ORDER
M.R. Verma, J.
1. This criminal revision petition is directed against the order dated 4-9-2000 whereby a charge has been ordered to be framed against the petitioner and others under Sections 452, 354 and 506, I.P.C. and has been framed on the same day.
2. The grievance of the petitioner is that he is an army personnel, therefore, it was mandatory for the trial Court to comply with the provisions of Section 475 of the Code of Criminal Procedure, 1973 (hereafter referred to as 'the Code') but despite his request and informing the trial Court the said provisions and the relevant rules were not complied with and no written notice was given to his Commanding Officer to exercise the option for the trial of the petitioner for the said offences by the Court-martial.
3. I have heard the learned counsel for the petitioner and the learned Assistant Advocate General for the respondent -- State and have also gone through the material on record.
4. There is no dispute that the petitioner is a military personnel and subject to military law. Therefore, in view of the provisions of Sections 69 and 70 of the Army Act, 1950, the petitioner can be tried by the Court-martial for the offences alleged to have been committed by him.
5. The relevant provisions providing for the initiation of proceedings for trial of persons subject to military law, contained in Sub-section (1) of Section 475 of the Code, read as follows :--
475. Delivery to commanding officers of persons liable to be tried by Court-martial.--(1) The Central Government may make rules consistent with this Code and the Army Act, 1950 (46 of 1950, the Navy Act, 1957 (62 of 1957), and Air Force Act, 1950 (45 of 1950), and any other law, relating to the Armed Forces of the Union, for the time being in force, as to cases in which persons subject to military, naval or air force law, or such other law, shall be tried by a Court to which this Code applies or by a Court-martial; and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which this Code applies or by a Court-martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the commanding officer of the unit to which he belongs, or to the commanding officer of the nearest military, naval or air force station, as the case may be, for the purpose of being tried by a Court-martial.
Explanation.-- In this Section--
(a) 'unit' includes a regiment, corps, ship, detachment, group, battalion or company;
(b) 'court-martial' includes any tribunal with the powers similar to those of a Court-martial constituted under the relevant law applicable to the Armed Forces of the Union. (2) to (3) *** *** ***
6. It is also not in dispute that the Central Government has not made rules in exercise of the powers conferred under Section 475 (supra) but rules called The Criminal Courts and Court-martial (Adjustment of Jurisdiction) Rules, 1952 (hereafter referred to as 'the rules') had been framed by the Central Government in exercise of the powers conferred on it by Sub-section (1) of Section 549 of the Code of Criminal Procedure, 1898 which contained similar provisions as in Section 475 (supra). By virtue of the provisions of Sub-section 2(b) of Section 484 of the Code, the said rules are still operative and in force.
7. The relevant Rules 3, 4, 5 and 6 of the rules (supra) reads as follows:--
3. Where a person subject to military, naval or Air Force law is brought before a Magistrate and charged with an offence for which he is liable to be tried by a Court-martial, such Magistrate shall not proceed to try such person or to inquire with a view to his commitment for trial by the Court of Session or the High Court for any offence triable by such Court, unless:
(a) he is of opinion, for reasons to be recorded, that he should so proceed without being moved thereto by competent military, naval or Air Force authority, or
(b) he is moved thereto by such authority.
4. Before proceeding under Clause (a) of Rule 3, the Magistrate shall give a written notice to the Commanding Officer of the succeed and until the expiry of a period of--
(i) three weeks, in the case of a notice given to a Commanding Officer in command of a unit or detachment located in any of the following areas of the hill districts of the State of Assam, that is to say--
(1) Mizo,
(2) Naga Hills,
(3) Garo Hills,
(4) Khasi and Jaintia Hills, and
(5) North Cachar Hills;
(ii) seven days, in the case of a notice given to any other Commanding Officer in command of a unit or detachment located elsewhere in India, from the date of the service of such notice, he shall not--
(a) convict or acquit the accused under Section 243, 245, 247 or 248 of the Code of Criminal Procedure, 1898 (Act 5 of 1898), or hear him in his defence under Section 244, of the said Code; or
(b) frame in writing a charge against the accused under Section 254 of the said Code; or
(c) make an order committing the accused for trial by the High Court or the Court of Sessions under Section 213 of the said Code; or
(d) transfer the case for inquiry or trial under Section 192 of the said Code.
5. Where within the period of seven days mentioned in Rule 4, or any time thereafter before the Magistrate has done any act or any order referred to in that rule, the Commanding Officer of the accused or competent military, naval or Air Force authority, as the case may be, gives notice to the Magistrate that in the opinion of such authority, the accused should be tried by a Court-martial, the Magistrate shall stay proceedings and if the accused is in his power or under his control, shall deliver him, with the statement prescribed in Sub-section (1) of Section 549 of the said Code to the authority specified in the said sub-section.
6. Where a Magistrate has been moved by competent military, naval or Air Force authority, as the case may be, under Clause (b) of Rule 3, and the Commanding Officer of the accused or competent authority, naval or Air Force authority, as the case may be, subsequently gives notice to such Magistrate that, in the opinion of such authority, the accused should be tried by a Court-martial, such Magistrate, if he has not before receiving such notice done any act or any order referred to in Rule 4, shall stay proceedings and, if the accused is in his power or under his control, shall in the like manner deliver him, with the statement prescribed in Sub-section (1) of Section 549 of the said Code to the authority specified in the said sub-section.
8. On a combined reading of Section 475 of the Code and Rules 3 and 4 (supra), it is evident that in case the Magistrate is of the opinion that he should proceed with the case without there being any request from the appropriate military authority to try the accused, who is in active military service, the concerned Magistrate is enjoined to give notice to the Commanding Officer and till the expiry of the stipulated period i.e. three weeks in the case of notice given to a Commanding Officer in command of a unit or detachment located in Mizo, Naga Hills, Garu Hills, Khasi and Jaintia Hills and North Cachar Hills and seven days in case of notice given to any other Commanding Officer in command of a unit or detachment elsewhere in India, otherwise the Magistrate is debarred from making any order of conviction or acquittal or framing any charges or committing such accused for trial.
9. In Delhi Special Police Establishment, New Delhi v. Lt. Col. S.K. Loraiya, AIR 1972 SC 2548 : (1973 Cri LJ 33), the respondent-accused Lt. Col. S.K. Loraiya was charged by Special Judge, Gauhati, under Section 120-B, I.P.C. read with Section 5(1)(c) and (d) and Section 5(2) of the Prevention of Corruption Act and Sections 467 and 471, I.P.C. without following the procedure specified in the rules ibid. He preferred a revision petition in the High Court of Assam and Nagaland which was allowed and the charges framed against the said accused were quashed on two grounds; one of which was that the charges were framed by the Special Judge without following the procedure specified in the rules made under Section 549 of the Code of Criminal Procedure, 1898. The Delhi Special Police Establishment preferred an appeal against the judgment of the High Court. The Apex Court while considering the scope of the relevant law held as under :--
11. Section 125 of the Army Act provides that when a criminal Court and a Court-martial have each jurisdiction in respect of an offence, it shall be in the discretion of the Officer commanding the army, army corps, division or independent brigade in which the accused person is serving to decide before which Court the proceedings shall be instituted, and if that officer decides that they should be instituted before a Court-martial, he will direct that the accused person shall be detained in military custody. Sections 122(1) and 125 both find place in Chapter X of the Army Act. Section 125 supports our view that the Court-martial alone has jurisdiction to decide the issue of limitation under Section 122(1). The word 'jurisdiction' in Section 125 really signifies the initial jurisdiction to take cognizance of a case. To put it. in other words, it refers to the stage at which proceedings are instituted in a Court and not to the Jurisdiction of the ordinary criminal Court and the Court-martial to decide the case on merits. It appears to us that Section 549(1) should be construed in the light of Section 125 of the Army Act. Both the provisions have in mind the object of avoiding a collision between the ordinary Criminal Court and the Court-martial. So both of them should receive a similar construction.
12. In the result, we are of opinion that the High Court has rightly held that as the charges were framed without following the procedure specified in the rules framed under Section 549(1), Cr. P.C., they cannot stand.
10. In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Usha Ranjan Roy Choudhury, AIR 1986 SC 1655 : (1986 Cri LJ 1248) while dealing with the purview of the aforesaid rules and the provisions the Hon'ble Supreme Court, held as follows:--
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 the fact that more than three years have expired from the date of the commission of the alleged offence, the trial is not vitiated.
11. In Balbir Singh v. State of Punjab, (1995) 1 SCC 90 : (1994 AIR SCW 4981) while dealing with the aforesaid provisions, the Hon'ble Supreme Court held as under (Para 23 of AIR SCW) :--
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, maritial', to direct that the acusced 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. It is explicit that the option to try the accused subject to the Act by a Court martial is with the Air Force Authorities and the accused person has no option or right to claim trial by particular forum. The option appears to have been left with the Air Force Authorities for good and proper reasons. There may be a variety of circumstances which may influence the decision of the Air Force Authorities as to whether the accused be tried by a Court martial or by a criminal Court. This Court in Ram Sarup v. Union of India (AIR 1965 SC 247 : 1965 (1) Cri LJ 236) (Para 22) opined :
In short, it is clear that there could be a variety of circumstances which may influence the decision as to whether the offender be tried by a Court martial or by an ordinary criminal Court, and therefore it becomes inevitable that the discretion to make the choice as to which Court should try the accused be left to responsible military officers under whom the accused be serving. Those officers are to be guided by considerations of the exigencies of the service, maintenance of discipline in the army, speedier trial, the nature of the offence and the person against whom the offence is committed.
There appears to be sound logic to give the first option to the Authorities under the Act to decide whether the accused should be tried by the Court martial or the criminal Court. The defence of the country being of paramount importance, the Air Force Authorities would now best as to whether the accused should be tried by the Court martial or by the ordinary criminal Court because the trial by the ordinary criminal Court would necessarily involve a member of the force being taken away for trial by the ordinary criminal Court and not being available to the Authorities and the like considerations. However, in the event the criminal Court is of the opinion for reasons to be recorded that instead of giving option to the Authorities under the Act, the said Court should proceed with the trial of the accused, without being move by the competent authority under the Act and the Authorities under the Act decide to the contrary, the conflict of jurisdiction shall be resolved by the Central Government under Section 125(2) of the Act and the decision as to the forum of trial by the Central Government in that eventually shall be final.
12. Though the accused in the aforesaid case was a active service in the Air Force but in view of the rules and the provisions of law, already set out herein above, the persons subject to military, naval or air force laws are at par in so far as the procedure for commencement of criminal proceedings against them within the meaning of Section 475 of the Code is concerned.
13. In view of the above settled position in law was obligatory on the part of the learned trial Magistrate to have given a notice under Rule 4 (supra) to the Commanding Officer of the petitioner accused which he has failed to do. The irresistible conclusion, therefore, is that the charge against the petitioner could not be framed without compliance of the aforesaid provisions. The impugned order qua the petitioner is, therefore, unsustainable.
14. As a result, this revision petition is allowed and the impugned order qua the petitioner and consequential charge framed against him are quashed. The trial Court is directed to refer the matter to the Commanding Officer of the petitioner-accused by giving him seven days clear notice to exercise the option regarding the forum of trial of the petitioner for the offence alleged to have been committed by him as required under Rule 4 (supra).
15. Parties through their learned counsel are directed to appear before the trial Court on 3-12-2001.