:1: pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL APPEAL NO. 89 OF 1988 Kanwardeepsingh Harbansingh Bedi ..Appellant Vs. The State of Maharashtra ..Respondent Mr. Nitin Pradhan i/by Ms. S.D. Khot for appellant. Mrs.M.M. Deshmukh, APP for respondent. CORAM: CORAM: CORAM: B.H. MARLAPALLE & D.G. KARNIK,JJ. B.H. MARLAPALLE & D.G. KARNIK,JJ. B.H. MARLAPALLE & D.G. KARNIK,JJ. Reserved Reserved Reserved on : March 24, 2009. on : March 24, 2009. on : March 24, 2009. Pronounced Pronounced Pronounced on on on : May 7, 2009. : May 7, 2009. : May 7, 2009. JUDGMENT JUDGMENT JUDGMENT (Per (Per (Per B.H. Marlapalle,J.): B.H. Marlapalle,J.): B.H. Marlapalle,J.): 1. This criminal appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973, arises from the order of conviction and sentence passed in Sessions Case No. 79 of 1986 on 15/1/1988 by the learned Additional Sessions Judge - Sessions Court, Mumbai, thereby convicting the appellant for the offences punishable under Sections 302 and 381 of I.P.C. for causing the murder of two of his colleagues i.e. Omprakash Dubey - Midshipman and Hanumansingh Rathod - Seaman on 24/11/1985 at about :2: 11.30 a.m. while on board INS Ranjit. He has been sentenced to suffer life imprisonment for the offence punishable under Section 302 and RI for five years for the offence punishable under Section 381 of I.P.C. The appellant was on bail during trial and he continued to be on bail during the pendency of this appeal as well. Thus, during the last more than 24 years he has been on bail and this appeal for some or the other reasons remained pending before this court for more than 21 years, though it arises from the double murder of young sailors at the hands of one of their own colleagues. . The appellant was born in 1963 and completed his graduation in 1984. He was commissioned in the Indian Navy in March 1984, and had joined the Naval Academy at Cochin in August 1984. He completed his basic training in December 1984 and joined INS Ranjit as a Midshipman in July 1985. . Ironically, the appeal is succeeding only on technical ground so as to remand the Sessions Case for a de novo trial, but by quashing and setting aside the impugned order of conviction and sentence. This :3: situation has arisen for the sole reason that the learned Metropolitan Magistrate of 19th Court, Mumbai was not made aware of the compliance of the mandatory provisions of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 (the Rules for short) framed by the Central Government under Section 475 of the Code of Criminal Procedure, 1973. We record our anguish for the failure on the part of the Special Public Prosecutor as well as the defence counsel who conducted the trial before the Sessions Court and it is evident that none of them appeared to be aware of the said Rules and the mandatory procedure to be followed thereunder by the learned Metropolitan Magistrate before committing the case to the Sessions Court under Section 209 of Cr.P.C. It is true that this point of jurisdiction was not raised before the learned Additional Sessions Judge in the form and manner that has been raised before us for the first time and we are required to decide the said preliminary point of jurisdiction by following the law laid down in the case of Moly and anr. vs. State of Kerala [(2004) 4 SCC 584] [(2004) 4 SCC 584] [(2004) 4 SCC 584] read with - Delhi Special Police Establishment, New Delhi vs. Lt. Col. S.K. Loraiya [AIR 1972 SC 2548] [AIR 1972 SC 2548] [AIR 1972 SC 2548], Superintendent and :4: Rememberancer of Legal Affairs, West Bengal vs. Usha Ranjan Roy Choudhury and anr. [1986 (Supp) SCC 190] [1986 (Supp) SCC 190] [1986 (Supp) SCC 190] and Union of India, through Major General H.C. Pathak vs. Major S.K. Sharma [(1987) 3 SCC 490] [(1987) 3 SCC 490] [(1987) 3 SCC 490]. 2. The prosecution case unfolds thus, . From 20/11/1985 onwards the Naval exercises were in progress and INS Ranjit had also participated in these exercises. On 24/11/1985 INS Ranjit was harboured at the Mumbai Port and the accused as well as both the deceased were part of the Naval pool of INS Ranjit during this exercise called "Barracuda II". The said operation was terminated on 24/11/1985 at about 11.15 a.m. or so and at that time Lt. Commander Dhamdhere - PW 1 was the Commanding Officer of the Ship as both his seniors were not present on the Ship. The Commanding Officer along with the accused, deceased Omprakash Dubey, Lt. Nikula, Lt. Commander Palsule and 2-3 other officers was having tea in the ward room of INS Ranjit between 11 a.m. to 11.15 a.m. and during this time, the Commanding Officer received a message that the exercise was terminated and this message was received by him from :5: the Duty Signal Man. The Commanding Officer, therefore, instructed Omprakash Dubey (D1 for short) to call all the sentries so that he could go and muster them. On board there were about eight midshipmen, six sentries and all of them were provided with 9 mm carbine (pistols) along with the magazines. Each sentry used to be on duty for four hours by rotation and they used to exchange the weapons on change of duty. The accused also left the ward room as soon as Omprakash Dubey left from there. At about 11.30 a.m. or so the Duty Officer Dhamdhere left the ward room along with Nikula to go to the gangway to muster the sentries and as he was walking towards the gangway, the first thing which he saw was that the accused was holding a 9 mm carbine against the head of Midshipman Omprakash and fired a burst. Midshipman Ravi Shankaran - PW 9 who was proceeding towards the gangway and a little ahead of Dhamdhere turned back, pushed him and ran towards the ward room. Dhamdhere saw seaman Hanumansingh (deceased no.2) very close to Omprakash and both of them had fallen on the ground at the same time because of the bullet fired by the accused. Hanumansingh (D2) was Duty Quarter Master and was supposed to be a sentry at the entrance of the :6: gang way and there was another Quarter Master by name Vijayan - PW 8 and was hiding himself behind the desk which was just next to the gangway and few steps away from D2 and D1. Dhamdhere took two steps towards the accused and shouted at him. The accused went on saying, "no Sir, no Sir" and lowered the weapon, which was in his hands, upto his waist. After about a minute or so, the accused dropped the weapon on some hesitations. Dhamdhere told Vijayan, who was hiding from the desk on the other side of the rope, to grab the weapon, which the accused had dropped and run away. Vijayan did accordingly and immediately thereafter Vijayan ran with the weapon to the left side of the shipway from the gangway. At this stage, the accused also ran away out of the ship and started running on the Jetty. Dhamdhere was chasing him by shouting "pakdo pakdo", but the accused jumped into the sea in front of INS Udaigiri (another ship). But the divers of INS Udaigiri caught hold of the accused in the sea and brought him to INS Udaigiri. In the meantime, D1 and D2 were taken to the hospital (INHS Ashwini) by Midshipman Sur - PW 4 and Midshipman Pokhriyal. Dhamdhere informed about the incident to the Commanding Officer and the Naval Police, who :7: reached the scene within 15 to 20 minutes and the City Police also came within one hour. The 9 mm carbine picked up by Vijayan - PW 8 from the scene of offence was kept back at the same place when the City Police arrived at the scene. It was noticed that the carbine had fired three bullets and three empty shells were found at the scene of offence. The accused came to be arrested by the City Police from INS Udaigiri at about 4.30 p.m. and before that the statement of Ravi Shankaran - PW 9 was recorded by PI Mitake - PW 15 on INS Ranjit and the same was treated as the F.I.R. (Exh.55). In the hospital both the victims were declared dead and Dr. Khade - PW 10 conducted the autopsy of both the dead bodies (Exh.63 and Exh.59). Undoubtedly, both of them died because of the gun fire injuries on the head. Investigation was completed by the I.O. i.e. Mitake - PW 15 and PI Garkal - PW 20. The accused was presented before the Metropolitan Magistrate on 25/11/1985 and was granted police custody. On 8/1/1986 the accused was remanded to judicial custody. The charge-sheet came to be filed on 18/1/1986, after receiving the reports from Forensic Laboratory as well as the Ballistic Expert. :8: 3. Charge (Exh.8) was framed by the Sessions Court on 12/6/1987 and the following issues were framed for determination:- (a) Does the prosecution prove that Omprakash and Hanumansingh died homicidal death? (b) Does the prosecution prove that the accused committed murder of Hanumansingh and Omprakash by firing bullets from 9 mm carbine? (c) Does the prosecution prove that the accused committed theft of three bullets of 9 mm carbine on board INS Ranjit? (d) Does the accused prove that in the morning of 24/11/1985 between 11.00 and 11.30 a.m. at the time of committing the act viz. firing the bullets from 9 mm carbine at Omprakash and Hanumansingh, by reason of unsoundness of mind he was incapable of knowing the nature of the act or that he was doing what was wrong or contrary to law? :9: (e) Was sanction under Section 197 (2) of Cr.P.C. necessary before prosecuting the accused? (f) Does this court have jurisdiction to try this case? (g) What offence the accused is proved to have committed? . Issue Nos.1 to 3 and 6 were answered in the affirmative, whereas Issue Nos.4 and 5 were answered in the negative. The accused was held to be guilty of committing murder of Omprakash and Hanumansingh by firing bullets from 9 mm carbine. He was also held to be guilty of offence punishable under Section 381 of IPC. The prosecution had examined in all 23 witnesses. Duty Officer Shri Rajiv Dhamdhere - PW 1. Explosive Accounting Officer Lt. Commander Tenginakere Narasimha - PW 2. Shri Ramesh Chandra - PW 3 from whom the accused had allegedly snatched the weapon (Article 1) along with magazine (Article 2) on the date of the incident. Midshipman Sujit Sur - PW :10: 4, the complainant. Shri Birbal Singh - PW 5, a driver on INS Udaigiri. Commandar Khalid Hasan - PW 6, Judge Advocate, Headquarters Western Naval Command, Mumbai. Shri Bachi Singh Bhauryal - PW 7, Petty Officer on INS Ranjit. Shri V.V. Vijayan - PW 8, Leading Seaman. Shri Ravi Shankaran - PW 9, Midshipman. Dr. K.R. Khade - PW 10, Lecturer in Forensic Medicine with Grand Medical College, Mumbai. Lt. Hanuman Singh s/o Mangesh Singh - PW 11, a sailor from INS Udaigiri. Dr. Pralhad Awale - PW 12, Medical Officer, Civil Hospital, Satara and he had examined the accused on 27/11/1985 at St. Georges Hospital, Mumbai when produced by the Colaba Police Station. Shri Ramnathan - PW 13, Petty Officer, INS Ranjit. Shri Ram Govind Parakhi - PW 14, Ballistic Expert from the Controller of Inspection, Khadki. Shri Vishambar Mitake - PW 15, PSI Colaba Police Station. Shri Baliram More - PW 16, Police Constable from Colaba Police Station. Shri A.M. Rao - PW 17, Assistant Chemical Analyser from the Forensic Science Laboratory, Mumbai. Shri Vishnu Landage - PW 18, Police Sub Inspector at Colaba Police Station. Shri Babu Salunke - PW 19, Police Constable from Colaba Police Station. Shri Rajaram Garkal - PW 20, PI :11: attached to Colaba Police Station. Dr. Yeshwant Kelkar - PW 21, the Superintendent from Central Mental Hospital, Yerawada, Pune. Dr. Rajesh Zalpuri - PW 22, MO, Indian Navy and lastly, Shri Anilkumar Gaikwad - PW 23, Petty Officer on INS Ranjit. 4. The defence examined in all four witnesses. Shri Rakesh Kumar Mehta - DW 1, Judge Advocate, Headquarters Western Naval Command, Mumbai. Smt. Ivinder Kaur Bedi - DW 2, the mother of accused. Dr.Murlidhar Kulkarni - DW 3, MO, attached to G.T. Hospital, Mumbai and Dr. Tirandas Ramteke - DW 4, Chief Medical Officer attached to the Central Prison Hospital, Thane. The plea of unsoundness of mind making the accused incapable of knowing the nature of the act i.e. firing, from the pistol or that he was incapable of knowing the nature of the act or that he was doing what was wrong or contrary to law was raised along with the point of jurisdiction of the Sessions Court to try the accused. The issue of jurisdiction, as raised before the Sessions Court, was in a different form than the same has been raised before us. It was submitted that under Section 78(1) of the Navy Act, the accused was required to be tried by the :12: Court Martial and the Sessions Court did not have the jurisdiction to try the accused. The learned Sessions Judge noted that Naval Board Inquiry was conducted and the statements recorded during the said inquiry were made available to the defence counsel on his making application and at the end of the trial the said inquiry papers were returned to the Naval Authorities. These previous statements were used by the defence to confront the prosecution witnesses in the court as permitted under Section 145 of the Indian Evidence Act and Judge Advocate Commander (PW 5) was one of the prosecution witnesses, who deposed before the Sessions Court. The Sessions Court relied upon the decision in the case of Joginder Singh vs. State of Himachal Pradesh [AIR 1971 SC 500] [AIR 1971 SC 500] [AIR 1971 SC 500] and rejected the objection of jurisdiction by holding that it was to the choice of the Naval Authorities either to proceed with the Court Martial or allow the accused to be tried by the Sessions Court. It was not left to the choice of the accused to choose the forum and it was entirely at the discretion of the Naval Authorities either to try the accused before the Court Martial or allow the trial to be conducted by the Sessions Court. :13: 5. Mr. Pradhan the learned counsel for the appellant has raised a preliminary point of lack of jurisdiction by referring to Rules 3 to 9 of the Rules. As per him, the procedure set out in the said Rules has not been followed before the learned Metropolitan Magistrate, who passed an order of committal under Section 209 of Cr.P.C. and the said Rules being mandatory, non-compliance thereof, has vitiated the entire trial and the trial by the learned Additional Sessions Judge is without jurisdiction and, therefore, the impugned order of conviction and sentence has to be quashed and set aside. Mr. Pradhan fairly conceded that if these arguments advanced by him are accepted, there has to be a fresh trial either by the Court Martial or by the Sessions Court by complying with the requirements of the Rules. In support of these arguments, he relied upon the decisions noted in para 1 hereiabove. 6. On merits, Mr. Pradhan submitted that the deceased had fallen victim of an accidental firing by the accused and, therefore, at the most he is guilty of an offence punishable under Section 304-A of I.P.C. :14: Thus before the trial court as well as this court, it has been admitted impliedly that the two sailors died on account of the bullets fired by the accused. Mrs. Deshmukh, the learned APP, on the other hand, has opposed the preliminary point of jurisdiction and supported the impugned order of conviction and sentence. She has pointed out that the preliminary point of jurisdiction on account of non compliance of the Rules of 1978 has been taken up for the first time in this appeal and such a point not having been agitated before the Sessions Court, it cannot be considered by the Appellate Court, more so when no record is available from the court of Metropolitan Magistrate. She also pointed out the enormous difficulties that may arise in conducting a fresh trial mainly because of the passage of time as well as the non-availability of the concerned witnesses. She relied upon the decisions in the case of (i) Joginder Singh vs. State of Himachal Pradesh [AIR 1971 SC 500] [AIR 1971 SC 500] [AIR 1971 SC 500] and (ii) Balbir Singh and anr. vs. State of Punjab [(1995) [(1995) [(1995) 1 SCC 90] 1 SCC 90] 1 SCC 90]. As per her, it ought to be presumed that the Naval Authorities had consented for the accused to be tried by the Sessions Court. The accused had taken up a limited point of jurisdiction, :15: contending that he was required to be tried only by the Court Martial and the said defence has been rightly turned down by the Sessions Court. Mrs.Deshmukh, therefore, urged before us to reject the preliminary point of lack of jurisdiction and confirm the order of conviction and sentence on merits. 7. Section 549 of the Code of Criminal Procedure 1898 provided for framing Rules by the Central Government consistent with the Code and the Army Act, the Naval Discipline Act, the Indian Navi (Discipline) Act, 1934 and the Air Force Act, as to the cases in which persons subject to military, Navy or Air Force law shall be tried by a court to which the Code applies or by a Court Martial. The said Rules were intended to be framed so as to avoid any clash of jurisdiction specially in cases which could be tried both by the Court Martial as well as the ordinary criminal Court. The Central Government had framed the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 under Section 549 (1) of the Code of Criminal Procedure 1898. On amendment of the Code of Criminal Procedure 1898, Section 549 therein was replaced by Section 475 of the Code of Criminal :16: Procedure 1973 and consequently, the Central Government, in exercise of the powers under Section 475 of the new Code, framed the Rules of 1978. Rules 3 to 7 which are relevant for our consideration of the said Rules are reproduced as under and undoubtedly, the accused being part of the Naval staff, at the relevant time, the said Rules were applicable to his trial as well:- "3. Where a person subject to military, naval or air force law, or any other law relating to the Armed Forces of the Union for the time being in force is brought before a Magistrate and charged with an offence for which he is also liable to be tried by a Court-martial, such Magistrate shall not proceed to try such person or to commit the case to the Court of Sessions, unless - (a) he is moved thereto by a competent military, naval or air force authority; or (b) he is of opinion, for reasons to be recorded, that he should so proceed or to :17: commit without being moved thereto by such authority. 4. Before proceeding under clause (b) of Rule 3, the Magistrate shall give a written notice to the commanding officer or the competent military, naval or air force authority, as the case may be, of the accused and until the expiry of a period of fifteen days from the date of service of the notice he shall not- (a) convict or acquit the accused under Section 252, sub-section (1) and (2) of Section 255, sub-section (1) of section 256 or Section 257 of the Code of Criminal Procedure, 1973 (2 of 1974), or hear him in his defence under Section 254 of the said Code; or (b) frame in writing a charge against the accused under Section 240 or sub-section (1) of Section 246 of the said Code; or (c) make an order committing the accused for trial to the Court of Sessions under Section :18: 209 of the said Code; or (d) make over the case for inquiry or trial under Section 192 of the said Code. 5. Where a Magistrate has been moved by the competent military, naval or air force authority, as the case may be, under clause (a) of Rule 3, and the commanding officer or the accused or the competent military, naval or air force authority, as the case may be, subsequently gives notice to such Magistrate that, in the opinion of such officer or authority, the accused should be tried by a Court-Martial, such Magistrate if he has not taken any action or made any order referred to in clause (a), (b), (c) or (d) of Rule 4, before receiving the notice shall stay the proceedings and, if the accused is in his power or under his control, shall deliver him together with the statement referred to in sub-section (1) of Section 475 of the said Code to the officer specified in the said sub-section. :19: 6. Where within the period of fifteen days mentioned in Rule 4 or at any time thereafter but before the Magistrate takes any action or makes any order referred to in that rule, the commanding officer of the accused or the competent military, naval or air force authority, as the case may be, gives notice to the Magistrate that in the opinion of such officer or authority, the accused should be tried by a Court-martial, the Magistrate shall stay the proceedings, and if the accused is in his power or under his control, shall deliver him together with the statement referred to in sub-section (1) of Section 475 of the said Code to the officer specified in the said sub-section. 7. (1) When an accused has been delivered by the Magistrate under Rule 5 or 6, the commanding officer of the accused or the competent military, naval or air force authority, as the case may be, shall, as soon as may be, inform the Magistrate whether the :20: accused has been tried by a Court-martial or other effectual proceedings have taken or ordered to be taken against him. (2) When the Magistrate has been informed under sub-rule (1) that the accused has not been tried or other effectual proceedings have not been taken or ordered to be taken against him, the Magistrate shall report the circumstances to the State Government which may, in consultation with the Central Government, take appropriate steps to insure that the accused person is dealt with in accordance with law." 8. When a person subject to military, naval or air force law or any other law relating to the Armed Forces is brought before a Magistrate and charged with an offence for which he is also liable to be tried by a court martial, the Magistrate will not proceed to try such person or to commit the case to the Court of Session unless (a) he is moved to that effect by a competent military, naval or air force authority or (b) he is of opinion for reasons to be recorded, that :21: he should so proceed or to commit without being moved thereto by such authority. Rule 3, in our opinion, comes into play at the point where the person has been brought before a Magistrate and charged with an offence. That is the stage adverted to earlier where the accused is directed to appear before the Magistrate and is charged with an offence after the Magistrate has determined that there is a case for trial. Before proceeding further with the case and either proceeding to try the accused or to commit the case to the Court of Session the Magistrate must, under Rule 4, give