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SUPREME COURT OF INDIA
Dr. A.S. Anand and Faizan-uddin, JJ.
Balbir Singh & Anr. - Appellants
versus
State of Punjab - Respondent
Criminal Appeal No. 544 of 1993
Decided on 10.11.1994
(ii) Criminal Procedure Code, 1973 - Section 475 - Air Force Act, 1950 - Sections 72, 124 & 125 - A person in active service of Air Force - Prosecution for any of offences listed in Section 72 - Option to try accused subject to Act by a court martial is with Air Force Authorities Accused person has no option or right to claim trial by a particular forum - Criminal Courts are not deprived of their inherent jurisdiction to take cognizance of civil offences under Code.
Held: Though the provisions of the Act and the Code referred to above are mandatory in character in so far as they reouire that the authorities under the Act shall be given the first option to decide whether to try the accused by court martial or allow his trial by the ordinary criminal court, no particular form of notice has been prescribed either under the Act, the Rules or the Code. Whether or not the authorities have been made fully aware and put on notice by the criminal court to enable them to exercise their option, would depend upon the facts and circumstances of each case. It is the substance and not the form of notice which is relevant and important. All that the law envisages is that the authorities under the Act must be made fully aware of the nature of offence, status of the victim and the pendency of the criminal case against a member of the force on active service, so that the authorities under the Act may exercise their option whether or not to try the accused by a court martial. Where full and complete "information" is provided to the authorities, the reouirement of law would stand complied with, irrespective of the fact whether the information was given by way of a notice or otherwise. (Para 21)
Further held: The conduct of the Air Force authorities in handing over the custody of the appellant to the police authorities for being produced before the criminal court for trial, is a clear indication of the exercise of the option by the Air Force authorities that they did not wish to detain the appellant in their custody under Section 124 of the Air Force Act and had opted for the trial of the appellant by the ordinary criminal court. This conclusion is reinforced by the fact that the Commanding Officer of the Air Force Station, Halwara, had subsequently also caught information from the Trial Court with regard to the fate of the case, vide his letter dated 18.2.1991. The above facts un-hesitatingly show that the Air Force authorities had been made fully aware of the pendency of the criminal case against a member of the force by the criminal court and had been afforded adeouate and full opportunity to exercise the option of having the appellant tried by a court martial. Since, with the full knowledge of the pcndency of the criminal case against the member of the Air Force, the authorities had voluntarily delivered the custody of the appellant, for his trial by the ordinary criminal court, the authorities would be deemed to have exercised the option of not trying the appellant by a court martial. The act of the authorities in voluntarily delivering the appellant to the civil authorities for trial unmistakably show that the Air Force authorities did not intend to claim the trial of the appellant by a court martial. It is pertinent to notice here that the Air Force authorities have made no grievance at any stage that their right to decide whether or not to try the accused by court martial had been impinged upon by the criminal court in any manner. They have not questioned the validity of the trial of the appellant by the criminal court at any forum whatsoever. The right to exercise the option is with the authorities and an accused has no right to demand or choose trial by a particular forum. The authorities under the Act have made no grievance and the grievance raised by the appellant is untenable. (Para 22)
(iii) Air Force Act, 1950 - Sections 4, 72, 124 & 125 - Expression active service - Definition - Can a person governed by the Act be deemed to be on active service while on casual leave? - (Yes). (paras 13 & 15)
JUDGMENT
Dr. Anand, J. - Balbir Singh, Major Singh, Nachhattar Singh, Bachan Singh and Kabul Singh were convicted by the learned Addl. Sessions judge for an offence wider Section 302/149 I.P.C. and sentenced to suffer life imprisonment and to pay a fine of Rs. 2000/- each and in default thereof to undergo further rigorous imprisonment for six months. All the accused persons were also convicted for an offence under Section 147 I.P.C. and sentenced to suffer one years rigorous imprisonment. Major Singh was also convicted for an offence under Section 325 I.P.C. and directed to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500/- and in default thereof to further undergo rigorous imprisonment for 4 months. Balbir Singh, Bachan Singh, Kabul Singh and Nachhattar Singh were also convicted for an offence under Section 325/149 I.P.C. and sentenced to suffer rigorous imprisonment for two years each and to pay a fine of Rs. 500/- each and in default to suffer 4 months rigorous imprisonment vide judgment dated 15.2.1991.
2. On appeal filed by the convicts- against their conviction and sentence, Balbir Singh and Nachhattar Singh, the appellants herein were held guilty of the offence under Section 302/34 I.P.C. and sentenced to suffer life imprisonment and to pay a fine of Rs. 2000/- each and in default thereof to suffer rigorous imprisonment for six months. The conviction and sentence of Major Singh for the offence under Section 325 I.P.C. was also upheld. The remaining co-accused of the appellants were acouitted of all the charges. The conviction and sentence of the appellants for an offence under Section 325/l49 I.P.C. was also set aside.
3. On 10.8.1993, the special leave petition in so far as Major Singh is concerned was not pressed and the same was dismissed. Balbir Singh and Nachhattar Singh were, however, granted leave.
4. According to the prosecution case, on 21st May, 1988 at about 6.00 p.m. the appellants and their co-accused, variously armed attacked Hazara Singh at about 6.00 p.m. Balbir Singh and Nachhattar Singh were allegedly armed with a gandasa each while Major Singh was armed with a takwa. The accused caught hold of Hazara Singh and dragged him towards the house of the appellants. On his raising noise, his father Pritam Singh and brother Karamjit Singh were attracted and they rushed to the spot to rescue Hazara Singh. Balbir Singh appellant gave a blow with the gandasa hitting Pritam Singh on the right side of his head. Nachhattar Singh Appellant also gave a gandasa blow on the head of Pritam Singh who then fell down. Major Singh gave a blow on the head of Hazara Singh and thereafter all the assailants fled away with their respective weapons. The injured were removed to the hospital at Ludhiana. Pritam Singh was declared unfit to make a statement. He succumbed to his injuries on 31st of May, 1988. The post-mortem on the dead body of Pritam Singh was conducted by Dr. A. Sahni, who opined that the death was caused due to injuries to the brain, which were sufficient in the ordinary course of nature to cause death. Hazara Singh P.W. 7 was medically examined at the dispensary by Dr. Hari Krishan who found one lacerated wound on his head. The first information report was recorded on the basis of the statement of Hazara Singh P.W. 7 recorded on 22.5.1988. The prosecution examined a number of witnesses to establish the guilt of the accused. The appellants in their statements under Section 313 Cr. P.C. denied all the circumstances appearing in the prosecution evidence against them and stated that they had been falsely implicated in the case on account of their enmity with Hazara Singh P.W. 7 whom they had opposed in the elections for the post of Sarpanch. Nachhattar Singh, appellant pleaded alibi and stated that at the relevant lime he was posted in Tezpur (Assam) at CPS Security Station Air Force and had got leave in April 1988 for appearing in the examination of Masters in Physical Education at the Nagpur Unive
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