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High Court Of Madhya Pradesh
T. P. Naik, J.
MAJOR GOPINATHAN - Appellant
Versus
STATE OF MADHYA PRADESH - Respondents
Criminal Revn. 203 Of 1961
Decided On : 11/20/1961
ARMY ACT - SECTION 69 - JURISDICTION - CONFLICT - SECTION 549 OF THE CODE OF CRIMINAL PROCEDURE - INTERPRETATION - RULES FRAMED UNDER SECTION 549 OF THE CODE OF CRIMINAL PROCEDURE - INTERPRETATION - COURT-MARTIAL - JURISDICTION - CIVIL OFFENCES DEEMED TO BE ARMY ACT OFFENCES - LIABILITY TO BE TRIED BY COURT-MARTIAL - WHEN ARISES.
Fact of the Case:
A complaint was filed against an Army officer, Major Gopinathan, and ten others for offences under Sections 341, 342, 352, 500, and 504 read with Sections 34 and 147 of the Indian Penal Code. The Magistrate took cognizance of the complaint and issued summons to the accused. Major Gopinathan filed an application claiming that he was triable only by a court-martial and not by an ordinary criminal court. The Magistrate overruled the objection but issued a notice to the Commanding Officer of Major Gopinathan as required by Rule 4 of the Rules framed by the Union Government under Section 549 of the Code of Criminal Procedure. The Commanding Officer intimated the Magistrate that in his opinion, Major Gopinathan should be tried by a court-martial. The Magistrate held that unless charges were framed against the accused by the appropriate authority under the Army Act, his liability to be tried by a court-martial did not arise and consequently, the provisions of Section 549 of the Code of Criminal Procedure were not attracted to bar his jurisdiction to try the accused.
Finding of the Court:
The Court held that the provisions of Section 549 of the Code of Criminal Procedure were attracted as there was a conflict of jurisdiction between the ordinary criminal court and the court-martial. The Court further held that the liability of a person to be tried by a court-martial arose when he was accused of an offence which was an Army Act offence because of the legal fiction created by Section 69 of the Army Act, and not when charges were investigated or framed against him.
Issues: 1. Whether there was a conflict of jurisdiction between the ordinary criminal court and the court-martial in respect of the offences alleged against Major Gopinathan? 2. Whether the liability of a person to be tried by a court-martial arose only after charges were investigated or framed against him?
Ratio Decidendi: 1. The Court held that there was a conflict of jurisdiction between the ordinary criminal court and the court-martial in respect of the offences alleged against Major Gopinathan because: * Section 69 of the Army Act deemed civil offences to be Army Act offences, making them triable by both a court-martial and an ordinary criminal court. * Sections 125 and 126 of the Army Act and Section 549 of the Code of Criminal Procedure were enacted to resolve such conflicts of jurisdiction. 2. The Court held that the liability of a person to be tried by a court-martial arose when he was accused of an offence which was an Army Act offence because of the legal fiction created by Section 69 of the Army Act, and not when charges were investigated or framed against him because: * The expression 'charged' in Section 69 of the Army Act was used in the sense of 'accused' and not in the sense of 'charge-sheeted'. * The Army Act and the Code of Criminal Procedure provided for the investigation and trial of charges by a court-martial without the need for a formal written accusation. * It was in the interest of Army discipline that charges against Army personnel be investigated and tried with expedition, avoiding the dilatory procedure of ordinary criminal courts.
Final Decision: The Court allowed the revision applications, stayed the prosecution against Major Gopinathan in the ordinary criminal court, and directed the Magistrate to hand him over to the competent military authority for trial by a court-martial.
( 1 ) THE order in this revision shall also dispose of criminal revision No. 199 of 1961.
( 2 ) THESE are applications for revising the order of the Magistrate First Class, jabalpur, dated 30-8-1960, whereby he held that the proceedings initiated before him on a complaint by Shri Mahabir Prasad, for offence under Sections 342, 352 and 500 read with Section 34 of the Indian Penal Code against the applicant Major gopinathan, an officer of the Armed Forces and as such subject to the Army Act, shall proceed, notwithstanding the fact that the Commanding Officer of the equivalent Citation: accused (Major Gopinathan) had given notice to the Magistrate that in his opinion he (the accused) should be tried by a court-martial.
( 3 ) FACTS, which are necessary for understanding the controversy, are as follows: shri Mahabir Prasad filed a complaint against Major Gopinathan, the applicant, and ten others for offences under Sections 341, 342, 352, 500 and 504 read with sections 34 and 147 of the Indian Penal Code in the Court of the Magistrate first class, Jabalpur. After examination of the complainant, the learned Magistrate registered the complaint for offence under Sections 342, 352 and 500 read with section 34 of the Indian Penal Code and issued summonses to the accused for their appearance on 18-7-1960. On 30-7-1960, the applicant major Gopinathan filed an application before the Magistrate claiming that he was triable by a court-martial alone and not by an ordinary criminal court. The aforesaid objection was overruled by the Magistrate by his order dated 18-8-1960. He, however, issued a written notice to the Commanding Officer of the accused Major Gopinathan as required by Rule 4 of the Rules framed by the Union Government under Section 549 of the Code of Criminal Procedure (hereinafter called 'the Rules' ). In answer to the notice, the Commanding Officer intimated the Magistrate as required by Rule 5 of the Rules that in his opinion the accused Major Gopinathan should be tried by a court-martial. The learned Magistrate on receipt of the said reply held that unless charges were framed against the accused by appropriate authority under the Army act, his (the accused's) liability to be tried by a court-martial did not arise and consequently the provisions of Section 549 of the Code of Criminal Procedure were not attracted to bar his jurisdiction to try the accused. The First Additional sessions Judge, Jabalpur, was moved to refer the case to this Court under Section 438 of the Code of Criminal Procedure; but he, having declined to do so, the applicant (accused Major Gopinathan) has himself moved this Court for revising the order of the Magistrate dated 30-8-1960. The Commanding Officer, who had moved the Magistrate under Rule 5 of the Rules, has also come up in revision against the same order. Both these revisions are being dealt with by this order.
( 4 ) THE contention of the learned counsel for the applicants is that offences under sections 342, 352 and 500 of the Indian Penal Code are, no doubt, civil offences' liable to be tried by ordinary criminal courts; but by virtue of Section 69 of the army Act, they are also deemed to be offences under that Act and liable to be tried by a court-martial. There was thus a conflict of jurisdiction between the two courts which were both competent to try the accused Major Gopinathan for the alleged offences which had to be resolved by taking recourse to Section 549 of the code of Criminal Procedure. Under Rule 5 of the Rules the Commanding Officer of the accused Major Gopinathan had given to the trying Magistrate a notice that in his opinion the accused should be tried by a court-martial and consequently the magistrate had no option but to stay the proceedings pending before him and to deliver the accused to the Commanding Officer with the statement prescribed in sub-section (1) of Section 549 of the Code of Criminal Procedure for trial by a court-martial. Equivalent Citation:
( 5 ) TH
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