Second FIR on same transaction barred after acquittal; violates double jeopardy. Military discretion under Army Act prevails post-charge-sheet pre-cognizance, especially after civilian acquittal for service-related offences.

JUDGMENT :

Alok Mahra, J.

This C-528 application has been preferred by the applicant invoking inherent jurisdiction for quashing of the charge-sheet, the impugned summoning/cognizance order dated 09.12.2024 passed in Criminal Case No. 1210 of 2024 by the learned Additional Chief Judicial Magistrate, Khatima, District Udham Singh Nagar under Section 317 (2) of the Bharatiya Nyaya Sanhita, 2023 (B.N.S.), as well as the entire criminal proceedings arising out of F.I.R. No. 334 of 2024, Police Station Khatima. A further direction has been sought for expeditious disposal of Release Application No. 16 of 2025 relating to personal articles of the applicant.

2. The prosecution case, in brief, is that on 04.10.2024 information was received from 237 Engineer Regiment (Assam) that Sepoy Suraj Chandra Joshi had allegedly taken away one INSAS Rifle No. 47532656 with 60 rounds of ammunition. An F.I.R. No. 43 of 2024 was registered at Police Station Borpother, Assam under Sections 303 (2)/306 B.N.S. and Section 25(1-AA) of the Arms Act. On receipt of further information that the applicant was present in Khatima (District Udham Singh Nagar), search operations were conducted and from Room No. 201 of Utsav Hotel, one INSAS rifle with magazines and ammunition was recovered. Consequently, F.I.R. No. 334 of 2024 under Section 317 (2) B.N.S. was lodged at Police Station Khatima. It is not disputed that in F.I.R. No. 43 of 2024 (Assam), after investigation charge-sheet was submitted and the learned Sub-Divisional Magistrate, Bokajan, District Karbi Anglong, Assam acquitted the present applicant on merits.

3. Learned counsel for the applicant would submit that the weapon was issued to the applicant in discharge of official duties and was not “stolen property”; that, the second F.I.R. (No. 334 of 2024) is based on the same occurrence and identical set of facts as F.I.R. No. 43 of 2024, and thus amounts to impermissible second prosecution; that, that the applicant having been acquitted by a competent criminal court, continuation of proceedings would violate the doctrine of double jeopardy, Section 337 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), Section 26 of the General Clauses Act, 1897; that in view of Section 125 of the Army Act, 1950, the matter falls within the discretion of the military authorities. Reliance has been placed upon the judgment of the Hon’ble Supreme Court in General Officer Commanding v. CBI, wherein it was held that the stage for exercising discretion under of the Army Act arises after filing of charge-sheet and before taking cognizance or framing of charges. It is further submitted that disciplinary proceedings/court-martial have already been initiated by the Commanding Officer, 237 Engineer Regiment, and therefore criminal proceedings ought to yield to military jurisdiction.

4. Learned counsel for respondent no. 3, on instructions from the Commanding Officer, has submitted that the Army intends to initiate/continue effectual proceedings by way of court-martial under the Army Act and Rules. Learned Deputy Solicitor General, on instructions, has prayed that the seized weapon, ammunition, magazines and identity card, being Government property issued for official duty, may be released in favour of the representative of the Indian Army.

5. Heard learned counsel for the parties and perused the material available on record.

6. On Maintainability of Second F.I.R., from the record, it is evident that both F.I.R. No. 43 of 2024 (Assam) and F.I.R. No. 334 of 2024 (Khatima) arise out of the same transaction, namely alleged unauthorized removal and possession of INSAS rifle and ammunition by the applicant on 04.10.2024.