Gauhati High Court
R.K. Talukdar (Ic-35161F Lt. Co.) vs Union Of India (Uoi) And Ors. on 15 June, 2007
Equivalent citations: 2008(1)GLT115
Author: Amitava Roy
Bench: Amitava Roy
JUDGMENT Amitava Roy, J.
1. The challenge in the constitutional attire is pitched against the order dated 26.4.2005 passed by the learned Sub-Divisional Judicial Magistrate(s) No. 1, Guwahati, in GR Case No. 5424/04 drawing cognizance of the offences under Section 448/376/506 IPC against the petitioner as well as the order dated 28.6.2005 issuing a non-bailable warrant of arrest against him. This Court while issuing notice of motion on 8/7/2005 in the interim suspended further proceeding in the aforementioned case as well as the execution of the orders impugned.
2. I have heard Mr. A.K. Bhattacharyya, Sr. Advocate assisted by Mr. A.J. Das, Advocate, for the petitioner, Mr. D.C. Chakraborty, learned Central Government Counsel for the Union respondents, Mr. J.M. Choudhury, Sr. Advocate assisted by Mr. A.M. Bora, Advocate for the respondent No.5 impleaded vide order dated 16.9.2005 passed in MC 2733/05 and Ms. R. Chakraborty, learned State Counsel for the State of Assam. The respondent No. 5 on her impleadment submitted an application for vacation, alteration and/or modification of the interim order whereupon Misc. Case 1427/07 is registered.
3. To appropriately appraise the rival submissions, the basal facts deciphered from the pleadings of the parties have to be recited. The petitioner has introduced himself to be a Senior Commissioned Officer of the Indian Army serving as a Lt. Colonel and posted at Narengi, Guwahati. While serving with the 1 Assam Battalion NCC, he was attached to 222 Advance Base Ordinance Depot, C/o 99 APO vide order No. 5008/8/A dated 23.8.2004 for the period 19.7.2004 to 18.7.2006. According to him, in the year 2003 his wife along with the respondent No. 5 decided to set up the first Defence Career Academy in the name and style of National Maryada Career Point and the said institute was set up in the premises of Upasana Bhawan. A tenancy agreement was executed with her husband on 1.7.2003 for a period of three years. Though the petitioner and the respondent No. 5's husband are distantly related, due to some differences between them relating to the investment in the project, their cordial dealings suffered a set back. On 14.5.2004 the petitioner arranged a celebration of his birthday at his residence at Narengi, which was amongst others attended by the respondent No. 5, and her husband a doctor as well as their two daughters. In a shocking development thereafter the respondent No. 5, on 18.12.2004 lodged an FIUR with the Officer in Charge, Chandmari Police Station, alleging that the petitioner had committed rape on her on 14.5.2004 at about 8.30 PM. It was further alleged that he had threatened her not to disclose the incident to anyone.
4. On the basis of the FIR, Chandmari PS Case No. 323 of 2004 under Section 448/376/506 IPC was registered against him. The respondent No. 5 was also medically examined on 23.12.2004 and her statement under Section 164 Cr.P.C. (also referred to as the Code hereafter) was recorded by the learned Chief Judicial Magistrate, Kamrup, Guwahati, on 24.12.2004. On the completion of the investigation, the police submitted a final report under Section 173 of the Cr.P.C. to the effect that the allegations levelled against the petitioner were false, recommending initiation of a proceeding under Section 211 IPC against the respondent No. 5 for furnishing false information. On receipt of the final report, the learned Chief Judicial Magistrate, Guwahati, referred the case to the learned Sub-Divisional Judicial Magistrate, Kamrup, for trial of the petitioner under Section 192 of the Code.
5. The respondent No. 5 against the final report submitted her objection in the Court of the learned Chief Judicial Magistrate, Kamrup, on 23.6.2005, which was also directed to be placed before the learned Sub-Divisional Magistrate, Kamrup. It was thereafter that the learned Court below took cognizance of the offences as above. The proceeding under Section 211 IPC vide the Non-FIR Case No. 23/05 against the respondent No. 5 was stayed. The learned Trial Court by order dated 28.6.2005 issued non-bailable warrant of arrest against the petitioner fixing 16.7.2005 for appearance. These orders the petitioner has impeached as ineffectual and without jurisdiction being in contravention of the provisions of Section 475 of the Code, Rule 3 and 4 of the Criminal Court and Court Martial (Adjustment of Jurisdiction) Rules, 1978, (hereafter referred to as the Rules) as well as Sections 125 and 126 of the Army Act, 1950 (hereafter referred to as the Act) contending that at all relevant times, he had been in active service within the meaning of the Act.
6. He has insisted that on the date of the occurrence, he was attached to the station Headquarter, Narengi, commanding the 1st Assam NCC Battalion, Guwahati, which is a unit of Defence Service under the Ministry of Defence, Government of India. He was thereafter attached to the Advance Base Ordinance Depot, which is an unit of 51 Sub-Area, C/o 99 APO and by dint thereof was on active service under the act not only on the date of alleged occurrence but also on those of the impugned orders. He referred to a notification dated 28.11.1962 under Section 9 of the Act in this regard. The accusations in the FIR were also dismissed as untrue and unworthy of credence.
7. The Union respondents in their affidavit while admitting the petitioner to be an Officer of the Indian Army and governed by the provisions of the Act, in categorical terms denied that he had been on active service either on the date of the alleged offence or of the cognizance thereof by the Court below. The answering respondents clarified that on 14.5.2004, the petitioner was commanding the 1st Assam NCC Battalion, which did not connote active service. They admitted that in terms of the notification SRO 6.E dated 19.9.1991 issued by the Central Government under Section 9 of the Act, persons subject thereto but not on active service under Section 3(1) thereof while serving with units and Army Formations deployed on 'OP RHINO' would be deemed to be on active service. As per the notification issued by the HQ 4 Corps delineating the Units/Formations deployed on 'OP RHINO' the petitioner's unit was not included therein as it was not deployed on the said operation. At the time of the cognizance of the offence, the petitioner was on study leave and was attached with the 222 ABOD for administrative purposes. They pleaded that though the said unit is deployed on 'OP RHINO', the petitioner was attached therewith on administrative reasons on study leave and thus could not be treated to be on active service. Referring to Section 69 and 70 of the Act, it was contended that any person subject to the Act who commits a civil offence at any place in or beyond India, is triable both by the court martial and ordinary criminal courts with the exception that in case of three offences i.e. culpable homicide not amounting to murder, murder and rape when committed on civilians, the offender would not be triable by a Court Martial unless, he at the time of the perpetration thereof was either in active service or at any place outside India or at a frontier post.
8. The respondent No. 5 in her application for vacation of the interim order while iterating the facts pertaining to the FIR, and the unsuccessful endeavours of the petitioner to obtain pre-arrest bail, averred that on 2.2.2005, she addressed a letter to the Army Commander, Eastern Command, apprising him of the essential facts with a request for necessary action against the petitioner to desist him from threatening her. In his reply, the Colonel Administration, by his letter dated 19.2.2005 intimated the petitioner about the department's knowledge of the police investigation and denial of pre-arrest bail to him and assured her to take appropriate action against him based on the outcome of the police investigation. She snubbed the final report as an yield of extraneous considerations and endorsed the impugned orders being in accordance with law, sub serving the cause of justice. While asserting that the petitioner at all relevant times was not on active service and, therefore, was exclusively triable by a Criminal Court under the Code for the offence committed by him, the applicant has pleaded against any interference with the impugned orders. The notification dated 28.11.1962 whereunder the petitioner seeks umbrage has been cast out to be nonest as on date, it having been issued for a temporary phase during the Chinese aggression. She has reiterated that on the date of commission of the offence, the petitioner commanded the 1st Assam NCC Battalion at Guwahati, which could not be construed to be active service in terms of Section 3(1) of the Act. According to her, the petitioner being in the circumstances triable only by a Criminal Court, reference of Rule 3 and 4 of the Rules and Section 125 and 126 of the Act is a thoroughly misconceived. The answering respondent has questioned the bonafide of the instant proceeding contending that no action as yet has been initiated against the petitioner under the Act and the present petition is a ruse to put off the Criminal proceeding to the extent possible and harass and intimidate her.
9. Mr. Bhattacharjee has assiduously argued that having regard to the notification dated 28.11.1962 issued in exercise of the power conferred under Section 9 of the Act declaring all persons subject thereto but not on active service under Section 3(1) thereof to be deemed to be on active service within the meaning of the statute, the petitioner at all relevant times was on active service and, therefore, having regard to the offences alleged, it was incumbent on the learned Court below to comply with the mandate of Rule 3 and 4 of the Rules as well as Section 125 and 126 of the Act before passing the impugned orders. According to the learned Sr. Counsel, having regard to the extent of empowerment, bestowed by Section 9 of the Act and the contents of the said notification which is still in force, the impugned orders having been passed in transgression of the above provisions of the Rules and the Act are patently lacking in jurisdiction and are thus nonest in law. Mr. Bhattacharjee insisted that in face of the prescriptions of Rules 3 and 4 of the Rules and Section 125 and 126 of the Act, the cognizance of the offence taken by the learned Court below and the resultant orders without following the mandatory procedure prescribed by the above statutory provision are obviously invalid and ineffectual in law. The purpose of the power under Section 9 of the Act being to extent the benefit thereof to those in active service, no restriction on the scope and ambit thereof ought to be unnecessarily imposed, he urged.
10. Without prejudice to the above, the learned Sr. Counsel has further maintained that the allegations levelled in the FIR at the most bear the ingredients of offences enumerated under Sections 45, 46, 63, and 64(f) of the Act and thus being exclusively triable by the Court Martial, the purported cognizance and the impugned orders are inoperative, null and void. Having regard to the delay in filing of the FIR and the contents thereof, the allegations are dismissable as inherently improbable and incredible, he argued. To buttress his assertions, Mr. Bhattacharjee drew sustenance from the decisions of the Apex Court in Som Datt Datta v. Union of India, , JoginderSingh v. State of Himachal Pradesh , Delhi Special Police Establishment, New Delhi v. Lt. Col. S.K. Loraiya , Superintendent and Remembrancer of Legal Affairs, West Bengal v. Usha Ranjan Roy Choudhury and Anr. , Gopal Upadhyaya and Ors. v. Union of India and Ors. , Balbir Singh and Anr. v. State of Punjab , Ajit Singh v. State of Punjab , Rachpal Singh v. Summary General Court Martial and Ors. 1973 Crl.L.J. 1036, Pritam Singh v. State and Ors. (1980) Crl.L.J. 296.
11. Mr. Chakraborty in reply has argued that the 1962 notification had spent its force much before the alleged offence and, therefore, the petitioner cannot claim to be in active service in view thereof. He reiterated that the petitioner's posting at 1st Assam Battalion NCC or his attachment with the 222 Advance Base Ordinance Depot did not constitute active service within the meaning of the Act.
12. Mr. Choudhury ratified the stand of the Union respondents maintaining that the petitioner was not in active service on the date of commission of the offence and, therefore, he being exclusively triable therefore by a Criminal Court under the Code neither Section 475 thereof was attracted nor the procedure prescribed by Rule 3 and 4 was of any relevance. Even by the date of his attachment with the 222 ABOD, which was beyond that of the offence, he could not be construed to be on active service at that time. Referring to the notification No. SRO of dated 19.9.1991 issued under Section 9 of the Act declaring persons subject to the Act but not on active service under Section 3(1) thereof to be deemed to be on such service while serving with the Anny Formations and Units deployed on operation Rhino, the learned Sr. Counsel contended that thereby, logically the notification dated 28.11.1962 stood superceded. Mr. Choudhury maintained that even otherwise the 1962 notification having been issued in the wake of the Chinese aggression it was clearly intended to be limited in its operations thereto. The decision of the Apex Court in Madan Lal v. Union of India (2002) 10 SCC 185 was pressed into service to reinforce the above contentions.
13. In reply, Mr. Bhattacharjee has insisted that having regard to the framework of Section 9 of the Act and the contents of the notification dated 28.11.1962, it cannot be said to be transitory in nature: Further both the notifications, having regard to the underlying object of the statutory provision can harmoniously co-exist.
14. Thoughtful consideration on the competing arguments has been bestowed by this Court. The petitioner's plea being visibly founded on the presupposition that the alleged offences were also triable by the Court Martial under the Act, it would be expedient to dwell on the provisions thereof at the threshold and decipher the applicability of the Rules, violation, if any and their bearing on the impugned orders.
15. There is no cavil that the petitioner is subject to the Act. Section 3(1) defines active service, the hub of the contrasting assertions seeking adjudication. Having regard to the eminence thereof in the exercise proposed to be undertaken, the same deserves to be extracted as hereunder.
Section 3(1): "Active service" as applied to a person subject to this Act, means the time during which such person-
(a) is attached to, or forms part of, a force which is engaged in operations against an enemy, or.
(b) is engaged in military operations in, or is on the line of march to, a country or place wholly or party occupied by an enemy, or.
(c) is attached to or forms part of a force which is in military occupation of a foreign country.
16. Civil offence defined in Section 3(h) means an offence, which is triable by a Criminal Court whereas Section 3(xvii) illustrates "offence" as any act punishable under and includes civil offence as defined. Chapter VI of the Act enumerates the offences punishable thereunder on conviction by the Court Martial. Whereas Sections 45 and 46 under the said Chapter comprehends unbecoming conduct and disgraceful conduct prescribing the punishments therefor, Section 63 deals with violation of good order and discipline and Section 64(f) relates to commission of any offence against the property in person of any inhabitant or resident in the country in which he is serving, Punishments for the said offences are also provided.
17. Section 69 requires that subject to the provision of Section 70, if any person governed by the Act at anyplace in or beyond India commits any civil offence he would be deemed to be guilty of an offence under the Act and if charged, would be liable to be tried by a Court Martial and punished as prescribed therein. Section 70 to which the above provision of the Act refers proclaims that a person subject to the Act who commits an offence of murder against a person not subject to military, naval or air force, or culpable homicide not amounting to murder against the such a person or of rape in relation such a person, would not be deemed to be guilty of an offence under the Act and would not be tried by a Court Martial unless he commits any of such 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 a notification in this behalf.
18. A cumulative reading of Section 69 and 70 of the Act, therefore, evinces that a person governed thereby, if commits any civil offence at any place in or beyond India would be deemed to be guilty of an offence under the said statute and would be liable to be tried either by a Court Martial and on conviction penalized in terms of Section 69. This mandate, however, is subject to the edict of Section 70 to the effect that where the offence is one of murder or culpable homicide not amounting to murder or rape against a person not subject to military, Naval or Air Force Law, the offender shall not be deemed to be guilty of an offence under the Act and shall not be tried by a Court Martial unless he commits any of the aforesaid offences either while on active service or at any place outside India or at a frontier post specified by the Central Government by a notification in this regard. In other words, a person subject to the Act, if charged with an offence of murder or culpable homicide not amounting to murder or rape against someone who is not subject to Military, Naval or Air Force Law, he could not be tried by a Court Martial only if anyone of the aforementioned three eventualities subsists.
19. Under Section 125 when a Criminal Court and a Court Martial both have jurisdiction in respect of the offence, it would be the discretion of the Officer Commanding the Army, Army Corps, Division or Independent Brigade in which the accused person is serving or such other Officer, as may be prescribed to decide before which Court the proceeding shall be instituted and if that Officer decides that it should be instituted before a Court Martial, to direct that the accused person shall be detained in military custody. Section 126 on the other hand confers an authority on a Criminal Court having jurisdiction to try the said offence to require by a written notice, the officer(s) referred to in Section 125 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. The said officer shall then either deliver over the offender in compliance with the requisition, or forthwith refer the question as to the Court before which the proceedings are to be instituted for the determination of the Central Government, whose order upon such reference shall be final. These statutory provisions indubitably envisage an offence indisputably triable by both the Criminal Court and the Court Martial and, therefore, the concurrence of jurisdiction of the two fora is an imperative precondition for the observance of the ordainments embodied therein.
20. Section 475 of the Code empowers the Central Government to make rules as to cases in which persons subject to Military, Naval or Air Force Law or such other law relating to Armed Forces of the Union, shall be tried by a Court under the Code or by a Court Martial and stipulate the procedure to be followed in connection therewith. In exercise of such power, the Rules had been framed whereunder in terms of Rule 3 thereof 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 charged with an offence for which he is also liable to be tried by either a Court Martial, such Magistrate shall not proceed to try such person or 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 the opinion, for reasons to be recorded, that he should so proceed or commit without being moved thereto by such authority.
21. Rule 4 enjoins that before proceeding under Clause (b) of Rule 3, the Magistrate shall give a written notice to the Commanding Officer of the competent military, naval or air force authority, as the case may be, of the accused and until the expiry of a period of fifteen days from the date of service of notice, he would not either
(a) Convict or acquit the accused or hear him in his defence.
(b) Frame in writing a charge against him, or
(c) Commit him for trial to the Court of Session or
(d) Make over the case for enquiry or trial under Section 192 of the Code.
22. Rule 5 comprehends a situation where a magistrate is moved by the competent military, naval or air force authority as the case may be under Rule 3(a) whereafter the said authority subsequently gives a notice to the Magistrate that in his opinion the accused should be tried by a Court Martial and in such a case the Magistrate, if no action under Rule 4 had been taken stay the proceedings before him and if the accused is in his power or control would deliver him to the Military Authority. Rules 6, 7, 8 and 9 pertain to varying exigencies requiring the Magistrate and the concerned Military Authority to act as obligated thereby. The essence of the provisions of the Rules is a legislative reconciliation of the concurrent jurisdictions of a Criminal Court under the Code and the Court Martial under the Act casting obligations on both the fora to follow the course so enacted. The obvious presupposition for the adherence of the Rules is the availability of both the jurisdictions to try the persons subject to the Act.
23. The above narration, therefore, unequivocally underlines the indispensability of the competence of a Court Martial under the Act as peremptory precondition for the applicability of the Rules and Section 125 and 126 obligating a Criminal Court under the Code to Act in conformity with the prescriptions thereof. Adverting to the facts, the petitioner a person subject to the Act having been indicted with the offence of rape on a person not subject to Military, Naval or Air Force Law would neither be deemed to be guilty under the said Statute nor would be triable by a Court Martial unless he had committed the alleged offence while on active service or on at any place outside India, or at a frontier post specified by the Central Government by notification in this regard. Hence the endeavour on his part to demonstrate to be in active service at the time of commission of alleged offence. Before embarking on the above aspect, apt it would be to deal with the authorities cited at the bar having a bearing on the Rules and the provisions of the Act alluded hereinabove.
24. The proceeding before the Court Martial was assailed by the petitioner in Som Datt Dutta, (supra), wherein he was adjudged guilty of the offence under Sections 304 and 149 IPC and sentenced accordingly. It was pleaded that in the face of Section 125 of the Act, the Court Martial lacked jurisdiction as the Military authority concerned had decided to hand over the matter for investigation to the Civil Police. The Apex Court while dilating on the scheme of the Act ruled that three categories of offences were contemplated thereunder namely (1) Offences committed by a person subject to the Act triable by a Court Martial. (2) Civil offence committed by the said person at any place in or beyond India, but deemed to be offences committed under the Act, if charged under Section 69 of the Act thereof triable by a Court Martial and (3) offences of murder and culpable homicide not amounting to murder or rape committed by a person subject to the military law. On the plea of omission on the part of the Commanding Officer to issue notice to the Magistrate under Rule 5 predicating his trial by a Court Martial, the Apex Court proclaimed that the Rules applied to a case where the proceedings against the petitioner had already been instituted in an ordinary criminal Court having jurisdiction to try the matter and not at a stage where such proceedings had not been initiated. In the contextual facts, it concluded that the provisions of the Rules could not be invoked in a case where the police had merely started the investigation against a person subject to military, naval or air force law and that as the petitioner had not at the relevant time been brought before the Magistrate, the requirements of Rule 5 were not attracted.
25. That both the ordinary Criminal Court under the Code and the Court Martial had concurrent jurisdiction to try the respondent was an admitted fact in Delhi Special Police Establishment, New Delhi v. Lt. Col. SK Loraiya, (supra). The respondent had approached the jurisdictional High Court to quash the charge framed by the Special Judge, Guwahati, under the Prevention of Corruption Act as well as the IPC inter alia on the ground that the same was vitiated by the non compliance of the procedure specified in the Rules. Holding Rule 3 to be mandatory, the Apex Court in the attending fact situation sustained the verdict of the High Court upholding the challenge.
26. The starting premise in Superintendent and Remembrancer of Legal Affairs. West Bengal, (supra), was the subsisting concurrent jurisdiction of the Criminal Court and the Court Martial to try the respondent on the charges levelled. The respondents' conviction was set aside by the Calcutta High Court on the ground that the Rules were not complied with by the concerned Criminal Court. Reiterating the above view, the Apex Court held that the Criminal Court had no jurisdiction to take cognizance of the case and to try the respondent. As the procedure prescribed by the Rules had not been complied with, there was an initial lack of jurisdiction to take cognizance and try the case, which vitiated the trial.
27. In Balbir Singh and Anr. (supra) under the Air Force Act, containing Section 72, which is in pari materia with Section 70 of the Act, a similar question arose, referring to the Rules. The Apex Court held that the object of giving notice to the authorities under the Air Force Act was to make them fully aware of the pendency of a criminal case against a member of the Force and to afford an opportunity to exercise their discretion of having him tried either by the Court Martial or to allow ordinary criminal court to proceed with the trial indicating that no particular form of notice was prescribed. It observed that where full and complete and information is provided to the authorities, the requirement of law would stand complied with irrespective of the fact whether the same was given by way of a notice or otherwise.
28. The decision of the Apex Court in Madan Lal, (supra), while dwelling on the applicability of Section 70 of the Act distinguished between a charge of rape from one of an attempt to commit the same. The decision of Jammu and Kashmir High Court in Pritam Singh, (supra), and Rachpal Singh, (supra), do not call for a detailed narration, the ratio therein being substantially in line with the above authorities. The judicial pronouncements referred to above while emphasizing on the cardinality of the Rules postulate concurrent jurisdiction of both a Criminal Court and a Court Martial to try the offence as an indispensable prerequisite for the observance of the provisions thereof. The view taken thus accords with the ratio of the precedents surveyed
29. Though the petitioner's pleaded assertion to be on active service had been founded on his attachment with the 222 ABOD c/o 99 APO as well as the notification dated 28.11.1962 under Section 9 of the Act in course of the arguments, the emphasis has been confined only to the latter. Section 9 of the Act empowers the Central Government to declare by notification that any person or class of persons subject thereto would with reference to any area in which they may be serving or subject to any provision of the Act or any other law for the time being in force be deemed to be on active service within the meaning of the Act. This power, as the language of Section 9 proclaims, is notwithstanding the definition of active service provided in Clause 3(1) of the Act and is thus residuary in nature. The respondent No. 5's sworn averments that the 1962 notification had been issued during the Chinese aggression have remained uncontroverted.
30. Having regard to the definition of active service accorded in Section 3(1) and the nature of attachment and/or engagement of the person concerned enumerated therein with utmost specificity, the empowerment in Section 9 cannot be conceded a dominion to either wholly supplant the same or render it otiose. The power bestowed being an endowment of the statute, it cannot be construed to render Section 3(1) subservient thereto or reduce it to a dead letter. The declaration authorized in Section 9(1) thus has to be treated as supplemental to the concept of active service illustrated in Section 3(1) to meet immediate exigencies warranting the same. Any other construction would be repugnant to the legislative scheme and lead to absurd and illogical consequence. Essentially, therefore, any such notification has to be transitory in nature to serve the immediate situational demands whereafter the same would lapse. The power bestowed in the Government to draw all persons subject to the Act within the purview of ''active service" even not so, in the touch stone of Section 3(1) thereof, being derivatory in nature, can by no means be awarded a status to over ride any express provision of the parent statute, as is the maxim derivativa potestus non-potest esse major primitiva. (The powers derived cannot be greater than that from which it is derived). Though neither Section 9 of the Act nor the notification under consideration mentions anytime limit of the declaration, having regard to the framework of the Act, the definition of active service contained in Section 3(1) thereof and the conceivable end to be achieved, the irresistible conclusion is that the 1962 notification was not in force on the date of alleged commission of the offence of which the petitioner is arraigned. The notification dated 19.9.1991 reinforces the above view limiting its applicability to those serving with the Army Units/Formations deployed on 'OP RHINO".
31. The plea in favour of co-existence of the two notifications not only endorses incongruity but also cannot be countenanced in the teeth of alignment of Section 3(1) and 9 of the Act as construed hereinabove. This assertion, if sustained would set Section 3(1) and 9 ofthe Act in a collision course, incomprehensible in law. In any case, the 1962 notification, if in force as on date, the one dated 19.9.1991 for the purpose it seeks to attain is unwarranted. It would be idle to infer that the concerned administrative authority in issuing the later notification was unmindful of the 1962 notification and the effect thereof.
32. The following passage from Maxwell on the Interpretation of Statutes is instructive.
In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience reasons, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one. "An intention to produce an unreasonable result is not to be imputed to a stature if there is some other construction available." Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. The question of inconvenience or unreasonableness must be looked at in the light of the state of affairs at the date of the passing of the statute, not in the light of subsequent events....
Not only are unreasonable or artificial or anomalous constructions to be avoided: it appears to be an assumption (often unspoken) of the Courts that where two possible constructions present themselves, the more reasonable one is to be chosen....
Whenever the language of the legislature admits of two constructions and, if construed in one way, would lead to obvious injustice, the Courts act upon the view that such a result could not have been intended, unless the intention to bring it about has been manifested in plain words. "If the Court is to avoid a statutory result that flouts common sense and justice it must do so not by disregarding the statute or overriding it, but by interpreting it in accordance with the judicially presumed parliamentary concern for common sense and justice.
33. In reiteration to the above, the Apex Court in S.R. Batra and Anr. v. Taruna Batra (Smt.) (2007) 3 SCC 169, has announced that any interpretation which leads to absurdity and chaos ought not to be adopted. The decision in Jogindar Singh, (supra), holding the appellant to be in active service based on the 1962 notification in my considered opinion is of no avail to the petitioner as firstly the offence of rape was allegedly committed by him long past in the year 1967 and secondly no subsequent notification as in the present case was brought to the notice of the Court. In the said decision, though required, the Criminal Court had not issued a notice to the concerned Commanding Officer under the Act before the conducting r the trial of the appellant. Having regard to the foundational facts, the Apex Court noticing that the competent military authorities had full knowledge of the nature of the offence and that the petitioner had been released from military custody and handed over the civil authorities held that the Criminal Court was justified in proceeding on the basis that the said authorities had decided that the appellant need not be tried by the Court Martial and that he could be tried by the ordinary Criminal Court. It was held that in such circumstances it would have been superfluous for the Magistrate to give notice as required under the Rules. This proposition has a relevance in the instant case as well. It appears from the letter dated 19.2.2005 of the Colonel Administration, Head Quarters, Eastern Command, Kolkata, in response to the respondent No. 5's missive that the Army Authorities were aware of the charge against the petitioner and the police investigations undertaken in that regard.
34. The decision of the Apex Court in Gopal Upadhyaya and Ors. (supra), as to whether "Camp followers", civilian employees of the Army Medical Corps are subject to the Act or not being not of much relevance, is not being dwelt upon in details. The decision of the Full Bench of the Punjab and Haryana High Court in Ajit Singh, (supra), had been pressed into service to demonstrate that a person subject to the Air Force Act 1950, even on leave continues to be on active service. In view of the abandonment of the plea based on the petitioner's attachment to 222 ABOD, c/o 99 APO this decision is of no consequence.
35. The irresistible conclusion in the above premise that the notification dated 28.11.1962 stood superceded by the one dated 19.9.1991 and as admittedly, the petitioner at the time of alleged commission of the offence was not associated in any manner with the "OP RHINO" he cannot be construed to be on active service envisaged under the Act and thus is not triable by a Court Martial on the charges levelled against him. The impugned orders, therefore, are not vitiated by the non-compliance of Section 475 of the Code, any provision of the Rules and the Act, more particularly Sections 69, 70, 125 and 26 thereof as contended.
36. Considering the nature of the allegation lavelled-against the petitioner in the FIR, the offences defined in Sections 45, 46, 63 and 64(f) cannot substitute the one under Section 376 IPC so as to invest the Court Martial under the Act with the j urisdiction to try him. For obvious reasons this Court refrains from making any observation on the merit of the accusations against the petitioner. In the wake of the above, the assailment of the orders dated 24.6.2005 and 28.6.2005 of the learned Sub-Divisional Judicial Magistrate(s) No. 1, Guwahati, in GR Case No. 5424/04 fails. The petition being devoid of merit is dismissed. The Misc. Case stands accordingly disposed. No costs.