Case: Balbir Singh and Another Vs. State of Punjab

the delivery of the custody of the appellant by the Air Force Authorities for being taken to Police Station Dharamkot for trial by the ordinary criminal courts under the Code. Handing over and taking over certificate signed by Shri Vijay Prakash, Flying Officer, Station Adjutant No. 11 Wing, Air Force and by ASI Daljit Singh was placed on the record before the committing Magistrate. The conduct of the Air Force Authorities in handing over the custody of the appellant to the police Authorities for being produced before the criminal court for trial, is a clear indication of the exercise of the option by the Air Force Authorities that they did not wish to detain the appellant in their custody under Section 124 of the Air Force Act and had opted for the trial of the appellant by the ordinary criminal court. This conclusion is reinforced by the fact that the Commanding Officer of the Air Force Station, Halwara, had subsequently also sought information from the trial court with regard to the fate of the case, vide his letter dated 18-2-1991. The above facts unhesitatingly show that the Air Force Authorities had been made fully aware of the pendency of the criminal case against a member of the force by the criminal court and had been afforded adequate and full opportunity to exercise the option of having the appellant tried by a court-martial. Since, with the full knowledge of the pendency of the criminal case against the member of the Air Force, the Authorities had voluntarily delivered the custody of the appellant, for his trial by the ordinary criminal court, the Authorities would be deemed to have exercised the option of not trying the appellant by a court-martial. The act of the Authorities in voluntarily delivering the appellant to the civil Authorities for trial unmistakably show that the Air Force Authorities did not intend to claim the trial of the appellant by a court-martial. It is pertinent to notice here that the Air Force Authorities have made no grievance at any stage that their right to decide whether or not to try the accused by court-martial had been impinged upon by the criminal court in any manner. They have not questioned the validity of the trial of the appellant by the criminal court at any forum whatsoever. The right to exercise the option is with the Authorities and an accused has no right to demand or choose trial by a particular forum. The Authorities under the Act have made no grievance and the grievance raised by the appellant is untenable. Since, the appellant was admittedly on leave on the day of the occurrence as deposed to by PW 9 G. S. Gill, Warrant Officer, Air Force Station, Halwara and the victims of the offence were persons not subject to military, air force or naval law, these factors may well have weighed with and persuaded the Air Force Authorities not to opt to try the appellant by court-martial and to allow the criminal court to try him under the Code. We are, therefore, of the opinion that in the facts and circumstances of this case that there has been no lack of compliance with the provisions of the 1952 Rules read with Section 475 of the Code and Sections 72, 124 and 125 of the Air Force Act, by the trial court and the trial of the appellant was not in any way vitiated 23. The judgment in Supdt. and Remembrancer of Legal Affairs, W. B. v. Usha Ranjan Roy Choudhury, relied upon by the learned counsel for the appellant is clearly distinguishable and has no application whatsoever to the facts of the present case. In that case three accused persons who were army officers were charged with offences which fell within the purview of Section 52 of the Army Act. The said section deals with the offences in respect of property and those offences could be tried both by the ordinary criminal courts as also by the court-martial, since both have concurrent jurisdiction. The offence under Section 52 of the Army Act is not analogous to the offences falling under Section 72 of the Air Force Act. The Army Authorities in that case had only requested for investigation to be made by the civil police. After the investigation was complete, the criminal court proceeded to try the case without giving option to the Army Authorities as is envisaged by Rules 3 and 4 of the 1952 Rules to exercise their option. This Court found that the action of the Army Authorities in calling for a detailed police report at the investigation stage could not amount to the Authorities under the Act exercising the option not to try the accused by the court-martial and the Army Authorities could not be said to have voluntarily abandoned their option to try the accused in court-martial. Moreover, in Usha Ranjan Roy Choudhury case unlike the facts of the present case, the Army Authorities had not handed over the custody of the accused to the civil Authorities in execution of any warrant of arrest issued by the criminal court in that case for trial nor did the Authorities keep a track of the trial of the accused by the criminal court. That judgment therefore which was rendered in the peculiar facts of that case does not advance the case of the appellant at all and is clearly distinguishable 24. In view of the aforesaid discussion, we find that the conviction and sentence of the appellant are not vitiated for the alleged lack of jurisdiction of the criminal court to try the appellant, as urged by the learned counsel for the appellant 25. So far as the merits of the case are concerned, we agree with the findings recorded by the trial court and the High Court with regard to the complicity of the appellant Nachhattar Singh in the crime and are of the opinion that his conviction and sentence under Sections 302/34 IPC are well merited

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Rule 9 of the Leave Rules (supra) thus specifically states that casual leave counts as duty except as provided for in Rule 10(a). It therefore follows that a person subject to the Act would be deemed to be "on active service" even when he is on casual leave. Learned counsel for the parties, in view of this legal position, did not dispute that the appellant, though on casual leave, would be deemed to be on "active service" in view of the notification dated 5-12-1962 (supra)18. In our opinion, on a construction of the various provisions referred to above the criminal courts are not deprived of their inherent jurisdiction to take cognizance of civil offences under the Code. Before the Full Bench of the PunjabHaryana High Court in Ajit Singh v. State of Punjab it was argued on behalf of the appellant therein, who was in "active service" of the Air Force, that on account of the non-compliance with the provisions of Section 125 of the Act and Section 549 CrPC (corresponding to Section 475 of the Code), the committal of the appellant and his trial held in pursuance thereof must be held to be without jurisdiction. The Full Bench repelled the argument and opined"No room is left for doubt about the legal position being that the inherent jurisdiction which a Magistrate has to take cognizance of civil offences under the Code of Criminal Procedure is not taken away by any provisions of the Army Act (and, therefore, of the Air Force Act), and of Section 549 of the Code of Criminal Procedure and the rules made thereunder. What those provisions, envisage is concurrent jurisdiction in the criminal courts and the court-martial and an arrangement for the proper exercise of such jurisdiction including, when necessary a way of resolving a conflict of jurisdiction. " and went on to hold" [T] hat the contention raised on behalf of the appellant that the trial was vitiated by lack of jurisdiction in the Magistrate and the learned Additional Sessions Judge must be rejected as untenable. " *19. In our opinion, the view of the Full Bench is correct and we agree with it and hold that the inherent jurisdiction under which the criminal courts have to take cognizance of civil offences is not taken away by any of the provisions of the Act or Section 475 CrPC and the rules framed thereunder20. We are also unable to agree with Mr. Poti, in the facts and circumstances of this case, that there was any non-compliance with the provisions of Sections 124 and 125 of the Air Force Act read with Section 475 CrPC21. The object of giving a notice as envisaged by the Act and the 1952 Rules of the Authorities under the Act is to make them fully aware of the pendency of a criminal case against a member of the force and to afford them an opportunity to exercise their discretion of having the member of the force tried either by the court-martial or to allow the ordinary criminal court to proceed with the trial. Though the provisions of the Act and the Code referred to above are mandatory in character insofar as they require that the Authorities under the Act shall be given the first option to decide whether to try the accused by court-martial or allow his trial by the ordinary criminal court no particular form of notice has been prescribed either under the Act, the Rules or the Code. Whether or not the Authorities have been made fully aware and put on notice by the criminal court to enable them to exercise their option, would depend upon the facts and circumstances of each case. It is the substance and not the form of notice which is relevant and important. All that the law envisages is that the Authorities under the Act must be made fully aware of the nature of offence, status of the victim and the pendency of the criminal case against a member of the force on "active service", so that the Authorities under the Act may exercise their option whether or not to try the accused by a court-martial. Where full and complete information is provided to the Authorities, the requirement of law would stand complied with, irrespective of the fact whether the information was given by way of a notice or otherwise22. In the present case, from the scrutiny of the record of the committing court, it transpires that in execution of the warrant of arrest issued by the committing Magistrate on 28-7-1988, the Air Force Authorities had themselves delivered Nachhattar Singh, appellant, to the custody of ASI Daljit Singh PW 15 who had carried the said warrant issued by the competent Magistrate, for execution on 10-8-1988. PW 15 Daljit Singh, ASI, deposed at the trial that while he was posted at Police Station Dharamkot in the month of August 1988, he had obtained the warrants of arrest of the appellant and went to Tezpur (Assam) and after obtaining necessary permission from the Air Force Authorities served the warrants on appellant Nachhattar Singh. The Air Force Authorities then delivered the custody of Nachhattar Singh to him and after taking the custody of Nachhattar Singh from the Air Force Authorities, he brought him to Police Station Dharamkot on 15-8-1990 to face his trial in the criminal court. There was no challenge in the cross-examination of PW 15 either about the obtaining of the necessary permission from the Air Force Authorities to serve the warrant on the appellant or about the delivery of the custody of the appellant by the Air Force Authorities for being taken to Police Station Dharamkot for trial by the ordinary criminal courts under the Code. Handing over and taking over certificate signed by Shri Vijay Prakash, Flying Officer, Station Adjutant No. 11 Wing, Air Force and by ASI Daljit Singh was placed on the record before the committing Magistrate. The conduct of the Air Force Authorities in handing over the custody of the appellant to the police Authorities for being produced before the criminal court for trial, is a clear indication of the exercise of the option by the Air Force Authorities that they did not wish to detain the appellant in their custody under Section 124 of the Air Force Act and had opted for the trial of the appellant by the ordinary criminal court. This conclusion is reinforced by the fact that the Commanding Officer of the Air Force Station, Halwara, had subsequently also sought information from the trial court with regard to the fate of the case, vide his letter dated 18-2-1991. The above facts unhesitatingly show that the Air Force Authorities had been made fully aware of the pendency of the criminal case against a member of the force by the criminal court and had been afforded adequate and full opportunity to exercise the option of having the appellant tried by a court-martial. Since, with the full knowledge of the pendency of the criminal case against the member of the Air Force, the Authorities had voluntarily delivered the custody of the appellant, for his trial by the ordinary criminal court, the Authorities would be deemed to have exercised the option of not trying the appellant by a court-martial. The act of the Authorities in voluntarily delivering the appellant to the civil Authorities for trial unmistakably show that the Air Force Authorities did not intend to claim the trial of the appellant by a court-martial. It is pertinent to notice here that the Air Force Authorities have made no grievance at any stage that their right to decide whether or not to try the accused by court-martial had been impinged upon by the criminal court in any manner. They have not questioned the validity of the trial of the appellant by the criminal court at any forum whatsoever. The right to exercise the option is with the Authorities and an accused has no right to demand or choose trial by a particular forum. The Authorities under the Act have made no grievance and the grievance raised by the appellant is untenable. Since, the appellant was admittedly on leave on the day of the occurrence as deposed to by PW 9 G. S. Gill, Warrant Officer, Air Force Station, Halwara and the victims of the offence were persons not subject to military, air force or naval law, these factors may well have weighed with and persuaded the Air Force Authorities not to opt to try the appellant by court-martial and to allow the criminal court to try him under the Code. We are, therefore, of the opinion that in the facts and circumstances of this case that there has been no lack of compliance with the provisions of the 1952 Rules read with Section 475 of the Code and Sections 72, 124 and 125 of the Air Force Act, by the trial court and the trial of the appellant was not in any way vitiated23. The judgment in Supdt. and Remembrancer of Legal Affairs, W. B. v. Usha Ranjan Roy Choudhury, relied upon by the learned counsel for the appellant is clearly distinguishable and has no application whatsoever to the facts of the present case. In that case three accused persons who were army officers were charged with offences which fell within the purview of Section 52 of the Army Act. The said section deals with the offences in respect of property and those offences could be tried both by the ordinary criminal courts as also by the court-martial, since both have concurrent jurisdiction. The offence under Section 52 of the Army Act is not analogous to the offences falling under Section 72 of the Air Force Act. The Army Authorities in that case had only requested for investigation to be made by the civil police. After the investigation was complete, the criminal court proceeded to try the case without giving option to the Army Authorities as is envisaged by Rules 3 and 4 of the 1952 Rules to exercise their option. This Court found that the action of the Army Authorities in calling for a detailed police report at the investigation stage could not amount to the Authorities under the Act exercising the option not to try the accused by the court-martial and the Army Authorities could not be said to have voluntarily abandoned their option to try the accused in court-martial. Moreover, in Usha Ranjan Roy Choudhury case unlike the facts of the present case, the Army Authorities had not handed over the custody of the accused to the civil Authorities in execution of any warrant of arrest issued by the criminal court in that case for trial nor did the Authorities keep a track of the trial of the accused by the criminal court. That judgment therefore which was rendered in the peculiar facts of that case does not advance the case of the appellant at all and is clearly distinguishable24. In view of the aforesaid discussion, we find that the conviction and sentence of the appellant are not vitiated for the alleged lack of jurisdiction of the criminal court to try the appellant, as urged by the learned counsel for the appellant25. So far as the merits of the case are concerned, we agree with the findings recorded by the trial court and the High Court with regard to the complicity of the appellant Nachhattar Singh in the crime and are of the opinion that his conviction and sentence under Sections 302/34 IPC are well merited