Rohit Sharma And 2 Others vs State Of U.P. & Another
2015 Latest Caselaw 1841 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							A.F.R
 

 
							Court No. - 49
 
				      
 
				     APPL U/S 482 No 19827/2015
 

 
Applicant :- 			Rohit Sharma and others
 
Opposite Party :- 			State of U.P. another
 
Counsel for Applicant :- 	Anurag Singh
 
Counsel for Opposite Party :-  Govt. Advocate
 

 
Hon'ble Pankaj Naqvi,J.

Heard Sri Anurag Singh, learned counsel for the applicants and the learned A.G.A.

This application under Section 482 Cr.P.C has been filed for quashing the proceedings of Charge-sheet dated 18.8.2014, in Criminal Case No.5063/2014 (State vs. Rohit Sharma and others) under Sections 323, 354, 504, 506 IPC, P.S. Outpost G.R.P. Anwargang, Kanpur Nagar.

Background facts are as under:-

1. An FIR came to be registered on an application under Section 156 (3) Cr.P.C as Case Crime No.6/2014 by O.P. No.2 against the applicants, namely, Rohit Sharma, Mohit Sharma and Mohil Sharma, (all brothers, of whom, applicant no.3/Mohil Sharma claims to be a Combatant Member, posted at No.23, Squadron, Air Force, Suratgarh), alleging misbehaviour and act of obscenity with the wife of O.P. No.2/the informant, who hurled abuses and robbed her of cash, while travelling in a train. After investigation, a charge-sheet against the applicants under Sections 323/354/504/506 IPC was submitted, on which the Magistrate on 6.9.2014 took cognizance of the offences.

2. Learned counsel for the applicants submitted that as applicant no. 3 / Mohil Sharma was subject to the provisions of The Air Force Act, 1950 (short "the Act") and the Rules framed thereunder, the cognizance stands vitiated qua him as it was not preceded by any notice/intimation to his superior authority in terms of Section 124/125 of the Act, Section 475 Cr.P.C and in particular Rule 3 framed thereunder. He relied on the decisions of the Apex Court in the cases of Union of India vs. Major S.K. Sharma, AIR 1987 SC 1878, Som Datt v. Union of India, AIR 1969 SC 414, General Officer Commanding Rashtriya Rifles vs. Central Bureau of Investigation and another, (2012) 6 SCC 228 & Delhi Special Police Establishment, New Delhi vs. Lt. Col. S.K. Loraiya, AIR 1972 SC 2548.

3. Sri Vimlendu Tripathi, learned A.G.A after placing reliance on Major S.K. Sharma (supra) contended that the stage set forth in Section 475 Cr.P.C r/w Rules 3, 4, 5 of 1978 Rules along with Sections 124/125 of the Act would arise only at a stage when the accused is brought before the Magistrate for the purposes of framing charges/committal for being tried and not prior thereto. He thus submits that no illegality could be attributed to the cognizance.

4. The seminal issue which falls for consideration is, in the event of conflict of jurisdiction between a court-martial and an ordinary criminal court, at what stage the power of Section 475 of the Code r/w Rule 3 of 1978 Rules is to be exercised by the Magistrate.

5. Before examining the issue, it would be appropriate to have a resume of the relevant provisions of the Air Force Act, the Code and the Rules framed thereunder.

6. The applicant is subject to the Air Force Act and the Rules framed thereunder. Section 4 (XII) defines "Civil Offence" to mean an offence triable by a criminal court. The term "offence" is defined under Section 4 (XXII) to mean any act or omission under this Act and includes a civil offence as hereinbefore defined. Thus, the definition of the term "offence" is comprehensive enough to include not only an act or omission, punishable under the Act but also includes a "civil offence". Chapter VI of the Act relates to offences, in which Sections 34 and 35 relate to offences in relation to the enemies and punishable with death. Section 36 relates to offence of active service than at other time. Sections 37 to 65 relate to various categories of offences not relevant to the present case. Section 71 provides that "civil offence", subject to the provisions of Section 72 committed by a person subject to the Act in India or outside, shall be deemed to be guilty of an offence against the Act and if party shall be liable to be tried by court-martial and on conviction, be punishable with the sentences specified thereunder. Section 72 relates to civil offences not triable by a court-martial. Section 72 manifests that when a subject of the Act commits an offence of murder, or of culpable homicide not amounting to murder or rape in relation to a person who is not a subject of Military, Naval or Air Force law, shall not be tried by court-martial unless the said offence is committed while on active service or outside India or at a frontier post specified by the Government in this behalf.

7. Section 124 relates to choice between criminal courts and court-martial and Section 125 relates to power of criminal court to require delivery of offender, which are extracted hereunder:-

124. 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 Chief of the Air Staff, the officer commanding any Group, Wing or Station in which the accused prisoner 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 the accused person shall be detained in air force custody.

125. 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 it may, by written notice, require the officer referred to in section 124 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 determination of the Central Government whose order upon such reference shall be final.

8. A plain reading of Section 124 indicates that when a criminal court and a court-martial both have jurisdiction in respect of an offence, then the Chief of the Air Staff or the competent authority concerned would take a call before which court, the proceedings shall be instituted and in case the Officer decides for a court-martial, the accused person shall be detained in Air Force custody. Section 125 Cr.P.C. enables the criminal court in respect of an offence committed within its jurisdiction, is of the opinion that the proceedings shall be instituted before itself, it may by written notice require the Officer referred to in Section 124 at his option either to deliver over the offender to the nearest Magistrate to be proceeded against according to law or postpone the proceedings pending a reference to the Central Government.

9. Sections 124 & 125 provide an institutional mechanism as to how the matter is to be dealt with in the event of conflict of jurisdiction, both by the competent authority of the Air Force and the Criminal court. Thus, these provisions have to be read conjointly, and harmoniously, with the provisions of the Code as they effect to resolve the area of conflict of jurisdiction in respect of the offence.

10. Thus, the moot question is at what stage of the proceeding, is the Magistrate enjoined under law, to give a written notice to the Officer concerned to exercise an option. To find an answer to this issue, one would have to take recourse to Section 475 of the Code, which is quoted hereunder:-

475. Delivery to 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, naval 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 the purpose of being tried by a Court- martial.

(a) " unit" includes a regiment, corps, ship, detachment, group, battalion or company,

(b) " Court- martial" includes any tribunal with the powers similar to those of a Court- martial constituted under the relevant law applicable to the Armed Forces of the Union.

(2) Every Magistrate shall, on receiving a written application for that purpose by the commanding officer of any unit or body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavours to apprehend and secure any person accused of such offence.

(3) A High Court may, if it thinks fit, direct that a prisoner detained in any jail situate within the State be brought before a Court- martial for trial or to be examined touching any matter pending before the Court- martial.

11. A perusal of Section 475 of the Code reveals that it confers power upon the Central Government to make rules consistent with the Code and the 3 Services Act and any other law relating to the armed forces of the union in relation to following matters:-

(i) Cases in which persons subject to Military, Naval or Air Force law or such other law, shall be tried by a Court to which the Code applies or by a court-martial and

(ii)when any such person is

(i) brought before a Magistrate and charged (emphasis by the Court) 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,

(ii) such Magistrate shall have regard to such rules and shall in proper cases (emphasis by the Court) deliver him together with the statement of the offences of which he is accused, to the Commanding Officer of the Unit to which he belonged or the nearest Commanding Officer, as the case may be, for the purpose of being tried by a court-martial.

12. In exercise of the powers conferred under Section 475 of the Code, the Central Government has framed Rules known as Criminal Courts and Court-martial (Adjustment of Jurisdiction) Rules, 1978. Rules 3, 4 & 5 of the Rules are quoted hereunder:-

"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 tone being in force is brought before a Magistrate and charged with an offence for which be 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 Session 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 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 defense 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 Session under Section 209 of the said Code ; or

(d)make over the case or inquiry or trial under Section 152 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 of the accused or the competent military, naval or air force authority, as the case may be, subsequently gives notice to such Magistrate that, in 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 Clauses (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 (4) of Section 475 of the said Code to the officer specified in the said Sub-section.

13. Rules 3 to 5 essentially translate adjustment of each others jurisdiction, i.e. of the ordinary criminal court to that of the court martial. A perusal of Rule-3 indicates that the same is applicable at a stage when the subject is brought before the Magistrate and charged (emphasis by the Court) with an offence for which he is also liable to be tried by ordinary court or coast guard, as the case may be, but provides an embargo that the Magistrate shall not proceed to try (emphasis by the Court) such person or to commit (emphasis by the Court) the case to the Court of Sessions, unless he is moved by the competent military/naval/air force authority authority under clause (a) thereof or in clause (b) thereof, he is of the opinion for reasons to be recorded that he is to proceed or to commit without being moved by such authority. In other words, it is open for the Magistrate to take cognizance of the offence, issue process against the accused, but what is prohibited under Rule 3 is that he cannot try or commit the case or frame a charge against the accused, unless he is moved by the competent military/naval/air force authorities, as provided under Rule 3(a) or unless the Magistrate is proceeding under Rule 3(b). Rule-4 is an exception to Rule 3(b), which stipulates that in case the Magistrate is proceeding under Rule 3(b), i.e., after recording reasons, he is obliged to give a written notice to the Commanding Officer or the competent military, air force and naval authority, as the case may be, of the accused and till the expiry of 15 days from the date of service of notice, he shall neither convict or acquit the accused or frame a charge or make an order of committal or make over the case for inquiry or trial under Section 192 of the Code. Rule-5 provides that where the Magistrate has been moved by the competent authority under Rule-3(a) and such authority subsequently apprises the Magistrate that in their opinion the accused should be tried by a court martial or coast guard court, as the case may be, and if the Magistrate has not taken any action or made any order, Rule-4 (a) to (d), the Magistrate shall stay the proceedings before him and if the accused is in his power or control, shall deliver him together with the statement referred to sub-section (1) to Section 475 of the Code to the officer concerned.

14. Now, the Court proposes to examine the authorities cited by learned counsel for the respective parties. Both the sides have placed heavy reliance on the case of S.K. Sharma (supra). In order to appreciate the ratio of the said decision, it would be appropriate to examine the factual scenario of the case:-

"The complainant/S.K. Sharma alleged offences under Sections 323/352/325 IPC against one Brigadier Randhawa and Colonel Ali before the Magistrate on 21.1.1986. The Magistrate after examining the complainant and his witnesses took cognizance of the offences and issued the process for summoning of the accused persons on 7.3.1986. On 7.2.1986, the Union of India through Major General, filed an application that the case of Col. Ali be dealt with under the Army Act and the Rules framed thereunder and the case be handed over to the military authorities. A similar request was also made on 12.2.1986 for handing over the case of Brigadier Randhawa to the Army authorities. The Magistrate on 17.2.1986 disposed of the said application on the ground that process has already been issued to the accused persons and that in the light of Rule-3 of 1978 Rules, the prayer for trial by court martial, was allowed. The Magistrate further directed that the case be transferred to the army authorities for disposal under the Army Act within the jurisdiction of his Court and that the progress of the case be reported at interval of two months and the result thereof be also intimated. On 21.3.1986 the Union of India through the G.O.C filed an application before the Magistrate for modification of the order dated 17.2.1986 on the ground that it is not necessary that all the disciplinary cases culminate into trial by court martial and the disciplinary action, would be initiated by the G.O.C after investigation of the alleged offences under Army Rule-22. The modification was also sought with regard to the venue of court martial and also of the order that progress be intimated every two months. The said modification was disposed of by the C.J.M. on 8.5.1986 on the ground that cognizance of the offence has been taken by the Magistrate under Section 190(a) Cr.P.C and a process issued against accused persons under Section 204(a) Cr.P.C, thus, the army authorities are obliged to conduct a court martial under Rule-475 (a) and any preliminary investigation by the army authority, is of no significance. The revision preferred by the Union of India before the High Court, was interfered only to the extent it directed the Union of India to report progress and the result of the court martial to the C.J.M."

15. The Apex Court in the above backdrop held in paragraph- 11 as under:-

11. We now turn to the Criminal Courts and Court-martial (Adjustment of Jurisdiction) Rules, 1978. These Rules have been framed under Section 475 of the CrPC. 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 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 (emphasis by the Court). 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 written notice to the Commanding Officer of the accused and refrain for a period of 15 days from doing any of the acts or making any of the orders in relation to the trial of the accused specified in Rule 4.

16. The legal position which emerges from the discussion of the aforesaid judgment in the case of S.K. Sharma (supra) is that the embargo for the Magistrate to proceed or to try such cases or to commit the case arises only at the stage when a person is brought before a Magistrate and charged (emphasis by the Court) with an offence. The accused in the case of S.K. Sharma (supra) had not been charged, rather only summoned. It was well within the jurisdiction of the army authorities to request the C.J.M not to proceed to try such person or to commit his case to the Sessions as they propose to deal with him in accordance with the provisions of the Army Act. In so far the judgment of Lt. Col. S.K. Loraiya (supra), on which reliance was placed by learned counsel for the applicant, the Court finds that in the said case Lieutenant Colonel S.K. Loraiya was charged under Sections 120-B/467/471 IPC, r/w Sections 5(1) (C&D) of Section 5(2) of the Prevention of Corruption Act by the Special Judge Guwahati where Rule 3 of 1978 Rules was not followed, yet charges were framed, which was held to be illegal. In Somdut (supra), the offence under Section 304/149 IPC was committed in army mess. The army authorities reported the matter to the civil police pursuant to which a case under Section 302 IPC was registered. The Investigating Officer reached the place of occurrence, carried out investigational formalities and meanwhile, court martial was constituted to try the accused persons. The court martial held the accused guilty of culpable homicide, not amounting to murder. The accused challenged the said decision unsuccessfully in appeal under Section 164 of the Army Act. The accused contended before the Apex Court that the court martial had no jurisdiction in view of Section 125 of the Army Act and also in view of the fact that in the first instance, the matter was handed over to civil police for investigation. The Apex Court after examining the provisions of the Army Act and in particular Section 125/126 and Rules 3 to 8 of the 1978 Rules held that Rule 3 only applies to an accused where the police had completed investigation and the accused is brought before the Magistrate after the submission of the charge-sheet. Rule 3 cannot be invoked where police has merely started investigation against a person subject to military/air force/naval law. The judgment in the case of General Officer Commanding Rashtriya Rifles (supra) would have no application on the facts of the present case, as the issue involved in the said case, was to the stage at which the option is to be exercised by the Commanding Officer under Section 124/125 of the Army Act, whereas in the instant matter, it is not the case of applicant no. 3 that the Air Force Authorities have either entered the scene or have intimated their option to the Magistrate under Section 124/125.

17. The facts of the present case indicates that the Magistrate after taking cognizance has only summoned the accused person for which there was no impediment under Rule 3.

18. The prohibition under Rule 3 for the Magistrate would come only at a stage when the accused is brought before him for the purposes of framing of charges/commitment, as the case may be. Thus, the contention that cognizance stood vitiated for non-compliance of Rule 3, deserves to be rejected in so far applicant no.3 is concerned. It is not denied that till date no request has originated from the Air Force authorities to hand over the accused in their custody. This Court is satisfied that on available materials, a prima facie case for commission of offences is made out against all the applicants.

No other plea is urged.

The application is dismissed.

However, if applicant(s) appear and surrender before the court below within 8 weeks from today and apply for bail, their prayer for bail shall be considered and decided expeditiously in view of the settled law laid by this Court in the case of Amrawati and Another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC), Lal Kamlendra Pratap Singh Vs. State of U.P.

For a period of ten weeks from today or till the applicant(s) surrender and apply for bail whichever is earlier, no coercive action shall be taken against applicant(s). However, in case, the applicant(s) do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.

Order Date:- 18.8.2015 /Chandra (Pankaj Naqvi,J)