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Showing contexts for: army act in Som Datt Datta vs Union Of India And Ors on 20 September, 1968Matching Fragments
The first question to be considered in this case is whether the Court Martial had jurisdiction to try and convict the petitioner of the offences under ss. 304 and 149, Indian Penal Code. It was contended by Mr. Dutta on behalf of the petitioner that the Court Martial had no jurisdiction having regard to the mandatory provisions contained in s. 125 of the Army Act and having also regard to the fact that Maj. Agarwal had, in the first instance, decided to hand over the matter for investigations to the Civil Police. In order to test whether this argument is valid it is necessary to scrutinize the provisions of the Army Act in some detail.Section 2 of the Army Act, 1950 (Act 46 of 1950), hereinafter called the 'Army Act', describes the different categories of army personnel who are subject to the Army Act. Section 3 (ii) defines a "civil offence" to mean "an offence which is triable by a criminal court"; s. 3(vii) defines a "court-martial" to mean "a court" to mean "a court of ordinary criminal justice in any part of India other that the state of Jammu and Kashmir" ; s. 3(xvii) defines "offence" to mean "any act or omission punishable under this act and includes a civil offence"; and s. 3 (xxv) declares that "all words and expressions used but not defined in this Act and defined in the Indian Penal Code shall be deemed to have the meanings assigned to them in that code." chapter is "Offences". As we have already noticed, the word "offence" is defined to mean not only any act or omission punishable under the Army Act, but also a civil offence. Sections 34 to 68 define the offences against the Act triable by court-martial and also indicate the punishments for the said offences. Section 69 states as follows:
(2) In every such case the said officer shall either deliver over the offender in compliance with the requisition or shall forthwith refer the question as to the court before which the proceedings are to be instituted for the determination of the Central Government, whose order upon such reference shall be final."
Section 125 presupposes that in respect of an offence both a criminal court as well as a court-martial have each concurrent jurisdiction. Such a situation can arise in a case of an act or omission punishable both under the Army Act aS well as under any law in force in India. It may also arise in the case of an offence deemed to be an offence under the Army Act. Under the -scheme of the two sections, in the first instance, it is left to the discretion of the officer mentioned in s. 125 to decide before which court the proceedings shall be instituted, and, if the officer decides that they should be instituted before a court-martial, the accused person is to be detained in military custody; but if a criminal court is of opinion that the said offence shall be tried before itself, it may issue the requisite notice under s. 126 either to deliver over the offender to the nearest magistrate or to postpone the proceedings pending a reference to the Central Government. On receipt of the said requisition, the officer may either deliver .over the offender to the said court or refer the question of proper court for the determination of the Central Government whose order shall be final. These two sections of the Army Act provide a satisfactory machinery to resolve the conflict of jurisdiction, having regard to the exigencies of the situation in any particular case. In the present case, we are unable to accept the contention of the petitioner that merely because Maj. Agarwal had directed that the First Information Report should be lodged with the Civil Police through Second Lt. Jesudian, it means that the competent authority under s. 125 of the Army Act had exercised its discretion and decided that the proceedings should be instituted before the criminal court. The reason is that Maj. Agarwal was not the competent authority under s. 125 of the Army Act to exercise the choice under that section. The competent authority was the General Officer Commanding, Madras, Mysore and Kerala Area and that authority had decided on September 2, 1965 that the matter should be tried by a Court-Martial and not by the Criminal Court. On the same date, the General Officer Commanding, Madras, Mysore & Kerala Area had ordered the constitution of the Court-Martial under Ch. VI of the Army Rules to investigate into the case of the petitioner and the other accused persons. There was admittedly no. direction by the Commander of that area to hand over the proceedings to the Criminal Court. It is true that Maj. Agarwal had directed a report to be lodged with the Civil Police at 4.00 a.m. on September 2, 1965. It is also true that Sri Bashyam, Inspector of Police had inspected the place of occurrence, seized certain exhibits and held inquest of the deadbody of Spr. Bishwanath Singh. Sri Bashyam has admitted that he stopped investigations on the same date as directed by the military authorities. Merely because Sri Bashyam conducted the inquest of the dead-body of Spr. Bishwanath Singh or because he seized certain exhibits and sent them to the State Forensic Science Laboratory, Madras for chemical examination, it cannot be reasonably argued that there was a decision of the competent military authority under s. 125 of the Army Act for handing over the inquiry to the Criminal Court. On the other hand, the action of the General Officer Commanding in constituting the Court of Inquiry on September 2, 1965 indicates that there was a decision taken under s. 125 of the Army Act that the proceedings should be instituted before the Court-Martial. The second branch of the argument of the petitioner is based upon s. 549 of the Criminal Procedure Code which states:
"139. (6) A person .charged before a court-martial with an offence punishable under section 69 may be found guilty of any other offence of which he might have been found guilty if the provisions of the Code of Criminal Procedure., 1898, were applicable."
We accordingly reject the argument of learned Counsel for the petitioner on this part of the case.
Finally it was contended on behalf of the petitioner that the order of the Chief of the Army Staff confirming the proceedings of the Court-Martial under s. 164 of the Army Act was illegal since no reason has been given in support of the order by the Chief of the Army Staff. It was also pointed out that the Central Government has also not given any reasons while dismissing the appeal of the petitioner under s. 165 of the Army Act and that the order of the Central Government must therefore be held to be illegal and ultra vires and quashed by the. grant of a writ in the nature of certiorari. In this context it is necessary to reproduce ss. 164 and 165 of the Army Act which are to the following effect:
authority or on the Central Government to give reasons for its decision. We have also not been shown any other section of the Army. Act or any other statutory rule from which the necessary implication can be drawn that such a duty is cast upon the Central Government or upon the confirming authority. We, therefore, reject the argument of the petitioner that the order of the Chief of the Army Staff, dated May 26, 1967 confirming the finding of the Court Martial under s. 164 of the Army Act or the order of the Central Government dismissing the appeal under s. 165 of the Army Act are in any way defective in law.