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1993 Supreme(P&H) 959
PUNJAB AND HARYANA HIGH COURT
J.S. Sekhon and J.B. Garg. JJ
Pritam Singh - Appellant.
Versus
State of Haryana - Respondent
Criminal Appeal No. 392-DB of 1992.
Decided On : 22 October, 1993
For the Appellant :Mr. R.S. Ghai, Senior Advocate, with Mr. Bipan Ghai, Advocate.
For the Respondent: Mr. J.L. Sethi, Addl. A.G., Haryana
For the Complainant :Mr. K.K. Aggarwal, Advocate.
Non-compliance with the provisions of Section 475 of the Code of Criminal Procedure and Rules 3 and 4 of the Criminal Courts and Court-Material (Adjustment of Jurisdiction) Rules 1952 vitiates the trial of an army personnel for a civil offence.
Headnote:
CRIMINAL LAW - JURISDICTION - ARMY PERSONNEL - CIVIL OFFENCES - CONCURRENT JURISDICTION OF CRIMINAL COURTS AND COURT MARTIAL - PROCEDURE FOR DETERMINATION OF JURISDICTION - NON-COMPLIANCE WITH RULES - VITIATION OF TRIAL - LACK OF JURISDICTION - QUASHING OF CONVICTION AND SENTENCE - FRESH TRIAL AFTER FOLLOWING PRESCRIBED PROCEDURE.
Fact of the Case:
The appellant, an army personnel, was convicted by a criminal court for murder and attempt to murder. The appellant challenged the conviction on the ground that the trial court lacked jurisdiction as the provisions of Section 475 of the Code of Criminal Procedure and Rules 3 and 4 of the Criminal Courts and Court-Material (Adjustment of Jurisdiction) Rules 1952 were not complied with.
Finding of the Court:
The court held that the trial court lacked jurisdiction to try the appellant as the provisions of Section 475 of the Code of Criminal Procedure and Rules 3 and 4 of the Criminal Courts and Court-Material (Adjustment of Jurisdiction) Rules 1952 were not complied with. The court observed that in the case of civil offences subject to the provisions of Section 70 of the Army Act, both the Criminal Courts as well as Court Material have the concurrent jurisdiction. Before taking cognizance of the offence, the committing Magistrate under the Provisions of Section 4 75 of the Code of Criminal Procedure, 1973 read with Rules 3 and 4 of the 1952 Rules, was bound to give notice to the Commanding Officer of the Regiment of the accused whether he wanted to try the accused under the Army Act or the case should be tried by the Criminal Court.
Issues: 1. Whether the trial court had jurisdiction to try the appellant? 2. Whether the non-compliance with the provisions of Section 475 of the Code of Criminal Procedure and Rules 3 and 4 of the Criminal Courts and Court-Material (Adjustment of Jurisdiction) Rules 1952 vitiated the trial?
Ratio Decidendi: The court relied on the following legal principles: 1. In the case of civil offences subject to the provisions of Section 70 of the Army Act, both the Criminal Courts as well as Court Material have the concurrent jurisdiction. 2. Before taking cognizance of the offence, the committing Magistrate under the Provisions of Section 4 75 of the Code of Criminal Procedure, 1973 read with Rules 3 and 4 of the 1952 Rules, was bound to give notice to the Commanding Officer of the Regiment of the accused whether he wanted to try the accused under the Army Act or the case should be tried by the Criminal Court. 3. Non-compliance with the provisions of Section 475 of the Code of Criminal Procedure and Rules 3 and 4 of the Criminal Courts and Court-Material (Adjustment of Jurisdiction) Rules 1952 vitiates the trial.
Final Decision: The court quashed the conviction and sentence of the appellant and directed the committing Magistrate to commit the accused to fresh trial after following the procedure prescribed by the Rules.
J.S. Sekhon, J. :- Pritim Singh, appellant was tried and convicted by Sh. S.D. Anand, Additional Sessions Judge, Ambala on a charge for offences punishable under Sections 302, Indian Penal Code qua the murder of his brother Sunder Singh and under section 307, Indian Penal Code, for attempt to murder his other brother Mohinder Singh. He was also convicted under sections 27 and 25 of the Arms Act. The appellant was awarded imprisonment for life and fine of Re. 10, 000/- or in default of payment of fine to undergo six months rigorous imprisonment on the first count and seven years rigorous imprisonment and fine of Rs. 10,000/- or in default of payment thereof to undergo six months rigorous imprisonment on the second count while two years rigorous imprisonment and fine of Rs. 500/- or in default of payment thereof to undergo one months rigorous imprisonment were awarded on the third count. No sentence was awarded for offence under Section 25 Arms Act., All the substantive sentences were ordered to run concurrently. Out of the entire amount of fine, if realised, Rs. 25,000/- were ordered to be paid to Mst. Gurmit Kaur widow of Sunder Singh. Being aggrieved against his conviction and sentence, the appellant has come up in appeal. Gurmit Kaur, complainant has also preferred Criminal Revision No. 717 of 1992 for enhancement of sentence. Both these matters shall be disposed of by this judgment as they arise out of the same judgment of the trial Court.
2. Mr. R.S. Ghai, Senior Advocate, the learned counsel for the appellant, inter alia, contends that the entire trial is vitiated for non-compliance of the provisions of section 475, Code of Criminal Procedure, as well as Rules 3 and 4 of the Criminal Courts and Court-Material (Adjustment of Jurisdiction) Rules 1952 as the accused appellant admittedly being enlisted in the Army during those days, giving of notice to the commanding Officer of the Regiment of the accused was necessary in order to ascertain whether the accused was required to he tried by Court Martial under the provisions of the Army Act or under the General Criminal Law. Reliance in this regard was placed on the decision of the apex Court in Superintendent and Remembrancer of Legal Affairs West Bengal v. Usha Ranjan Roy Choudhury and another, AIR 1986 Supreme Court 1655.
3. Mr. JC Sethi, the learned Additional Advocate-General Haryana, assisted by Mr. K.K. Aggarwal, the learned counsel for the complainant. .on the other hand contends that the accused being on leave on the day of the occurrence and not on active service, the offence of murder of Sunder Singhcommitted by him would be exclusively triable by the criminal court under section 70 of the Army Act. In the alternative it is maintained the Army authorities have waived the right to elect for trial of the accused by a Court Martial despite the intimation Exhibit PH sent by Dr. Om Parkash (PW-9) qua the admission of Mohinder Singh, injured (PW 3) in the hospital.
4. As the controversy is purely legal, there is no need to go into the details of the facts of the prosecution case except to the extent that in the FIR Exhibit PM lodged by Mst. Gurmit Kaur (PW-6) there is specific mention that her husband Sunder Singh deceased, the latters brothers Mohinder Singh PW and Pritam Singh accused were serving in the Army and they had come on two months leave in connection with the marriage of his sister-in-law Amarjit Kaur, which took place on 7.5. 1989. Thus, there is no doubt about Pritam Singh accused as well as Sunder Singh deceased and Mohinder Singh being enlisted in the Army during the days of this occurrence. Consequently, Sub Inspector Pramal Singh (PW 11) who had recorded the FIR has become aware of this fact, but strangely enough he had failed to move the committing Magistrate or the trial Court for giving information to the commanding Officer of the Regiment as to whether the accused was required to be tried by the Court Martial under the provisions of the Army Ac
