Judgment:
B.H. Marlapalle,J.
1. This criminal appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973, arises from the order of conviction and sentence passed in Sessions Case No. 79 of 1986 on 15/1/1988 by the learned Additional Sessions Judge - Sessions Court, Mumbai, thereby convicting the appellant for the offences punishable under Sections 302 and 381 of I.P.C. for causing the murder of two of his colleagues i.e. Omprakash Dubey - Midshipman and Hanumansingh Rathod - Seaman on 24/11/1985 at about 11.30 a.m. while on board INS Ranjit. He has been sentenced to suffer life imprisonment for the offence punishable under Section 302 and RI for five years for the offence punishable under Section 381 of I.P.C. The appellant was on bail during trial and he continued to be on bail during the pendency of this appeal as well. Thus, during the last more than 24 years he has been on bail and this appeal for some or the other reasons remained pending before this Court for more than 21 years, though it arises from the double murder of young sailors at the hands of one of their own colleagues.
The appellant was born in 1963 and completed his graduation in 1984. He was commissioned in the Indian Navy in March 1984, and had joined the Naval Academy at Cochin in August 1984. He completed his basic training in December 1984 and joined INS Ranjit as a Midshipman in July 1985.
Ironically, the appeal is succeeding only on technical ground so as to remand the Sessions Case for a de novo trial, but by quashing and setting aside the impugned order of conviction and sentence. This situation has arisen for the sole reason that the learned Metropolitan Magistrate of 19th Court, Mumbai was not made aware of the compliance of the mandatory provisions of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 (the Rules for short) framed by the Central Government under Section 475 of the Code of Criminal Procedure, 1973. We record our anguish for the failure on the part of the Special Public Prosecutor as well as the defence counsel who conducted the trial before the Sessions Court and it is evident that none of them appeared to be aware of the said Rules and the mandatory procedure to be followed thereunder by the learned Metropolitan Magistrate before committing the case to the Sessions Court under Section 209 of Cr.P.C. It is true that this point of jurisdiction was not raised before the learned Additional Sessions Judge in the form and manner that has been raised before us for the first time and we are required to decide the said preliminary point of jurisdiction by following the law laid down in the case of Moly and Anr. v. State of Kerala : 2004CriLJ1812 read with - Delhi Special Police Establishment, New Delhi v. Lt. Col. S.K. Loraiya : 1973CriLJ33 , Superintendent and Rememberancer of Legal Affairs, West Bengal v. Usha Ranjan Roy Choudhury and Anr. : 1986CriLJ1248 and Union of India, through Major General H.C. Pathak v. Major S.K. Sharma : 1987CriLJ1912 .
2. The prosecution case unfolds thus,
From 20/11/1985 onwards the Naval exercises were in progress and INS Ranjit had also participated in these exercises. On 24/11/1985 INS Ranjit was harboured at the Mumbai Port and the accused as well as both the deceased were part of the Naval pool of INS Ranjit during this exercise called 'Barracuda II'. The said operation was terminated on 24/11/1985 at about 11.15 a.m. or so and at that time Lt. Commander Dhamdhere - PW 1 was the Commanding Officer of the Ship as both his seniors were not present on the Ship. The Commanding Officer along with the accused, deceased Omprakash Dubey, Lt. Nikula, Lt. Commander Palsule and 2-3 other officers was having tea in the ward room of INS Ranjit between 11 a.m. to 11.15 a.m. and during this time, the Commanding Officer received a message that the exercise was terminated and this message was received by him from the Duty Signal Man. The Commanding Officer, therefore, instructed Omprakash Dubey (D1 for short) to call all the sentries so that he could go and muster them. On board there were about eight midshipmen, six sentries and all of them were provided with 9 mm carbine (pistols) along with the magazines. Each sentry used to be on duty for four hours by rotation and they used to exchange the weapons on change of duty. The accused also left the ward room as soon as Omprakash Dubey left from there. At about 11.30 a.m. or so the Duty Officer Dhamdhere left the ward room along with Nikula to go to the gangway to muster the sentries and as he was walking towards the gangway, the first thing which he saw was that the accused was holding a 9 mm carbine against the head of Midshipman Omprakash and fired a burst. Midshipman Ravi Shankaran - PW 9 who was proceeding towards the gangway and a little ahead of Dhamdhere turned back, pushed him and ran towards the ward room. Dhamdhere saw seaman Hanumansingh (deceased No. 2) very close to Omprakash and both of them had fallen on the ground at the same time because of the bullet fired by the accused. Hanumansingh (D2) was Duty Quarter Master and was supposed to be a sentry at the entrance of the gang way and there was another Quarter Master by name Vijayan - PW 8 and was hiding himself behind the desk which was just next to the gangway and few steps away from D2 and D1. Dhamdhere took two steps towards the accused and shouted at him. The accused went on saying, 'no Sir, no Sir' and lowered the weapon, which was in his hands, upto his waist. After about a minute or so, the accused dropped the weapon on some hesitations. Dhamdhere told Vijayan, who was hiding from the desk on the other side of the rope, to grab the weapon, which the accused had dropped and run away. Vijayan did accordingly and immediately thereafter Vijayan ran with the weapon to the left side of the shipway from the gangway. At this stage, the accused also ran away out of the ship and started running on the Jetty. Dhamdhere was chasing him by shouting 'pakdo pakdo', but the accused jumped into the sea in front of INS Udaigiri (another ship). But the divers of INS Udaigiri caught hold of the accused in the sea and brought him to INS Udaigiri. In the meantime, D1 and D2 were taken to the hospital (INHS Ashwini) by Midshipman Sur - PW 4 and Midshipman Pokhriyal. Dhamdhere informed about the incident to the Commanding Officer and the Naval Police, who reached the scene within 15 to 20 minutes and the City Police also came within one hour. The 9 mm carbine picked up by Vijayan - PW 8 from the scene of offence was kept back at the same place when the City Police arrived at the scene. It was noticed that the carbine had fired three bullets and three empty shells were found at the scene of offence. The accused came to be arrested by the City Police from INS Udaigiri at about 4.30 p.m. and before that the statement of Ravi Shankaran - PW 9 was recorded by PI Mitake - PW 15 on INS Ranjit and the same was treated as the F.I.R. (Exh.55). In the hospital both the victims were declared dead and Dr. Khade - PW 10 conducted the autopsy of both the dead bodies (Exh.63 and Exh.59). Undoubtedly, both of them died because of the gun fire injuries on the head. Investigation was completed by the I.O. i.e. Mitake - PW 15 and PI Garkal - PW 20. The accused was presented before the Metropolitan Magistrate on 25/11/1985 and was granted police custody. On 8/1/1986 the accused was remanded to judicial custody. The charge-sheet came to be filed on 18/1/1986, after receiving the reports from Forensic Laboratory as well as the Ballistic Expert.
3. Charge (Exh.8) was framed by the Sessions Court on 12/6/1987 and the following issues were framed for determination:
(a) Does the prosecution prove that Omprakash and Hanumansingh died homicidal death?
(b) Does the prosecution prove that the accused committed murder of Hanumansingh and Omprakash by firing bullets from 9 mm carbine?
(c) Does the prosecution prove that the accused committed theft of three bullets of 9 mm carbine on board INS Ranjit?
(d) Does the accused prove that in the morning of 24/11/1985 between 11.00 and 11.30 a.m. at the time of committing the act viz. firing the bullets from 9 mm carbine at Omprakash and Hanumansingh, by reason of unsoundness of mind he was incapable of knowing the nature of the act or that he was doing what was wrong or contrary to law?
(e) Was sanction under Section 197(2) of Cr.P.C. necessary before prosecuting the accused?
(f) Does this Court have jurisdiction to try this case?
(g) What offence the accused is proved to have committed?
Issue Nos. 1 to 3 and 6 were answered in the affirmative, whereas Issue Nos. 4 and 5 were answered in the negative. The accused was held to be guilty of committing murder of Omprakash and Hanumansingh by firing bullets from 9 mm carbine. He was also held to be guilty of offence punishable under Section 381 of IPC. The prosecution had examined in all 23 witnesses. Duty Officer Shri Rajiv Dhamdhere - PW 1. Explosive Accounting Officer Lt. Commander Tenginakere Narasimha - PW 2. Shri Ramesh Chandra - PW 3 from whom the accused had allegedly snatched the weapon (Article 1) along with magazine (Article 2) on the date of the incident. Midshipman Sujit Sur - PW 4, the complainant. Shri Birbal Singh - PW 5, a driver on INS Udaigiri. Commandar Khalid Hasan - PW 6, Judge Advocate, Headquarters Western Naval Command, Mumbai. Shri Bachi Singh Bhauryal - PW 7, Petty Officer on INS Ranjit. Shri V.V. Vijayan - PW 8, Leading Seaman. Shri Ravi Shankaran - PW 9, Midshipman. Dr. K.R. Khade - PW 10, Lecturer in Forensic Medicine with Grand Medical College, Mumbai. Lt. Hanuman Singh s/o Mangesh Singh - PW 11, a sailor from INS Udaigiri. Dr. Pralhad Awale - PW 12, Medical Officer, Civil Hospital, Satara and he had examined the accused on 27/11/1985 at St. Georges Hospital, Mumbai when produced by the Colaba Police Station. Shri Ramnathan - PW 13, Petty Officer, INS Ranjit. Shri Ram Govind Parakhi - PW 14, Ballistic Expert from the Controller of Inspection, Khadki. Shri Vishambar Mitake - PW 15, PSI Colaba Police Station. Shri Baliram More - PW 16, Police Constable from Colaba Police Station. Shri A.M. Rao - PW 17, Assistant Chemical Analyser from the Forensic Science Laboratory, Mumbai. Shri Vishnu Landage - PW 18, Police Sub Inspector at Colaba Police Station. Shri Babu Salunke - PW 19, Police Constable from Colaba Police Station. Shri Rajaram Garkal - PW 20, PI attached to Colaba Police Station. Dr. Yeshwant Kelkar - PW 21, the Superintendent from Central Mental Hospital, Yerawada, Pune. Dr. Rajesh Zalpuri - PW 22, MO, Indian Navy and lastly, Shri Anilkumar Gaikwad - PW 23, Petty Officer on INS Ranjit.
4. The defence examined in all four witnesses. Shri Rakesh Kumar Mehta - DW 1, Judge Advocate, Headquarters Western Naval Command, Mumbai. Smt. Ivinder Kaur Bedi - DW 2, the mother of accused. Dr.Murlidhar Kulkarni - DW 3, MO, attached to G.T. Hospital, Mumbai and Dr. Tirandas Ramteke - DW 4, Chief Medical Officer attached to the Central Prison Hospital, Thane. The plea of unsoundness of mind making the accused incapable of knowing the nature of the act i.e. firing, from the pistol or that he was incapable of knowing the nature of the act or that he was doing what was wrong or contrary to law was raised along with the point of jurisdiction of the Sessions Court to try the accused. The issue of jurisdiction, as raised before the Sessions Court, was in a different form than the same has been raised before us. It was submitted that under Section 78(1) of the Navy Act, the accused was required to be tried by the Court Martial and the Sessions Court did not have the jurisdiction to try the accused. The learned Sessions Judge noted that Naval Board Inquiry was conducted and the statements recorded during the said inquiry were made available to the defence counsel on his making application and at the end of the trial the said inquiry papers were returned to the Naval Authorities. These previous statements were used by the defence to confront the prosecution witnesses in the court as permitted under Section 145 of the Indian Evidence Act and Judge Advocate Commander (PW 5) was one of the prosecution witnesses, who deposed before the Sessions Court. The Sessions Court relied upon the decision in the case of Joginder Singh v. State of Himachal Pradesh : 1971CriLJ511 and rejected the objection of jurisdiction by holding that it was to the choice of the Naval Authorities either to proceed with the Court Martial or allow the accused to be tried by the Sessions Court. It was not left to the choice of the accused to choose the forum and it was entirely at the discretion of the Naval Authorities either to try the accused before the Court Martial or allow the trial to be conducted by the Sessions Court.
5. Mr. Pradhan the learned Counsel for the appellant has raised a preliminary point of lack of jurisdiction by referring to Rules 3 to 9 of the Rules. As per him, the procedure set out in the said Rules has not been followed before the learned Metropolitan Magistrate, who passed an order of committal under Section 209 of Cr.P.C. and the said Rules being mandatory, non-compliance thereof, has vitiated the entire trial and the trial by the learned Additional Sessions Judge is without jurisdiction and, therefore, the impugned order of conviction and sentence has to be quashed and set aside. Mr. Pradhan fairly conceded that if these arguments advanced by him are accepted, there has to be a fresh trial either by the Court Martial or by the Sessions Court by complying with the requirements of the Rules. In support of these arguments, he relied upon the decisions noted in para 1 hereiabove.
6. On merits, Mr. Pradhan submitted that the deceased had fallen victim of an accidental firing by the accused and, therefore, at the most he is guilty of an offence punishable under Section 304-A of I.P.C. Thus before the trial court as well as this Court, it has been admitted impliedly that the two sailors died on account of the bullets fired by the accused. Mrs. Deshmukh, the learned APP, on the other hand, has opposed the preliminary point of jurisdiction and supported the impugned order of conviction and sentence. She has pointed out that the preliminary point of jurisdiction on account of non compliance of the Rules of 1978 has been taken up for the first time in this appeal and such a point not having been agitated before the Sessions Court, it cannot be considered by the Appellate Court, more so when no record is available from the court of Metropolitan Magistrate. She also pointed out the enormous difficulties that may arise in conducting a fresh trial mainly because of the passage of time as well as the non-availability of the concerned witnesses. She relied upon the decisions in the case of (i) Joginder Singh v. State of Himachal Pradesh : 1971CriLJ511 and (ii) Balbir Singh and Anr. v. State of Punjab : (1995)1SCC90 . As per her, it ought to be presumed that the Naval Authorities had consented for the accused to be tried by the Sessions Court. The accused had taken up a limited point of jurisdiction, contending that he was required to be tried only by the Court Martial and the said defence has been rightly turned down by the Sessions Court. Mrs. Deshmukh, therefore, urged before us to reject the preliminary point of lack of jurisdiction and confirm the order of conviction and sentence on merits.
7. Section 549 of the Code of Criminal Procedure 1898 provided for framing Rules by the Central Government consistent with the Code and the Army Act, the Naval Discipline Act, the Indian Navi (Discipline) Act, 1934 and the Air Force Act, as to the cases in which persons subject to military, Navy or Air Force law shall be tried by a court to which the Code applies or by a Court Martial. The said Rules were intended to be framed so as to avoid any clash of jurisdiction specially in cases which could be tried both by the Court Martial as well as the ordinary criminal Court. The Central Government had framed the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 under Section 549(1) of the Code of Criminal Procedure 1898. On amendment of the Code of Criminal Procedure 1898, Section 549 therein was replaced by Section 475 of the Code of Criminal Procedure 1973 and consequently, the Central Government, in exercise of the powers under Section 475 of the new Code, framed the Rules of 1978. Rules 3 to 7 which are relevant for our consideration of the said Rules are reproduced as under and undoubtedly, the accused being part of the Naval staff, at the relevant time, the said Rules were applicable to his trial as well:
3. Where a person subject to military, naval or air force law, or any other law relating to the Armed Forces of the Union for the time being in force is brought before a Magistrate and charged with an offence for which he is also liable to be tried by a Court-martial, such Magistrate shall not proceed to try such person or to commit the case to the Court of Sessions, unless:
(a) he is moved thereto by a competent military, naval or air force authority; or
(b) he is of opinion, for reasons to be recorded, that he should so proceed or to commit without being moved thereto by such authority.
4. Before proceeding under Clause (b) of Rule 3, the Magistrate shall give a written notice to the commanding officer or the competent military, naval or air force authority, as the case may be, of the accused and until the expiry of a period of fifteen days from the date of service of the notice he shall not:
(a) convict or acquit the accused under Section 252, Sub-section (1) and (2) of Section 255, Sub-section (1) of Section 256 or Section 257 of the Code of Criminal Procedure, 1973 (2 of 1974), or hear him in his defence under Section 254 of the said Code; or
(b) frame in writing a charge against the accused under Section 240 or Sub-section (1) of Section 246 of the said Code; or
(c) make an order committing the accused for trial to the Court of Sessions under Section 209 of the said Code; or
(d) make over the case for inquiry or trial under Section 192 of the said Code.
5. Where a Magistrate has been moved by the competent military, naval or air force authority, as the case may be, under Clause (a) of Rule 3, and the commanding officer or the accused or the competent military, naval or air force authority, as the case may be, subsequently gives notice to such Magistrate that, in the opinion of such officer or authority, the accused should be tried by a Court-Martial, such Magistrate if he has not taken any action or made any order referred to in Clause (a), (b), (c) or (d) of Rule 4, before receiving the notice shall stay the proceedings and, if the accused is in his power or under his control, shall deliver him together with the statement referred to in Sub-section (1) of Section 475 of the said Code to the officer specified in the said sub-section.
6. Where within the period of fifteen days mentioned in Rule 4 or at any time thereafter but before the Magistrate takes any action or makes any order referred to in that rule, the commanding officer of the accused or the competent military, naval or air force authority, as the case may be, gives notice to the Magistrate that in the opinion of such officer or authority, the accused should be tried by a Court-martial, the Magistrate shall stay the proceedings, and if the accused is in his power or under his control, shall deliver him together with the statement referred to in Sub-section (1) of Section 475 of the said Code to the officer specified in the said Sub-section.
7. (1) When an accused has been delivered by the Magistrate under Rule 5 or 6, the commanding officer of the accused or the competent military, naval or air force authority, as the case may be, shall, as soon as may be, inform the Magistrate whether the accused has been tried by a Court-martial or other effectual proceedings have taken or ordered to be taken against him.
(2) When the Magistrate has been informed under Sub-rule (1) that the accused has not been tried or other effectual proceedings have not been taken or ordered to be taken against him, the Magistrate shall report the circumstances to the State Government which may, in consultation with the Central Government, take appropriate steps to insure that the accused person is dealt with in accordance with law.
8. When a person subject to military, naval or air force law or any other law relating to the Armed Forces is brought before a Magistrate and charged with an offence for which he is also liable to be tried by a court martial, the Magistrate will not proceed to try such person or to commit the case to the Court of Session unless (a) he is moved to that effect by a competent military, naval or air force authority or (b) he is of opinion for reasons to be recorded, that he should so proceed or to commit without being moved thereto by such authority. Rule 3, in our opinion, comes into play at the point where the person has been brought before a Magistrate and charged with an offence. That is the stage adverted to earlier where the accused is directed to appear before the Magistrate and is charged with an offence after the Magistrate has determined that there is a case for trial. Before proceeding further with the case and either proceeding to try the accused or to commit the case to the Court of Session the Magistrate must, under Rule 4, give written notice to the Commanding Officer of the accused and refrain for a period of 15 days from doing any of the acts or making any of the orders in relation to the trial of the accused specified in Rule 4. In the event of the Magistrate entering upon the trial of the accused or committing the case to the Court of Session at the instance of the military, naval or air force authority it is open to such authority or the Commanding Officer of the accused to give notice subsequently under Rule 5 to such Magistrate that, in the opinion of such officer or authority the accused should be tried by a court martial. Upon such notice, the Magistrate, if he has not taken any action or made any order referred to specifically in Rule 4 before receiving such notice, must stay the proceedings and deliver the accused together with the statement referred to in Section 475(1) of the Code to the officer specified in that sub-section. In the other kind of case, where the Magistrate intends to proceed to try the accused or to commit the case to a Court of Session without being moved in that behalf by the military, naval or air force authority, and he has given notice under Rule 4 to the Commanding Officer or the military, naval or air force authority of his intention to do so, Rule 6 empowers the Commanding Officer or the competent authority to give notice to the Magistrate within the aforesaid period of 15 days or in any event before the Magistrate takes any action or makes any order referred to in that rule, that in the opinion of such officer or authority the accused should be tried by a court martial. Upon such notice the Magistrate must stay the proceedings and deliver the accused together with the statement referred to in Section 475(1) of the Code to the officer specified in that sub-section. It is clear that when the accused is made over by the Magistrate to the Commanding Officer or the competent military, naval or air force authority it is for the purpose of trial by a court martial against him. For Rule 7(1) provides that when an accused has been delivered by a Magistrate under Rule 5 and 6 the Commanding Officer or the competent military, naval or air force authority must, as soon as may be, inform the Magistrate whether the accused has been tried by a court martial or other effectual proceedings have been taken or ordered to be taken against him. The communication of such information is mandatory. When the Magistrate is informed that the accused has not been tried or other effectual proceedings have not been taken or ordered to be taken against him, he is obliged to report the circumstance to the State Government and the State Government, in consultation with the Central Government may take appropriate steps to ensure that the accused person is dealt with in accordance with law. The policy of the law is clear. Once the criminal court determines that there is a case for trial, and pursuant to the aforesaid rule, delivers the accused to the Commanding Officer or the competent military, naval or air force authority, the law intends that the accused must either be tried by a court martial or some other effectual proceedings must be taken against him. To ensure that proceedings are taken against the accused, the Rules require the Commanding Officer or the competent authority to inform the Magistrate of what has been done. Rule 7(2) appears to envisage the possibility that the Commanding Officer or the competent military, naval or air force authority may not try the accused or take effectual proceedings against him even where the Magistrate has found a case for trial. To cover that exigency it provides that the State Government in consultation with the Central Government, on a report from the Magistrate to that effect, may take appropriate steps to ensure that the accused does not escape the attention of the law. The policy of our constitutional polity is that no person should be regarded as being above the law. Military, naval or air force personnel are as much subject to the law as members of the civil population. It is significant that Rule 8 empowers the Magistrate, on coming to know that a person subject to the military, naval or air force law or any other law relating to the Armed Forces has committed an offence and proceedings in respect of which ought to be instituted before him and that the presence of such person cannot be procured except through military, naval or air force authorities, to require the Commanding Officer of such person either to deliver such person to a Magistrate for being proceeded against according to law or to stay the proceedings against such person before the court martial if since instituted, and to make a reference to the Central Government for determination as to the court before which the proceedings should be instituted.
9. In the case of Loraiya (Supra), the trial before the Special Judge under Section 120-B of IPC read with Section 5(1) and 5(2) of the Prevention of Corruption Act was quashed by the High Court on two grounds and one of them was that the charges were framed by the Special Judge without following the procedure specified in the Rules framed under Section 549 of Cr.P.C. 1898. In appeal by the Delhi Special Police Establishment, the Supreme Court held that the charges framed by the Special Judge against the accused could not survive as the procedure specified in Rule 3 of the 1952 Rules was not followed by the Special Judge before framing the charges against the accused. The phrase, 'is liable to be tried either by a Court to which this Code applies or a Court-martial' was intended to refer to the initial jurisdiction of the two courts to make cognizance of the case and not to their jurisdiction to decide it on merits. The order passed by the High Court was confirmed in the case of Usha Ranjan Roy Choudhury (Supra), additional point as taken and it was submitted that the procedure in the 1952 Rules was applicable only to the Court of Magistrate and not the Court of a Special Judge. This argument was also overruled. On the requirement to follow the procedure framed under the Rules of 1952, the Supreme Court stated thus,
9. Having regard to the enunciation of law to this effect it is evident that the ordinary criminal court would have no jurisdiction to take cognizance of the case and to try the accused in a matter where the procedure prescribed by the Rules has not been complied with. The initial lack of jurisdiction to take cognizance and try the case would of logical necessity vitiate the trial and the order of conviction and sentence would be liable to be quashed as a result thereof. We are therefore unable to accede to the submission urged on behalf of the appellant-State that even if the Rules are applicable, having regard to the fact that more than three years have expired from the date of the commission of the alleged offence, the trial is not vitiated.
In the case of Major S.K. Sharma (Supra) the Supreme Court reiterated that the procedural requirement under Rules of 1978 was mandatory.
10. The case of Joginder Singh (Supra) was decided on 30/11/1970 by a Bench of two Judges, whereas the case of S.K. Loraiya was decided on 24/8/1972 by a Bench of three Judges and the law laid down in Loraiya's case has been subsequently followed in the case of Usha Rajan Roy Choudhury (Supra) and Major S.K. Sharma (Supra). The Supreme Court in Joginder' case referred to Sections 125 and 126 of the Army Act and held that if the Designated Officer in Section 125 had not chosen to exercise his discretion and decided before which court the proceedings should be instituted and in particular he did not decide that the proceedings should be instituted before a Court-martial, there was no occasion for the Criminal Court to adopt the procedure laid down in Section 126 of the Army Act. It is only when the Designated Officer exercised his discretion and decided that the proceedings should be instituted before the Court-martial, that the provisions of Section 126(1) of the Army Act, would come into operation and if he does not exercise his discretion and decide that the proceedings should be instituted before the Court-martial, the Army Act would not obviously be in the way of the Criminal Court exercising its ordinary jurisdiction in the manner provided by law. In para 31 the Supreme Court concluded as under:
31. ...Surrender of the accused to the civil authorities to be dealt with by the latter, after being made aware of the nature of the offence against the appellant, is a clear indication that the decision of the military authorities was that the appellant need not be tried by a Court-martial and that his trial can take place before the criminal Court. Under these circumstances there was no occasion to follow the procedure under Section 126 or Rule 4 as the military authorities had made abundantly clear that the appellant need not be tried by the court-martial. That being so, it would have been altogether superfluous for the Magistrate to give the notice as required by the said provisions. Rules 5 and 8 have no application to the facts of this case.
As noted earlier, the decision in the case of Loraiya is later in point of time and has been rendered by a three Judge Bench. Mrs. Deshmukh, the learned APP was, therefore, not right in relying upon the case of Joginder Singh (Supra). Even otherwise, the scheme of Section 78 of the Navy Act is materially different from the scheme of Sections 125 and 126 of the Army Act.
11. Section 3(3) of the Navy Act, 1957, defines the term 'Civil offence' and it means an offence triable by a court of ordinary criminal jurisdiction in India. Whereas, as per Section 3(13) 'naval offence' means any of the offences under Sections 34 - 76 of the said Act. Section 93(1) of the Navy Act states that an offence triable under that Act may be tried and punished by court-martial. As per Section 77(1) of the Navy Act, every person subject to naval law who commits a civil offence punishable with death or with imprisonment for life shall be punished with the punishment assigned for that offence. Whereas Section 77(2) states that every person subject to naval law who commits any other civil offence shall be punished either with the punishment assigned for the offence or with imprisonment for a term which may extend to three years or such other punishment as is mentioned in the Act. Section 78 of the Navy Act reads as under:
78. Jurisdiction as to place and offences.:
(1) Subject to the provisions of Sub-section (2), every person subject to naval law who is charged with a naval offence or a civil offence may be tried and punished under this Act regardless of where the alleged offence was committed.
(2) A person subject to naval law who commits an offence of murder against a person not subject to army, naval or air force law or an offence of culpable homicide not amounting to murder against such person or an offence of rape in relation to such person shall not be tried and punished under this Act unless he commits any of the said offences:
(a) while on active service; or
(b) at any place outside India; or
(c) at any place specified by the Central Government by notification in this behalf.
12. Mr. Pradhan submitted that as per Section 78(1) of the Navy Act, the accused could be tried either by the court-martial or by the ordinary criminal court and, therefore, the Rules framed under Section 475 of Cr.P.C. would be applicable so as to avoid any conflict. As per him, after the charge-sheet was submitted by the I.O. before the learned Metropolitan Magistrate on 18/1/1986, it was necessary for the said court to follow the procedure set out in Rule 3 of the Rules before he passed the order of committal on 24/1/1986 and committed the case to the court of Sessions. The order of committal could not have been passed by the learned Metropolitan Magistrate unless he was moved thereto by the competent naval authority or the Magistrate recorded his opinion that he should so proceed or to commit without being moved thereto by such authority. Mr. Pradhan further submitted that as per Rule 4 of the Rules, if the competent naval authority had not moved and the learned Magistrate was to invoke his powers under Rule 3(b), it is mandatory for the Magistrate to give a written notice to the Commanding Officer or the competent naval authority, as the case may be, of the accused and until the expiry of a period of 15 days from the date of service of the notice, he shall not make an order committing the accused for trial to the court of sessions under Section 209 of the Code. This mandatory procedure, as prescribed under Rules 3 to 7 of the Rules, has not been followed before the order of committal was passed in the instant case and, therefore, the learned Additional Sessions Judge proceeded with the trial without due authority in law and thus the trial is vitiated, thereby warranting the impugned order of conviction and sentence to be quashed and set aside. These arguments of Mr. Pradhan are supported by the law laid down in the case of Lt. Col. S.K. Loraiya (Supra), Usha Ranjan Roy Choudhury (Supra) and Major S.K. Sharma (Supra). We are not impressed by the submissions of Mrs. Deshmukh that such an issue of lack of jurisdiction was not raised by the defence before the trial court and the same is being raised for the first time in the appeal, thereby denying the opportunity to the trial court to deal with such objection of jurisdiction. In the case of Moly and Anr. (Supra) for the first time in the criminal appeal before the Supreme Court a primary stand was taken that the trial court could not have suo motu entertained and registered the complaint as a sessions case. Such an issue was not raised before the trial court nor before the High Court and the objection was overruled by the Supreme Court.
13. Section 4 of Cr.P.C. states that all offences under the Indian Penal Code shall be investigated inquired into tried and otherwise, dealt with according to the provisions of the Code and all offences under any other law shall be investigated inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. As per Section 5 of Cr.P.C., nothing contained therein shall, in the absence of a specific provision to the contrary affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. We have referred to the scheme of Section 78 of the Navy Act and there is no dispute that the appellant was charged for naval offences which are triable by the court-martial or the court of ordinary criminal jurisdiction.
On the scheme of Section 4(2) of Cr.P.C., the supreme court in the case of A.R. Antulay v. Ramdas Sriniwas Nayak : 1984CriLJ647 stated as under:
Section 4(2) provides for offence under other law which may be investigated inquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure but subject to any enactment for the time being in force regulating the manner or place of investigation inquiring into, trying or otherwise dealing with such offences. In the absence of a specific provision made in the statute indicating that offences will have to be investigated, inquired into, tried and otherwise dealt with according to that statute, the same will have to be investigated, inquired into, tried and otherwise dealt with according to the Code of Criminal Procedure. In other words, Code of Criminal Procedure is the parent statute which provides for investigation, inquiring into and trial of cases by criminal courts of various designations.
In the case of Directorate of Enforcement v. Deepak Mahajan : 1994CriLJ2269 , on a reading of Section 5 in juxtaposition with Section 4(2) of the Code, the supreme court held thus,
It only relates to the extent of application of the Code in the matter of territorial and other jurisdiction but does not nullify the effect of Section 4(2). In short, the provisions of this Code would be applicable to the extent in the absence of any contrary provision in the special Act or any special provision excluding the jurisdiction or applicability of the Code.
In the case of Moly (Supra), while dealing with the issue of jurisdiction of the trial court, being taken up for the first time before the supreme court, their Lordships stated in para 16 to 18 as under:
16. Hence, we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge-sheet cannot straight away be laid down before the Special Court under the Act. We are reiterating the view taken by this Court in Gangula Ashok v. State of A.P. and in Vidyadharan v. State of Kerala in above terms with which we are in respectful agreement. The Sessions Court in the case at hand, undisputedly has acted as one of original jurisdiction, and the requirements of Section 193 of the Code were not met.
17. Though the plea relating to lack of jurisdiction was not raised before the lower courts, in view of the undisputed position on fats and inasmuch as a pure question of law without any factual controversy is involved, we feel interference on the facts of the case is called for.
18. One more plea which was pressed by learned Counsel for the appellants is that continuance of the proceeding before the appropriate court in the manner prescribed in law would serve no useful purpose in view of the long passage of time. We do not find any substance in this plea. It is for the competent court to decide regarding the action to be taken next, after hearing both sides as provided in Section 227 of the Code. No direction can be given to the said court at this premature stage as to what course the court should adopt in dealing with the complaint. It is open to the appellants to raise all their contentions at that stage if they want to make a plea for discharge. We make it clear that as and when such plea is made to the Judge of the competent court, he shall pass appropriate orders in accordance with law.
14. More recently in the case of Pawan v. State of Uttaranchal JT 2009 (3) SC 87, a similar question arose regarding the jurisdiction of the trial court and taken up for the first time before the Supreme Court. The claim of juvenility was raised for the first time before the Supreme Court and after referring to its earlier decisions in the case of Gurpeet Singh v. State of Punjab : 2005CriLJ126 and Murari Thakur and Anr. v. State of Bihar : AIR2007SC1129 , a three-Judge Bench of the supreme court dealt with the issue so raised on merits and held that the claim of juvenility was not supported on the basis of the record available before it. Their Lordships observed,.However, in a case where plea of juvenility is found unscrupulous or the materials lack credibility or do not inspire confidence and even, prima facie, satisfaction of the court is not made out, we do not think any further exercise in this regard is necessary. If the plea of juvenility was not raised before the trial court or the High Court and is raised for the first time before this Court, the judicial conscience of the court must be satisfied by placing adequate and satisfactory material that the accused had not attained age of eighteen years on the date of commission of offence; sans such material any further enquiry into juvenility would be unnecessary.
15. Thus it is well settled that the issue of lack of jurisdiction of the trial Court can be taken up for the first time before the appellate Court and it is required to be decided on merits. If it is found by the appellate Court that the trial Court lacked jurisdiction, the trial shall stand vitiated and the order of conviction and sentence would stand quashed and set aside.
In the instant case, the charge-sheet dated 18th January 1986 was placed on record before the learned Metropolitan Magistrate on 24/1/1986 on which date the appellant - accused was produced before the Court and the order of committal under Section 209 of Cr.P.C. came to be passed on the same day reading as under:
Accused produced from jail. Copies of police papers furnished to accused. The alleged offence is within jurisdiction of Court of Sessions, Greater Bombay. The case of accused committed to Court of Sessions, Bombay. The commitment be notified to Public Prosecutor.
R. & P. and muddemal be sent to Court of Sessions forthwith.
The said charge-sheet clearly made out a Naval offence as defined under Section 3(13) of the Naval Act and, therefore, it was triable by the Court Martial or the ordinary Criminal Court and hence it was necessary for the learned Metropolitan Magistrate to comply with the procedure prescribed under the Rules and more particularly set out in para 8 of this Judgment, before he passed the committal order and his failure to do so shall go to show that the Sessions Court to whom the case was committed lacked jurisdiction. Even in the case of Balbir Singh (Supra), the Supreme Court stated,
17. A conjoint reading of the above provisions shows that when a criminal Court and Court-martial each have jurisdiction in respect of the trial of the offence, it shall be in the discretion of the Officer commanding the group wing or station in which the accused is serving or such other officer as may be prescribed, in the first instance, to decide before which Court the proceedings shall be instituted and if that Officer decides that they should be instituted before a court martial, to direct that the accused persons shall be detained in air force custody. Thus, the option to try a person subject to the Air Force Act who commits an offence while on active services is in the first instance with the Air Force Authorities. The criminal Court, when such an accused is brought before it shall not proceed to try such a person or to inquire with a view to his commitment for trial and shall give a notice to the Commanding Officer of the accused, to decide whether they would like to try the accused by a Court martial or allow the criminal Court to proceed with the trial. In case, the Air Force Authorities decide either not to try such a person by a Court martial or fail to exercise the option when intimated by the criminal Court within the period prescribed by Rule 4 of the 1952 Rules (Supra), the accused can be tried by the ordinary criminal Court in accordance with the Code of Criminal Procedure. On the other hand, if the Authorities under the Act opt to try the accused by the 'Court martial', the criminal Court shall direct delivery of the custody of the accused to the Authorities under the Act and to forward to the Authorities a statement of the offence of which he is accused....
This failure of the learned Metropolitan Magistrate is staring on the face of the record and it is evident beyond any doubt that he failed to follow the mandatory procedure laid down under the Rules before the order of committal was passed on 24/1/1986. This failure on the part of the learned Metropolitan Magistrate vitiates the order of committal and resulted in lack of jurisdiction to try the case before the Sessions Court, as has been held by the Supreme Court in the case of Usha Ranjan Roy Chaudhary (Supra) and Major S.K. Sharma (Supra). Consequently the order of conviction and sentence impugned in this appeal is vitiated and is a nullity and is required to be set aside solely on this ground. In Usha Ranjan Roy's case, the Supreme Court ruled as under:
9. Having regard to the enunciation of law to this effect it is evident that the ordinary criminal Court would have no jurisdiction to take cognizance of the case and to try the accused in a matter where the procedure prescribed by the Rules has not been complied with. The initial lack of jurisdiction to take cognizance and try the case would of logical necessity vitiate the trial and the order of conviction and sentence would be liable to be quashed as a result thereof. We are, therefore, unable to accede to the submission urged on behalf of the appellant State that even if the rules are applicable, having regard to the fact that more than three years have expired from the date of the commission of the alleged offence, the trial is not vitiated.
16. The learned APP expressed apprehension regarding the availability of all the concerned witnesses at this late point of time i.e. after twenty years. It has come on record that an enquiry was conducted by the Naval Board into the incident and the said papers were produced before the Sessions Court during the trial. By filing a separate application, the papers were withdrawn and obviously these enquiry papers ought to be in the custody of the Naval Authorities / Naval Board. Though some of the witnesses might have retired from service by now, it cannot be accepted or presumed that none of the main witnesses are not available. PW 9 - Lt. Ravi Shankaran (Retd.) has addressed the letter dated 31st March 2009 to us. In any case if the trial has to be conducted afresh either by the Court martial or by the Sessions Court, it is imperative for the Naval authorities including the Commanding officer of the accused at the relevant time or the Commanding Officer as at present to take due steps to ensure that the concerned witnesses are produced before the Court Martial or the Sessions Court, as the case may be and that too without causing any delay. Interest of justice would be better served if we direct that the trial on remand is conducted and completed within a specific period.
17. In the premises, we allow the appeal partly, quash and set side the order of conviction and sentence as being a nullity in law. Sessions Case No. 79 of 1986 hereby stands restored and the charge-sheet dated 18/1/1986 on the basis of which the said Sessions case was registered shall stand remitted to the Metropolitan Magistrate's 19th Court, Esplanade, Mumbai forthwith. The learned Metropolitan Magistrate is directed to take appropriate steps as required under the Rules and pass his order to transfer the case for trial by the Court Martial or pass an order under Section 209 of Cr.P.C. committing the case to the Sessions Court for trial by following the procedure under Rules 3 to 7 of the Rules which shall be done as expeditiously as possible and in any case before 31st July 2009. We further direct that the trial by the Court Martial or the Sessions Court, as the case may be, shall be completed, and if so required on day to day basis, preferably by 31st December 2009. The learned Sessions Judge, Greater Mumbai may, if so required, assign the Sessions Case to a Fast Track Court so that the trial is completed by 31st December 2009. The accused shall continue to remain on bail till 31st December 2009 or till the date of completion of trial, whichever is earlier, provided that he remains present before the Court of the Metropolitan Magistrate as well as Court Martial or the Sessions Court, as and when required. The trial before the Court Martial / Sessions Court shall be a de novo trial in its entirety. Failure on the part of the accused to remain present before the learned Metropolitan Magistrate or the Court Martial / Sessions Court shall result in the cancellation of his bail automatically and the Court Martial / Sessions Court shall direct the accused to be taken in custody.
The R. & P. be returned to the Sessions Court forthwith along with the letter of PW 9. The Sessions Court in turn will return the charge-sheet dated 18/1/1986 to the learned Metropolitan Magistrate, 19th Court, Esplanade, Mumbai so as to reach the said Court on or before 8th June 2009. The accused to appear before the learned Metropolitan Magistrate on 10th June 2009 on which date Criminal Complaint No. 332/P/1986 will be listed before the said Court for orders.