Criminal Revision No.1491 of 2000 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: November 14, 2008 Col.S.P.Nandrajog (Retd. ...Petitioner VERSUS C.B.I.Chandigarh ...Respondent CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.D.S.Bali, Senior Advocate with Ms.Shweta Bawa, Advocate, for the petitioner. None for the respondent. ***** RANJIT SINGH, J. Petitioner, an Army Officer, is being prosecuted for offences under the Prevention of Corruption Act. Charges have been framed against the petitioner and even evidence appears to have been recorded. He has filed this revision petition to impugn the order Criminal Revision No.1491 of 2000 : 2 : framing the charge and continuation of proceedings primarily on the ground that the ordinary criminal court would not have jurisdiction to try the petitioner, he being subject to the Army Act without following the procedure required to be complied with for assuming jurisdiction to try the petitioner. The facts, in brief, are that Crime No.36 dated 1.12.1995 was registered as an FIR by Delhi Special Police Establishment Chandigarh Branch under Sections 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947 and Sections 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988. The petitioner has since been charge sheeted on 6.10.2000 by Special Judge, Ambala. The petitioner was posted as Deputy Commandant, Bombay Engineering Group, Kirki, Pune. He is alleged to have indulged in corrupt practices and had, thus, amassed assets, which were found to be disproportionate to his known source of income. The alleged corrupt practices related to the period when the petitioner was posted as Col. Q (Works & Projects), H.Q. Western Command, Chandimandir. The grievance of the petitioner is that C.B.I. registered this case without informing the Commanding Officer of the petitioner and without seeking any sanction under Section 197 Cr.P.C. has presented a challan on 29.1.1999. It is otherwise conceded that on the date when the challan was presented, the petitioner was no more in the Army service as he had retired on 30.11.1996. Plea is that petitioner was in active service of the Army on 1.12.1995, when this FIR was registered and, thus, all the investigation held in this case has been found to be in violation of the provisions of the Act etc. The petitioner had accordingly filed an Criminal Revision No.1491 of 2000 : 3 : application seeking his discharge pleading that he being subject to the Army Act was liable to be tried by a court-martial as the offence of corruption is an offence created under Section 53 of the Army Act and as such, he could only be dealt with by a court-martial. Plea further is that Special Judge, Ambala would have no jurisdiction to try the petitioner without obtaining permission as envisaged by provisions of the Army Act and the Rules 3, 4, 5 and 6 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952. Reference is also made to the provisions of Section 475 Cr.P.C. in this regard, wherein the manner of resolving the conflict for trial of those persons is provided when one is subject to dual jurisdiction of a criminal court as well as of a court-martial. The application filed by the petitioner for his discharge is declined by Special Judge on 6.10.2000 and that is how the petitioner is before this court to challenge the same. Special Judge, Ambala has declined the prayer of the petitioner on the ground that when the challan was presented before the court on 29.1.1999, the petitioner had by then retired. It is accordingly held that there was no need to seek permission from Commanding Officer in such circumstances. Reference is also made to the case of Col.B.S.Goraya Vs. U.T.Chandigarh, 1998(4) RCR (Criminal) 778 to say that where public servant, who had been dismissed from service and later on is reinstated when the charge sheet had been filed, even then no sanction is required and action taking cognizance of the offence by the Special judge would not invalidate the proceedings. Learned counsel for the petitioner, however, has referred to the judgment in the case of Delhi Special Criminal Revision No.1491 of 2000 : 4 : Police Establishment, New Delhi Vs. Lt.Col.S.K.Loraiya, AIR 1972 SC 2548 and Superintendent and Remembrancer of Legal Affairs, W.B. Vs. Usha Ranjan Roy Choudhury and another, 1986 Cri.L.J.1248 to urge that petitioner being in active service when the FIR was lodged, he could not have been tried and charge sheeted by the Special Judge without obtaining the requisite sanction/permission from the competent officer in terms of the provisions contained under the Army Act and the Rules framed for adjustment of jurisdiction between the criminal court and court- martial. It is, thus, to be seen whether there was need to obtain any sanction/permission from the competent officer before proceeding against the petitioner as is being urged. The scheme of the Army Act in respect of offences committed by person, who is subject to the Army Act, for his trial by court-martial or ordinary criminal court is governed by various provisions of the Army Act, which are required to be read and analysed in the light of the provisions made under the Criminal Procedure Code. Army Act is a special Code made applicable to persons subject to the Act. The persons, who would be subject to the Army Act, are regulated by Section 2 thereof and there is no dispute that the petitioner being an officer would be subject to the Act in terms of Section 2(1)(a), which provides as under:- “2. Persons subject to Act.-(1) The following persons shall be subject to this Act wherever they may be, namely:- (a) officers, junior commissioned officers and warrant Criminal Revision No.1491 of 2000 : 5 : officers of the regular Army; (b) to (i) xx xxx xxx xxx” Section 2 (2), however, provides that every person subject to this Act under clauses (a) to (g) of sub-section (1) shall remain so subject until duly retired, discharged, released, removed, dismissed or cashiered from the service. Thus, the subjection of a person subject to the Army Act is limited upto the date that person is duly retired, discharged, released, removed, dismissed or is cashiered from service. Chapter IV of the Army Act containing Sections 34 to 70 deals with the offences for which a person subject to the Army Act can be charged and tried before a court-martial and punished as per the sentences prescribed. The perusal of these provisions would show that some of the offences are exclusively triable by a court- martial, whereas some of the offences can be so tried by court- martial as well as by ordinary criminal court. Certain offences may be such, which are exclusively triable by ordinary criminal court. The offences in relation to enemy, absence without leave, desertion, disobedience to superior officer and relating to fraudulent enrolment etc. would be such offences, which are exclusively triable by a court- martial. Some offences, like use of criminal force, offences relating to property, theft etc. would be such which are triable by both the court- martial as well as by ordinary criminal court. Another class of offences known as civil offences are triable by court-martial as well as by ordinary criminal court, as by fiction of law, all civil offences are deemed to be offences under the Army Act as well in terms of Section 69 of the Army Act. This ofcourse is subject to some Criminal Revision No.1491 of 2000 : 6 : exceptions as created under Section 70 of the said Act. Civil offence is defined in terms of Section 3(ii) to mean an offence which is triable by a criminal court. Criminal court is also defined under Section 3(viii) to mean a court of ordinary criminal justice in any part of India. Co- joint reading of all these provisions in the light of offence created under Section 69 of the Army Act makes all the offences under the Indian Penal Code to be offences under the Army Act as well triable by court-martial subject to the exceptions carved out in the said provision. Section 69 of the Army Act reads as under:- “69. Civil Offences.- Subject to the provisions of section 70, any person subject to this Act who at any place in or beyond India commits any civil offence shall be deemed to be guilty of an offence against this Act, and, if charged therewith under this section, shall be liable to be tried by a court-martial and, on conviction, be punishable as follows, that is to say.- (a) if the offence is one which would be punishable under any law in force in India with death or with [transportation] he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and (b) in any other case, he shall be liable to suffer any punishment, other than whipping assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven Criminal Revision No.1491 of 2000 : 7 : years, or such less punishment as is in this Act mentioned. Thus, subject to the exceptions created under Section 70 of the Act, if any person subject to the Act, who at any place in or beyond India commits any civil offences, as defined in Section 2(ii), he shall be deemed to be guilty of an offence against this Act and if charged he is liable to be tried by a court-martial. The exceptions that have been carved out in this regard under Section 70 are in respect of three offences of murder, against a person not subject to military, naval or air force law, or of a culpable homicide not amounting to murder against such a person or of rape in relation to such a person. However, a person subject to the Army Act can still be subjected to trial by court-martial for these offences, if he commits any of said offences while on active service, at any place outside India, or at a frontier post specified by the Central Government by notification in this behalf. The provisions of Section 70 may need a reference and are reproduced below:- “70. Civil offences not triable by court-martial.- A person subject to this Act who commits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be tried by a court- martial, unless he commits any of the said offences- (a) while on active service, or Criminal Revision No.1491 of 2000 : 8 : (b) at any place outside India, or (c ) at a frontier post specified by the Central Government by notification in this behalf. It is, thus, seen that by fiction of law, all the offences which are triable by a criminal court would be an offence under the Army Act in terms of Section 69 thereof and triable by a court-martial as well as by ordinary criminal court. Thus, a person subject to the Army Act would be subjected to dual jurisdiction of an ordinary criminal court if he commits any of the offences, which are triable by ordinary criminal court and would also be open to be tried by court- martial in view of Sections 69 and 70 of the Army Act. Obviously, then the question would arise as to how to resolve this conflict, where court-martial as well as ordinary criminal court has a jurisdiction over a person, who is subject to the Act. To resolve this conflict, reference would be essential to the provisions of Section 125 of the Army Act, which makes a provision for resolving this conflict, where there is a choice between criminal court and the court-martial. It reads as under:- “125. Choice between criminal court and court- martial.- 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, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which court the proceedings shall be instituted, and if that officer decides that they should be instituted before a court-martial, to direct that Criminal Revision No.1491 of 2000 : 9 : the accused person shall be detained in military custody.” Thus, when a criminal court and court-martial have each a jurisdiction in respect of an offence, it is in the discretion of the officer commanding the army, army corps, division or independent brigade in which the accused person is serving or any such officer as may be prescribed to decide before which court the proceedings shall be instituted. The term prescribed “officer” used in Section 125 is further regulated by Rule 197-A of Army Rules, 1954, which provides that the prescribed officer for the purpose of Section 125 of the Act shall, except in cases falling in Section 69 of the Act in which death has resulted, be the officer commanding the brigade or station in which the accused person is serving. Section 126 of the Army Act is also relevant in this regard, which regulates the power of the criminal court to require delivery of offender and it reads as under:- “126. Power of criminal court to require delivery of offender.- (1) When a criminal court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged offence, by written notice, require the officer referred to section 125 at his option, either to deliver over the offender to the nearest magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central Government. (2)In every such case the said officer shall either deliver over the offender in compliance with the requisition, or shall forthwith refer the question as to the court before which the proceedings are to be instituted for the Criminal Revision No.1491 of 2000 : 10 : determination of the Central Government, whose order upon such reference shall be final.” Reference here can also be made to the provisions of 475 Cr.P.C., which provides for delivery to the commanding officer of person liable to be tried by Court Martial. It is as under:- “475. Delivery of commanding officers of persons liable to be tried by Court-martial.-(1) The Central Government may make rules consistent with this Code and the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957, and the Air Force Act, 1950 (45 of 1950), and any other law, relating to the Armed Forces of the Union, for the time being in force, as to cases in which persons subject to military, navel or air force law, or such other law, shall be tried by a Court to 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 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 unit to which he belongs, or to the commanding officer of the nearest military, naval or air-force station, as the case may be, for purpose of being tried by a Court-martial.” It is, thus, provided under this section that any person who is brought before Magistrate and is charged for an offence for which he is liable to be tried either by a court to which this Code is Criminal Revision No.1491 of 2000 : 11 : applied or by a court martial , then such Magistrate shall have regard to such rule and shall in proper cases deliver together with the statement of offence of which he is accused to the commanding officer of the unit to which he belongs etc. Power is given to the Central Government to make rules consistent with the Code and the Army Act in this regard and the Rules known as Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 have been so made by the Central Government. Rules 3 to 6 of the said Rule would regulate the procedure in this regard are as under:- “3. Where a person subject to military, naval or air force is brought before 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 to trial by the Court of Session or 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. 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 Criminal Revision No.1491 of 2000 : 12 : 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 Officer in command of a unit or detachment located elsewhere in India, from the date of service of such notice, he shall note (a) convict or acquit the accused under Sections 243, 245, 247 or 248 of the Code of Criminal Procedure, 1898 (Act 5 of 1989), 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 to trial by High Court or the Court of Session under Section 213 of the said code; or (d) transfer the case for inquiry or trial under Section 192 of the said code. 5. Where within the period of seven days mentioned 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 or competent military, naval or air force authority, as the case may be, gives notice to the Criminal Revision No.1491 of 2000 : 13 : Magistrate that in the opinion of such authority, the accused be tried by a court martial, the Magistrate shall stay proceedings and if the accused is in his power or under his control, shall in the like manner deliver him, with the statement prescribed in sub-section (1) of Section 549 (would now read 475) of the said Code to the authority specified in the said sub-section. 6. Where a Magistrate has been moved by competent military, naval or air force authority, as the case may be, under Clause (b) of Rule 3, and the Command Officer of the accused or competent military, naval or air force authority, as the case may be, subsequently gives notice to such authority, the accused should be tried by a court martial, such Magistrate if he has not before receiving such notice done any act or made any order referred to in Rule 4, shall stay proceedings and, if the accused is in his power or under his control, shall in the like manner deliver him, with the statement prescribed in sub-section (1) of Section 549 (would now read 475) of the said Code to the authority specified in the said sub-section.” The perusal of the above-noted provisions would show that when a person subject to the Act is brought before a Magistrate, who is open to a trial by court-martial as well, then the Magistrate is required to follow the procedure to assume jurisdiction over such a person before proceeding further in the matter and would be under Criminal Revision No.1491 of 2000 : 14 : legal obligation to make reference of the case to resolve this conflict in terms of the provisions contained in Sections 125, 126 of the Army Act and Section 475 of the Code of Criminal Procedure. It is also seen that discretion to make a choice for trial by criminal court or a court-martial is with the officer mentioned in Section 125 and in case of any difference of opinion or conflict, reference is open to be made to the Central Government in terms of Section 126 of the Army Act. Though no precedents in this regard have been cited before me, but this discretion as described in Section 125 of the Army Act is held to be a judicial discretion and is required to be exercised on set norms and cannot be arbitrarily exercised. It is not necessary for this court to comment whether this discretion if exercised would be amenable to scrutiny of the writ court or not, but the courts would certainly be within its jurisdiction to see if the trial by ordinary criminal court is properly assumed by following the procedure as laid down in the statutory provisions noticed above. In the case of Lt.Col.S.K.Loraiya (supra), Hon'ble Supreme Court has clearly held that Rule 3 of Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules is mandatory and where the said procedure is not followed, the charge framed by the court in such case cannot survive. In this case only, the Hon'ble Supreme Court made reference to the three-fold scheme under the Army Act and the fact that section 549 Cr.P.C. (Now 475 Cr.P.C.) is designed to avoid the conflict of jurisdiction in respect of category of those offences where both courts have concurrent jurisdiction to try. The provisions are mandatory as can be seen from the following observations of the Hon'ble Supreme Court:- “The Central Government has framed under S.549 (1), Criminal Revision No.1491 of 2000 : 15 : Cr.P.C. rules which are known as the Criminal Courts and Courts Martial (Adjustment of Jurisdiction) Rules, 1952. The relevant 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 cases unless he is requested to do so by the appropriate 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 Magistrate has to give notice to the Commanding 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 Command Officer may inform the Magistrate that in his opinion the accused should be tried by the Court-martial. Subsequent rules prescribe the procedure which is to be followed where the Commanding Officer has given or omitted to give such information to the magistrate.” It is also to be noted that term “is liable to be tried either by