N Criminal Appeal Nos 170 and 171 of 1977 From the Judgment and Order dated 29th May 1975 of the Calcutta High Court in Criminal Appeal No 308 of 1972 and Govt
Appeal No 5 of 1973
116 DP Mukherjee and GS Chatterjee for the Appellant
Rathin Dass and Pankaj Kalra for the Respondents
The Judgment of the Court was delivered by THAKKAR J
The validity of the trial of three Army Officers is in question
The High Court has taken the view that the learned Judge presiding over the Special Court had acted without jurisdiction in taking cognizance of the case and proceeding with the trial of three Army Officers resulting in the conviction of one of them and the acquittal of the remaining two and has quashed the proceedings
The question which calls for determination in these two allied appeals by special leave preferred by the State of West Bengal is whether the High Court was right in doing so
The following facts are not in dispute 1 Three accused persons who were tried by the Judge presiding over the Fourth Addl
Special Court Calcutta hereinafter referred to as the learned Trial Judge for the sake of brevity were Army Officers
They were charged with offences in respect of which the ordinary Criminal Court and the Court Martial both had concurrent jurisdiction
2 The Learned Trial Judge had failed to follow the procedure prescribed by the Criminal Courts and Court Martial Adjustment of Jurisdiction Rules 1952 referred to as Rules hereinafter framed under Section 549 1 of the Code of Criminal Procedure of 1898 Cr
PC The following contentions were urged before the High Court on behalf of the State with a view to substantiate the contention that the learned Trial Judge had jurisdiction to take cognizance of the case and that the trial was not null and void notwithstanding the fact that the procedure prescribed by the Rules had not been followed
1 The rules framed under Section 5491 of Cr
PC 117 were not attracted inasmuch as the rules applied to Magistrates and not to a Judge presiding over a Special Court
2 Having regard to the provision contained in section 122 of the  which prescribes a period of limitation of three years which period had already elapsed during the pendency of the proceedings in the High Court the Court Martial would have no jurisdiction to try the accused and that the trial held by the learned Trial Judge could not be said to have been vitiated in view of this circumstance
3 In view of a letter addressed by the Brigadier of the Division concerned to the Police Officer for investigating the offences it can be said by necessary implication that the Army authorities had opted for the trial of the case by the ordinary Civil Court
The High Court repelled all the three contentions allowed the appeal of the officer who was convicted and dismissed the appeal of the State calling into question the acquittal of the remaining two
Besides reiterating the same three contentions before this Court learned counsel for the appellant has raised a new point which was not urged before the High Court
We propose to deal with the submissions which were urged in the High Court before coming to grips with the new point sought to be raised by the learned counsel for the appellant State
For a proper appreciation of the first point a quick look at the statutory provisions and the position emerging therefrom is called for
In regard to the offences which fall within the purview of Section 70 of the of 1950 an offender can be tried only by Court Martial whereas in regard to offences falling within the purview of Section 52 of the said Act the offences can be tried both by the ordinary criminal court as also by the Court Martial both of which have concurrent jurisdiction
The offences with which the concerned accused were charged before the learned Trial Judge were offences which fell within the scope of Section 52 of the of 1950 and accordingly the ordinary criminal court as also the Court Martial had concurrent jurisdiction
In order to avoid any conflict of jurisdiction between the 118 criminal court and the court martial in regard to offenders who are charged with having committed offences which fall under the purview of Section 52 of the  Section 54911 of Cr
PC provides that Central Government may make Rules consistent with Cr
PC and the 
In pursuance of this provision contained in Section 5491 Cr
PC the Central Government has framed Rules known as Criminal Courts and Court Martial Adjustment of Jurisdiction Rules 1952
Rule 3 of the said Rules requires that when 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 Court Martial also the magistrate shall not proceed with the case unless he is requested to do so by the appropriate military authority
On a combined reading of rules 3 and 42 it is evident that in case the Megistrate is of the opinion that he should proceed with the case without there being any such request from the appropriate military authority the concerned Magistrate is enjoined to give notice to the commanding officer in this behalf
Till the expiry of seven days from the service of such notice on the commanding officer the Magistrate is prohibited from making any order of conviction or acquittal or framing any charges or committing the accused
1 The Central Government may make rules consistant with this Code and the  the Naval Discipline Act and the Indian Navy Discipline Act 1934 and the Air Force Act and any similar law for the time being in force as to the cases in which persons subject to military naval or air force law shall be tried by a Court to which this Code applies or by 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 court martial such Magistrate shall have regard to such rules and shall in proper cases deliver him together with a statement of the offence of which he is accused to the commanding officer of the regiment corps ship or detachment to which he belongs or to the commanding officer of the nearest military naval or air force station as the case may be for the purpose of being tried by the Court Martial ________________________________ 2
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 issue orders for his case to be referred to a Bench 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 that he should so proceed without being moved thereto by competent military naval or Air Force Authority or b he is moved thereto by such authority
119 It is in the background of these provisions that the High Court has taken the view that compliance with the procedure prescribed by the Rules is a mandatory requirement and that any proceedings undertaken by the learned Trial Judge without compliance with the aforesaid mandatory procedure would vitiate the trial before the ordinary criminal court and the entire proceedings would be rendered null and void
Faced with this situation counsel for the State contended before the High Court that the procedure embodied in Section 5491 of the Cr
PC and Rules framed thereunder were applicable only to the court presided over by a magistrate and not to a Judge presiding over a Special Court
This contention was negatived by the High Court
And it has now been reiterated before us it being an admitted position that the prescribed procedure has not been followed by the learned trial judge in the case giving rise to the present appeals
This argument was possibly inspired by a point debated in Major EG Barsay vs The State of Bombay
 The view was taken therein that inasmuch as the aforesaid Rules refer to a Magistrate the Rules were not attracted with regard to a trial before a Special Judge
It was presumably on accout of this decision that the Criminal Law Amendment Act of 1952 was amended by incorporating Sections 8 3A and 11 reading as under Section 83A In particular and without prejudice to the generality of the provisions contained in sub section 3 the provisions of Sections 350 and 549 of the Code of Criminal Procedure 1898 shall so far as may be apply to the proceedings before a Special Judge and for the purposes of the said provisions a Special Judge shall be deemed to be a Magistrate
Section 11 Military naval and air force laws not to be affected 4
Before proceeding under clause a of rule 3 the Magistrate shall give written notice to the Commanding Officer of the accused and until the expiry of a period of seven days from the date of the service of such notice he shall not a Convict or acquit the accused under sections 243 245 247 or 248 of the Code of Criminal Procedure 1898V of 1898 or hear him in his defence under section 244 of the said Code or b frame in writing a charge against the accused under section 254 of the said Code or c make an order committing the accused for trial by the High Court or the Court of Sessions under section 213 of the said Code
 120 1 Nothing in this Act shall affect the jurisdiction exercisable by or the procedure applicable to any Court or other authority under any military naval or air force law
This amendement was effected by virtue of Central Act XXII of 1966
Having regard to the provision contained in Section 8 3A of the Criminal Law Amendment Act of 1952 as it now stands it is clear that a Sepcial Judge is deemed to be a Megistrate for the purposes of the Rules framed under Section 549 1 of the Code of Criminal Procedure with the end in view to eschew the conflict between Court Martial on the one hand and the ordinary criminal courts on the other
The High Court was therefore perfectly justified in repelling this contention urged on behalf of the appellant State albeit on a reasoning which is somewhat obscure
Confronted by this situation counsel for the appellant State has raised a new point to which a reference was made in the earlier part of the judgment
The new point which has been so raised is that Sections 83A and 11 quoted hereinabove which were incorporated by Central Act 11 of 1958 as further amended by Central Act XXII of 1966 were not applicable to the State of West Bengal from where the matter giving rise to the present appeals stems
Since no such argument was advanced before the High Court initially we were reluctant to permit counsel to raise this new point
But having regard to the fact that it goes to the root of the matter we have permitted counsel to urge this contention
We will however deal with it after exhausting all the points which were urged before the High Court
The next point which was unsuccessfully urged before the High Court was in the context of Section 122 of the of 1950 which prescribes a period of limitation of three years
The High Court did not accede to the submission in this behalf having regard to the law enunciated by this Court in Delhi Police Establishment New Delhi vs Lt Col Loraiya
 We are of the opinion that the High Court was right
This Court in the aforesaid case has taken the view to the effect that the question being essentially one of the initial jurisdiction of the ordinary criminal court on the one hand and the court martial on the other unless the procedure prescribed by the rules is complied with the ordinary criminal court would not have initial jurisdiction in regard to the matter as is evident from the following passage It is an admitted fact in this case that the procedure speci 121 fied in rule 3 was not followed by the Special Judge Gauhati before framing charges against the respondent
Section 549 1 Cr
PC and rule 3 are mandatory
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 this case the respondent is not Iiable to be tried  by a Court martial
Section 122 1 of the  provides that no trial by court martial of any person subject to the for any offence shall be commenced after the expiry of the period of three years from the date of the 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
It is claimed that having regard to Sec 1221 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 a Court martial in section 5491
According to counsel for the appellant this phrase cannotes that the ordinary criminal court as well as the court martial should not only have concurrent initial jurisdiction to take cognizance of the case but should also retain jurisdiction to try him up to 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 draws a threefold scheme
Certain offences enumerated in the are exclusively triable by a Court martial certain other offences are exclusively triable by the ordinary criminal courts and certain other offences are triable both by the ordinary criminal court and the court martial
In respect of the last category both the Courts have concurrent jurisdiction
Section 549 1 Cr
PC is designed to avoid the conflict of jurisdiction in respect of the last category of offences
The clauase for which he is liable to be tried either by the Court to which this Code applies or by a court martial in our view qualifies the preceding clause when any person is charged 122 with an offence in section 549 1
Accordingly the phrase is liable to be tried either by a court to which this Code applies 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
In our opinion the phrase is intended to refer to the initial jurisdiction of the two courts to take cognizance of the case and not to their jurisdiction to decide it on merits
It is admitted that both the ordinary criminal court and the court martial have concurrent jurisdiction with respect to the offences for which the respondent has been charged by the Special Judge
So section 549 and the rules made thereunder are attracted to the case at hand Having regard to the enunciation of law to this effect it is evident that the ordinary criminal court would have no jurisdiction to take cognizance of the case and to try the accused in a matter where the procedure prescribed by the Rules has not been complied with
The initial lack of jurisdiction to take cognizance and try the case would of logical necessity vitiate the trial and the order of conviction and sentence would be liable to be quashed as a result thereof
We are therefore unable to accede to the submission urged on behalf of the appellant State that even if the rules are applicable having regard the fact that more than three years have expired from the date of the commission of the alleged offence the trial is not vitiated
The last contention raised before the High Court was that having regard to the fact that the investigation which preceded the lodging of the complaint before the learned Trial Judge was commenced in pursuance of a letter written by the Brigadier of the Division which contained a request for investigation by the Police into alleged offences it can be said that the Army authorities had opted for the trial of the accused person by the ordinary criminal court
The argument was that by necessary implication this would follow as a logical corollary
The High Court brushed aside this contention as untenable taking into account the contents of the letter in question
The said letter was in the following terms Dear Sir 1 Please refer to Memo No 8940 dated August 28 1963 123 from Shri RK Bhattacharyya Superintendent of Police DEB Darjeeling
2 At appendix A  please find a copy of the investigation that had been carried by us
We request you to take over the case and submit your detailed report to us at your earliest convenience
 The High Court relied on the fact that the Army had called for a detailed report by the Police which would show that the Army authorities had not taken any such decision either expressly or by necessary implication
Counsel for the appellant has not been able to press this point with any vigour for the obvious reason that it relates to the stage of investigation preceding the complaint
The question regarding exercise of jurisdiction by the court martial would arise only after the investigation was completed and the police report was available
What is more it is only after the prescribed procedure under Rules 3 and 4 of the Rules is resorted to by the ordinary criminal court that the question of exercising an option can arise
In the present matter admittedly the procedure prescribed by the Rules was not followed
Under the circumstances it is futile to contend that the Army authorities had voluntarily abandoned their option to try the accused person in the court martial
There is no substance in the plea and it has been rightly repelled by the High Court
At long last we come to the last point the point which was not urged before the High Court but which we have permitted the learned counsel for the State to raise before us
It is argued that the Criminal Law Amendment Act of 1952 was not applicable to the State of West Bengal inasmuch as the State of West Bengal had enacted an Act of its own known as West Bengal Criminal Law Amendment Special Courts Act 1949 which was in operation throughout the whole of West Bengal
No doubt it is true that Criminal Law is a subject which falls within the scope of Entry 1 of List III concurrent list embodies in 7th Schedule to the Constitution of India
The Union Government as well as the State Government both can therefore legislate in regard to criminal law
The contention that the Criminal Law Amendment Act 1952 enacted by the Parliament of India is not applicable to the State of West Bengal is altogether misconceived
It is necessary to advert to the legislative history for a proper appreciation of the point at issue
In 1938 the Government of India had enacted the Criminal Law Amendment Act of 1938
In 1949 the State of West Bengal 124 introduced the State legislation being the West Bengal Criminal Law Amendment Sepcial Courts Act 1949 West Bengal Act
This Act was further amended after the enforcement of the Constitution of India by incorporating Section 13 in 1953 3
The said Section 13 has great significance from the stand point of the present argument Certain Sections of Act XLVI of 1952 not to apply to West Bengal 13
Sections 6 7 8 9 and 10 of the Criminal Law Amendment Act 1952 shall not apply and shall be deemed never to have applied to West Bengal
 It will thus be seen that Section 13 of the West Bengal Act in terms accords recognition to the applicability of the Criminal Law Amendment Act of 1952 except and save some of the sections namely sections 6 7 8 9 and 10 thereof which as provided in Section 13 shall not apply and shall be never deemed to have applied to West Bengal
It is implicit in Section 13 of the West Bengal Act that the Central Act namely Criminal Law Amendment Act of 1952 is applicable to the State of West Bengal except and save the aforesaid five sections
There can be no doubt or debate about this position having regard to the fact that criminal law is a subject which falls under the concurrent list and the Criminal Law Amendment Act of 1952 enacted by the Parliament is applicable subject to inconsistency if any between the said Act and the West Bengal Act
So far as the coverage of the present point is concerned there is no such inconsistency
The West Bengal Act does not contain any provisions pertaining to personnel governed by the 
It is altogether silent in regard to the matter pertaining to the procedure to be followed in regard to Army personnel from the perspective of Section 549 Cr
PC and the rules framed under the authority thereof
There is thus no conflict between the Criminal Law Amendment Act of 1952 and the West Bengal Act in so far as this matter is concerned
Such being the position the provisions contained in Criminal Law Amendment Act of 1952 with a special eye on the procedure to be followed in Section 83A and Section 11 of the Criminal Law Amendment Act of 1952 will operate in this sphere without any let or hindrance
And inasmuch as Section 83A in terms provides that the provision of Section 549 Cr
PC shall so far as may be applied to the proceeding before the Special Judge 3
This section was added by Section 3 of the West Bengal Criminal Law Amendment Special Courts Amending Act of 1953 West Bengal Act of 1953
125 and that for the purposes of that provision a Special Judge shall be deemed to be a Magistrate the said provisions remain fully alive and uneffected by the West Bengal Act
In view of this provision the procedure prescribed by Section 549 Cr
PC read with the rules framed thereunder which have been quoted in the earlier part of the judgment will be applicable to a proceeding before a Special Judge in West Bengal as well
In so far as the Army personnel are concerned therefore the law governing them and the procedure required to be followed in their case would be the same in West Bengal as elsewhere in India as it should be
It may incidentally be mentioned that in the West Bengal Act also the Judge presiding over the Special Court is called a Special Judge vide Schedule to the West Bengal Act
He would therefore deemed to be a Magistrate for the Purposes of the Rules in view of Section 83A of the Criminal Law Amendment Act of 1952
The mandatory procedure prescribed by the Rules is accordingly obligatory even in respect of proceedings before a Special Court under the West Bengal Act
There is thus no substance in this point
We are of the opinion that this feeble and faint hearted attempt is born out of desperation and deserves no more consideration
We have therefore no hesitation in negativing this plea
No other point has been urged
The appeal must therefore fail
But before we write finis  it may be made clear that the acquittal rendered by the High Court is on the ground of lack of jurisdiction on the part of the learned Special Judge who tried the case in the Special Court and not on merits
The expression acquitted  has been employed by the High Court though it was sufficient to say no more than this that the order of conviction and sentence was without jurisdiction and was therefore being quashed
In the eye of law it is not an acquittal since it is not on merits
It is thereore for the competent authority to decide whether or not to subject the accused to a fresh trial after following the procedure prescribed by the Rules
With these observations we dismiss the appeal
MLA Appeal dismissd


Summary:
The three respondents accused were charged with offences which fell within the scope of section 52 of the of 1950
The ordinary criminal court and the Court Martial both had concurrent jurisdiction to try the said offences
They were tried by the Judge presiding over the Fourth Addl
Special Court Calcutta
The learned Trial Judge while convicting one of the respondents and acquitting the remaining two failed to follow the procedure prescribed by the Criminal Courts and Court Martial Adjustment of Jurisdiction Rules 1952 framed under Section 5491 of the Code of Criminal Procedure of 1898
The High Court in appeal took the view that the learned Judge presiding over the Special Court had acted without jurisdiction in taking cognizance of the case and proceeding with the trial of three Army officers resulting in the conviction of one of them and the acquittal of the remaining two and quashed the proceedings
Dismissing the appeals by the State  HELD 1
The High Court was right in allowing the appeal of the officer who was convicted and dismissing the appeal of the State calling into question the acquittal of the remaining two
However the acquittal rendered by the High Court is on the ground of lack of jurisdiction on 114 the part of the learned Special Judge who tried the case in the Special Court and not on merits
The expression acquitted  has been employed by the High Court though it was sufficient to say no more than this that the order of conviction and sentence was without jurisdiction and was therefore being quashed 
In the eye of law it is not an acquittal since it is not on merits
It is therefore for the competent authority to decide whether or not to subject the accused to a fresh trial after following the procedure prescribed by the Rules
125D F 21 In order to avoid any conflict of jurisdiction between the criminal court and the court martial in regard to offenders who are charged with having committed offences which fall under the purview of Section 52 of the  Section 5491 of Cr
PC provides that Central Government may make Rules consistent with Cr
PC and the 
In pursuance of this provision contained in Section 5491 Cr
PC the Central Government has framed Rules known as Criminal Courts and Court Martial Adjustment of Jurisdiction Rules 1952
117H 118A B 22 Rule 3 of the Rules 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 Court Martial also the magistrate shall not proceed with the case unless he is requested to do so by the appropriate military authority
A combined reading of rules 3 and 4 shows that in case the Magistrate is of the opinion that he should proceed with the case without there being any such request from the appropriate military authority the concerned Magistrate is enjoined to give notice to the commanding officer in this behalf
Till the expiry of seven days from the service of such notice on the commanding officer the Magistrate is prohibited from making any order of conviction or acquittal or framing any charges or committing the accused
Therefore the ordinary criminal court would have no jurisdiction to take cognizance of the case and to try the accused in a matter where the procedure prescribed by the Rules has not been complied with
The initial lack of jurisdiction to take cognizance and try the case would of logical necessity vitiate the trial and the order of conviction and sentence would be liable to be quashed as a result thereof
118B F In the instant case admittedly the procedure prescribed by the Rules was not followed
Under the circumstances it is futile to contend that the Army authorities had voluntarily abandoned their option to try the accused person in the court martial
There is no substance in the plea and it has been rightly repelled by the High Court123D E 115 Delhi Police Establishment New Delhi vs Lt Col SK Loraiya
1973 1SCR 1010 relied upon
Major EG Barsay vs The State of Bombay  referred
31 Section 13 of the West Bengal Criminal Law Amendment Special Courts Act 1949 in terms accords recognition to the applicability of the Criminal Law Amendment Act of 1952 enacted by the Parliament except and save some of the sections namely sections 6789 and 10 thereof which as provided in Section 13 shall not apply and shall be never deemed to have applied to West Bengal
It is implicit in Section 13 of the West Bengal Act that the Central Act namely Criminal Law Amendment Act of 1952 is applicable to the State of West Bengal except and save the aforesaid five sections
There can be no doubt or debate about this position having regard to the fact that criminal law is a subject which falls under the concurrent list and the Criminal Law Amendment Act of 1952 enacted by the Parliament is applicable subject to inconsistency if any between the said Act and the West Bengal Act
Moreover the West Bengal Act does not contain any provision pertaining to personnel governed by the 
It is altogether silent in regard to the matter pertaining to the procedure to be followed in regard to Army personnel from the perspective of Section 549 Cr
PC and the rules framed under the authority thereof
There is thus no conflict between the Criminal Law Amendment Act of 1952 and the West Bengal Act in so far as this matter is concerned
Such being the position the provision contained in Criminal Law Amendment Act of 1952 with a special eye on the procedure to be followed in Section 83A and Section 11 of the Criminal Law Amendment Act of 1952 will operate in this sphere without any let or hindrance
And inasmuch as Section 83A in terms provides that the provision of Section 549 Cr
PC shall so for as may be applied to the proceeding before the Special Judge and that for the purposes of that provision a Special Judge shall be deemed to be a Magistrate the said provisions remain fully alive and unaffected by the West Bengal Act
124C H 125A