Nanda @ Nand Lal vs State Of U.P. And Others
2018 Latest Caselaw 1966 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								Reserved on 9.8.2018
 
								Delivered on 14.8.2018
 
Court No. - 41
 

 
Case :- CRIMINAL REVISION No. - 1363 of 1988
 

 
Revisionist :- Nanda @ Nandlal
 
Opposite Party :- State Of U.P. And Others
 
Counsel for Revisionist :- Amar Saran,Ajay Kumar Yadav
 
Counsel for Opposite Party :- A.G.A.
 

 
Hon'ble Aniruddha Singh,J.

1. This criminal revision under Section 397/401 Cr.P.C. has been filed by revisionist Nanda alias Nandlal against order dated 15.9.1988 passed by IIIrd Additional Sessions Judge, Ghazipur whereby application of revisionist was rejected. Order dated 15.9.1988 is quoted as under:-

"In view of the specific provision contained in Section 70 of the Army Act, 1950, this court has got jurisdiction to try the case Section 125 of the Army Act is not applicable in the present case, hence there is no question for remanding the case arise.

Order

In the result, the application is rejected."

2. In short, according to prosecution case, one FIR was lodged on 13.7.1986 bearing Case Crime No. 78 of 1986 under Section 147, 148, 149, 302 IPC against Nanda alias Nandlal, Kamla, Subash, Balroop @ Babloo and Jamuna alleging that on 12.7.1986 they killed Ramjag and Janardan by shooting with firearm and charge sheet was submitted against them under Section 147, 148, 149, 302, 324, 325 IPC. Cognizance was taken and case was committed to the Sessions for trial. Charges were framed on 29.2.1988 against Nandlal, Kamla and Subash under Section 148, 302/149, 325/149, 324/149 and against Jamuna under Sections 147, 302/149, 325/149, 324/149 IPC. Thereafter one application was moved by revisionist dated 4.7.1988 alleging that provision of Section 125 and 126 of Army Act, 1950(hereinafter referred to as 'Act') and Rule 3 and 4 of Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952(hereinafter referred to as 'Rules') made thereunder were not complied with, trial is without jurisdiction and trial Court be directed to comply with said sections and Rules. On the application dated 4.7.1988, impugned order was passed. Hence this revision.

3. Heard Sri Ajay Kumar Yadav, learned counsel for the revisionist and Sri Manas Bhargava, learned Brief Holder for the State, and perused the record.

4. Learned counsel for the revisionist submitted that according to section 125, 126 of Act and Rule 3 and 4 of the Rules, it is mandatory provision that Magistrate shall not proceed to try unless he gives a written notice to commanding Officer of the accused and until the expiry of period of three weeks.

5. For deciding this issue, it will be proper to quote Sections 125 and 126 of Act and Rule 3 and 4 of Rules which are as follows:-

"125. 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 officer commanding the army, army corps, division or independent brigade in which the accused person 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 military custody."

"126. 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 125 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."

"Rule 3. "Where a person subject to military, naval or Air Force law is brought before a Magistrate and charged with an offence for which he is liable to be tried by a court-martial, such magistrate shall not proceed to try such person or to inquire with a view to his commitment for trial by the Court of Sessions or the High Court for any offence triable by such Court, unless

(a) he is of opinion, for reasons to be recorded, be should so proceed without being moved thereto by competent military, naval or Air Force Authority, or

(b) he is moved thereto by such authority."

"Rule 4. Before proceeding under clause (a) of rule 3, the Magistrate shall give a written notice to the Commanding Officer of the accused and until the expiry of a period of - "(i) three weeks, in the case of a notice given to a Commanding Officer in command of a unit, or detachment located in any of the following areas of the hill districts of the State of Assam, that is to say-

1. Mizo

2. Naga Hills,

3. Garo Hills,

4. Khasi and Jaintia Hills; and

5. North Cachar ills"

6. Learned Brief Holder/State Law Officer has submitted that according to Section 70 of the said Act, notice mentioned under Section 125 and 126 of Act and Rule 3 and 4 of Rules, 1954 is not mandatory.

7. Section 70 is quoted below for ready reference:-

"70. Civil offence not triable by court- martial. A person subject to this Act who commits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be tried by a court- martial, unless he commits any of the said offences-

(A) while on active service, or

(B) at any place outside India, or

(C) at a frontier post specified by the Central Government by notification in this behalf."

8. Learned counsel for the revisionist submitted that according to Section 70 of the Army Act in case of categories mentioned in Section 70 of the Act if offence was done in active service, then provision of Rule 3 and 4 of Rules and Section 125 and 126 of Act shall apply.

9. Active service defined in Section 3(i) of the Act is quoted below:-

"Section 3 in The Army Act, 1950

3. Definition. In this Act, unless the context otherwise requires,-

(i) " active service", as applied to a person subject to this Act, means the time during which such person-

(a) is attached to, or forms part of, a force which is engaged in operations against an enemy, or

(b) is engaged in military operations in, or is on the line of march to, a country or place wholly or partly occupied by an enemy, or

(c) is attached to or forms part of a force which is in military occupation of a foreign country;"

10. For deciding this issue it is pertinent to quote Section 59 of the Act which is as follows:-

"59. Offences relating to courts- martial. Any person subject to this Act who commits any of the following offences, that is to say,-

(a) being duly summoned or ordered to attend as a witness before a court martial, wilfully or without reasonable excuse, makes default in attending; or

(b) refuses to take an oath or make an affirmation legally required by a court- martial to be taken or made; or

(c) refuses to produce or deliver any document in his power or control legally required by a court- martial to be produced or delivered by him; or

(d) refuses when a witness to answer any question which he is by law bound to answer; or

(e) is guilty of contempt of court- martial by using insulting or threatening language, or by causing any interruption or disturbance in the proceedings of such court; shall, on conviction by court- martial, be liable to suffer imprison- ment for a term which may extend to three years or such less punishment as is in this Act mentioned."

11. Learned counsel for the revisionist has placed reliance upon law laid down by the Apex Court in Joginder Singh vs. State of Himachal Pradesh, 1971 AIR 500 and submitted that Sessions Court has no jurisdiction to try the case in violation of Rule 3 and 4 of the Rules and Section 125 and 126 of the Act.

12. In the case of Joginder Singh(supra) , Apex Court has held that trial done by the Sessions Court was legal and justified, hence revisionist is not entitled to get benefit of this judgment.

13. Learned counsel for the revisionist placed reliance upon State of J & K vs. Lakhwinder Kumar & others in SLP (Criminal) No.5910 of 2012 arising out of Criminal Appeal No. 624 of 2013, decided on 25.4.2013 in support of his same submission.

14. From perusal of judgment in Lakhwinder Kumar(supra), it is very clear that in this case one application was filed by Dy. Inspector General Station Head Quarters, Border Security Force, Srinagar before Chief Judicial Magistrate, Srinagar stating that criminal case is pending against R.K. Birdi, Commandant of 68th Battalion of the Force and Lakhwinder Kumar,Constable and both were in judicial custody. He went on to say that in exercise of discretion he had decided to institute proceeding against them before the security force Court. Hence, Hon'ble Apex Court has given liberty to the Director General of Force to revisit the entire issue within eight weeks in accordance with law and if he comes to conclusion that the trial deserves to be conducted by the Security Force Court, nothing will prevent him to make an appropriate application afresh before the Chief Judicial Magistrate.

15. In this case, it is admitted fact that no application of this type was moved by the officers concerned. It is also admitted that the revisionist at present is not working in force and he has been retired. Hence revisionist is not entitled to get benefit of case laws mentioned above.

16. This revision is pending since 1988 and trial of the case has been stayed by this Court vide order dated 26.9.1988.

17. From perusal of Section 59 and 70 of Arms Act, the Court is of the opinion that at present no benefit can be given to the revisionist provided under Rule 3 and 4 and Section 125 and 126 of the Act.

18. From perusal of definition of active service under Section 3 of the Act, at this juncture, revisionist cannot be treated to be in active service since he has been retired from service.

19. It is also pertinent to mention here that if revisionist was well aware about the offence registered against him and if he was interested to get his trial conducted by the Court Martial, there was an opportunity to the revisionist also to move an application to his Head of Department for this purpose but unfortunately, for a long period no exercise of any type has been done by the revisionist after obtaining stay order from this Court. It shows that the intention of revisionist was not to get this case tried by Court Martial but intention was to escape himself from trial of this offence.

20. Learned counsel for the revisionist submitted that one notification dated 5.9.1977 has been issued to explain active service quoted below and submitted that revisionist is in active service after issuance of notification. Said notification is quoted below:-

"S.R.O 17-(E).- In exercise of the powers conferred by section 9 of the Army Act, 1950 (46 of 1950) and in supersession of the notification of the Government of India in the Ministry of Defence, No..SRO 6-E, dated the 28th November 1962, the Central Government hereby declares that all persons subject to that Act who are not on active service under clause (I) of Section 3 there of shall, while serving in the areas specified below, be deemed to be on active service within the meaning of that Act for the purpose of the said Act or any other law for the time being in force-

1. The State of-

(a) Jammu and Kashmir

(b) Manipur

(c) Nagaland

(d) Tripura

(e) Sikkim;

2. The Union Territories of-

(a) The Andaman and Nicobar Islands

(b) Arunachal Pradesh

(c) Mizoram;

3. The District of-

(a) Uttarkashi, Chamoli and Pithoragarh in the State of Uttar Pradesh;

(b) Lahaul and Spiti, Kinnaur and Kulu in the State of Himachal Pradesh."

21. From perusal of notification, it is clear that revisionist is not entitled to any benefit of active service as he is no more in Army service and reported to have been retired.

22. In this context, it is essential to go through Section 475 Cr.P.C.,which is quoted below:

"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. Explanation.- In this section-

(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."

23. Section 475 Cr.P.C. provides power to Central Government to make Rule consistent with this Code and the Army Act, 1950 regarding trial by Court Martial or by civil Court and when any person is brought before a Magistrate, such Magistrate shall deliver him, together with a statement of the offence to the commanding officer of the nearest military, naval or air-force station, as the case may be.

24. Sub Section 2 of Section 475 Cr.P.C. provides that every Magistrate shall, on receiving a written application for that purpose by the Commanding Officer of any unit or body of soldiers, use his utmost endeavours to apprehend and secure presence of accused.

25. It clearly shows that duty of Magistrate is to send the accused on receiving written application for that purpose from Commanding Officer or soldier or Airman.

26. From perusal of aforementioned Rules and Sections, it appears that the intention of legislation on this aspect was to secure the trial of accused who is a military person or force. Before trial, if the Head of department of accused is willing to conduct trial of that accused by Court Martial, then on the request of officer concerned that accused has to be handed over to the Court Martial only. The intention of legislation is not barring the trial by Civil Court in accordance with Code of Criminal Procedure.

27. It is also very clear that this provision will apply in those cases where the accused belongs to that category. In this case, it is admitted fact that only one accused/revisionist was military person at the time of incident. Now he has been retired. Record also reveals that there are three other accused namely Kamla, Subash and Jamuna who do not belong to the category of revisionist. The question arises whether other accused persons who are civilian, could be tried by the Court Martial or not? Answer will be definitely 'No'. In this situation, it was the duty of the accused and his officer to decide whether he wanted the trial of the revisionist to be done by Civil Court or not. This incident is of 12.7.1986 and till date no action has been taken by the officer concerned of the revisionist. Hence it is very clear that the officer concerned of the revisionist did not want the trial of the revisionist by the Court Martial. It is very clear that there is implied consent of the officers concerned of the revisionist for his trial by civil Court.

28. It is pertinent to mention here that 32 years has elapsed from the date of incident and accused persons have become old now. If the trial is delayed, it would result in violation of law of criminal justice; and if accused persons die without facing trial, it would amount to acquittal without trial.

29. In the above backdrop, this Court finds no illegality, impropriety, material irregularity or jurisdictional error in the impugned order. The present revision lacks merit and is hereby dismissed. Stay order dated 26.9.1988 is hereby vacated.

30. Trial Court is directed to decide the case according to law expeditiously.

31. Copy of this judgment and order be transmitted to the court concerned immediately for necessary action and compliance.

Order Date :- 14.8.2018

P.P.

Case :- CRIMINAL REVISION No. - 1363 of 1988

Revisionist :- Nanda @ Nandlal

Opposite Party :- State Of U.P. And Others

Counsel for Revisionist :- Amar Saran,Ajay Kumar Yadav

Counsel for Opposite Party :- A.G.A.

Hon'ble Aniruddha Singh,J.

Delay Condonation Application No. 351308 of 2016

Substitution Application No. 351311 of 2016

The delay condonation application and substitution application were moved by the revisionist in 2016. It shows that purpose of moving substitution application is to get the revision pending and get extension of stay order.

The case is of year 1986 and proceedings of case of Sessions Trial has been stayed by this Court. No fruitful purpose would be served to issue notice to legal heirs of opposite party No.2/complainant Ram Raj to contest this revision. It is also not necessary in revision to issue notice to the complainant or his legal heirs for deciding the revision on merit. Revisional jurisdiction lies on the Court itself to decide illegality, impropriety, material irregularity or jurisdictional error in the impugned order of the Court concerned.

Hence, both the applications are hereby rejected.

Date: 14.8.2018

P.P.