JOGINDER SINGH v. STATE OF HIMACHAL PRADESH
Citation: [1971] 2 S.C.R. 857; 1970 INSC 244
Court: Supreme Court of India
Bench: J.M. SHELAT , C.A. VAIDYIALINGAM
Judgment date:
Case summary
1970 INSC 244. Supreme Court of India judgment dated 1970-11-30. JOGINDER SINGH v. STATE OF HIMACHAL PRADESH. Read the judgment and case details on LawSphereX.
Judgment text
A B c D E F G H JOGINDER SINGH v. STATE OF HIMACHAL PRADESH November 30, 1970 [J. M. SHELAT AND C. A. VA! D! AL! NGAM, JJ. ] 857 Army Act, 1950, . u. 70, 125 & 126(1)-Criminal Cburt and Court• Martial (Adjustment of Jurisdiction) Rules 1952, r. 4-Army man· charged 1vith rape-Concurrent jurisdiction of Court Mt+-rtial and Criminal Court-Offender handed orer b,v military authorities to Civil Authorities -Tried and convicted hy Assistant Sessions Judge-Trial is legal and ra/itl-When c/i. 1cretion under s. 125 to hold Court Martial Is not exer- cised by n1ilitar;v authorities and offender i') handed oVer to Civil authori- ties provision• of s. 126(1) and r. 4 are not attracted. The appellant was a Lance Naik in a military regiment. He was appointed as Granthi of a temple used by military personnel. While working as such he was charged with an offence under s. 376 of the Indian Penal Code..
The police officer investigating offence held an iden- tification parade with the permission of the military authorities and there- after the appellant was handed over to the civil authorities to stand his trial. The Assistant Sessions Judge convicted him. The Sessions Judge dismissed his appeal. The appellant then filed a criminal revision in the High Court where it was contended on his behalf that according to noti- fication dated November 28, 1962 issued by the Ministry of Defence, Government of India, the appellant mllst be considered to have been oo active service on the material date and consequently the appellants' trial should have been before a court martial. It was further urged that it the Assistant Sessions Judge decided to proceed with the trial it was obligatory on him to have given notices to the Commanding Officer of the Army under s. 126(1) of the Army Act read with 'r.
4, and since these provisions had not been complied with the appellant's trial and con- viction were null and void. The High Court dismissed the revision l)eti- :ion. With certificate the appellant appealed to this Court. HELD : Since the appellant was alleged to have committed rape in relation to a pefson who was not subject to military, naval or air law, under s. 70 of the Army Act he would be normally triable by the ordi- nary criminal court but by virtue of notification dated November 28, 1962 he must be deemed to have been on active service on the material date. Therefore. this was a case where both the court martial and the ordinary criminal court had concurrent jurisdiction to try the appellant. [863 H] The provisions of the Army Act and the decisions of this Court make it clear that in respect of an offence whicl1 could be fried both by a criminal court as well as a court martial, ss.
125, 126 and the rules have made suitable provisions to avoid a conflict of jurisdiction between the ordinary criminal court and the court martial. But it is to be not~d that in the first instance the discretion is left to the officer mentloned m s. 125 to decide before which court the proceedings should be instituted .. Hence the officer commaoding the army, army corps. division or inde- pendent brigade io which the ac. cused person is ~ervill! l, o~ su~h other officer as may be prescribed, will hav. e to exer_Cise hIS d1Scr~t1on and decide under s. 125 in which court the proceedmgs shall be mstituted. 858 SUPREME COURT REPORTS [l 971 J 2 S. C. R. It is only when he has so exercises his discretion and. decides that the proceedings should be instituted before the court martial that the pro- visions of s. 126 ( 1) come into operation.
If the designated officer does not exercise his discretion and decide that the proceedings should be instituted before a court martial the Army Act would not b~ in the way . of criminal court exercising its ofllinary jurisdiction in the manner pro~ vided by law. [865 H-866 CJ In the present case surrender of the accused by the military authorities . to the civil authorities to be dealt with the latter, after being made aware of the nature of the offence alleged against the appellant was clear indica- ti0n that the decision of the military authorities was that the appellant need not be tried by a court martial and that his trial could take place. before the criminal court. U oder these circumstances there was no occa· sion to follow the procedure under s. 126 or r. 4 as the military authori- ties had made abundantly clear that the appellant need not be tried by the court martial.
That being so it would have been alto~ther super- fluous for the magistrate to give notice as required by the srud pl:oviaions. (870 A-DJ The High Court was therefore right in holding that there had been substantial compliance with the provisions of the Act and the rules and hence the trial of the appellant and his conviction by the Assistant Sessions Judge were valid and legal. [870 D-E] Som Datt Dalla v. Union of India, [1969] 2 S. C. R. 177, Major E. G. Barsay v. S,•"te of Bombay, [19621 2 S. C. R. 195 and Ram Sarup v. Union of India, [1964] 5 S. C. R. 931, applied. In re Captain Hugh May Stollcry Mund,v & Anr. A. LR .. 1945 Mad. 289, In re Major F. K. Mistry, 1949 2 M. L. J. 44, C. Ramanuian v. State . of Mysore, A. I. It. 1962 Mys. 196, Major Gopinathan v. Store of M~dh,va Pradesh, A. LR. 1963 M. P. 249, Awc;dh Behari Singh v. State, A. l. R. 1967 Calcutta 323 and Ajit Singh v. State of Punjab, A. l. R. 1970 Punjab & Haryana 351, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 34 of 1969. Appeal from the judgment and order dated July 26, 1968 and September 27, 1968 o. f the Delhi High Court, Himachal Bench at Simla ih Cr. Revision No. 26 of 1968. R. L. Kohli, for the appellant. V. C. Mahajan and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Vaidialingam J. In this appeal, on certificate issued by the Delhi High Court, the appellant who is governed by the Anny Act, 1950 (hereinafter referred to as the Act) challenges the legality of his trial and conviction for an offence under s. 376 l. P. C. by the Assistant Sessions Judge, Nahan. The main attack levelled against the proceedings is that the material provisions of the Army Act read with the Criminal Courts A B c D E F G H A B c D E F G H JOGINDER v. HIMACHAL PRADESH (Vaidialingam, J.
) 859 and Court-Martial \Adjustment of Jurisdiction) Rules, 1952 (here- inafter referred to a the Rules) framed by the Central Government under s. 549 (1) r. P. C. have not been complied with by the Assistant Sessions Judge. The prosecution case is briefly as follows: The appellant was a military personnel attached to Punjab Regiment No. 24, which moved to Nahen on March 3, 1967. The appellant was a l ance Naik and was appointed as a temporary Gfanthi of the Kaccha-Johar temple used by the military person- nel. 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 sexu11! inter· course with her. The victim narrated the occurrence to her mother and sist~r.
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 non-military 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 aind denied ili,: offence. He also let in defence evidence. The learned Assistant Sessions Judge accepted the prosecution case and disbelieving the plea of the appellant convicted him of the offence under s. 376 I. P. C. and sentenced him to three years rigorous imprisonment. The appeal filed by the appellant was dismissed by the learned Sessions Judge, whc confirmed the conviction and sentence.
The appellant filed a criminal revision No. 26 of 1968 before the Delhi High Court, challenging his conviction and sentence passed by the learned Assistant Sessions Judge and as confirmed by the learned Sessions Judge. The learned Chief Justice before whom the criminal re~ision came for hearing held that the con- viction of the appellant for the offence under s. 376 I. P. C. and the sentence imposed on him by the two subordinate courts on facts were justified and did not require anv interference. How- ever, a plea was taker;i before the learned Chief Justice on behalf of the appellant that according to a notification issued by the Ministry of Defence, Government of India dated November 28. 1962, the appellant on the material date must be considered to have been on active service. Based on this notification it was further urge:! that the appellant's trial should have been before a Court Martial and that if the Assistant Sessions Judge decided to 860 SUPREME COURT REPORTS [1971] 2 S. C.
R. proceed with the trial, he should have given the required notice to · A the Commanding Officer of the Army as is mandatory under s. J 26(1) of the Act read with r. 4. As those provisions have not been coh1plied with, the appellant's trial and convicnion were illegal and null and void. The learned Chief Justice was, however, in- clined to take the view that the omission by the Assistant Sessions Judge to follow the procedure indicated above does not affect his B jurisdic1lion to conduct the trial. In view of certain decisions of the High Courts wherein an opinion has been expressed that non-compliance with the provi- sions of the Act and the Rules vitiates the trial of a military per- sonnel by the criminal courts, the learned Chief Justice referred C the matter, by his order dated June 25, 1968, to a F·11l Bench. The Full Benell which consisted of the learned Chief Justice Kapoor and Tatachari, JJ. heard the criminal revision case. The learned Chief Justice and Tatachari, J.
after a very elaborate reference to the material provisions of the Act and the relevant Rules held that the magistrates, before conducting a trial of a military personnel have to normally, conform to the relevant provisions of the Act D 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 magis- trate, before conducting the trial, to issue the necessary notice under r. 4 will not vitiate the proceedings as oeing illegal. Kapoor, J. , on the other hand, disagreed with the majority opinion and held E 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 Gov- ernment in case of a conflict between the army authorities and the Magistrate.
The learned Judge further held that a magistrate cannot assume jurisdiction straightaway withot1~ providing an op- F portunity to the military authorities to decide the forum. The iearned 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 dated July 26, 1968 held that non-observance of rr. 3 and 4 of the Rules does not by itself deprive the magistrate of his in- G herent jurisdiction or make the proceedings conducted by hin1 P null and void. The High Court further held that the effect of the violation is to be dtermined on the facts and circumstances of each case keeping in view the nature of the violation and au other relevant factors.
After expressing opinio11 on the lega1 aspects, the case was remitted to the Single Judge for final disposaL u The matter came again before the learned Chief Justice, who by his order dated September 27, 1968 held that the trial by the A B c E ' F G H JOGINDER v. HIMACHAL PRADESH (Vaiilialingam, J. ) 861 Assistant Sessions Judge without confonning to the provisions of r. 4 has not caused any failure of ju5tice to the appellant in this the Act particularly to Chapter VI, which com- prises of ss. 34 to 70, under the head~n:g 'offences'. the position that emerges according to the above decisions is that under Chapter VI there are three categories of offences, namely, (1) offences committed by a person subject to the Act triable by a court-m. artial in respect whereof specific punishments have been assigned; (2) civil offences committed by the said person at any place in or beyond India, but deemed to be offences committed under the Act and, if charged under s.
69 of the Act, triable by a court-martial; and (3. ) offences of murder and culpable homicide· not amounting to murder or rape committed by a person subject to th. : Act against a person not subject to the military law. Sub- ject to a few exceptions, they are not triable by court-martial, but are triable only by ordinary criminal courts. The said categorisa- tion of offences and tribunals necessarily bring about a conflict of jurisdiction. Where an offence is for the first time created by the G 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- ·· martial would have jurisdiction to try the person committing the offence. . H 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 13-L694SUJ> Cl/71 866 SUPREME COURT· REPORTS (1971] 2 S. C. R. A conflict of jurisdiction between th~ 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. 12. 5 to decide before which court the proceedings should be instituted. Hence the officer commanding the army, army corps, division or independent brigade in which the accused person is serving or such other officel" as may be prescribed will "have to exercise his discretion . B and decide under s. 125 in which court the proceedings shall ·be instituted. It is-only when he so exercises his discretion and de- ciaes that the proceedings should be institun:d before a court- martial, that the provisions of s. 126(1) come into -operation.
If the designated officer does not exercise his discretion and decide that the proceeding~ should be il1stituted before a coμrt-martial, the Army Act would not obviously be in the way. of . a criminal court exercising its ordinary ex-jurisdiction in the manner provided by Jaw. . We will presently show that in the case before us the desig- ·nated officer· in s. 125 has not chosen to exercise his discretion anif decided before whlch court the proc~edings should be institu- . ted and in partic·ular he has also not decided that the proceedings should be instituted before a court-martial. When that is so, in c D our opinion, there was no occasion for the Criminal Court in this case to adopt the procedure laid dowp. in s. 126 of the Act. This 'view finds support from the second part of s. 126(1) which re- ·quires the criminal court to issue a notice to the pfficer designated E in s.
125 of tfie Act to deliver over the offender to the nearest magistrate or to poslpone the proceedings pending a reference to the Central Government. This is a clear indication that s. 126(1) presupposes that the designated officer has decided under s. 125 that the proceedings shall be instituted before a court-martial and bas also directed that tlie accused person shall be detained "in mili- tary custody. As the facts on which we are basing our conclusion that there was no necessity for the criminal court in question to adopt the . procedlire;laid down in s. 12~ of the Act, will have also bearing ·on the construction of the relevant rules, it is desirable to refer to F the relevant rules relied on by the appellant. G The rules have been fram~ by the Central Government under ·s. 549(1) Cr. P. C.
That section provides for the Central Govern- ment making rules consistent with the Criminal Procedure Code and the Acts mentioned therein in respect of offences whlch could be tried by an ordinary criminal court or by a court-martial. It enjoins upon a magistrate when any person is broqght beforn him, in respect of such an offence, "to have due regard to the rules and to deliver him in proper cases . to th\' appropriate ·officers mentioned H 1 I I JOG! NDER v. HIMACHAL PRADESH (VaidiG/ingam, !. ) 867 A therein, for being tried by a court-martial. The material rules ·that are to be referred are rr. 2, 3, 4, 5 and 8. B c D I' G H Rule 2 defines the expressions "commanding officer", "com- petent military authority", "competent naval authority" and "com- ,petent Air Force authority". Rules 3, 4,5 and ·8 are 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 t:he High Court for any offence triable by such Court, unless (a) he is of opinion, for reasons to be recorded, he should so proceed without being moved thereto by competent military, naval or Air Force Authority, or (b) he is moved thereflo by such authority, Rule 4.
Before proceeding under clause (a) of rule 3, the Magistrate shall give a written notice to the Com- manding Officer of the accused and until the expiry of a period of- · "(i) three weeks, in the case of a notice given to a Cornman~ Ofliccr in command of a unit or detach- ment loc:alled iii any of the following areas of tho 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 Offic~r 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, i 898 (Act '5 of 1898), or hear him in his defence under section 244 of the said Code; or SSS SUPREME COURT REPORTS [1971] 2 s. c;. &.
(bJ frame in writing a charge against the accused A under section 254 of the said Code; or (c) make an order committing the ~. ccused for trial by the High Court or the Court of Ses- sions under section 213 of the said Code; or (d) transfer the case for inquiry or t;rial under section 192 of the said Code. B Rule 5. Where within the period of seven days men- tioned in rule 4; or at any time thereafter before the Magistrate has done any act or made any order referred to in that rule, the Commanding Officer of the accused C 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 pro- ceedings and if the accused is in his power or under his control, shall deliver him, with the statement pre- D scribed in sub-section (1) of section 549 of 1! he said Code to the authority specified in the said sub-sr. ction. Rule 8.
Notwithstanding anything in the foregoing rules, where it comes to the notice of a MagistratP, that a person subject to military, naval or Air Force law has committed an offence, proceedings in respect of_ E which ought to be instituted before him and that ! he reasons of such person cannot be procured except through military, naval er Air Force authorities, the Magistrate may by a written notice require the Com- manding Officer of such person either to deliver such person to a Magistrate to be named in the said notice for F being proceeded against according to law, or to stay the Central Government for determination as to the martial, if since instituted, and to make a reference to the Central Government for determination as to the Court before which proceedings should be instituted. " The main contention that has been urged by Mr.
Kohli, on behalf of the appellant is chat in this case the Assistant Sessions Judge had no jurisdiction to proceed with the trial of the appel- lant 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 ap- pears to us to be that the magistrate shall not proceed to try a , military personnel unless he forms an opinion for reasons to be re- corded to proceed with the trial withput being moved by the com- petent authority or the magistrate has been so moved by the com- G H JOG! NDER v. HIMACHAL PRADESH (Vaidia/ingam, !. ) 869 A petent military authority; but before a magistrate decides to pro- ceed with the trial without being moved by the competent autho- rity, 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 p~riod of the notice mentioned in clauses (I) and (2).
B According tu 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 autho- rity. Even assuming that he has formed such an opinion, he has not given . the requisite notice and waited for the required ·C period under r. 4. Hence it is argued that the criminal cc,urt has acted illegally in proceeding with the trial of the appellant. We are not inclined to accept this contention of the learned counsel. Rule 4 is related to cl. (a) of r. 3 and will be attracted only when the magistrate proceeds to conduct the trial without having D been moved by the competent military authority. It is uo doubt true that in this case the Assistant Sessions Judge has not given a written notice to the Commanding Office( as ~nvisaged under r. 4. But,. in our view, that was unnecessary.
When the com- petent military authorities, knowing full well the nature of the offence alleged against: the appellant, had released him from mili- E tary custody and handed him over to the civil authorities, the magistrate was justified in proceeding on the basis that the military authorities bad decided that the appellant need not be tried by the court-martial and that he could be tried by the ordinary criminal court. We will now refer in some detail to the particular circum>t ances F in this case which will show that there has been no violation of the · Act or the Rules. The High Court bas pointed out tliat the District Inspector of Police. P. W. 12, has stated that after recording \he statements of some of the witnesses he proceeded to the Canton- ment area and contacted the officer comnm1ding the Punbb Regi- ment No. 24. The said witness bas also stated that with the per- G mission of the said officer he interrogated the accused ~·nd exa- mined his person.
The Commanding Officer w~1s not willing to hand over the accused till he obtained oermission from the head- quarters. The Commanding Officer as'sisted P. W. 12 in carrying out the identification pm·ade of the accused. The High Court has further stated that after having full knowledge of the charge H against the appellant and the investigation that was bein>Z con- ducted by the po. lice, the competent authority ultimately r~leased the appellant from military custody and delivered him to th" civil authorities for being tried according to law. 870 SUPREME COURT REPORTS (1971] 2 S. C. R, From these circumstances, in our opinion, it is legitimate to A hold that the competent authority had handed over the appellant to the civil authorities for beiqg tried after Vie former had con- sidered the question of so handing him over after consulta~ons with the headquarters. In these circumstances, ·it follows that the designated officer under s.
125, who had the discretion in the first instance txJ 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 appel• lant, is a. clear indication that the decision of the military authori- ties was that the appellant neaj 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 i'. 126 or r. 4 as the military authorities had made abun- dantly 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 fue said pro- visions. 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 valid and legal. In the result, the appeal fails and is dismissed. G. C. Appeal dismissed. B c D E
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