60 CrleReveNoe 2097of2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl Rev No 2097 of2008 1 Date ofDecisionl March 2009 1 C Mahabir Singh 0 Petitioner 0 X Vs 0 State ofHaryana I Z CORAM HONBLE MR JUSTICE MMS BEDI X O7S Present Mr Tribhuvan DahiyaAdvocate for thepetitioner Z MrAnil Rathee Addl AG Haryana 1 tlm MrB1C BagriAdvocate for the A 1 NIMS BEDI J Petitioner has the legalityand proprietyof the order dated November 7 2007 P19 passedby the Court of Judicial MagistrateIst Class Gurgaon the case to the Court of Sessions for trial and order annexure P2 dated December 22 2007 passedby Additional SessionsJudge8amingchargesagainstthe petitioner and his 1 familymembersunder Sections49844 and 304 B read with Section34 IPC Rawat Seema 2013.03.18 12: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 61 Crl Rev No 2097 of2008 121 0 91 The main grievance of the petitioner is that he is serving lll Indian Air Force on the rank of AC and at the time of the occurrencehe was on active service in Air Force postedin Gujaratand at presenthe 1S servingin Air Force at a placeNalia Gujaratl It is claimed that the 1 petitioner is govemedby Air Force Act and the offences of which he 1S 0 accused of are triable by Court Martial In these circumstances as per U Section 475 CrC read with Court Martial Rules and the provisionsof X 0 Criminal Courts and Court Martial Rules 1952 0forshort the 1952Rules the petitioner has to be tried by Court Martial Z It has also been contendedthat no notice had been sent that the petitioner r was required to be sent to the Officer of the Unit to which he X belongs orto the Officer of the nearest MiiitaryNaval or Air O7S Force stationfor the purposeofbeingtried byCourt Martial In this context e ruleshave beenframedunder Section475 CrPC He hasplacedreliance on Z thejudgment of a Division Bench of this Court in Sukhwinder SinghVse CJme Ite State of Punjab 199509 RCR 6Crl 517 wherein the conviction andtrial ln case under Section 302 IPC against the personservingin Armywho had allegedlycommitted the murder in his villageon leave periodit was held 1 that accused would be considered as on active service and the trial was vitiated as no prior was givento the Officer to conduct Court Martial Matter was remandedback for fresh trial Rawat Seema 2013.03.18 12: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 62 CrleReveNoe2097 of2008 131 0 4J On the other hand counsel for the has contended that rightto exerclse the optionis with the authoritiesand the accusedhas gotno rightto demandor choosetrial bya particular forum In the present iI case raised bythepetitioner is untenable Reliance was placedon a judgment of 01 0 the Supreme Court in Balbir SinghVse State of Punjab 1995 11SCT 190 U and Om Parkash Vse The State of Haryana 2008 639RCR 6Crl9415 In X 0 Om Parkash case the accusedin a murder case was an employee of RPF He was convicted and sentencedto life bySessions Z Court at Ambala Objection was raised in theHighCourt that trial could be 2 C4 conductedby Court Martial A Division Bench of this Court held that the objection was not tenableas the accusedhad not taken any objectionduring r the trial and it was not shown that Officer soughtthe custody m7 of the accusedfor trial duringCourt Martial Ifno such pleais takenduring Z A trial the same could not be raised RelyinguponBaIbir C r Singhscase supra9lt was held that accused did not have a rightto a particularforum and does not exercise optiontrial by Court will not be vitiated I have heard counsel for the petitioner and Statecounsel and consideredthe factsand circumstancesofthis case andthe relevant prOV1Slonsof the law and the authoritiescited by counsel for the petitioner As per provisions of Section 72 of the Air Force Act an official of the Air Force however commitsthe murder or culpablehomicide not amounting to Rawat Seema 2013.03.18 12: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 63 Crl Rev Noe 2097 of2008 141 0 T Iye murder or offence of rape in relation to a person who is not an Army official he will not be deemedto be guiltyofan offence under the Air Force Act He cannot be triedbyCourt Martial unlessand until he was at the time of commission of offence was on actlve servlCOe In the presentcase the P01 may be on active service at the time when his wife Seema was 1e 0 treated vith crueltyon account dowryand died an 0 unnatural death within 7 years of her marriagebut the offence allegedto 0 have been committed by him fallingwithin the deSnition of culpable homicide of one of the under law he can be tried by Court Z Martial The petitioner was arrestedin this case on October l 2007till May 2 C4 23 2008 when he was released on bail In his afSdavit led before this X Court with the revision petitionit has been claimed that he could not Ole r2j this petitionearlier as he was 1I1 custodytill May 2008 The petitioner remained in custodyfor more than 7 months Duringthat periodtt was Z 1 impliedthat lt was knownto his employer that he is involved in the present Om lJ case No attempthas been made by the militaryauthoritiesto seek the custodyof the petitioner for seven Iongmonths When he was produced before the Magistrate in custodya notice should have been sent to the nearest Armyauthorities or Air Force Authorities under the provisions of Section475 CrPC read with 1952Rules It was then within the discretion of the officer of the group or station in which the petitioner wasserving to decidebeforewhich Court the shall be instituted It was open to the officer concemedto form an opinionthatpetitioner should Rawat Seema 2013.03.18 12: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 64 11 CrleRcve Noe 2097of2008 151 0 r be tried byCourt Martial in Air Force custodyhe beinga personsubject to Air Force Act In this concern referencecan be made to observationsin Balbir Singhs case supra9111para27 of the judgmentwherein the of of notice to the Army authorities has been 1 discussed It readsas foliowsl 0 27 The olojectof givinga notice as by the U Act andthe 1952Rules to the authoritiesunder the tD Act is to makethem fullyaware ofthe pendency of Z a criminalcase against a member of the force and Z to afford them an to exercise their discretion of havingthe memberof the force tried eitherby the court martial or to allow theordinary c8 criminal court to proceedwith the tri8l Though theprovisions of the Act and the Code referredto Z above are in characterin so far as they require that the authoritiesunder the Act shall be rV giventhe Srst optionto decide whetherto try the accusedby court martialor allow this trial by the ordinarycriminal court no particularform of noticehas beenprescribed either underthe Act the Rulesor the Code Whether or not the authorities havebeen made fullyaware and put on notice by thecriminal court to enablethem to exercisetheir Rawat Seema 2013.03.18 12: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 65 Crle ReveNoe 2097of2008 161 0 4 option would dependupon the facts and circumstancesof each case It is the substance and not the form of notice which is relevant and importantAll that the 1awenvisages is that under m the Act must be made fullyaware of the nature of r 0 offence status of the victim and the pendency of U the criminal case against a member ofthe force on Z 0 active service so that the authoritiesunder the Act may exercisetheir optionwhetheror not to try 4 Z the accused by a court martial Where full and complete information 33 1S providedto the authorities the of iaw would stand r2j complied with of the fact Whetherthe e m information was givenby way of a notice or Z 1 otherwise 19 vd In Balbir Singhscase 6supra9 lt was held in para 28 of the judgment that an accused has got no rightto demand or choose trial by a particular forum as such the grievance of the accusedwas not tenable It 1wasl held that the trial by the criminal Court was not vitiated The relevant part readsas underl The above facts show that the Air Force authorities had been made fully aware of the pendencyof the criminal case againsta member of the Rawat Seema 2013.03.18 12: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 66 0r1eReveNoe 2097of2008 0 1Ve force by the criminal court and had been afforded adequate and fullp to exercise the optionof havingthe appellant triedby a court martial Since with the 11knowledge 6f the pendency of the criminal case m againstthe memberof the Air Force the authoritieshad 0 voluntarily deliveredthe custodyof the appellantfor his U trial by the ordinary criminal court the authoritieswould 0 be deemedto have exercised theoptionof not tryingthe X appellant by a court martial The act ofthe authoritiesin Z voluntarily delivering theappellant to the civil authorities Q1 for trial show that the Air Force authorities did not intendto claim the trial ofthe appellant bya court c8 martial It is pertinent to notice here that the Air Force 1 authoritieshavemadeno grievance at any stagethat their Z rightto decidewhetheror not to trythe accusedbycourt CAm o martiaIhad been impinged upon bythe criminal court 111 anymanner Theyhavenot the validityofthe trial of the appellant by the criminal court at any forum whatsoever The rightto exercise the optionis with the authorities and an accused has no right to demand or choosetrial bya particular forum The authoritiesunder the Act havemadeno grievance and the grievance raised by the appellant is untenable Since the appellant was Rawat Seema 2013.03.18 12: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 67 CrleRev No 2097of2008 0 on cave on the day of the occurrence as by PW9 G Gill Warrant Offlcer Air Force Station Halwara and the victims of the offence were persons not subjectto militaryair force or naval law thesefactorsmay well have weighedwith and pervaded 0 theAir Force authoritiesnot to opt to try theappellant by 0 court martialand to allow the criminal court to try him 0 underthe Code We are therefore ofthe opinionthat in the facts and circumstancesof this case that there has Z been no lack of Compliance with the provisions of the 1952Rules read with Section 475 of the ode and Z Sections72 124 and 125 of the Air Force Act by the r2 Trial Court and the trial of the appellant was not ln any 7 wayvitiated Z l A perusal of the abovesaid observations of the Apex Court A indicatesthat the accuseddoesnot have a rightto demandor choosetrial by aparticular forum but at the same time it is for the trial Coun to lntimate thecontinuationof trial of a subject of Armyauthoritiesso that the authoritiesmay take a decision to try an Army official In the presentcase the Court Martial mighthave a concurrent with the ordinary criminal Court but till Air Force authoritieshavenot optedto try the by Court Martial as 1S Oom their conduct till date As perthe observationsof the judgment of Balbir Singhs case the Rawat Seema 2013.03.18 12: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 68 CrleReveNoe2097of2008r 191 0 t does not seem to have any rightto demand or choose trial by Court Martial In view of the above circumstancesI do not find any illegality or lmproprietylIl the orders passedbjrthe Judicial Magistrate Ist Class Gurgaondated November 7 2007 committing the case to the Sessions 0 Court andthe order annexure P2 datedDecember 22 2007 framingcharges U against thepetitioner alongwith othercoaccused 0 The petitionis dismissed However as an abundantcaution in X order to avoid any objectionregardingcompetenceor Z jurisdiction of the trial Court in the lnterest ofjusticea direction is issued that a formal intimation will be sent by the trial Court to the Air Force X Authorities regardingframingof chargesagainstthe petitionerHowever r2 the meanwhile will not in any manner be stalled before the mwv trial Court as the intention of the petitioner appear to be to delaythe Z which 1S apparent from the fact that thoughthe FIR was in July2007 thecharges were framedon December 22 2007 and thepresentrevision petitionbefore this Court was filed after a delayof251 days 1 r 1ks15e March 3Il r 2009 MMBEDI sanJay JUDGE J I ll j Rawat Seema 2013.03.18 12: 00 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document