), observed, thus:
"Reference may also be made to Section 127 of the Army Act. It is an important provision. It provides that a person convicted or acquitted by a Court martial, may, with the previous sanction of the Central Government, be tried again by a criminal Court for the same offence or on the same facts. This provision is an exception to Article 20 of the Constitution which provides that no person shall be prosecuted and punished for the same offence more than once. The provision has been made possible by reason of Article 33 of the Constitution which confers power on Parliament to modify any Fundamental Right in its application to the members of the Armed Forces, It is to enable the operation and application of Section 127 of the Act that Rule 7(1) of the Criminal Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 109 Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 requires the Commanding Officer or the competent military, naval and air force authority to inform the Magistrate whether the accused has been tried by a court-martial or other effectual proceedings have been taken against him."
122. Coupled with the above, it is also worth noticing that in Major S.K. Sharma (supra), the military authority concerned came into picture only after the Criminal Court had, on taking of cognizance of offences under Sections 323, 355 and Section 127 of the Indian Penal Code, recorded statement of the complainant and directed issuance of' process to two Army officers' fixing 7th March, 1986, as their date of appearance. When the Criminal Court had already found a prima facie case against the accused aforementioned and had accordingly issued summons to them, the Army authority convened Court of Enquiry and this was objected to by the complainant, Major S.K. Sharma. It is, in these circumstances, that the Supreme Court held, thus:
"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 Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 110 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. Rule 7(2) appears to envisage the possibility that the Commanding Officer or the competent military, naval or air force authority may not try the accused or take effectual proceedings against him even where the Magistrate has found a case for trial. To cover that exigency it provides that the State Government in consultation with the Central Government, on a report from the Magistrate to that effect, may take appropriate steps to ensure that the accused does not escape the attention of the law. The policy of our constitutional polity is that no person should be regarded as being above the law. Military, naval or air force personnel are as much subject to the law as members of the civil population. It is significant that Rule 8 empowers the Magistrate, on coming to know that a person subject to the military, naval or air force law or any other law relating to the Armed Forces has committed an offence and proceedings in respect of which ought to be instituted before him and that the presence of such person cannot be Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 111 procured except through military, naval or air force authorities, to require the Commanding Officer of such person either to deliver such person to a Magistrate for being proceeded against according to law or to stay the proceedings against such person before the Court-martial if since instituted, and to make a reference to the Central Government for determination as to the Court before which the proceedings should be instituted."
123. It is in the setting of the facts and circumstances of Major S.K. Sharma‟s case (supra) that the Supreme Court had observed and held, as under:
"The language used in Section 475 is significant. It refers to a person who "is brought before a Magistrate and charged with an offence". In other words, he must be a person respecting whom the Magistrate has taken the proceedings envisaged by Sections 200 to 204 of the Code. He will be a person in respect of whom the Magistrate has found that there is a case for trial. It is for that reason that Section 475 goes on to say that when such person is delivered to the Commanding Officer of the unit to which he belongs it will be "for the purpose of being tried by a Court-martial". When he is so delivered, a statement of the offence of which he is accused will also be delivered to the Commanding Officer. The relevance of Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 112 delivering such statement can be easily understood, for, it is to enable the Army authority to appreciate the circumstances in which a Court-martial is required by the law."
124. The decision, in Major S.K. Sharma (supra), cannot be extended to a case, where investigation is still pending or an enquiry under Section 202 of the Code is still in progress. On the other hand, when an accused is in the custody of the Magistrate and the Army authority, competent to try him by Court-martial, seek custody of the accused, the delivery of the offender to the Army authority will not be "for the purpose of being tried by a Court- martial" only; rather, delivery of the offender would, in such a case, be for holding enquiry and investigation by competent military authority in terms of the Army Act and the Army Rules, which may or may not lead to his trial by Court-martial. If the Commanding Officer, in such a case, dismisses the charge, Rule 3 of the Army Rules will bar subsequent trial of the accused by Court-martial. Whether this dismissal of the charge will create (in the light of the deletion of Section 127) a bar for the trial by Criminal Court, too, is a question, which we are not called upon to decide in this writ petition. This aspect of the case becomes more transparent if the language used in Section 475 of the Code is taken into consideration, for, Section 475 reads, Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 113 inter alia, as under:
"...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-martial".
(Emphasis is added)
125. The emphasized portions of the provisions contained in Section 475 of the Code clearly lay down that it is only "in proper cases" and having regard to the Rules, which may be framed under Section 475 of the Code, that an offender can be delivered to the competent military authority for the purpose of being tried by a Court-martial. The expression "in proper cases" would obviously mean only such cases, where a Magistrate, upon recording of statements under Section 200 of the Code or upon holding enquiry under Section 202 of the Code, finds a prima facie case against the accused and directs, as had happened in Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 114 Major S.K. Sharma (supra), issuance of process against the accused. In a case, where the complainant's statement has not been recorded or the Magistrate has still not completed his enquiry under Section 202 of the Code, delivery of the offender to a competent military authority, (if the same is made pursuant to the requisition given by the military authority), would not be for the purpose of trial „only', for, before bringing the accused to trial, the competent military authority would be required to comply with the requirements of Rule 22 and the other Rules connected therewith.
126. 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 Act 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 (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 Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 115 a Magistrate, Rule 4 of the Adjustment of Jurisdiction Rule gets attracted and a notice to the competent military authority to exercise their option to try the accused has to be given.
POSITION OF LAW AS FINALLY EMERGE:
127. We are guided to adopt the above view in the light of the provisions embodied in the Army Act, Code of Criminal Procedure, Army Rules, Adjustment of Jurisdiction Rules and various judicial pronouncements, which we have already referred to above, more particularly, the decision in Balbir Singh (supra), wherein the position of law, with regard to the conflict of jurisdiction between an ordinary Criminal Court, on the one hand, and Court- martial, on the other, has been dealt with,when both the Courts have jurisdiction, in a given set of facts, to investigate an offence and/or try the offender. The position of law, in the light of the discussions held above, more particularly, Balbir Singh (supra), may be summarized thus:
128. When a Criminal Court and a Court-martial each have jurisdiction in respect of the trial of an offence, it shall be in the discretion of the competent officer to decide, under Section 125 of the Army Act, as to where the proceedings shall be instituted and if it is decided by such Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 116 an officer that the trial should be instituted before a Court- martial, a direction, in this regard, shall be given and the accused person shall be detained in military custody. The option to try a person, subject to the Army Act, who commits civil offence, while on active service, is, at the first instance, with the competent Army Authority. The Criminal Court shall not, when such an accused is brought before it, try such a person or enquire with a view to commit the case for trial to a Court of Session; rather, the Criminal Court shall give a notice to the Commanding Officer of the accused to inform the Criminal Court as to whether the Army would like to try the accused by a Court-martial or not. In case the competent Army Authority decides either not to try such a person by a Court-martial or fail to exercise jurisdiction, when intimated by the Criminal Court within the period prescribed by Rule 4 of Adjustment of Jurisdiction Rules, the accused can be tried by an ordinary Criminal Court in accordance with the provisions of the Code. If the Authorities concerned, under the Army Act, opt to try the accused by Court-martial, the Criminal Court shall direct delivery of the custody of the accused to the competent Authority under the Army Act and would forward to the competent Army Authority a statement of the offence of which he is accused. The Criminal Courts are, thus, Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 117 deprived of their inherent jurisdiction to take cognizance of civil offences in the circumstances indicated hereinbefore.
129. Coupled with the above, what is of paramount importance to note is that the object of giving a notice, as pointed out above, is to make the competent Army Authority fully aware of the pending criminal case against the member of the Armed Force and to afford the competent Army Authority an opportunity to exercise their discretion of having the member of their Force tried either by the Court-martial or let the ordinary Criminal Court to proceed with the trial in accordance with law. Though, the provisions of the Act and the Code referred to above are mandatory in character insofar as they require that the Authorities under the Act shall be given the first option to decide whether to try the accused by Court-martial or allow his trial by the ordinary Criminal Court, no particular form of notice has been prescribed either under the Act, the Rules or the Code. Whether or not the authorities have been made fully aware and put on notice by the criminal court to enable them to exercise their option, would depend upon the facts and circumstances of each case. It is the substance and not the form of notice, which is relevant. All that the law envisages is that the authorities, under the Army Act, must be made fully aware of the nature of Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 118 offence, status of the victim and the pendency of the criminal case against a member of the force on 'active service' so that the authorities, under the `Army Act may exercise their option whether or not to try the accused by a court martial. [See, Balbir Singh (supra)]
130. The relevant observations, appearing at paragraph 17 and 21, in Balbir Singh (supra), read as under:
"17. A conjoint reading of the above provisions shows that when a criminal court and court martial have each jurisdiction in respect of the trial of the offence, it shall be in the discretion of the officer commanding the group, wing or station in which the accused is serving or such other officer as may be prescribed, in the first instance, 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 persons shall be detained in air force custody.
Thus, the option to try a person subject to the Air Force Act who commits an offence while on "active service" is in the first instance with the Air Force authorities. The criminal court, when such ; an accused is Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 119 brought before it shall not proceed to try such a person or to inquire with a view to his commitment for trial and shall give a notice to the commanding officer of the accused, to decide whether they would like to try the accused by a court martial or allow the criminal court to proceed with the trial. In case, the Air Force authorities decide either not to try such a person by a court martial or fail to exercise the option when intimated by the criminal court within the period prescribed by Rule 4 of the 1952 Rules (supra), the accused can be tried by the ordinary criminal court in accordance with the CrPC. On the other hand if the authorities under the Act opt to try the accused by the 'Court Martial', the criminal court shall direct delivery of the custody of the accused to the authorities under the Act and to forward to the authorities a statement of the offence of which he is accused. It is explicit that the option to try the accused subject to the Act by a court martial is with the Air Force authorities and the accused person has no option or right to claim trial by a particular forum. The option appears to have been left with the Air Force authorities for good and proper reasons. There may be a variety of circumstances which may Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 120 influence the decision of the Air Force authorities as to whether the accused be tried by a court martial or by a criminal court.; This Court in Ram Sarup v. Union of India (AIR 1965 SC 247):1965 Cri.L.J. 236 opined:
"In short, it is clear that there could be a variety of circumstances which may influence the decision as to whether the offender be tried by a Court-Martial or by an ordinary Criminal Court, and therefore it becomes inevitable that the discretion to. make the choice as to which Court should try the accused be left to responsible military officers under whom the accused be serving. Those officers are to be guided by considerations of the exigencies of the service, maintenance of discipline in the army, speedier trial, the nature of the offence and the person against whom the offence is committed."
There appears to be sound logic to give the first option to the authorities under the Act to decide whether the accused should be tried by the Court Martial or the Criminal Court. The defence of the country being of paramount importance, the Air Force authorities would know best as to whether the accused Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 121 should be tried by the court martial or by the ordinary criminal court because the trial by the ordinary criminal court would necessarily involve a member of the force being taken away for trial by the ordinary criminal court and not being available to the authorities and the like considerations. However, in the event the criminal court is of the opinion, for reasons to be recorded, that instead of giving option to the authorities under the Act, the said court should proceed with the trial of the accused, without being moved by the competent authority under the Act and the authorities under the Act decide to the contrary, the conflict of jurisdiction shall be revolved by the Central Government under Section125 (2) of the Act and the decision as to the forum of trial by the Central Government in that eventuality shall be final.
21. The object of giving a notice as envisaged by the Act and the 1952 Rules to the authorities under the Act is to make them fully aware of the pendency of a criminal case against a member of the force and to afford them an opportunity to exercise their discretion of having the member of the force tried either by the court martial or to allow the ordinary Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 122 criminal court to proceed with the trial. Though the provisions of the Act and the Code referred to above are mandatory in character in so far as they require that the authorities under the Act shall be given the first option to decide whether to try the accused by court martial or allow his trial by the ordinary criminal court, no particular form of notice has been prescribed either under the Act, the Rules or the Code. Whether or not the authorities have been made fully aware and put on notice by the criminal court to enable them to exercise their option, would depend upon the facts and circumstances of each case. It is the substance and not the form of notice which is relevant and important. All that the law envisages is that the authorities under the Act must be made fully aware of the nature of offence, status of the victim and the pendency of the criminal case against a member of the force on 'active service', so that the authorities under the Act may exercise their option whether or not to try the accused by a court martial. Where full and complete "information" is provided to the authorities, the requirement of law would stand complied with, irrespective of the fact whether the information was given by way of a notice or otherwise.
(Emphasis is supplied) Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 123 CONCLUSIONS AND DIRECTIONS:
131. In the backdrop of the position of law, as discussed above, let us, now, revert to the factual matrix of the present case. It is noticeable in this regard that this Court‟s order, dated 04.04.2014, shows that the investigation, in the case at hand, effectively, started moving, when this Court intervened. This is clearly discernable from the observations made by the Court, on 04.04.2014, which read, "This Court is conscious of the fact that investigation in the matter by the police was a mere formality till the end of 2013 and only when the Court intervened, by passing the order dated 18.02.2014 onwards, the investigation appears to have proceeded in the right direction".
132. Pursuant to the investigation, which was so carried out, it is alleged by the investigating agency that accused Amresh Kumar was found involved in the abduction and murder of the petitioner‟s son, Vijay Krishna.
Whether this allegation is true or false, believable or unbelievable, is a matter to be decided upon investigation and, if necessary, by trial.
133. Suffice it to point out, at this stage, that it was not without any material that the warrant of arrest was issued against accused Amresh Kumar. This Court has repeatedly observed, in the various orders, which have Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 124 been passed from time to time, that the army authorities have remained completely silent with regard to the execution of the warrant of arrest, which had been issued against accused Amresh Kumar.
134. It is apparent that it was not sufficient, on the part of the competent Army Authority, to merely provide an opportunity to interrogate accused Amresh Kumar by the SIT; rather, the competent Army Authority were bound to hand over the accused Amresh Kumar pursuant to the warrant of arrest issued against him unless the warrant of arrest was recalled, set aside or quashed. This apart, the competent Army Authority had the option of taking the accused into custody, investigate the case and bring the case, if required, before a Court-martial in accordance with law. The actions and omission, on the part of respondent Nos.12 and 13, namely, Major Battery Commander, 332 Medium Regiment, C/O 56 APO, and the Commanding Officer 332, Medium Regiment, C/O 56 APO, respectively, cannot be said to be in tune with law.
135. Moreover, though accused Amresh Kumar had been granted leave before this Court directed that he be handed over to the Officer-in-Charge, Nawadah Town Police Station, the fact of the matter remains that when the warrant of arrest was still pending, for execution, against Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 125 accused Amresh Kumar, he could not have been, and ought not to have been, allowed to avail the leave granted to him without informing this Court and/or the learned Chief Judicial Magistrate, Nawadah. This is yet another act on the part of respondent Nos.12 and 13, namely, Major Battery Commander, 332 Medium Regiment, C/O 56 APO, and the Commanding Officer 332, Medium Regiment, C/O 56 APO, respectively, which cannot be said to be consistent with law.
136. What restricts us, however, from taking any action against respondent Nos.12 and 13, namely, Major Battery Commander, 332 Medium Regiment, C/O 56 APO, and the Commanding Officer 332, Medium Regiment, C/O 56 APO, respectively, is that the materials on record are not sufficient to confidently hold, at this stage, that respondent Nos.12 and 13, namely, Major Battery Commander, 332 Medium Regiment, C/O 56 APO, and the Commanding Officer 332, Medium Regiment, C/O 56 APO, respectively, „willfully' disobeyed the directions of this Court or interfered with the investigation of the case. The possibility of their having proceeded under the innocent belief, that what they had done were in accordance with law contained in that behalf, cannot, at this stage, be boldly ruled out. Necessarily, therefore, respondent Nos.12 and Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 126 13, namely, Major Battery Commander, 332 Medium Regiment, C/O 56 APO, and the Commanding Officer 332, Medium Regiment, C/O 56 APO, respectively, become beneficiaries of the reasonable doubt, which arises in this case.
137. The conclusions, which we have reached above, do not, however, we must hasten to add, take away the power of the SIT and/or the trial Court , to determine, during the trial ▬ if the trial is held▬ as to whether the plea of alibi, taken by the accused Amresh Kumar and supported by respondent No.12, namely, Abhimanyu Singh, Major Battery Commander, 3323/332 Medium Regiment, and the Commanding Officer, 332, Medium Regiment, C/O 56 APO, is believable or not. We do not, at this stage, wish to make any comment on this aspect of the case inasmuch as this aspect remains to be investigated and the pronouncement on this aspect has to be, eventually, by the Court, where the police report of the investigation would be submitted under Section 173 (2)(i) of the Code and/or by the Court, which may be competent, in this regard, to try the accused. We have consciously avoided making any comment on the correctness of the plea of alibi, which accused Amresh Kumar has taken, because we do not wish to make any comment on the plea of alibi of accused Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 127 Amresh Kumar so that the SIT and the trial Court, if the trial is held, remain free to come to its own findings in accordance with law.
138. According to the SIT, as already pointed out above, accused Amresh Kumar was involved in the alleged abduction and causing death of the petitioner‟s said son. Whether this conclusion, reached by the SIT, is sustainable, in the facts and attending circumstances of the case, would be answered by the competent Court in accordance with law.
139. We must also hasten to add that though the Commanding Officer of accused Amresh Kumar has been fully aware of the investigation pending, in the present case, as against, amongst others, accused Amresh Kumar, the competent Army Authority has not exercised its option, under Section 125 of the Army Act, to hold investigation and trial, if necessary, and this will not be legally feasible also inasmuch as the Court-martial has no jurisdiction on the remaining accused persons, who were allegedly involved with accused Amresh Kumar in the commission of the offence of abduction and murder. In fact, on a query made by this Court, the learned Assistant Solicitor General has submitted that the Army Authorities would not invoke their power, under Section 125 of the Patna High Court Cr. WJC No.535 of 2013 (29) dt.22-10-2014 128 Army Act, 1950, to hold investigation and trial, if necessary, in the present case.
140. What is necessary, therefore, is that the investigation is conducted fairly and impartially so that the ends of justice are met.
141. Situated thus, while it becomes clear that there can be no direction for issuance of a writ of habeas corpus, this Court cannot, however, ignore its responsibility, under Article 226 of the Constitution of India, to ensure proper, effective and fair investigation in the case at hand.
142. With the above end in view, it needs to be directed, and we do direct, that the SIT shall complete the investigation of the case expeditiously in order to bring the case at hand to its logical conclusion in accordance with law.
143. Ordered accordingly.
(I. A. Ansari, J.)
Anjana Mishra, J. : I agree.
(Anjana Mishra, J.)
Prabhakar Anand/AFR
U √ T X