DELHI SPECIAL POLICE ESTABLISHMENT, NEW DELHI versus LT. COL. S. K. LORAIYA

DELHI SPECIAL POLICE ESTABLISHMENT, NEW DELHI

LT. COL. S. K. LORAIY

August 24, 1972

[J. M. SHELAT, D. G. PALEKAR AND S. N. DWIVEDI, JJ.J

Code of Criminal Procedure 1898, s. 549(1) atui rules made 1/1ere-1111~r-Army Act 1950, ss. 122 and 125-Army officer charged with offences under I.P.C. arid Prevention of Corruption Act 1947 by Speci4J Judge-Procedure under s. 549(1) and r. 3 no1 followed-Charges w/ie1/1er liable to be quashed-Lapse. of 1nore than three years between conunission of offences and framing of charges-Court martial wheth~r has iurlsdic-lion to 1ry offences-Word 'jurisdiction' iti s. 549(1) Cr. P.C. and s. 1!5 Anny Act, 111eaning of. The respondent who was an army officer was alleged to have com-mitted certain offences under the Indian Penal Code and the Prevention of Corruption Act 1947. The offences were alleged to have been com-mitted in tbe year 1962. The special judge, Gauhati charged him with these offences in the year 1967. The High Court quashed the charges on the ground hiter alia that the procedure in s. 549(1) Cr. -P.C. and th• rules made thereunder had not been 'followed. The appellant in appea1 by special leave to this Court contended that since more than three year. had elapsed between the commission of the offences and the framing of the charges the court-martial had in view of s. 122(1) of the Army Act ceased to have jurisdiciion to try the said offences and therefore s. 549(1) and the rules made thereunder were not attracted to the case.

HEL~ Section 549(1) Cr .. P.C. is designed to avoid the conflict of jurisdiction in respect of offences which are triable by both the ordinary criminal court and the court-martial. The clause "for which he is liable to be tried either by the court to which this code applies or bJ' court-martial" qualifies the preceding clause "when any person is charged with an offence" in s. 549(1). Accordingly the phrase "is liable to bt trie~ either by court to which this Code applies or court-martial" import> that the offence for which the accused is to be tried should be an offence of which cognizance can be taken by an ordinary criminal court as well as court-martial. The phrase is intended to refer to the initial juriscliction of the two courts to take cognizance of the case and not to their jurisdic-tion to decide on merits. It was admitted that ho.th the orninary criminal court and the court-martial had concurrent jurisdiction with respect t@ the offences for which the respondent had been ch,,ged by the spec;al judge. So s. 549 and the rules made thereunder were attracted to the C1aSe in hand. [I013H-1014Cl

Again, sub-section (3) of s.122 df the Army Act provides that while oomputing the period of three years specified in sub-section (I), any time spent by the nccused =is. prisoner of war or in enemy territory, or in evading arrest after the commi.,sion of the offence. shall be excluded. 01' con-joint rending of sub-ss. ( 1) and (3) of s. l 22 it is evident that the court-martial an<l not the ordinary criminal court has got jurisdic!ion to decide the issue ct limitation. If the court-martial finds that it cannot try the offence on acco11nt of the ~piry of three years from the commission of the offence the Central Government can under s.127 of the Act sanc-tion the trial of the offender by an ordinary criminal court.

[1014D-Fl

Section. 125 of the Army Act provides .that when criminal court and court-martial have each jurisdiction in respect di an offence, it shaU be in the discretiOn of lhe comnlandlng officer to decide before which court the proceedings shall be inst;tuted. Section 125 supports the view that the court-martial alone has jurisdiction lo decide the issue as to limitation. . ' (I014Hl

The word. "'juriSdictionn in s.125 really signiiies the initial jurisdiction to take congnizance of case. It refers to the stage at which proceeding_11 are inst.ituted in_ _court and not to the jurisdiction of the ordinary. crim:nal court and the court-martial to decide the case on merits. Section 549(1) •hould be construed in the light of s.125 of the Army Act .. Both the pro-visions have in mind the objCct of avoiding collision between the ordi-nary c'riminal court and the court-martial. Both of them should receive the same construction. [!015BJ

It was an admitted. fact that in the present case the pcocedure specified in rule 3 .was not followed by the Special Judge. Gauhati before framin~ charges against the respondent .. Section 549(1} Cc.P.C. and rule] a<e . mandatory. Accordingly the charges framed by the Special Judge ag1inst the relspondent could not survive. [!013CJ

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 79 of 1970. ·

Appeal by special leave from the judgment and order dated May 23, 1969 of the Assam & Nagaland High Court in Cr. Re-vision No. 31 -of 1967. . -. · . "

. . . D. Mukherjee: G. L: Sangh! and R. N. Sachthey, for the

appellant.

A. ' S. R. ' Chari J and '·' R. • Nagaratnam, '' '1•·1 j •• for tlie respondent. •••• ··1 ' :1 '.''

The Judgment of iii~ C~urt was deliv~red by.

Dwivedi; J. ·The respondent; Lt. Col. S, K. LOraiya, is · in . the anny Service. "In Noveinber-December, 1962; he was posted as Commander; 625; Air Field · Engineers; Tejjnir. · He was charged under s. 120Il; Indian Penal Code read with s·. 5 (! )(e} and (ci) and s. 5(2) th.e Prevention of Corruption Act. arid fi under ss. 467 and 471 I.l>.C by t!ie Special Judge, Gauhati; ap-pointed under the Prevention of Corruption Act. in respect of the offences alleged to have been committed by him in Novera-ber-Pe~ember, )962, as .Commander, 625, Air Field Engineers, Tejpur. . .. ,. ·

· Tedhe:tria! started on June 7,_ 1966d •. but th( char!!es were c· ram against him by the Special· Ju ge on January 7, 1967. The .respandent filed revision against the framing of the charges in the High Court of Assam and N~ealand.. .The High Court:

allowed the revision and quashed the charges. Hence this appeal by the Delhi Special Police Establishment, New Delhi, by special leave under Art. 136 of the Constitu•tion.

The High Court quashed the charges ior two reasons : ( I ) The charges were framed by 1the Special Judge without following the procedure specified in the Rules mad·~ under s. 549 Cr.P.C.; and (2) the trial was held in the absence of sanction by the appropriate authority under s. 196A(2) of the Code of Criminal Procedure in respect of ithe offences under s. 5 of the Prevention of Corruption Act. The High Court took the view that such sanction was essential as the offe!1ce under s. 5 of the Prevention of Corruption Act is non-cognizabl·~ offence.Counsel for the appellant has submitted that both the reasons given by the High Court are erroneous. Taklng up the first reason first, s. 5 (1) (b) of the Criminal Law Amendment Act, 1966 could not give exclusive jurisdiction to the Special Judge, Gauhati ~o try the respondent. It is true that the trial started against him on June 7, 1966, but the charges were framed on January 7, 1967, i.e., long after June 7, 1966. Section 5(1)(bl) does not apply where charges are framed after June 7, 1966. So, prima facie both the '-'' Jinary criminal court and court-martial have concurre,nt jurisdiction to try the responden1 for the afore-said offences. And s. 549(1) Cr.P.C. applies to such situa-tion. The material part of s. 549 ( 1) reads : "The Central Gov-ernment may make rules consistent with this Code and the Army Act. ..... as to the cases in which perso,ns subject to military law ...... shall be tried by court which this Code applies or by court-martial; and when any person is brought before Magistrate and charged with an offence for which he is liable to be tried either by court to which this Code applies or by Court-martial, such Magistrate shall have regard to such rules and shall in appropriate cases deliver him, together with statement of the offence of which he is accused, to the commanding officer of the regiment, corps. . . . or detachment to which he belongs or to the commanding officer of the nearest military. . . . . . station for the purpose of being tried by Court-martial."

The Central Government has framed under s. 549 (1) Cr. P.C. rules which are known as the Criminal Courts and Courts Martial (Adjustnient of jurisdiction) Rules, 1952. The relevant rule for our purpose is rule 3. It requires that when person subject to military, naval or air force law is brought before Magistrate on accusation of an offence for which he is liable to be tried by -a court-martial also, the Magistrate shall not proceed with the case unless he is request_ed to do so by the appropriate

military authority. He may, however, proceed with the case if he is of opinion that he should so proceed with the case without being requested by the said authority. Even in such case, the Maoistrate has to give notice to the Conunanding Officer and is not to make any order of conviction or acquittal or frame charges or commit the accused until the expiry of 7 days from the service of notice. The Commanding Officer may inform the Magistrate that in his opinio,1 the accused should be tried by the Court-martial. Su bsL·quent rules prescribe the procedure which is to be followed· where the Commanding Officer has given or omitted to give such informa.tion to the magi5trate.

It is ar. admitted fact in this case that the procedure specified in rule 3 was not followed by the Special Judge, Gauhati before framing charges against the respondent. Section 549 (1) Cr.P.C. ;111d rule 3 are mand;1tory. Accordingly the charges, framed by the Special Judge against the respondent cannot survive. But counsel for the appellant has urged before us that in the particular circumstances of thi' case the respondent is not 'liable to be tried' by Court-martial.

Section 122(1) of the Anny Act, 1950, provides that no trial by court-martial of any person subject to the Army Act for any offence shall be commenced after the expiry o{ the period of three years from the date of 1he offence. The offences are alleged to have been committed by the respondent in November-December, 1962. So more than three years have expired from the alleged commission of the offence. Tt is claimed that having regard to s. 122(1), the respondent is not liable to be tried by court-martial.

This argument is built on the phrase "is liable to be tried either by the court to which this Code applies or by Court-martial" in s. 549(1 ). According to counsel for the appellant this phrase connotes that the ordinary criminal court as well as the Court-martial should not only have concurrent initial jurisdic-diction to take cognizance of the case but should also retain juris-diction to try him upto the last stage of conviction or acquittal. We are unable to accept this construction of the phrase.

As regards the trial of offences committed by army men the Am1y Act draws threefold scheme. Certain offences en;1me-rated in the Army Act are exclusively triable by Court-martial· ce.rtain other offences a'.e exclusively triable by the ordinary cri~ mm.al court.s; .and ccrtam other offences are triable both by the ordmary cnmmal court and the court-martial. In respect of the last category both the courts have concurrent jurisdiction. Section 549 (1) Cr. P .C. is designed to avoid the conflict of jurisdiction in respect of the last category of offences. The clause "for which he is liable to be tried either ~ the court to which this Code

applies or by court-martial" in our view, qualifies the preceding clause "when any person is charged with an offence" in s. 549 ( 1). Accordingly the phrase "is liable to be tried either by court to which this Code applie' or court-martial" imports that the offence for which the accused is to be tried should be an offence of which cognizance can be taken by an ordinary criminal court as well as court'martial. Tn our opinion, the phrase is intended to refer 10 the initial jurisdiction cf. the two courts to take cogni-zance of the case and not to their jurisdiction to decide it on merits. T t is admitted that both the ordinary criminal court and the cOUT't-martial have concurrent .iurisdiction with respect to the offences for which the respondent has been charged by the Special Judge. So, s. 549 and the rules made thereunder are attracted to the case at hand.Again, sub-section (3) of s. 122 of the Army Act provides that while computing 1he period of three years spectified in subt-section ( l ). any time spe.nt by the accused as prisoner of war or in enemy territory, or in evading arrest after the c0mmission of. the offence, shail be excluded. Or con joint reading of sub-ss. ( 1) and ( 3) of s. 122, it is evident that the court-martial and not the ordinary c1iminal court has got jurisdiction to decide the issue of limitation. There it nothing on record before us to indicate that the respondent had not been evading arrest after commission of the offence. As the court-martial has initial jurisdiction tO' enter upon the enquiry in the case, it alone is competent to decide whether it retains jurisdiction to try the respondent inspite of sub-s. ( l ) of s. 122. The issue of limitation is part of the trlal be-fore it. If the court-martial finds that the respondent cannot be tried on account of the expiry of three years from the date of the commission of the offence, he cannot be co scot free. Section I 27 of the Army Act provides that when ~person is convicted or acquitted by court-martial, he may, with the previous sanction of the Central Government, be tried again by an ordinary ~rimi­nal court for the same offence or on the same facts. So it would be open to the Central Government to proceed against the res!'vn-.Jent after the court-martial has re;orded finding that it cannot try him on account of the expiry ,,r thee years fcom the date of the commission of the offence.

Section 125 of the Army Act provides that when criminal court and court-martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer commanding the army, army corps \ljvision or independent brigade in which the accused person is serving to decide before which court the pro-ceedings shall be instituted and if that officer decides that they should be instituted before court-martial he will direct that the

<'ccused person shall be detained in military custody. Section~ 122 ( 1) and 125 both find place in Chapter X of the Am1y Act. Section 125 supports our view that the court-martial alone has jurisdiction to decide the issue of limitation under s. 122(1). The word "jurisdiction" in s. 125 really signifies the initial juris-diction to take cognizance of case. To put it in other words, it II refers to the stage at which proc~edings are instituted in court mid not to the judisdiction of the ordinary criminal comt and the court-martial to decide the case on merits. It appears to us that s. 549 (I ) should be construed in the light of s. 126 of the Ar.my ,\ct. Both the provisions have in mind th·~ object of avoiding collision between the ordinary criminal court and the court-martial. So both of them should receive similar construction.

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 s. 549( 1) Cr. P.C., they cannot stand.

As this finding of ours is sufficient to dispose of this appeal, we are not expressing any opinion on the correctness or otherwise of the second reason assigned by the High Cou.t for quashing the diarges.

The appeal is dismissed.

Appeal disrnis~ed.