273 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-62917-2023 (O&M) Date of Decision:- 25.08.2025 Naik Hemant @ Hemant Kumar Singh Chauhan ...Petitioner Versus State of Punjab and others ...Respondents CORAM:- HON'BLE MRS. JUSTICE AMARJOT BHATTI Present:- Mr. Umesh Aggarwal, Advocate for the petitioner.

Ms. Amrit Kaur Mahir, AAG, Punjab.

Mr. Amit Sharma, Senior Panel Counsel for respondent Nos. 2 and 3.

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AMARJOT BHATTI, J.(Oral)

Petitioner Naik Hemant @ Hemant Kumar Singh Chauhan has filed petition under Section 482 of Code of Criminal Procedure, 1973 seeking quashing of impugned order dated 21.11.2023 passed by learned Additional Sessions Judge, Amritsar (Annexure P-6), whereby application under Section 475 of Cr.P.C. read with Section 125 of Army Act, 1950 to handover the petitioner for Court-martial filed by Commanding Officer (Annexure P-4) has been allowed, by passing illegal order and further directing petitioner to appear before Commanding Officer in FIR No. 172 dated 13.06.2022 under Section 354, 354-A of IPC and under Section 10 of POCSO Act registered at Police Station Cantonment, District Amritsar, with prayer to stay the operation of aforesaid order or any other direction which the Court may deem fit and proper in the given facts and circumstances of case.

2. Learned counsel for petitioner argued that aforesaid FIR No. 172 dated 13.06.2022 under Section 354, 354-A of IPC and Section 10 of POCSO Act was registered at Police Station Cantonment, District Amritsar (Annexure P-1). After completion of investigation, challan was presented before the trial Court on 12.08.2022. Charge-sheet was framed under Section 354, 354-A of IPC and Section 10 of POCSO Act on 18.10.2022. During trial, three prosecution witnesses were completely examined on 26.05.2023 and Ct. Gurlal Singh PW-4 was examined on 10.07.2023. Zimni orders are Annexure P-2. Learned trial Court dismissed bail application on 23.08.2022. Thereafter, he approached Punjab and Haryana High Court and vide order dated 06.07.2023 passed in CRM-M-37781-2022 (Annexure P- 3), petitioner was granted bail. Commanding Officer filed application to handover petitioner for Court-martial (Annexure P-4) after a delay of one year and three months. Petitioner filed reply (Annexure P-5). Trial Court by passing impugned order dated 21.11.2023 (Annexure P-6) allowed application filed by Commanding Officer – respondent No. 2 and directed petitioner to appear before the Commanding Officer for Court-martial.

2.1 It is pointed out that registration of FIR against petitioner was well within the knowledge of respondent No. 2, therefore, delay in filing application has remained unexplained. Commanding Officer has filed application which is completely vague and without application of legal mind. The petitioner Naik Hemant was arrested with permission of Commanding Officer by moving application (Annexure P-7). No reason has been explained regarding the delay of one year and three months in filing the application, after registration of said FIR.

2.2 Learned trial Court at Amritsar had already taken cognizance of entire matter. After framing of charge-sheet, four prosecution witnesses were already examined. At this belated stage, application filed by Commanding Officer was not maintainable. In support of his arguments, learned counsel for petitioner has relied upon the judgment of Supreme Court of India in Criminal Appeal No. 257 of 2011, decided on 01.05.2012, case titled “General Officer Commanding Versus CBI and another” alongwith other connected criminal appeal, cited in 2012(2) RCR(Criminal) 818 Law Finder Doc Id # 353584, where in para No. 66, it was summed up as under :-

“66. Sum up :

(i) The conjoint reading of the relevant statutory provisions and rules make it clear that the term "institution" contained in Section 7 of the Act 1990 means taking cognizance of the offence and not mere presentation of the chargesheet by the investigating agency.

(ii) The competent Army Authority has