Uttarakhand High Court
Unknown vs State Of Uttarakhand And Others on 11 February, 2026
2026:UHC:863
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc Application No. 163 of 2025
11th February, 2026
Suraj Chandra Joshi ..........Applicant
Versus
State Of Uttarakhand and Others .......Respondents
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Presence:-
Mr. Deep Prakash Bhatt, learned counsel for the applicant.
Mr. Deepak Bisht, learned Deputy A.G. along with Prabhat Kandpal and
Mr. Rakesh Negi, learned Brief Holders for the State.
Mr. Lalit Sharma, learned Deputy S.G. for the State.
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Hon'ble Mr. Alok Mahra, J. (Oral)
This C-528 application has been preferred by the applicant invoking inherent jurisdiction for quashing of the charge-sheet, the impugned summoning/cognizance order dated 09.12.2024 passed in Criminal Case No. 1210 of 2024 by the learned Additional Chief Judicial Magistrate, Khatima, District Udham Singh Nagar under Section 317(2) of the Bharatiya Nyaya Sanhita, 2023 (B.N.S.), as well as the entire criminal proceedings arising out of F.I.R. No. 334 of 2024, Police Station Khatima. A further direction has been sought for expeditious disposal of Release Application No. 16 of 2025 relating to personal articles of the applicant.
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2026:UHC:863
2. The prosecution case, in brief, is that on 04.10.2024 information was received from 237 Engineer Regiment (Assam) that Sepoy Suraj Chandra Joshi had allegedly taken away one INSAS Rifle No. 47532656 with 60 rounds of ammunition. An F.I.R. No. 43 of 2024 was registered at Police Station Borpother, Assam under Sections 303(2)/306 B.N.S. and Section 25(1-AA) of the Arms Act. On receipt of further information that the applicant was present in Khatima (District Udham Singh Nagar), search operations were conducted and from Room No. 201 of Utsav Hotel, one INSAS rifle with magazines and ammunition was recovered. Consequently, F.I.R. No. 334 of 2024 under Section 317(2) B.N.S. was lodged at Police Station Khatima. It is not disputed that in F.I.R. No. 43 of 2024 (Assam), after investigation charge-sheet was submitted and the learned Sub-Divisional Magistrate, Bokajan, District Karbi Anglong, Assam acquitted the present applicant on merits.
3. Learned counsel for the applicant would submit that the weapon was issued to the applicant in discharge of official duties and was not "stolen property"; that, the second F.I.R. (No. 334 of 2024) is based on the same occurrence and identical set of facts 2 2026:UHC:863 as F.I.R. No. 43 of 2024, and thus amounts to impermissible second prosecution; that, that the applicant having been acquitted by a competent criminal court, continuation of proceedings would violate the doctrine of double jeopardy, Section 337 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), Section 26 of the General Clauses Act, 1897; that in view of Section 125 of the Army Act, 1950, the matter falls within the discretion of the military authorities. Reliance has been placed upon the judgment of the Hon'ble Supreme Court in General Officer Commanding v. CBI, wherein it was held that the stage for exercising discretion under Section 125 of the Army Act arises after filing of charge-sheet and before taking cognizance or framing of charges. It is further submitted that disciplinary proceedings/court-martial have already been initiated by the Commanding Officer, 237 Engineer Regiment, and therefore criminal proceedings ought to yield to military jurisdiction.
4. Learned counsel for respondent no. 3, on instructions from the Commanding Officer, has submitted that the Army intends to initiate/continue effectual proceedings by way of court-martial under the Army Act and Rules. Learned Deputy Solicitor General, 3 2026:UHC:863 on instructions, has prayed that the seized weapon, ammunition, magazines and identity card, being Government property issued for official duty, may be released in favour of the representative of the Indian Army.
5. Heard learned counsel for the parties and perused the material available on record.
6. On Maintainability of Second F.I.R., from the record, it is evident that both F.I.R. No. 43 of 2024 (Assam) and F.I.R. No. 334 of 2024 (Khatima) arise out of the same transaction, namely alleged unauthorized removal and possession of INSAS rifle and ammunition by the applicant on 04.10.2024. It is well settled that registration of a second F.I.R. on the same cause of action and same set of facts is impermissible, once investigation culminated in charge-sheet and trial resulting in acquittal, the substratum of the allegation that the property was "stolen" stands judicially determined. In the absence of proof that the property was stolen, the foundational fact necessary for prosecution under Section 317(2) B.N.S. cannot survive. The recovery from possession of the applicant, without independent proof of theft, is insufficient.
7. The acquittal rendered by the competent 4 2026:UHC:863 criminal court at Assam remains in force and has not been set aside. Thus, continuation of the present proceedings would offend the constitutional protection against double jeopardy embodied under Article 20(2) of the Constitution of India and statutory protection under Section 337 BNSS. On Jurisdiction under the Army Act, Section 125 of the Army Act, 1950 provides discretion to the competent military authority to decide whether proceedings should be instituted before a criminal court or court-martial.
8. In General Officer Commanding v. CBI, the Hon'ble Supreme Court clarified that such option is to be exercised at the stage after filing of charge-sheet and before cognizance/framing of charge. In the present case the Army authorities have expressed their intention to proceed departmentally/court-martial. The alleged act arose during the applicant's service tenure. The seized articles are Government-issued military equipment. In such circumstances, and particularly when earlier criminal prosecution has culminated in acquittal, it would be appropriate to permit military authorities to proceed in accordance with Army Act and Rules.
9. It is submitted that the following seized 5 2026:UHC:863 articles are undisputedly Government property of the Government of India, issued to the concerned personnel for official duty. The particulars thereof are tabulated below for ready reference:
Sl.No. Description of Seized Unit Qty Articles 2.2.1 INSAS 5.56 Rifle (Butt Nos 01 Number-187 and Registration Number 17532656 2.2.2. Rounds of INSAS 5.56 Nos 60 Rifle (Ammunition lot No.OFV 17) 2.2.3. Magazines Nos 04 2.3.4. Identity Card No.G- Nos 01 322319
10. In view of the fact that the criminal proceedings stand quashed, no useful purpose would be served by retaining the aforesaid Government-issued articles in judicial custody. The same are liable to be released to the competent authority in accordance with law.
11. In view of the aforesaid findings the C-528 application is allowed. The charge-sheet, summoning/cognizance order dated 09.12.2024 passed in Criminal Case No. 1210 of 2024 by the learned ACJM, Khatima, and the entire proceedings arising out of F.I.R. No. 334 of 2024, Police Station Khatima, District Udham Singh Nagar are hereby quashed. It shall be open to the competent military authority to 6 2026:UHC:863 proceed against the applicant in accordance with the provisions of the Army Act, 1950 and Rules framed thereunder.
12. The concerned Trial Court is directed to release the aforesaid seized articles forthwith in favour of the authorized representative of 237 Engineer Regiment/Indian Army, upon proper identification and due verification, subject to an appropriate application being moved by the competent military authorities in accordance with law.
13. Pending applications, if any, stand disposed of.
(ALOK MAHRA, J.) 11.02.2025 Mamta 7