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PUNJAB & HARYANA HIGH COURT
Harbans Singh, Jindra Lal and A.D.Koshal JJ.
Ajit Singh
Versus
State Of Punjab
Criminal Appeal No. 1215 of 1968,
Murder Reference No. 3 of 1969,
Decided On : JANUARY 28, 1970
AIR FORCE ACT - Section 549, Criminal Procedure Code - Section 72 - Notification S.R.O. 8-E dated 5th December, 1962 - Interpretation - Trial of Air Force personnel by Magistrate - Jurisdiction - Legality - Violation of Rules 3 and 4 of Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1952 - Effect.
Fact of the Case:
The appellant, an Air Force personnel, was convicted and sentenced to death by the Additional Sessions Judge for offences under Sections 302 and 307, Indian Penal Code. The appellant's co-accused, who were tried with him for constructive liability, were acquitted. During the pendency of the appeal, the appellant filed an application under Sections 428 and 561-A, Criminal Procedure Code, for additional evidence and personal appearance in view of a ground taken by him that in any case, in the circumstances of the case, capital punishment was not called for. The appellant also submitted additional grounds of appeal through jail, wherein it was urged that at the time of the commission of the offence, he was an Air Force personnel on active service and that under Section 549, Criminal Procedure Code, and Rule 3 of the Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1952, it was incumbent upon the Committing Magistrate and the learned Additional Sessions Judge to inform the competent air force authority in writing about the case against him and to enquire, before proceeding with his case, whether the said authority wanted to claim him for trial by Court Martial.
Finding of the Court:
The Court held that the appellant was on active service within the meaning of the notification issued by the Central Government under Section 9 of the Air Force Act, 1950, on the date of the commission of the offences alleged against him, in spite of the fact that he was on leave from the Air Force. The Court further held that the provisions of Section 549 of the Code of Criminal Procedure and the rules framed thereunder must be looked upon as provisions which merely regulate the exercise by the Magistrate of that jurisdiction which already vests in him and cannot be treated as directional which must be followed by the Magistrate before he can "acquire" jurisdiction. The Court also held that the violation of Rules 3 and 4 of the Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1952, does not by itself deprive the Magistrate of his inherent jurisdiction, thereby automatically nullifying all subsequent proceedings and that the effect of such violation has to be determined on evaluation of all the facts and circumstances of each case.
Issues: 1. Whether the appellant was on active service within the meaning of the notification issued by the Central Government under Section 9 of the Air Force Act, 1950, on the date of the commission of the offences alleged against him? 2. Whether the provisions of Section 549 of the Code of Criminal Procedure and the rules framed thereunder are mandatory or directory? 3. Whether the violation of Rules 3 and 4 of the Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1952, by itself deprives the Magistrate of his inherent jurisdiction?
Ratio Decidendi: 1. The word "serving" used in the notification issued by the Central Government under Section 9 of the Air Force Act, 1950, must be construed in the wider sense in which a person employed by another is said to be serving him merely by reason of the relationship created by the employment. 2. The provisions of Section 549 of the Code of Criminal Procedure and the rules framed thereunder are directory and not mandatory. 3. The violation of Rules 3 and 4 of the Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1952, does not by itself deprive the Magistrate of his inherent jurisdiction.
Final Decision: The Court held that the trial of the appellant was not vitiated by any illegality and that the failure of the Courts below in not observing the provisions of Section 549 of the Code of Criminal Procedure and the rules made thereunder amounts to a mere irregularity curable by what is contained in Section 537 of the Code. The Court accordingly sent the case back to the Division Bench for hearing of the appeal on merits.
1. Ajit Singh alias Gurjeet Singh son of Harbans Singh of village Asal Autar has been sentenced to death on three counts under Section 302, Indian Penal Code. He has been further convicted under Section 307, Indian Penal Code, on eleven counts and sentenced to undergo rigorous imprisonment for seven years on each count. His co-accused, i.e., Ajit Singh son of Sohan Singh, Harbhajan Singh alias Dayal Singh, Gurbax Singh and Pala Singh, who were tried with Ajit Singh alias Gurjeet Singh for constructive liability for the offences for which Ajit Singh has been convicted, were given the benefit of the doubt by the learned Additional Sessions Judge and were acquitted.
2. During the pendency of this appeal and Murder Reference, the Public Prosecutor made an application under Sections 428 and 561-A, Criminal Procedure Code, for additional evidence and personal appearance of the appellant in view of a ground taken by the appellant in the grounds of appeal that in any case in the circumstances of the case capital punishment was not called for. This was on account of some dispute raised with regard to the age of Ajit Singh. In the meantime additional grounds of appeal were submitted to this Court by Ajit Singh through jail. These were forwarded by the Superintendent, Central Jail. Amritsar, on the 25th of July, 1969. In the additional grounds of appeal it was urged that at the time of the commission of the offence the appellant was L.A.C. in the Air Force and was on active service although on leave, and that under Section 549, Criminal Procedure Code, and Rule 3 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952, it was incumbent upon the Committing Magistrate and the learned Additional Sessions Judge to inform the competent air force authority in writing about the case against the appellant and to enquire, before proceeding with the appellants case whether the said authority wanted to claim the appellant for trial by Court Martial. It was maintained that the provisions of Rule 3 of Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952, not having been complied with, the trial was vitiated.
3. While we were hearing the appeal on the 14th of August, 1969, it was pointed out that there was no evidence on the record of this case on the basis of which it could be asserted that the appellant at the time of the incident was in the Air Force so as to entitle him to trial by Court Martial. The hearing was adjourned to enable learned counsel for the appellant to place before this Court, if he was so advised, evidence by way of affidavit or otherwise in order to lay the basis for the ground taken before us. In view of the importance of the law point involved we directed the learned Advocate-General to assist us in this matter himself.
4. We have heard learned counsel for the parties. Learned counsel for the appellant has pointed out the provisions of Section 549, Criminal Procedure Code. This section provides for delivery to military authorities of persons liable to be tried by Court Martial and is in the following terms
"(1) The Central Government may make rules, consistent with this Code and the Army Act, the Naval Discipline Act, the Indian Navy (Discipline) Act, 1934 and the Air Force Act and any similar law for the time being in force as to the cases in which persons subject to military, naval or air force law shall be tried by a Court to which this Code applies, or by 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 regiment, corps, ship or detachment to which he belongs, or to the commanding officer of the nearest military, naval or air force station,
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