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2007 Supreme(Gau) 465
IN THE HIGH COURT OF GAUHATI
Iqbal Ahmed Ansari, J.
Chandra Mohan Shukla
Vs.
State of Assam and Anr.
Decided On: 17.07.2007
The Army authority, in exercise of its powers under Section 125 of the Army Act, 1950, can seek, for the purpose of investigation or trial, the custody of a person, who is subject to the Army Act, but in the custody of a criminal Court on accusation of having committed an offence, which is triable by both the criminal Court as well as the Court-martial, if the case, in connection with which the person is in custody, is under investigation by police or under an inquiry as contemplated by Section 202 of the Code of Criminal Procedure.
Headnote:
The Court held that the Army authority, in exercise of its powers under Section 125 of the Army Act, 1950, can seek, for the purpose of investigation or trial, the custody of a person, who is subject to the Army Act, but in the custody of a criminal Court on accusation of having committed an offence, which is triable by both the criminal Court as well as the Court-martial, if the case, in connection with which the person is in custody, is under investigation by police or under an inquiry as contemplated by Section 202 of the Code of Criminal Procedure.
Fact of the Case:
The petitioner, an officer subject to the Army Act, 1950, was arrested by the police on the accusation of having committed an offence, which was triable by both the criminal Court as well as the Court-martial. The police registered an FIR and started investigation. During the investigation, the Station Command, Masimpur Military Station, requested transfer of the case to the Army authorities for trial of the accused-petitioner under the Army Act. The Chief Judicial Magistrate, Cachar, Silchar, allowed the said application and directed that the case record be handed over to the Army authority concerned. Aggrieved by the order, the petitioner challenged the same by way of Criminal Revision No. 18/2007. The learned Sessions Judge, Cachar, Silchar, dismissed the revision by holding, inter alia, that the Army authorities were competent under the law to seek transfer of the said case for trial of the accused-petitioner under the provisions of the Army Act inasmuch as the Army authorities were competent to take over a case pending against an Army personnel even when the cast' is at the stage of investigation by police.
Finding of the Court:
The Court held that the Army authority, in exercise of its powers under Section 125 of the Army Act, 1950, can seek, for the purpose of investigation or trial, the custody of a person, who is subject to the Army Act, but in the custody of a criminal Court on accusation of having committed an offence, which is triable by both the criminal Court as well as the Court-martial, if the case, in connection with which the person is in custody, is under investigation by police or under an inquiry as contemplated by Section 202 of the Code of Criminal Procedure.
Issues: 1. Whether the Army authority, in exercise of its powers under Section 125 of the Army Act, 1950, can seek, for the purpose of investigation or trial, the custody of a person, who is subject to the Army Act, but in the custody of a criminal Court on accusation of having committed an offence, which is triable by both the criminal Court as well as the Court-martial? 2. Whether the fact that the case, in connection with which the person is in custody, is under investigation by police or under an inquiry as contemplated by Section 202 of the Code of Criminal Procedure, creates any bar for the Army authority to seek the custody of such a person?
Ratio Decidendi: The Court held that the Army authority, in exercise of its powers under Section 125 of the Army Act, 1950, can seek, for the purpose of investigation or trial, the custody of a person, who is subject to the Army Act, but in the custody of a criminal Court on accusation of having committed an offence, which is triable by both the criminal Court as well as the Court-martial, if the case, in connection with which the person is in custody, is under investigation by police or under an inquiry as contemplated by Section 202 of the Code of Criminal Procedure. The Court observed that the scheme of the Army Act and the Army Rules is that when an accusation made against a person, subject to the Army Act, is investigated in terms of Rule 22 or 23, the accusation is called 'charge' and Summary of Evidence is merely a collection of the statements of the witnesses recorded during investigation with, however, liberty given to the accused to examine the witnesses and, hence, Summary of Evidence is not, legally speaking, 'evidence' as conceived under Section 3 of the Evidence Act. The Court further observed that the expression 'charge', as used in Rules 22, 23 and 24, is not really a formal 'charge', which a Criminal Court frames. The expression 'charge', as already indicated, means an accusation, which may be under enquiry or investigation. Though called as Summary of Evidence, none of the materials collected under Rule 23 is 'evidence' stricto sensu and Summary of Evidence stands on the same footing as do the previous statements of the witnesses and can be used for the purpose of contradicting a witness or impeaching the credibility of a witness in terms of Section 145 of the Evidence Act.
Final Decision: The Court dismissed the revision petition filed by the accused-petitioner.
I.A. Ansari, J.
1. Can an Army authority, in exercise of its powers under Section 125 of the Army Act, 1950, seek, for the purpose of investigation or trial, the custody of a person, who is subject to the Army Act, but in the custody of a criminal Court on accusation of having committed an offence, which is triable under the Army Act too, if the case, in connection with which the person is in custody, is under investigation by police or under an inquiry as contemplated by Section 202 of the Code of Criminal Procedure? When a case lodged against a person, who is subject to the Army Act, 1950. is still pending for investigation by the police, whether it is permissible for a Court of ordinary criminal justice to hand over to the Army authorities, mentioned in Section 125 of the Army Act, the custody of the person, who is subject to the Army Act, but is in custody of the ordinary criminal Court on accusation of having committed an offence, which is also punishable under the Army Act, 1950, for the purpose of enabling the Army authorities to investigate the case or try the accused by a Court-martial in terms of the provisions of the Army Act, 1950, and the Army Rules, 1954, and if so, what are the limitations on such power? Does the fact that investigation by police is in progress into the allegation of commission of an offence by a person, subject to the Army Act, create a bar for the appropriate authorities under the Army Act to investigate, in terms of the relevant provisions of law, the accusations, which are the subject-matter of investigation by police, and also to seek, if necessary, for such a purpose, the custody of such a person from the Court of ordinary criminal justice until investigation by police is completed and the charge-sheet is filed against the accused? Does Section475 of the Cr. P.C. bar a Court of ordinary criminal justice from handing over to the Army authority, for the purpose of investigation or trial in terms of the provisions of the Army Act, 1950. and the Army Rules, 1954. the custody of a person, who is subject to the Army Act, but in the custody of the criminal Court on allegation of having committed an offence, which is triable by both the criminal Court as well as the Court-martial? These are some of the important questions, which the present petition has raised.
2. By making this application under Section 482, Cr. P.C, the petitioner, who is an officer subject to the Army Act, 1950, has prayed for, inter alia, setting aside the Judgment and order, dated 2-4-2007, passed, in Criminal Revision No. 18/2007, by the learned Sessions Judge, Cachar, Silchar, whereby the revision was dismissed and the order, dated 5-4-2007, passed, in GR Case No. 889/2005 (corresponding to Lakhipur Police Station Case No. 73/2005), transferring the said case to the Army authorities for the purpose of trial of the accused-petitioner under the Army Act, was upheld.
3. The material facts and various stages, which have given rise to the present petition, may be set out as follows:
On 22-3-2005, one Satish Gupta, Superintending Manager, Binnakandi Tea Estate, lodged an Ejahar at Lakhipur Police Station, the informant's case being, briefly stated, thus : The informant had received a telephone call from one Robert in January, 2004, and also in the first week of February, 2004, demanding money from the informant claiming that the caller was Commandant of an extremist group operating in the area, where the informant was serving. On 9-2-2004, the present petitioner, who was not known to the informant, but was, at the relevant point of time, serving as a Lieutenant Colonel, visited the informant's bungalow, expressed his anxiety on the threat to the petitioner's life posed by the extremists and suggested to the informant that he should make: the payment to the extremist group or else, the informant might be killed by the extremists. The informant also claimed, in his Ejahar, that the present petitioner had given the informant the pe
