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TMI Blog1970 (11) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... hen on March 3, 1967. The appellant was a Lance Naik and was appointed as a temporary Granthi of the Katcha-Johar temple used by the military personnel. One Jiwa Nand with his wife and children was living close by the temple. On March 8, 1967 at about 8.30 a.m. Gayatri Devi aged about 10 years and daughter of Jiwa Nand was called by the appellant and when she came near him she was taken inside the adjoining room where the appellant had forcible sexual intercourse with her. The victim narrated the occurrence to her mother and sister. When Gayatri Devi, her mother and certain others were proceeding towards the Cantonment to complain to the military authorities, they met 4 or 5 Sikh gentlemen and Gayatri Devi pointed out the appellant in that group as the one who had misbehaved with her. The Sikh gentlemen, who were in military uniform declined to permit Gayatri Devi and others to go inside the Cantonment area on the ground that the entry into the same was prohibited to nonmilitary personnel. Later on the father of Gayatri Devi took her to the police station and lodged a report Ex. 12/A. The accused pleaded alibi and denied the offence. He also let in defence evidence. The learned Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a military personnel and to normally, conform to the relevant provisions of the, Act and the Rules. But they held that in respect of offences for the trial of which both the Court Martial and an ordinary Criminal Court had concurrent jurisdiction, the mere omission by a magistrate, before conducting the trial, to issue the necessary notice under r, 4 will not vitiate the proceedings as being illegal. Kapoor, J., on the other hand, disagreed with the majority opinion and held that under the Act read with the Rules, the first option to try a military personnel lies with the Army authorities and they have to decide the forum of the trial and that the magistrate will get jurisdiction only after a decision in his favour by the Central Government in case of a conflict between the army authorities and the Magistrate. The learned Judge further held that a magistrate cannot assume jurisdiction straightaway without providing an op- portunity to the military authorities, to decide the forum. The learned Judge accordingly held that the observance of the Rules is obligatory and non-observance thereof makes the trial illegal. In accordance with the majority judgment, the High Court by its order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Assistant Sessions Judge is legal and valid, and (ii) even assuming that there has been a breach of the rules, such a violation is at the most only an irregularity and not on illegality, and as no prejudice has been shown to have been caused to the accused by such an irregular proceeding held by the Assistant Sessions Judge, the conviction is legal. At the outset we may state that the question regarding the competency of the criminal court to try the appellant does not appear to have been raised before the learned Assistant Sessions Judge. It is no doubt seen, that the learned Assistant Sessions Judge, appears to have made enquiries from the counsel appearing for the appellant and the State, regarding the position of the appellant who was in military employ. The public prosecutor drew the attention of the Court to S. 70 of the Act and appears to have pointed out that as the Punjab Regiment No. 24 to which the appellant was attached was not on active service', the appellant could be tried by the ordinary criminal court. On behalf of the appellant it was urged that in view of the declaration of Emergency, the appellant must be deemed to be on active service'. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a person enrolled under the Act under S. 2(1)(b), Section 3, (i) defines on active service'. Over and above that power is given to the, Central Government under s. 9, by notification, to declare any person or class of persons subject to the Act and who may be deemed to be on active service' within the meaning of the Act. The Government of India, Ministry of Defence, had issued the following notification on November 28, 1962 In exercise of the powers conferred by Section 9 of the Army Act, 1950 (46 of 1950), the Central Government hereby declare that all persons subject to that Act, who are not on active service under clause(1) of section 3 thereof, shall, where ever they may be serving be deemed to be on active service within the meaning of that Act for the purpose of the said Act and of any other law for the time being in force. By virtue of this notification it follows that on the material date Punjab Regiment No. 24, to which the appellant was attached though. it was at Nahan, which was a rest station, must be considered to have been on active service. This notification was issued in the year 1962. Unfortunately, it was not brought to the notice of the learned As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpress terms provide not only for resolving conflict of jurisdiction between a criminal court and a court-martial in respect of the same offence, but also provide for successive trials. of an accused in.respect of the same offence.. This Court has further laid down that ss. 125 and 126 provide a satisfactory machinery to resolve the conflict of jurisdiction having regard to the exigencies of the situation. This decision in our opinion, lays down that there is no exclusion of jurisdiction of the ordinary criminal courts in respect of. offences which are triable also by the court-martial. In dealing with the Act, this Court in Rain Sarup v. The Union of India and another([1964] 5 S.C.R.931.) has observed that there, could be a variety of circumstances which may influence the decision as to whether the offender is to be tried by the court-martial or by the ordinary criminal court and the military officers, who are charged with the duty of exercising discretion are to be guided by the circumstances and the exigencies of the service, maintenance of discipline in the army, speedier trial, nature of the offence and the person against whom the offence is committed. In Som Datt Datta v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y court-martial, but are triable only by ordinary criminal courts. The said categorisation of offences and tribunals necessarily bring about a conflict of jurisdiction. Where an offence is for the first time created by the Army Act, such as those created by ss. 34, 35, 36, 37 etc., it would be exclusively triable by a court- martial; but where a civil offence is also an offence under the Act or deemed to be an offence. under the Act, both an ordinary criminal court as well as a court matrial would have jurisdiction to try the person committing the. offence. It is further clear that in respect of an offence which could be tried both by a criminal court as well as a court- martial sections 125, 126 and the Rules, have made suitable provisions to avoid a conflict of jurisdiction between the ordinary criminal courts and the court-martial. But it is to be noted that in the first instance, discretion is left to the officer mentioned in s. 125 to decide before which court the proceedings should be instituted. Hence the Officer commanding the army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed will have to exercise h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a court-martial. The material rules that are to be referred are rr. 2, 3, 4, 5 and 8. Rule 2 defines the expressions commanding officer , competent military authority , competent naval authority and competent Air Force authority . Rules 3, 4,5, and 8 axe as follows Rule 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 Sessions or the High Court for any offence triable by such Court, unless (a)he is of opinion, for reasons to be recorded, be should so proceed without being moved thereto by competent military, naval or Air Force Authority, or (b) he is moved thereto by such authority. Rule 4. Before proceeding under clause (a) of rule 3, the Magistrate shall give a written notice to the Commanding Officer of the accused 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 distric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in this case the Assistant Sessions Judge had no jurisdiction to proceed with the trial of the appellant as he has not complied with the provisions of rr. 3 and 4. From a perusal of rr. 3 and 4, the scheme of these two rules appears to us to be that the magistrate shall not proceed to try a military personnel unless he forms an opinion for reasons to be recorded to proceed with the trial without being moved by the competent authority or the magistrate has-been so moved by the competent military authority; but before a magistrate decides to proceed with the trial without being moved by the competent authority, he is obliged to give a written notice to the Commanding Officer of the accused and is further enjoined not to pass any of the orders enumerated as (a) to (d) in Rule 4, till the expiry of the said period of the notice mentioned in clauses (1) and (2). According to Mr. Kohli the criminal court has not been moved by the competent military authority to conduct the trial before it. The magistrate has not also framed an opinion that he should try the accused without being moved by the competent military authority. Even assuming that he has formed such an opinion, he has not giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these circumstances, it follows that the designated officer under s. 125, who had the discretion in the first instance to decide that the appellant should be tried before a court- martial had decided to the contrary. Surrender of the ac- cused 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 r. 126 or r. 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. We agree with the High Court that there has been a substan- tial compliance with the relevant provisions of the Act and the Rules and hence the trial of the appellant and his, conviction by the learned Assistant Sessions Judge are va ..... X X X X Extracts X X X X X X X X Extracts X X X X
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