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1995 Supreme(Ori) 369
IN THE HIGH COURT OF ORISSA
S. Chatterji, J.
RAMESH CHANDRA MOHANTY - APPELLANT
Versus
STATE OF ORISSA - RESPONDENT
Criminal Miscellaneous Case No. 36 of 1994
Decided On : 10-01-1995
P.K. Parida, for the Appellant; A.N. Misra, Additional Government Advocate, for the Respondent
A Magistrate is required to follow the mandatory procedure under Section 549(1) of the Criminal Procedure Code and the Criminal Courts and Courts Martial (Adjustment of Jurisdiction) Rules, 1952, when dealing with a case involving a person subject to military law, and failure to do so can result in the quashing of criminal proceedings.
Headnote:
ARMY ACT, 1950 - SECTION 69, 70, 125, 126 - CRIMINAL PROCEDURE CODE, 1973 - SECTION 475, 549(1) - CRIMINAL COURTS AND COURTS MARTIAL (ADJUSTMENT OF JURISDICTION) RULES, 1952 - RULE 3 - JURISDICTION OF CRIMINAL COURTS AND COURTS-MARTIAL - CHOICE BETWEEN CRIMINAL COURT AND COURT-MARTIAL - PROCEDURE FOR TRIAL OF PERSONS SUBJECT TO MILITARY LAW - DISCRETION OF COMMANDING OFFICER - RULES FOR AVOIDING CONFLICT OF JURISDICTION - MANDATORY REQUIREMENT FOR MAGISTRATE TO REFER TO RULES AND DELIVER ACCUSED TO COMMANDING OFFICER FOR TRIAL BY COURT-MARTIAL - FAILURE OF MAGISTRATE TO FOLLOW MANDATORY PROCEDURE - QUASHING OF CRIMINAL PROCEEDINGS.
Fact of the Case:
The petitioner, an Army Naik, challenged a criminal trial against him in a Sub-Divisional Judicial Magistrate's Court, arguing that he should be tried by a Court-martial under the Army Act, 1950.
Finding of the Court:
The Court found that the Magistrate had not followed the mandatory procedure under Section 549(1) of the Criminal Procedure Code and the Criminal Courts and Courts Martial (Adjustment of Jurisdiction) Rules, 1952, which require the Magistrate to refer to the rules and deliver the accused to the commanding officer for trial by Court-martial.
Issues: 1. Whether the Magistrate had jurisdiction to try the petitioner, a member of the Armed Forces, for a civil offence. 2. Whether the Magistrate had followed the mandatory procedure for avoiding conflict of jurisdiction between criminal courts and courts-martial.
Ratio Decidendi: 1. Under Section 69 of the Army Act, 1950, a person subject to the Act who commits a civil offence is deemed to have committed an offence against the Act and is liable to be tried by a Court-martial. 2. Section 125 of the Army Act gives discretion to the commanding officer to decide whether the accused should be tried by a Court-martial or a criminal court. 3. Section 475 of the Criminal Procedure Code provides for the delivery of persons liable to be tried by Court-martial to commanding officers. 4. Rule 3 of the Criminal Courts and Courts Martial (Adjustment of Jurisdiction) Rules, 1952 requires a Magistrate to refer to the rules and deliver the accused to the commanding officer for trial by Court-martial unless requested to proceed by the appropriate military authority.
Final Decision: The Court quashed the criminal proceedings against the petitioner, holding that the Magistrate had failed to follow the mandatory procedure for avoiding conflict of jurisdiction between criminal courts and courts-martial.
JUDGMENT :
S. Chatterji, J. - The present application u/s 482 read with 397 of the Code of Criminal Procedure at the instance of one Ramesh Chandra Mohanty, accused in G.R. Case No. 96 of 1993, pending in the Court of Sub-Divisional Judicial Magistrate, Nayagarh, challenges the criminal trial and for quashing the entire criminal proceeding on the ground that the accused is a member of the Armed Forces of the Union of India and at present he is working as a Naik in the Indian Army. It is further disclosed that in view of the certificate vide Annexure-1 to the writ petition that the petitioner was present in unit location on 14.3.1993 at 06.00 hrs. and on 13.3.1993 he was on his way to the Regiment. The function of the accused as Army Naik is not in dispute.
2. A short point of law has been raised before this Court. Attention of the Court has been drawn to Section 69 of the Army Act, 1950. It is provided 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 this Act and, if charged therewith under this section, shall be liable to be tried by a Court-martial and, on conviction, be punishable as follows, that is to say -
(a) if the offence is one which would be punishable under any law in force in India with death or with transportation he shall be liable to suffer any punishment, other than whipping, assigned for the offences, by the aforesaid law and such less punishment as in this Act mentioned; and
(b) in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the law in force in India, or imprisonment for a term which may extent to seven years, or such less punishment as is in this Act mentioned.
Section 70 of the Army Act indicates inter alia, the Civil offences not triable by Court-martial. The offences have been enumerated therein. It is argued from the Bar that in view of Section 125 of the said Act, choice between Criminal Court and Court-martial, when a Criminal Court and a Court-martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer commanding the army, army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which Court the proceedings shall be instituted, and if that officer decides that they should be instituted before a Court-martial, to direct that the accused person shall be detained in military custody.
3. In view of the Section 475 of the Code of Criminal Procedure there is scope for delivery to commanding officers of persons liable to be tried by Court-martial. It envisages that the Central Government may make rules consistent with this Code and the Army Act, 1950 and any other law, relating to the Armed Forces of the Union, for the time being in force, as to cases in which persons subject to military, naval or air force law, or such other law, shall be tried by a Court to which this Code applies or by a Court-martial; and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which this code applies or by a Court-martial such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the commanding officer of the unit to which he belongs, or to the commanding officer of the nearest military, naval or air force station, as the case may be, for the purpose of being tried by a Court-martial. There are explanations and the procedure as to how every Magistrate shall, on receiving a written application for that purpose by the commanding officer or any unit or body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavours to apprehend and secure any person accused of such offence. There is scope that
