Sandeep Alias Sanjay Vithal ... vs The State Of Maharashtra, The ...
2004 Latest Caselaw 710 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard the learned Advocates for the parties.

2. Rule. By consent, the rule is made returnable forthwith.

3. The petitioner by the present petition seeks to quash the Judgment and order dated 16th September, 2003 passed by the Additional Sessions Judge, Baramati, whereby the petitioner has been held guilty of having committed rape and has been punished under Section 376 r/w/ 506 of Indian Penal Code. The challenge is on the ground that the court below did not comply with the mandatory provisions of Section 475 of the Criminal Procedure Code, 1973, here-in-after called as "the said Code".

4. It is the contention of the petitioner that he was wrongly shown as 'Agriculturist' inspite of the fact that the petitioner was in active military service as Army Personnel being Non-Commissioned Officer and thereby the proceedings were held in the Sessions Court in accordance with the provisions of the said Code even though in accordance with the provisions of Army Act 1950 (here-in-after called as "the said Act") read with Section 475 of the said Code the petitioner was required to be prosecuted by the Court Martial and therefore, the Court below ought to have handed over the petitioner to the Commanding Officer of Army rather than trying the petitioner itself. Having failed to hand over the petitioner to the Commanding Officer, the Court below has acted in breach of the statutory provisions contained in Section 475 of the said Code and the provisions of the said Act, thereby rendering its Judgment to be a nullity.

5. Section 475(1) of the said Code reads thus :-

"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 (65 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 fore, as to cases in which person 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 power similar to those of a Court-martial constituted under the relevant law applicable to the Armed Forces of the Union.

6. Plain reading of the above quoted provision discloses that Section 475 of the said Code has two parts. The first part deals with the rule making powers of the Central Government relating to military personnel for their trial either by the Court to which the code applies or by the court-martial under the said Act. The second part deals with the powers of the Court to which the said Code applies to try the army personnel, except in those cases where they are required to be tried by court martial under the said Act. Accordingly whenever an army personnel who is subject to the army law in force is accused of commission of a criminal offence, is brought before the court to which the said Code applies and there are rules framed by the Central Government in relation to the trial of such personnel, then the Court shall have regard to such rules and in proper cases, wherein the jurisdiction to try such personnel vests exclusively with court martial under the said Act shall deliver such personnel to the commanding officer of the unit to which the personnel belong to or the commanding officer of the nearest station, for the purpose of court martial.

7. Section 475 of the said Code, by itself does not debar the trial of any army personnel by the court to which the said Code applies when the trial is in relation to the offences triable by such court. It, however, empowers the Central Government to make rules consistent with the said Code and the Army Act and other laws relating to the armed forces in order to subject the army personnel to the Court martial for the offence committed by such army personnel. The petitioner has not been able to point out any such rule which would disclose lack of jurisdiction to the Sessions Court to deal with the trial of the petitioner in relation to the offences of which he was accused of, and tried by the Sessions Court.

8. It is also necessary to take note of some of the provisions of the said Act. Section 69 of the said Act provides that subject to the provisions of Section 70, any person subject to this Act who at any place in or beyond India commits any civil offence shall be deemed to be guilty of an offence against this Act and if charged therewith under this section, shall be liable to be tried by a court-martial and, on conviction, be punishable as provided under the said Section 69. Accordingly, if the offence is one which would be punishable under any law in force in India with death or with transportation, then he shall be liable to suffer any punishment, other than whipping, assigned for the aforesaid law and such less punishment as is mentioned in the said Act and in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is mentioned in the said Act.

9. Section 70 of the Army Act 1950 provides that a person subject to the said 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 under the said Act and shall not be tried by a court-martial, unless he commits any of the said offences either while on active service, or at any place outside India, or at frontier post specified by the Central Government by notification in that behalf.

10. Reading of the above provision of the said Act would be incomplete unless we take note of the definitions of certain expressions found in the said Act. Section 3(ii) defines the term "Civil offence" to mean an offence which is triable by a criminal court. The term "court martial" is defined under Section 3(vii) to mean a court-martial held under the said Act, while the term "Criminal court" means a court of ordinary criminal justice in any part of India. The word "offence" defined in Section 3(xvii) means any act or omission punishable under the said Act and includes a civil offence as defined in the said Act. The expression in "active service" as applied to a person subject to the said Act has been defined under Section 3(i) to mean that 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.

11. In terms of Section 69, any person subject to the said Act, commits any offence triable by any criminal court then he is deemed to be guilty of an offence under the said Act and therefore, he is liable to be tried by Court Martial under the said Act. Section 70 speaks of exclusion of the jurisdiction of the court martial to try two types of offences by a person subject to the said Act in certain conditions enumerated under the said section. Those are three eventualities which would not permit the proceedings before court martial and they are either in case a person subject to the said Act commits offence either of murder of a person not subject to military or naval or air force law, or culpable homicide not amounting to murder against such a person or of rape in relation to such a person. Nevertheless, even in any of such eventuality the army personnel could be subjected to the trial by a court martial if any one of the conditions specified in Section 70 is satisfied. That is to say, he must either be on active service or at any place outside India or at a frontier post specified by the Central Government by a notification in that regard.

12. The provisions of law comprised under Sections 69 and 70 read with various definitions of the terms and expressions used in the said Act which are to be found in Section 3 thereof, make it abundantly clear that if offence is committed by the army personnel against a person subject to military laws and while being on active service certainly he would be subjected to the proceedings before the court martial. However, any such offence committed against a person not subject to military laws and otherwise than on active service then he would be subjected to the provisions of the said Code as regards the place and court trial. The said provisions clearly distinguishes 'active service' from merely being in service of Army. When the person is either attached or engaged in military operations against an enemy or at a place wholly or partly occupied by enemy, or is attached to a force which is in occupation of the foreign country, only in those situations an army person could be said to be "on active service". Merely because a person has joined the military service, he cannot be said to be "on active service" within the meaning of the said expression under the said Act.

13. In the case in hand, it is not in dispute that the petitioner was on leave when the offence was committed, for which the petitioner was tried and has been convicted by the Sessions Court. The fact that the petitioner was on 20 days annual leave from 15.5.2002 and the incident had occurred on 6.6.2002 are not in dispute. This apparently shows that on the relevant day the petitioner was not on active service within the meaning of the said expression under the said Act. Secondly, undisputedly the person who is stated to have been murdered was not subject as the military law. Being so, considering the provisions of Section 70 of the said Act, the petitioner could have been tried only by the Court to which the said Code applies. It is not in dispute that the petitioner was charged and trial was conducted before the Court to which the said Code applies.

14. We are fortified in the view we are taking in the matter, by the decision of the Apex Court in Madan Lal v. Union of India and Anr., .

15. Once it is clear that the petitioner could not have been tried before the court martial and the petitioner was tried before the court to which said Code applies, it cannot be said that there has been any violation of Section 475 of the said Code or of any, provision of the said Act. For the reasons stated above, therefore, there is no case made out for quashing the Judgment and order passed by the Sessions Court and there is no violation of the provisions of law comprised under Section 475 of the said Code and hence, the petition fails and is liable to be dismissed. Hence, the petition is accordingly hereby dismissed. Rule is discharged, with no order as to costs.