Judgement

PATHAK, CJI. :- Special leave is granted.

2. The respondent Major S. K. Sharma addressed a letter dated 21st December, 1985 to Brigadier S. S. Randhawa, Commander. HQ 41 Sub Area alleging that on 15th December, 1985 he was manhandled by Col. Mir Usman Ali in the HQ 41 Sub Area Officers Mess at Jorhat. It was stated that the incident took place in the presence of Major M. N. Subbaiah. Major Sharma was attached to B Camp. Signal Regiment while Col. Ali belonged to HQ 41 Sub Area. Brigadier Randhawa wrote to the Officer Commanding, B Camp. Signal Regiment on 14th January, 1986 seeking clarification from Major Sharma on some of the allegations. It appears that correspondence was exchanged in the matter but apparently Major Sharma, having met with no satisfactory response, filed a complaint on 21st January, 1986 in the Court of the Additional Chief Judicial Magistrate, Jorhat alleging that Col. Ali had criminally assaulted him and further that Brigadier Randhawa did not report the matter to the higher authorities and was attempting to protect Col. Ali. It was alleged in the complaint that Col. Ali had committed the offences under Ss. 323, 352 and 355 of the Indian Penal Code and Brigadier Randhawa had committed the offence under S. 217 of the Indian Penal Code. The Additional Chief Judicial Magistrate examined the complaint, and taking cognizance of the offences alleged to have been committed by Col. Ali and Brigadier Randhawa directed that summons be issued to them for their appearance before him on 7th March, 1986.

3. On two applications moved by Major Sharma before him the Chief Judicial. Magistrate made an order dated 25th January, 1986 directing that the venue of a Court of Inquiry instituted in respect of certain complaints made against Major Sharma by his Commanding Officer be shifted from Mohanbari, where it was convened, to a place within the jurisdiction of his Court and it was directed further that Major Sharma should not be moved out of the jurisdiction of the Court during the pendency of the case. Major Sharma had complained that the Court of Inquiry had been ordered by Brigadier Randhawa at Mohanbari as a measure of retaliation because of the institution of the criminal case by Major Sharma before the Additional Chief Judicial Magistrate.

4. On 7th February, 1986 the Union of India moved an application before the Chief Judicial Magistrate along with an application dated 3rd February, 1986 addressed to the Court by Major General T. S. Chaudhri informing the Chief Judicial Magistrate that the General Officer Commanding was of opinion that Col. Ali should be dealt with in accordance with the procedure laid down under the Army Act and the Army Rules and the Criminal Courts and Court-martial (Adjustment of Jurisdiction) Rules, 1978, and that, therefore, the case may be handed over to the Military Authorities. It was pointed out by Major Chaudhri in his letter that the complaint before the Additional Chief Judicial Magistrate against Col. Ali should, in his opinion, be disposed of under the procedure laid down in Army Rule 22 of Army Rules, 1954 and that under S. 125 of the Army Act, 1950 read with Army Rule 197A of the Army Rules and the Criminal Court and Court-martial (Adjustment of Jurisdiction) Rules, 1978, Major General Choudhri was the competent Military authority to claim the case. He requested that the case should be handed over to the Military authorities for further necessary action. On 12th February, 1986 the Union of India moved another application before the Chief Judicial Magistrate along with an application dated 3rd February, 1986 addressed to the Chief Judicial Magistrate by Major General T. S. Chaudhri as General Officer Commanding requesting that the case against Brigadier Randhawa should similarly be handed over to the Military authorities for necessary action. On 17th February, 1986 the Chief Judicial Magistrate, Jorhat made an order disposing of the two requisitions made by Major General Chaudh