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2007 Supreme(Gau) 423
IN THE HIGH COURT OF GAUHATI
Amitava Roy, J.
R.K. Talukdar (IC-35161F Lt. Co.)
Vs.
Union of India (UOI) and Ors.
Decided On : 15.06.2007
The main legal point established in the judgment is the indispensability of the competence of a Court Martial as a peremptory precondition for the applicability of the Rules and Sections 125 and 126 obligating a Criminal Court to act in conformity with the prescriptions thereof.
Headnote:
Active Service - Jurisdiction of Court Martial - Section 448/376/506 IPC - Section 475 of the Code, Rule 3 and 4 of the Criminal Court and Court Martial (Adjustment of Jurisdiction) Rules, 1978, Sections 125 and 126 of the Army Act, 1950 - The court discussed the applicability of the Rules and the provisions of the Army Act, emphasizing the indispensability of the competence of a Court Martial as a peremptory precondition for the applicability of the Rules and Sections 125 and 126 obligating a Criminal Court to act in conformity with the prescriptions thereof. The court concluded that the impugned orders were not vitiated by the non-compliance of the Code, Rules, and the Act, as contended.
Fact of the Case:
The petitioner, a Senior Commissioned Officer of the Indian Army, was charged with offences under Section 448/376/506 IPC. He challenged the orders of the Sub-Divisional Judicial Magistrate(s) No. 1, Guwahati, drawing cognizance of the offences and issuing a non-bailable warrant of arrest against him.
Finding of the Court:
The court found that the impugned orders were not vitiated by the non-compliance of the Code, Rules, and the Act, as contended. It concluded that the petitioner was not on active service at the time of the alleged offence and thus not triable by a Court Martial on the charges levelled against him.
Issues: The issues revolved around the jurisdiction of the Court Martial, the applicability of the Rules and the provisions of the Army Act, and the petitioner's active service status at the time of the alleged offence.
Ratio Decidendi: The court emphasized the indispensability of the competence of a Court Martial as a peremptory precondition for the applicability of the Rules and Sections 125 and 126 obligating a Criminal Court to act in conformity with the prescriptions thereof. It concluded that the impugned orders were not vitiated by the non-compliance of the Code, Rules, and the Act, as contended.
Final Decision: The petition was dismissed as devoid of merit, and the impugned orders were upheld. The court found that the petitioner was not on active service at the time of the alleged offence and thus not triable by a Court Martial on the charges levelled against him.
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 1st 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
