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ALLAHABAD HIGH COURT
V.P. Mathur, J.
Major N.F. Chand - Applicant
versus
The State of U.P. and another - Opp. Party
Criminal Misc. Application
No. 8328 of 1984
Decided on 23.8.1986
Sushil Harkauli, Advocate-For the Applicant.
Krishna Kapoor, Standing Counsel-For the Opp. Party.
IMPORTANT POINT
Ordinary criminal court would have no jurisdiction to take cognizance of the case and to try the accused in a matter where the procedure prescribed by Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules has not been complied with.
Headnote:(i) Criminal Procedure Code, 1973-Section 482-Army Act, 1950-Sections 3(b)(ii), 69,125 and 126-The Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952-Rules 3 and 4 Applicant charged for the offences under sections 307, 147, 148, 149, 380 and 452 -Army Authorities informed about the pendency of the case-Authorities asking the learned Magistrate to supply them with a copy of the case diary-Case diary not supplied-Order of Magistrate committing the applicant to the Court of Session-Challenged-Whether the order of learned Magistrate is legal? (No, there is violation of Rules 3 and 4) (Para 12)
Held, two things are required before a Magistrate can proceed even before committal proceedings - (1) He should be of the opinion for reasons to be recorded that it wilt be proper for him to proceed with the case (2) Before proceeding and after forming his opinion he has to give a notice to the Army Authorities and then wait for 7 days from the date of the service of the notice, before making the order committing the accused for trial to the court of Session. These provisions of the rules have not been complied with in this case. The learned Magistrate has not passed any order in writing giving reasons for coming to the conclusion that he should proceed with the matter without being moved by the Authorities, and it is not disputed that the Army Authorities have not moved him to proceed with the matter. The learned Magistrate has also not, before proceeding to record his order of committal given any notice to the Army Authorities as is required by rule 4 of the Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1952. (Para 7)
(ii) Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952-Rules are mandatory and if the procedure specified in the rules is not adopted, the further proceedings taken by the criminal courts shall not survive. (Paras 8 and 11)
Result-
Application allowed. Case remanded back to the Magistrate.
JUDGMENT
V.P. Mathur, J. - Major N.F. Chand is petitioner before this Court and opposite party No. 2 is Retired Lt. General Jagdishwar Singh Nakal. The petitioner is a person subject to (The) Army Act. 1950. There is no dispute about it. In Section 3(b)(ii) "Civil offence" has been defined as an offence which is triable by a criminal court. As between these two parties mentioned above, criminal proceedings giving rise to the allegations making out a case covered by Sections 307, 147, 148, 149, 380 etc. of the I.P.C. have been started. After investigation charge sheet has been submitted against the present applicant Major N.F. Chand. It appears that the learned Magistrate before whom the case came up was conscious of the fact that in cases of this type it is the option of the Army Authorities to decide whether they have to try the case by a court martial, or whether they have to permit it to be tried by the regular criminal courts. The learned Magistrate, therefore, entered into correspondence with the Army Authorities. The record is before me and it appears that a letter was sent by the Magistrate informing the Authorities concerned about the pendency of the case and asking them whether they would like to try the case by a court martial. A reply was received to the effect that the matter has been referred to the higher authorities and on receipt of their direction information shall be communicated. Then on 18.12.1982 the learned Magistrate made further inquiry as to what action has been taken by the higher authorities and how the Army Authorities were going to exercise their discretion in the matter. On 24.12.1982 the Army Authorities asked for a report of police investigation and copies of the charge sheet in this case as well as in the cross-case No. 309-A. It was clearly made out in this letter that the Army had to take a decision under Section 125 of (The) Army Act and for this purpose these papers were needed. There is on record a copy of the letter dated 11.1.1983, sent by the learned Magistrate to Army Authorities informing that the case diary has been sent to the Copying department for preparation of the copies and it was expected back by 15.2.1983 and then the Army Authorities may further contact the court. Then there is a letter dated 14.3.1983 from the Army Authorities asking the learned Magistrate to supply them with a copy of the case diary. Order was passed on this letter. The order was that the copies are given free of cost to accused and there is no provision of supplying the copies to the Army authorities free of cost. The letter was directed to be kept on file. This order is also dated 14.3.1983. There the matter ended and the learned Magistrate proceeded with the case and passed the impugned order on 18.7.1984 committing the accused Major N.F. Chand and one Irfan under Sections 462, 380 and 307 I.P.C. to the court of session to stand their trial. Against this order, the present petition under Section 482, Criminal Procedure Code has been filed.
2. Section 69 of (The) Army Act, 1950 clearly lays down that 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 his Act and if charged therewith under this section, shall be liable to be tried by a court martial. Section 70 is not applicable to this case because it applies only to the case in which the offence of murder is committed against a person not subject to the Military, Naval or Air force or offence of a culpable homicide not amounting to murder or rape in relation to such a person is committed.
3. In view of Section 69, it is now clear that the offences with which the present applicant is being charged are civil offences under Section 69 of (The) Army Act. 1950 and he is liable to be tried by a court-martial.
4. Section 125 of the same Act lays down that when a criminal court and a court martial have each jurisdiction in respect
