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TMI Blog2003 (12) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... could not have exercised powers of Judicial Magistrate 1st Class and, therefore, the trial and conviction of the accused-respondent were illegal. The High Court held that combined reading of Sections 11, 12 and 13 of the Code of Criminal Procedure, 1973 (in short the 'Code') clearly rule out the appointment of any person exercising powers of Judicial Magistrate, 1st Class in the absence of conferment of powers by the High Court. This, according to the, Sessions Judge and the High Court stemmed from the fact that there was separation of judiciary from the Executive in 1973 and thereafter the powers of appointment and conferment for functioning as Judicial Magistrate either of First Class or Second Class could only be done by the High Court and the Central Government or the State Government had no power to invest any person with powers of Judicial Magistrate of any class. Reference was also made to Section 5 of the Code, and observed that the expression in the absence of a specific provision to the contrary used therein did not render Section 16(2) of the Act redundant. 2. At this juncture, it would be necessary to take note of the factual position. 3. The respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion may have been different under the Code of Criminal Procedure, 1898 (in short the 'Old Code'), but the present position is entirely different and the 'Ministry of Home Affairs' Notification dated 25.1.1978 was really of no consequence. 6. The Courts below have overlooked certain essential and vital aspects necessary to appreciate the relevant issues arising in their proper perspective. Under Section 3(1) of the Act, CRPF is constituted to be an 'armed force' maintained by the Central Government, and consequently it would be 'any other armed forces of the union' as envisaged in Entry 2 of List I of the VII Schedule to the Constitution of India. Entry 93 of List I enables Parliament also to provide for offences against laws with respect to any of the matters enumerated in List I. Sections 9 and 10 create by enumerating what are stated to be 'more heinous offences' and 'less heinous offences' respectively and many of such specially created offences for the purposes of this Act cannot constitute or amount to be offences under the ordinary criminal law of the land. To that extent they are new class of offences created with punishment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h sense of morale and duty consciousness the member of this service is expected to be demonstrate at all times, a serious view of the same is being taken. But the CRPF, the Army, the Navy and the Air Force are disciplined forces and even any infraction which otherwise would not be an offence is deemed to be an offence under certain provisions like Section 10(m) of the Act. Unauthorised absence of an employee staying beyond the sanctioned period of leave is not an offence in the normal course under the ordinary criminal law of the land. But as noted above, disciplined forces with the intention of enforcing discipline have made them punishable considering them as offences and have prescribed various sentences. For such particular purposes the designated officials have been conferred with magisterial powers. The Assistant Commandant who passed the order undisputedly acted as a Judicial Magistrate in view of the powers conferred on him under the Act, The conferment of such power has not been distinctly questioned and could not have been questioned in a proceeding, appeal or a revision under the Code. As long as the specific provision in Act exists enabling the competent Authority to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committed by member of the Force and punishable under this Act, or any offence committed by a member of the Force against the person or property of another member: Provided that- (i) when the offender is on leave or absent from duty, or (ii) when the offence is not connected with the offender's duties as a member of the Force, or (iii) when it is a petty offence, even if connected with the offender's duties as a member of the Force, the offence may, if the prescribed authority within the limits of whose jurisdiction the offence has been committed, so directs, be inquired into or tried by an ordinary criminal court having jurisdiction in the matter . Code Section 4: Trial of offences under the Indian Penal Code and Other laws- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, triad, and otherwise dealt with according to the provisions hereinafter contained. (2) 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, inqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Army Act deals with 'absence without leave'. The maximum period of imprisonment may extend to three years or with such less punishment as is mentioned in the said Act itself. 12. The inevitable conclusion is that the Assistant Commandant was clothed with necessary jurisdiction for trial of the matter. 13. Residual question is what would be an appropriate sentence. It is not disputed and rather fairly conceded that for a person in a disciplined service like the CRPF, any act of indiscipline deserves adequate and stringent punishment under the Act. In terms of Section 10(m) an employee who absents himself without leave or without sufficient cause overstays leave granted to him can be punished with imprisonment for a term which may extend to one year or with fine which may extend to three months pay or with both. The offence has been treated as one of less heinous offences . More heinous offences are provided in Section 9. The Assistant Commandant has found the explanation given by the respondent o be not acceptable. Therefore, he has been rightly held to have committed a less heinous offence. Taking note of the relevant aspects, we feel the fine of two months pay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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