Delhi Special Police Establishment, New Delhi v. Lt. Col. S. K. Loraiya

Judgment

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. Revision No. 31 of 1967. D. Mukherjee: G. L: Sangh! and R. N. Sachthey, for the appellant. J '' '1•·1 j •••• ··1 :1 '.'' A. S. R. Chari and R. Nagaratnam, for tlie respondent. The Judgment of iii~ C~urt was deliv~red by. ', l 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 c 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; appointed under the Prevention of Corruption Act. in respect of the offences alleged to have been committed by him in Noveraber-Pe~ember, )962, as .Commander, 625, Air Field Engineers, Tejpur. f · Tedhe:tria! started on June 7,_ 1966d •. but th( char!!es were ram against him by the Special· Ju ge on January 7, 1967. The .respandent filed a revision against the framing of the charges in the High Court of Assam and N~ealand.. .The High Court: SUPREME COURT REl'ORh [I 973] l S.C." 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 a 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 a 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 aforesaid offences. And s. 549(1) Cr.P.C. applies to such a situation. The material part of s.

549 ( 1) reads : "The Central Government 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 a court 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 Courtmartial, such Magistrate shall have regard to such rules and shall in appropriate cases deliver him, together with a 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 0 rule for our purpose is rule 3. It requires that when a person subject to military, naval or air force law is brought before a 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 DELHI POLICE v. LT. COL. s. K. LORAIYA (Dwivedi, J.) 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 a 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 Courtmartial.

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 a 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 courtmartial. This argument is built on the phrase "is liable to be tried either by the court to which this Code applies or by a Courtmartial" 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 jurisdicdiction to take cognizance of the case but should also retain jurisdiction 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 a threefold scheme.

Certain offences en;1merated in the Army Act are exclusively triable by a 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 (1973] I S.C.R. applies or by a 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 a court to which this Code applie' or a 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 a court'martial.

Tn our opinion, the phrase is intended to refer 10 the initial jurisdiction cf. the two courts to take cognizance 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 a prisoner of war or in enemy territory, or in evading arrest after the c0mmission of. the offence, shail be excluded. Or a 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 subs. ( l ) of s. 122. The issue of limitation is a part of the trlal before 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 a ~person is convicted or acquitted by a court-martial, he may, with the previous sanction of the Central Government, be tried again by an ordinary ~rimi­ nal 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 a 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 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 \ljvision 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 II I DELHI POLICE v. LT. COL. s. K. LORAlYA (Dwivedi, ].) <'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 jurisdiction to take cognizance of a case. To put it in other words, it refers to the stage at which proc~edings are instituted in a 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 a collision between the ordinary criminal court and the courtmartial. So both of them should receive a 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. G.C. Appeal disrnis~ed.