Manipur High Court
Ms Anupam vs The State Of Manipur on 28 February, 2025
KHOIROM Digitally signed by
KHOIROM
BIPINCHAN BIPINCHANDRA
Date: 2025.03.10
SINGH IN THE HIGH COURT OF MANIPUR
DRA SINGH 13:12:29 +05'30'
AT IMPHAL
CRIL. PETN. NO. 4 OF 2022
Ms Anupam, aged about 29 years, d/o Satypal Singh,
resident of Gagarwas, Sub District-Loharu, & PS- Loharu,
Bhiwani District, Haryana at present Type-IV Quarters,
MPTC, Pangei, Imphal East District, Manipur.
Also residing at Tamenlong District HQ, Tamenglong
District, Manipur - 795141.
.... Petitioner
- Versus -
1. The State of Manipur, Represented by it
Commissioner/Secretary (Home), Government of
Manipur, Secretariat Building, Babupara, Imphal West,
Manipur-795001.
2. Riflemen P.K. Pandey, D-Company, 12th Assam
Rifles, Khudengthabi, P.S. Tengnoupal, District-
Tengnoupal, Manipur.
3. Headquarters, Inspector General Assam Rifles
(South), Mantripurkhri represented by its Public Relation
Officer (PRO) .......... Impleaded as Respondent. No. 3,
vide order dated 23.08.2023 passed in MC (Cril. Petn.)
No. 6 of 2023.
.... Respondents
Cril. Petn. No. 4 of 2022 Page 1
BEFORE
HON'BLE MRS. JUSTICE GOLMEI GAIPHULSHILLU
For the Petitioner : Mr. D. Julius Raimei, Advocate
Ms. Kabamdailiu Pamei, Advocate
For the Respondent : Mr. Y. Ashang, Sr. Advocate
Mr. I. Denning, Advocate
Mr. BR Sharma, CGSC
Date of Hearing : 16.08.2024
Date of Judgment & Order : 28.02.2025
JUDGMENT & ORDER
(CAV)
[1] Heard Mr. D. Julius Raimei, learned counsel appearing for
the petitioner assisted by Ms. Kabamdailiu Pamei; Mr. Y. Ashang,
learned senior counsel appearing for the respondent No. 1; Mr. I.
Denning, learned counsel appearing for the respondent No. 2 and BR
Sharma, learned CGSC appearing for the respondent No. 3 at length.
[2] The petitioner has filed the present petition under Section
482 of the Cr.P.C, 1973 praying for quashing and setting aside of order
dated 31.01.2022 passed in Cril. Revision No. 2 of 2021 Ref: Cril. Revn.
No. 16 of 2020 by Additional Sessions Judge (FTC), Manipur West with
the following prayers;
"i) Pass an Order or direction quashing and setting aside the
Order dated 31.01.2022 passed by the Court of Additional
Sessions Judge (FTC), Manipur West in Criminal Revision
No. 2 of 2021 ref: Cril. Revn. No. 16 of 2020; and
Cril. Petn. No. 4 of 2022 Page 2
ii) Pass an Order or direction quashing and setting aside the
order dated 02.12.2020 passed by the Court of Judicial
Magistrate, First Class, Moreh which erroneously handed
over the case records of FIR No. 12 (1) 2020 MRH-PS u/s
341/353/354/354A/355/506 IPC lodged by the Petitioner
against the Respondent No. 2; and
iii) pass any other appropriate order/orders that this Hon'ble
Court deems fit and proper in the facts and circumstances
of the case;
And
Pending the disposal of the present Petition this Hon'ble
Court may be pleased to grant ex-parte ad-interim relief by
staying the operation of the impugned order dated 31.01.2022
passed by the Court of Additional Sessions Judge (FTC),
Manipur West in Criminal Revision No. 2 of 2021 ref: Cril. Revn.
No. 16 of 2020 and the operation of order dated 02.12.2020
passed by the Court of Judicial Magistrate, First Class, Moreh
which erroneously handed over the case records of FIR No. 12
(1) 2020 MRH-PS U/s 341/353/354/354A/355/506 IPC lodged
by the Petitioner against the Respondent No. 2."
[3] The petitioner has filed the present petition being
aggrieved by the order dated 31.01.2022 passed by the Court of
Additional Sessions Judge (FTC), Manipur West in Criminal Revision No.
2 of 2021 ref: Cril. Revn. No. 16 of 2020 wherein the learned Additional
Sessions Judge (FTC), Manipur West upheld the order dated
02.12.2020 passed by the Court of Judicial Magistrate, First Class,
Moreh which erroneously handed over the case records to FIR No. 12
(1) 2020 MRH-Ps U/s 341/ 353/ 354/ 354A/ 355/ 506 IPC lodged by the
Petitioner against the Respondent No. 2.
[4] The petitioner is a lady Indian Police Service (IPS) Officer
of 2016 batch of Manipur cadre and is presently posted as
Superintendent of Police (SP), Tamenglong District, Manipur. The case
of the petitioner is that on 19.01.2020, when she was posted as Sub-
Cril. Petn. No. 4 of 2022 Page 3
Divisional Police Officer, Yairipok, was returning from Moreh after
completion of her official duty assigned to her upon direction from the
Superintended of Police (SP), Thoubal District dated 17th January, 2020,
she was assaulted, manhandled, molested and outrage the modesty of
the Petitioner by an Assam Rifles Jawan, namely PK Pandey, at
Khudengthabi check post. Being aggrieved by such act of the said
Jawan, the petitioner lodged a written report/complaint to the Officer in
Charge, Tengnoupal Police Station which culminated into FIR being FIR
No. 12 (1) 2020 Moreh PS U/s 341/353/354/354A/355/506 IPC.
[5] Learned counsel for the petitioner submits that the
petitioner was intimated by one Col. Rajesh Chaudhary, CO 12th Assam
Riffles and Maj. Akhil of 12th Assam Riffles, not to lodge Police
Complaint against the said Jawan, the petitioner lodged FIR No. 22 (2)
2020 TPL-PS U/s 212/506 IPC. The said FIR case was taken up before
the Court of Judicial Magistrate First Class (JMFC), Moreh in Cril (P)
Case No. 10 of 2020 and charge sheet was submitted. On 26.10.2020,
the learned JMFC, Moreh gave an opportunity under section 475 CrPC
read with Sections 102 and 103 of the Assam Riffles Act 2006 and
Regulation 303 (a) (v) of the Assam Riffles Regulation 2006. He
further submits that on 26.11.2020 Col. SPS Rautela officiating as
Deputy Inspector General, 26th Assam Riffles addressed a letter to the
Judicial Magistrate First Class, Moreh Manipur requesting to hand over
the case i.e. Cril. (P) Case No. 10 of 2020 as per Sections 102 and 103
of Assam Riffles Act, 2006 read with Paragraph 227 of Assam Riffles
Cril. Petn. No. 4 of 2022 Page 4
Regulation 2016 and Section 475 CrPC. Thereafter, the learned Judicial
Magistrate First Class, Moreh erroneously passed order 02.12.2020 in
Cril. (P) Case No. 10 of 2020 handing over the charge sheet along with
all relevant records to the Assam Riffles Authority.
[6] Learned counsel for the petitioner further submits that
being aggrieved by the order dated 02.12.2020, the petitioner filed
Criminal Revision Case No. 16 of 2020 before the Court of Session
Judge, Imphal under sections 397 and 399 CrPC and the case was later
transferred to the Court of Additional Sessions Judge (FTC) Manipur
West and renumbered as Cril. Revision No. 2 of 2021. However, the
learned Additional Sessions Judge (FTC) Manipur West erroneously
passed the impugned order dated 31.01.2022 dismissing the Revision
Petition and uphold the order dated 02.12.2020 passed by the Court of
Judicial Magistrate First Class, Moreh.
[7] Learned counsel for the petitioner further submits that the
Courts below completely failed to appreciate the case in hand that
transferring of case to the Assam Riffles Authority cannot be done
mechanically. Exercise of judicial discretion is required in such case and
due consideration has to be made that what are the types of cases that
is required to be transferred or what are the types or categories of
cases that needs to be tried by the Court under the Code of Criminal
Procedure against Assam Rifles personals. Due consideration also ought
to have been given on under what circumstances can the cases against
Cril. Petn. No. 4 of 2022 Page 5
Assam Riffles personals can be transferred. He further submits that
the language of Section 475 CrPC amply clear and profound that only
in proper cases i.e. cases against Assam Riffles personnel has to be
transferred for Court-Martial. He further submits that a written
application before the Court of Judicial Magistrate First Class, Moreh
mandated by Section 375 (2) CrPC is condition precedent for passing an
order for transfer of case and that too after giving due consideration of
the nature of allegations, offence charged, compliance of principles of
natural justice, etc.
[8] Learned counsel for the petitioner further submits that the
Courts below failed to appreciate that the case was initiated on the
report of the Police, Section 102 of the Assam Rifles Act, 2006 is not
applicable but the section is applicable only at the stage of the
institution of the case whereas in the present case the police have
already filed charge sheet before the Criminal Court under CrPC.
Therefore the Court of Judicial Magistrate First Class Moreh completely
failed to appreciate the provision of Section 102 of Assam Rifles Act
2006 and erroneously exercise its power while passing the order dated
02.12.2020. He further submits that Section 103 of the Assam Rifles Act
2006 clearly states that the criminal court having jurisdiction can on its
own opinion proceeds with the trial of the case before itself. He further
submits that the Courts below has also failed to appreciate that
combined reading of Rule 44 and Rule 45 of Assam Rifles Rules 2010
clearly implies that the present case has given the facts and
Cril. Petn. No. 4 of 2022 Page 6
circumstances that the case would have to be tried by the Criminal
Court under CrPC.
For convenience sake and for easy reference Section 102,
103 of Assam Rifles Act, 2006 and Rule 44, 45 of the Assam Rifles
Rules 2010, Section 397 Cr.P.C., Section 399 of Cr.P.C. and Section 475
of Cr.P.C. are extracted herein below;
Section 102 of Assam Rifles Act, 2006:
"102. Choice between criminal court and Assam Rifles
Court.- When a criminal court and an Assam Riffles Court each
have jurisdiction in respect of an offence, each shall be in the
discretion of the Director-General, or the Inspector-General or
the Deputy Inspector-General within whose command the
accused person is serving or such other officer as may be
prescribed, to decide which court proceedings shall be instituted,
and if that officer, decides that they shall be instituted before the
Assam Rifles Court, to direct that accused person shall be
detained in Force custody."
Section 103 of Assam Rifles Act, 2006:
"103. 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 102 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 instituted, for the
determination of the Central Government whose order
upon such reference shall be final."
Cril. Petn. No. 4 of 2022 Page 7
Rule 44 and 45 of the Assam Rifles Rules 2010:
"44. Trial of cases either by Force Court or Criminal Court -
(1) When an offence is triable both by a criminal court
and a Force Court, an officer referred to in Section
102 may.-
(i) (a) Where the offence is committed by the
accused in the course of performance of his
duty as a member of the Force; or
(b) Where the offence is committed in
relation to property belonging to the
Government or the Force, or a person
subject to the Act; or
(c) Where the offence is committed against
a person subject to the Act, direct that any
person subject to the Act who is alleged to
have committed such an offence, be tried by
a Force Court; and
(ii) in any other case, decide whether or not
it would be necessary in the interest of discipline to
claim for trial by a Force Court any person subject
to the Act who is alleged to have committed such
an offence.
(2) In taking a decision to claim an offender for trial by
a force Court an officer referred to in Section 102
may take into account all or any of the following
factors, namely,-
(a) the offender is on active duty or has
been warned for active duty and it is felt
that he is trying to avoid such duty;
(b) the offender is a young person
undergoing training and the offence is not a
serious one and the trial of the offender by a
criminal court would materially affect his
training;
(c) the offender can, in view of the nature of
the case, be dealt with summarily under the
Act.
45. Cases which may not tried by Force Court-
Without prejudice to the provisions of sub-rule (1) of rule
44, an offender may not ordinarily be claimed for trial by
a Force Court -
Cril. Petn. No. 4 of 2022 Page 8
(i) Where the offence is committed by his along
any other person not subject to the Act whose
identity is known; or
(ii) Where the Offence is committed by his while
on leave or during absence without leave."
Section 397 of Cr.P.C.- Calling for records to
exercise powers of revision. -
(1) The High Court or any Sessions Judge may call for and
examine the record of any proceeding before any
inferior criminal court situate within its or his local
jurisdiction for the purpose of satisfying itself or himself
as to the correctness, legality or propriety of any
finding, sentence or order, recorded or passed, and as
to the regularity of any proceedings of such execution of
any sentence, or order be suspended, and if the accused
is in confinement, that he be released on bail or on his
own bond pending the examination of the record.
Explanation - All Magistrates, whether Executive or
Judicial, and whether exercising original
or appellate jurisdiction, shall be
deemed to be inferior to the Sessions
Judge for the purposes of this sub-
section and of Section 398.
(2) The powers of revision conferred by sub-section (1) shall
not be exercised in relation to any interlocutory order
passed in any appeal, inquiry, trial or other proceedings.
(3) If an application under this Section has been made by any
person either to the High Court or to the Sessions Judge,
no further application by the same person shall be
entertained by any of them.
399. Sessions Judge's power of revision. -
(1) In the case of any proceeding the record of which has been
called for by himself, the Sessions Judge may exercise all or
any other powers which may be exercised by the High Court
under sub-section (1) of Section 401.
(2) Where any proceeding by way of revision is commenced
before a Sessions Judge under sub-section (1), the
provisions of sub-section (2), (3), (4) and (5) of Section 401
shall, so far as may be, apply to such proceedings and
references in the said sub-section to the High Court shall be
construed as reference to the Sessions Judge.
Cril. Petn. No. 4 of 2022 Page 9
(3) Where any application for revision is made by or on
behalf of any person before the Sessions Judge, the
decision of the Sessions Judge thereon in relation to
such person shall be final and no further proceeding by
way of revision at the instance of such person shall be
entertained by the High Court or any other Court.
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 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 offences of which he is accused, 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 endeavor to
apprehend and secure any person accused of such
offence.
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.
Cril. Petn. No. 4 of 2022 Page 10
[9] Learned counsel for the petitioner further submits that the
Courts below completely misconstrued the provision of law while
passing the order transferring the case in hand to the Assam Rifles
Court. Further submits that the Additional Session Judge (FTC),
Manipur West while passing the impugned order erroneously
appreciated the provision of Army Act instead of appreciating the
Assam Riffles Act and Rules. He further submitted that the Court
below failed to appreciate that the principle of Natural Justice is
completely overloaded while passing the impugned order as the
allegation of a commission of offence is against Assam Riffles personal,
the Assam Rifles Authority are taking interest in the case as can be
evident from the content of FIR No. 22(2) 2020 TPL-PS U/s
212/506/34 IPC. It is well settled that the same person or authority
cannot be the prosecutor and the judge simultaneously.
[10] Learned counsel for the petitioner further submits that the
Court below failed to appreciate the facts and circumstances of the
case, the nature of allegation made against the respondent No. 2 by
the petitioner, who is a lady IPS Officer is a fit case to be tried in the
Criminal Court under CrPC. Further, the Courts below also failed to
appreciate that transferring the case to the Assam Rifles Court
would subject the petitioner, a lady IPS Officer to continuous
proceedings of Court Martial, which is not in the interest of justice,
not in consistent with the criminal jurisprudence. He also submits
that the Assam Rifles has also made several false accusations
against the petitioner on several social media platforms such as
Cril. Petn. No. 4 of 2022 Page 11
Instagram, Twitter and other newspaper websites and also in the
print media by way of making press release containing false
defamatory allegations against the petitioner, in order to save its
image before the general public and for which a suit for defamation
instituted by the petitioner is also pending.
[11] On 08.04.2022, learned counsel for the respondent No. 1
submits affidavit-in-opposition on behalf of respondent No. 1 by
denying all the allegations and averments made in the criminal petition
except those which are specifically admitted. The learned counsel
submitted that the petitioner has lodged a written report to the Officer-
in-Charge, Tengnoupal Police Station and registered FIR No. 12(1)2020
TPL-PS u/s 341/353/354/354-A/355/506 IPC and the same was
transferred to Moreh Police Station as the place of occurrence (PO) falls
under the jurisdiction of Moreh Police Station and the FIR case was
investigated and Charge sheeted by the Moreh Police Station. He
further submits that on 22.02.2020, the petitioner lodged another
written complaint to the OC/TPL-PS against Colonel Rajesh
Chaudhary, CO, 12 Assam Rifles and Major Akhil of 12 Assam Rifles
stating that the said CO and Major criminally intimidated the
petitioner and threatened and obstructed from lodging FIR against
Rifleman PK. Pandey, 12 Assam Rifles while she was writing an FIR
against the said rifleman for molesting, harassing, humiliating her
etc. on her way back from Moreh with her Escort Party. Another case
under FIR No. 22(02)2020 TPL-PS U/S 212/506/34 IPC was registered
for investigation.
Cril. Petn. No. 4 of 2022 Page 12
[12] Learned counsel for the respondent No. 2 filed affidavit-
in-opposition on behalf of respondent No. 2 narrating the story/brief
facts of the case. The learned counsel submitted that on 19.01.2020,
the petitioner has lodged a complaint against the respondent No. 2 i.e.
Riflemen/General Duty PK Pandey vide memo No. 14/TPL-PS-2020 at
Tengnoupal Police Station alleging physical assault and molestation and
the same was converted into FIR No. 12(1)2020 TPL-PS u/s
341/353/354/354-A/355/506 IPC on the same day by Moreh Police
Station. It is further submitted that the petitioner had also filed a
complaint with Manipur State Commission for Women (MSCW) alleging
harassment by the respondent no. 2. In this regard, a Preliminary
Investigation was ordered by Headquarter Inspector General Assam
Rifles (South), subsequently, on 21.01.2020, on the opinion of the
Preliminary Investigation, a Staff Court of Inquiry was ordered to
investigate the veracity of allegations leveled by the petitioner.
Various summons and letters through proper Magistrate were issued by
Presiding Officer of the Court of Inquiry to the petitioner and her five
escorts and driver did not honour the same. Instead, she has
repeatedly alleged that the Court of Inquiry is unfair, biased and has no
trust and she did not participate in the investigation at all. Further, it is
also submitted that the copy of the FIR filed by the petitioner was
received only on 08.02.2020 after repeated request to Moreh Police
Station and Ld. Judicial Magistrate First Class, Chandel on 21.01.2020,
22.01.2020 and 03.02.2020.
Cril. Petn. No. 4 of 2022 Page 13
[13] Learned counsel for the respondent No. 2 further
submitted that as per the provisions laid down in Assam Rifles Act,
2006 (Sections 102 and 103), Assam Rifles Regulation, 2016
(paragraph 227) and Code of Criminal Procedure, 1973 (Section 475),
Assam Rifles authorities approached the Ld. Judicial Magistrate First
Class, Moreh to hand over the case to Assam Rifles authority as per
concurrent Jurisdiction. However, on 05.06.2020, the Ld. Judicial
Magistrate First Class, Moreh rejected the representation/prayer on
the ground that no charge sheet has been submitted to the Court
and therefore the case cannot be handed over to Assam Rifles
authorities as yet. Later, the Ld. JMFC, Moreh vide order dated
26.10.2020 deliberated upon the charge sheet submitted by the Police
and after taking into consideration all relevant provisions, the case was
handed over to Assam Rifles authorities on 02.12.2020. Being
aggrieved by the Judgment and Order dated 02.12.2020 passed in Cril.
(P) Case No. 10 of 2020, the petitioner filed Criminal Revision No. 2 of
2021 [ref: Cril. Revision Case No. 16 of 2020] against State of Manipur
and Rifleman/General Duty PK Pandey before the Court of Additional
Sessions Judge (FTC), Manipur West however, the same was dismissed
vide order 31.01.2022 as no merit was found by the Ld. Additional
Sessions Judge (FTC), Manipur West. Again being aggrieved by the
order dated 31.01.2022, the petitioner filed the present Cril. Petition
No. 4 of 2022 before the Hon'ble High Court of Manipur for quashing
Cril. Petn. No. 4 of 2022 Page 14
and setting aside of order dated 31.01.2022 passed in Criminal Revision
No. 2 of 2021 ref: Cril. Revn. No. 16 of 2022.
[14] Learned counsel for the respondent No. 2 further submits
that the order dated 02.12.2020 passed by the Ld. Judicial Magistrate
First Class, Moreh in Cril. (P) Case No. 10 of 2020 and the Court order
dated 31.01.2022 passed by the Court of Ld. Additional Sessions Judge
(FTC), Manipur West in Criminal Revision No. 2 of 2021 (ref: Cril. Revn.
No. 16 of 2020) are by virtue of Concurrent Jurisdiction and provisions
laid down in Assam Rifles Act, 2006 (Sections 102 and 103), Assam
Rifles Regulation, 2016 (paragraph 227) and Code of Criminal
Procedure, 1973 (Section 475). It is further submitted that during the
investigation stage, the Assam Rifles authorities may intervene with the
concurrence of the Police and Magistrate, and claim the accused for
trial by Force Court as per Government of India, Ministry of Home
Affairs Notification, SRO No. 709 dated 17th April 1952.
[15] Learned counsel for the respondent No. 2 further submits
that a conscious decision in writing as to why it is ought to be
considered and desirable to try the offender by Assam Rifles Court and
not by a Civil (Criminal) Court was made and the same was submitted
to Ld. JMFC, Moreh on 05.06.2020. It is further mentioned that Assam
Rifles Act and Rules have been enacted on the lines of Army Act and
Rules and Section 102 and 103 of the Assam Rifles Act is pari materia
to Section 125 and 126 of the Army Act.
Cril. Petn. No. 4 of 2022 Page 15
Section 102 and 103 of Assam Rifles Act read as follows:
"102. Choice between criminal court and Assam Riffles
Court.- When a criminal court and an Assam Riffles Court each
have jurisdiction in respect of an offence, each shall be in the
discretion of the Director-General, or the Inspector-General or
the Deputy Inspector-General within whose command the
accused person is serving or such other officer as may be
prescribed, to decide which court proceedings shall be
instituted, and if that officer, decides that they shall be
instituted before the Assam Rifles Court, to direct that accused
person shall be detained in Force custody.
103. 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 102 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 instituted, for the
determination of the Central Government whose order
upon such reference shall be final."
Section 125 and 126 of Army Act reads as follows:
"Section 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
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."
"Section 126. Power of Criminal Court to require
delivery of offender -
(i) 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
Cril. Petn. No. 4 of 2022 Page 16
to postpone proceedings pending a reference to the
Central Government.
(ii) 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 instituted, for the determination of
the Central Government whose order upon such reference
shall be final."
Further, submitted that on conjoint reading of the
Provisions contained in Sections 125 and 126 of the Army Act, 1950,
Section 475 of the Code of Criminal Procedure, 1973 and the
Criminal Courts and Court martial (Adjustment of Jurisdiction) Rules,
1978, clearly shows that when a criminal court and court-martial
both have jurisdiction in respect of an offence it shall be in the
discretion of the officer specified in section 125, to decide, in the
first instance, as to the court in which the proceedings shall be
instituted before a court-martial, he shall direct that the accused be
detained in military custody. But, when such an accused is brought
before the Magistrate, he shall not proceed to try such an accused or
commit him to the Court of Sessions without having been moved
thereto by the competent authority under the Army Act. Further,
submitted that law with respect to power of the Court to transfer the
case to the competent authority to proceed against the individual in
accordance with the provisions of Army Act and Rules/Assam Rifles Act
and Rules has been well settled by the Hon'ble Apex Court and
various High Courts viz; AIR 1972 SC 2546 - (Delhi Special Police
Establishment, New Delhi Vs Lt. Col S K Loraiya), AIR 1987 SC 1878 -
(Union of India through Major General H C Pathak Vs Major S K
Sharma), (1995) 1 SCC 90 - (Balbir Singh Vs State of Punjab), AIR
Cril. Petn. No. 4 of 2022 Page 17
1986 SC 1965 - (Superintendent and Remembrancer of Legal Affairs,
West Bengal Vs Usha Ranjan Roy Choudhury), AIR 1971 SC 1120 -
(Lt. Col SK Kashyap Vs State of Rajasthan), AIR 1961 SC 1762 -
(Major E G Barsay Vs State of Bombay), and (1982) Cr. LJ 2082
(Raj.) - (Murairilal Vs Kaneja).
In support of his case, learned counsel for the respondent
No. 2 relied upon the following judgments:
1. AIR 1965 SC 247 (Ram Sarup v. Union of India and
another) - Hon'ble Supreme Court of India upheld the
validity of Section 125 of Army Act.
2. 1983 CRI.L.J. 1899 - (Ex Havildar Gh. Mohd. Dar v.
Union of India) - the Jammu and Kashmir High Court
held that GOC/Army Officer is competent to decide
whether the accused can be tried by Court Martial or
by Criminal Court, meaning thereby, there is not even
an iota of doubt that a case can be transferred from
civil authorities to army authorities under the
provisions of Army Act, 1950 read with Army Rules,
1954.
3. 2003 CRI.L.J. 4028 (G.M. Rao v. Union of India) - it
has been held that it is the discretion of Army
Authorities under Sections 125 and 126 to decide
whether particular accused should be tried by Court
Martial or by Criminal Court.
4. 2016 SCC Online MP 6855 (Major General R S
Shekhawat v. State of Madhya Pradesh and others)
- Madhya Pradesh High Court directed the
respondents to transfer the case i.e., Crime No.
974/2015 registered at Police Station Vijay Nagar,
Cril. Petn. No. 4 of 2022 Page 18
Indore to the Competent Military under the relevant
provisions of the Army Act, 1950 read with the Army
Rules, 1954. It was also held that the case can be
transferred to the Military authorities even if charge-
sheet has not been filed by the police authorities.
5. 2007 CriLJ 4516 (Chandra Mohan Shukla v. State of
Assam), the petitioner, who was an officer subject to
the Army Act, 1950, by making application under
section 482 of the Code of Criminal Procedure, 1973,
prayed for setting aside the judgment and order dated
02 April 2007 passed in Criminal Revision No.
18/2007, by the learned Sessions Judge, Cachar,
Silchar whereby the revision was dismissed and the
order date 05 April 2007, passed, in G.R. Case NO.
889/2005 (corresponding to Lakhipur Police Station
Case No. 73/2005), transferring the said case to the
Army authorities for the purpose of trial of the
accused-petitioner under the Army Act was upheld.
The High Court of Guwahati held that Chief Judicial
Magistrate committed no illegality in directing that the
relevant records be handed over to the Army authority
concerned and the learned Sessions Judge has rightly
refused to interfere with the directions so given by the
learned Chief Judicial Magistrate.
[16] Learned counsel for the respondent No. 2 further
submits that the Assam Rifles had not made any false accusation
against the petitioner on any social media platform, however, only
an official press release was made on behalf of Assam Rifles based
on the Preliminary Investigation report. The petitioner herself has
approached both local and national newspapers, Manipur State
Cril. Petn. No. 4 of 2022 Page 19
Commission for Women (MSCW), National Commission for Women
etc., social and print media and issued defamatory and malicious
content against the entire Assam Rifles.
[17] Mr. BR Sharma, learned CGSC appearing for the
respondent No. 3 submits that the petitioner has concealed the very
fact that the Deputy Inspector General, 26 Sector Assam Rifles, in
exercise of his discretion under Section 102 of the Assam Rifles Act,
2006, has filed a petition before the Ld. JMFC under Section 475 CrPC
r/w Section 102 of Assam Rifles Act, 2006, requesting for handing over
the trial of the said F.I.R. case to the Assam Rifles Court and the same
is found recorded in the order dated 26.10.2020 passed by the JMFC,
Moreh (Annexure - P/5).
[18] The learned counsel for the respondent No. 3 further
submits that the petitioner in challenging the order dated 02.12.2020
(Annexure-P/7) has alleged that the Ld. JMFC, Moreh, failed to apply
his mind and passed the impugned order without judiciously
considering the facts and provisions of applicable laws. On the contrary,
the Ld. JMFC in its order dated 26.10.2020, has discussed and
considered all the aspects on facts and laws and decided that the case
can only be transferred by virtue of Section 102 of the Assam Rifles Act,
2006, after the charge sheet in the case is filed by the prosecution, in
the light of the Hon'ble Supreme Court's judgments. Hence, the Ld.
JMFC, Moreh has observed that when the charge sheet is filed, the
Cril. Petn. No. 4 of 2022 Page 20
Assam Rifles authorities will be given notice and an opportunity of being
heard.
The Assam Rifles authority was given notice of filing of
the charge sheet by the prosecution and subsequently, the application
dated 26.11.2020, for handing over the case for trial by the Assam
Rifles Court, was submitted to the concerned JMFC by the competent
authority, authorizing Major Rajiv Kumar of 43 Assam Rifles to receive
the case documents when handed over by the JMFC, Moreh.
On 02.12.2020, as per the order dated 26.10.2020 passed
by the JMFC, Moreh, the Ld. Court after giving opportunity of being
heard to the said authorized officer of Assam Rifles and the Ld. APP for
the State, the Ld. JMFC, Moreh, considering the submissions of the
parties and observations and findings made in the order dated
26.10.2020, decided to hand over the case in exercise of power under
Section 475 CrPC, 1973, to the Assam Rifles Court as per Section 102 of
the Assam Rifles Act, 2006 for trial.
Further, with regard to Rule 44 and 45 of the Assam Rifles
Rules, 2010, which provides the rules for trial of cases either by Assam
Rifles Court or Criminal Court are reproduced for easy reference:
(I) Rule 44 -
"44. Trial of cases either by Assam Rifles Court or criminal
court-
(1) Where an offence is triable both by a criminal court and
a Assam Rifles Court, an officer referred to in section 102 may
-
Cril. Petn. No. 4 of 2022 Page 21
(i) (a) where the offence is committed by the
accused in the course of performance of his duty
as a member of the Force; or
(II) Rule 45 -
"45. Case which may not be tried by Assam Rifles Court-
Without prejudice to the provisions of sub-rule (1) of rule 44,
an offender may not ordinarily be claimed for trial by a Assam
Rifles Court -
(i) where the offence is committed by him along with
any other person not subject to the Act whose
identity is known; or
(ii) where the offence is committed by him while on
leave or during absence without leave."
[19] After reading the above rules, it is crystal clear that the
JMFC, Moreh, has passed the order dated 26.10.2020 strictly in the
light of the provisions of the Assam Rifles Act and Rules and
subsequently, when the charge sheet was filed in the case, the case
was handed over to the Assam Rifles Court for trial by passing the
impugned order dated 02.12.2020, after giving opportunity of being
heard to the parties.
[20] The ground that the impugned orders dated 02.12.2020
and 31.01.2022 are bad in the eye of law as the authority has failed to
fulfill the mandate of moving a formal application under Section 475
CrPC before the JMFC, Moreh, is untenable. In fact, a petition under
Section 475 CrPC was filed by the competent authority of the Assam
Rifles and the same is found recorded in the order dated 26.10.2020
passed by the JMFC, Moreh. Further, the order dated 26.10.2020,
which has in detail discussed and considered all the aspects on facts
and laws while considering the petition under Section 475 CrPC filed by
Cril. Petn. No. 4 of 2022 Page 22
the competent authority, Assam Rifles, has not been challenged in the
present petition.
[21] The learned counsel for the respondent No. 3 states that
the Learned JMFC, Moreh and the Additional Sessions Judge (FTC),
Manipur West, have passed the impugned orders dated 02.12.2020 and
31.02.2022, respectively, strictly as per law and there exists no illegality
or irregularity in the impugned orders, as claimed by the petitioner. As
such, the ground for preferring the above referred Cril. Petition No. 4 of
2022, is untenable and hence the present petition is not maintainable.
[22] So far as regard to the period of limitation, it is to state
that the prescribed period of three years as provided in Section 89 of
the Assam Rifles Act is with regard to commencement of the trial and
not for conclusion of the trial. Mention may be made that the case was
handed over by the JMFC, Moreh to the Assam Rifles Court for trial as
early as on 02.12.2020 and the Assam Rifles Court has been making
endeavor to conclude the trial but for the petitioner, could not be
concluded till date. Assuming but not admitting that the trial has to be
completed within three years as submitted by the petitioner, it is to
state that the prescribed period of limitation is yet to expire by an
excess of 60 days, as the proceedings of the Assam Rifles Court is
stayed by the order dated 16.10.2023 passed by this Hon'ble
Court, however, this Hon'ble Court took an undertaking on 07.10.2023,
from the respondent Assam Rifles that the proceedings before the
Assam Rifles Court shall not be proceeded till 16.10.2023 and the same
Cril. Petn. No. 4 of 2022 Page 23
is reflected in its order dated 07.10.2023. Hence, the proceeding of the
case before the Assam Rifles Court has not proceeded with the
intervention of this Hon'ble Court since 07.10.2023. Therefore, the
assumption of the petitioner that during the short span of about two
months, the proceedings before the Assam Rifles Court will never be
completed is untenable in as much as Assam Rifles Court or Court
Martial proceedings are held on day to day basis, whenever so required.
[23] The learned counsel for the respondent No. 3 submits
that the Hon'ble Court may be pleased to direct the petitioner to
cooperate with the Assam Rifles Court as the delay so caused in
continuing the trial before the Assam Rifles Court is due to her
avoidance and non-cooperation. Further, it may be worth mentioning
that in-spite of multiple summons being served upon the petitioner
through possible means including through Magistrate of competent
jurisdiction, she is evading the trial proceedings.
[24] Again on 11.11.2022, the petitioner filed rejoinder
affidavit by denying all the allegations, averments and contentions
made by the Respondent no. 2 in his affidavit-in-opposition.
[25] Learned counsel for the petitioner vehemently denies each
and every allegations, averments and contentions made therein which
are inconsistent to the averment and contention made by the Deponent
in the petition. It is submitted that the facts of the case narrated by the
Respondent No. 2 re-manifest the collusion of the Assam Rifles
Cril. Petn. No. 4 of 2022 Page 24
authorities and its personnel's in attempting to malign the Deponent. It
is also submitted that the reputation of the deponent was defamed and
there were several personal allegations against the deponent which are
unbecoming the discipline like of the Assam Rifles. The contents of
personal allegations, slender and malice were even uploaded in
social media and the Deponent was subjected to "trolling" in the
social media. The Deponent was therefore constraint to file a suit for
defamation against two officers then serving in the Assam Rifles in
Original Suit No. 32 of 2021 in the court of Senior division, Imphal
East, Manipur. In the said Original Suit, that is defamation suit, the
Assam rifles authorities files Judicial Misc. case No. 161 of 2021
seeking to implead itself as defendant therein and sought to delete
two officers name who are defendant therein. The Court of the Ld.
Senior Judge dismissed the Judicial Misc. Case No. 161 of 2021 by its
order dated 29.10.2021. The matter came up before the Hon'ble High
Court of Manipur at Imphal in CRP (CRP. Art.227) No. 46 of 2021
wherein the Hon'ble High Court of Manipur passed its final order on
06.05.2022 directing that the Assam Rifles authorities i.e.
Headquarters, Inspector General (Assam Rifles General) represented by
its public General Officer be impleaded as Defendant No. 3 in Original
Suit No. 32 of 2021. The unfolding of the entire episode manifests the
malifide intention of the officers of the Assam rifles and their attempt to
cover up the misdeeds, illegal acts of the officers and personnel's
including the Respondent No. 2 herein. It is also submitted that Assam
Rifles has made several false accusations against the Deponent on
Cril. Petn. No. 4 of 2022 Page 25
several social media platforms such as Instagram, Twitter and other
newspaper websites and also in the print media by way of making press
release containing false defamatory allegations against the Deponent,
in order to save its image before the general public and for which a suit
for defamation instituted by the Petitioner is also pending.
In support of his case, learned counsel for the petitioner
relied upon the following Judgment:
1. (2016) 14 SCC 536 - Extra-Judicial Execution
Victims Association.
2. (2022) 7 SCC 287 - State of Sikkim Versus Jasbir
Singh.
3. (2011) 8 SCC 38 - P.D. Dhinakaran Versus Judges
Enquiry.
4. (2002) 4 SCC 388 - Rupa Ashok Hura Versus Ashok
Hura.
[26] Both the learned counsels for the petitioner and
respondent No. 3 have submitted their written arguments and the same
are perused. Respondent no. 3 relied upon the following judgment in
support of his case;
1. AIR 1969 SC 414 - (Som Datt Datta Vs. Union of
India & Ors).
"4. The first question to be considered in this case is
whether the Court Martial had jurisdiction to try and
convict the petitioner of the offences under Sections 304
and 149 of the Indian Penal Code. It was contended by
Mr Dutta on behalf of the petitioner that the Court Martial
had no jurisdiction having regard to the mandatory
provisions contained in Section 125 of the Army Act and
having also regard to the fact that Maj. Agarwal had, in
Cril. Petn. No. 4 of 2022 Page 26
the first instance, decided to hand over the matter for
investigations to the civil police. In order to test whether
this argument is valid it is necessary to scrutinize the
provisions of the Army Act in some detail. Section 2 of the
Army Act, 1950 (Act 46 of 1950), hereinafter called the
"Army Act", describes the different categories of army
personnel who are subject to the Army Act. Section 3(ii)
defines a "civil offence" to mean "an offence which is
triable by a criminal court"; Section 3(vii) defines a "court
martial" to mean "a Court Martial held under this Act";
Section 3(viii) defines "criminal court" to mean "a court of
ordinary criminal justice in any part of India other that the
state of Jammu and Kashmir"; Section 3(xvii) defines
"offence" to mean "any act or omission punishable under
this Act and includes a civil offence"; and Section 3(xxv)
declares that "all words and expressions used but not
defined in this Act and defined in the Indian Penal Code
shall be deemed to have the meanings assigned to them
in that code". Chapter VI is comprised of Sections 34 to
70. The heading of the chapter is "Offences". As we have
already noticed, the word "offence" is defined to mean
not only any act or omission punishable under the Army
Act, but also a civil offence. Sections 34 to 68 define the
offences against the Act triable by Court Martial and also
Indicate the punishments for the said offences. Section
69 states as follows:
.............................................................................................
............................................................................................
Section 125 presupposes that in respect of an offence
both a Criminal Court as well as a Court Martial have each
concurrent jurisdiction. Such a situation can arise in a
case of an act or omission punishable both under the
Army Act as well as under any law in force in India. It
may also arise in the case of an offence deemed to be an
offence under the Army Act. Under the scheme of the two
sections, in the first instance, it is left to the discretion of
the officer mentioned in Section 125 to decide before
which court the proceedings shall be instituted, and, if the
officer decides that they should be instituted before a
court Martial, the accused person is to be detained in
military custody; but if a Criminal Court is of opinion that
the said offence shall be tried before itself, it may issue
the requisite notice under Section 126 either to deliver
over the offender to the nearest Magistrate or to
postpone the proceedings pending a reference to the
Central Government. On receipt of the said requisition,
the officer may either deliver over the offender to the said
court or refer the question of proper court for the
determination of the Central Government whose order
shall be final. These two sections of the Army Act provide
Cril. Petn. No. 4 of 2022 Page 27
a satisfactory machinery to resolve the conflict of
jurisdiction, having regard to the exigencies of the
situation in any particular case."
2. (2011) 15 SCC 492 - (S.K. Jha Commodore Vs.
State of Kerala and Anr).
"2. It is clear to us that the judgment of the High Court is
in conformity with the judgment of the Constitution Bench
of this Court in Som Datt Dutta v. Union of India. The
Constitution Bench while construing Rule 3 of the Criminal
Courts and Court Martial (Adjustment of Jurisdiction)
Rules, 1952 read with Section 549 CrPC, 1898 (now
Section 475 CrPC, 1973) held that the option as to
whether the accused be tried before the criminal court or
by a Court Martial could be exercised only after the police
had completed the investigation and submitted the
charge-sheet and that the provisions of the Rule could not
be invoked in a case where the police had merely started
an investigation against a personnel subject to military,
naval or air force law."
Chapter - VII [Choice of jurisdiction between Force
Court and Criminal Court]
"44. Trial of cases either by Force Court or Criminal Court -
(1) Where an offence is triable both by a criminal court
and a force court, an officer referred to in section
102 may, -
(i) (a) where the offence is committed by the
accused in the course of performance of his
duty as a member of the Force; or
(b) where the offence is committed in relation
to property belonging to the Government or the
Force; or a person subject to the Act; or
(c) where the offence is committed against a
person subject to the Act, direct that any
person subject to the Act who is alleged to
have committed such an offence, be tried by a
Force Court; and
(ii) in any other case, decide whether or not it would
be necessary in the interest of discipline to claim for
trial by a Force Court any person subject to the Act who
is alleged to have committed such an offence.
(2) In taking a decision to claim an offender for trial by a
Force Court an officer referred to in section 102 may take into
account all or any of the following factors, namely, -
Cril. Petn. No. 4 of 2022 Page 28
(a) the offender is on active duty or has been
warned for active duty and it is felt that he is trying to
avoid such duty;
(b) the offender is a young person undergoing
training and the offence is not a serious one and the
trial of the offender by a criminal court would materially
affect his training;
(c) the offender can, in view of the nature of the
case, be dealt with summarily under the Act.
45. Cases which may not be tried by Force Court -
Without prejudice to the provisions of sub-rule(1) of rule 44, an
offender may not ordinarily be claimed for trial by a Force
Court-
(i) where the offence is committed by him along with
any other person not subject to the Act whose
identity is known; or.
(ii) where the offence is committed by him while on
leave or during absence without leave.
[27] On perusal of Sections 102 & 103 of the Assam Rifles Act,
2006, Rule 44 & 45 of the Assam Rifles Rules, 2010; Sections 397 &
399, 475 of Cr.P.C. & provision of Cr.P.C. and Sections 125 and 126 of
Army Act, it has emerged and is evident that the choice between
Criminal Court and Assam Rifles Court (Court-martial), the discretion is
given to the Director General or Inspector General or the Deputy
Inspector General.
Section 102 of Assam Rifles Act speaks about choice
between Criminal Court and Assam Rifles Court, the discretion is given
to the Director General, Inspector General, Deputy Inspector General to
decide.
Cril. Petn. No. 4 of 2022 Page 29
Section 103 - Even if the Criminal Court having
jurisdiction desires to take proceedings before itself, it requires to give
notice to the officers referred in Section 102 to have its option, the
question as to which Court the proceedings are to be instituted in
respect of any alleged offence by making reference to the Central
Government or to postpone proceedings, pending a reference to the
Central Government.
[28] On perusal of the order dated 26.10.2020 of the Ld.
JMFC, Moreh, it is evident and apparent that the Ld. JMFC passed the
said order after due consideration of the relevant Sections of the FIR
cases; Section 65, 102 of the Assam Rifles Act, 2006; Rule 44 of the
Assam Rifles Rules, 2010; Regulation 227 of the Assam Rifles
Regulations 2016 and on the basis of a petition dated 05.06.2020 filed
by one Sunil Sheoran, Brigadier, Inspector General 26 Assam Rifles
under Section 475 of Cr.P.C. read with Section 102 and 103 of Assam
Rifles Act, 2006 read with Regulation 303 (a) (v) of the Assam Rifles
Regulations, 2016 to hand over the FIR case to the Assam Rifles
authorities to obviate parallel inquiries in both Civil Court and Assam
Rifles Court, passed the following order:
"Therefore, it would be most appropriate to
communicate the submission of this charge-sheet and the
information of taking of congnizance of the offences under
Sections 354 and 354A of IPC by this Court to the concern
Assam Rifles authorities for giving them an opportunity to
exercise the provision given under the relevant provisions of
the Assam Rifles Act, 2006, Assam Rifles Rules, 2010 and
Assam Rifles Regulations, 2016.
Cril. Petn. No. 4 of 2022 Page 30
Now, since the post of 12th Assam Rifles had shifted
from Tengnoupal, this order would be communicated to the
Commander, 12 Assam Rifles and to the Inspector General, HQ
26 Sector (Assam Rifles) for doing the needful under 102 of the
Assam Rifles Act on or before the next date of hearing."
Meaning thereby, the Ld. JMFC, Moreh does not opt for
Section 103 of the Assam Rifles Act, but resorted to Section 102 only.
[29] On further perusal of the Rule 44 & 45 of Assam Rifles
Rules as reproduced herein above, it is imperative that the incident
occurred while both the petitioner and the respondent No. 2 were on
their official duties.
[30] At this stage, it may be mentioned in the above context
that concerning the facts and circumstances of the present case, as per
the Act and Rules as mentioned above and as the designated officers of
the battalion in which, the respondent No. 2 was working, desired to
have the trial before the Assam Rifles Court, there is no option for this
Court to interfere with handing over the present case for Court-martial,
until and unless the Ld. JMFC, Moreh commits irregularities or malafide
in the process.
[31] For this matter, I have gone through the relevant Acts,
Rules, provision of Cr.P.C. along with the orders passed by the Ld.
JMFC, Moreh and the order dated 31.01.2022 passed by the Ld.
Additional Sessions Judge (FTC), Manipur West in Criminal Revision No.
2 of 2021.
Cril. Petn. No. 4 of 2022 Page 31
[32] On perusal of the order dated 26.10.2020 of the Ld.
JMFC, Moreh, the Ld. JMFC, Moreh passed the said order
comprehensively in detail narrating all the facts and circumstances and
come to the conclusion that as per the Assam Rifles Rule and
Regulation the offences committed by the person of the Assam Rifles
can be triable both by the Criminal Court and Assam Rifles Court and
considering the fact that the choice between the two Courts are to be
made by the officials given under Section 102 of the Assam Rifles Act,
2006 and as the Brigadier, Deputy Inspector General 26 Sector filed a
petition before the Court, the Ld. JMFC, Moreh complying the provisions
laid down in the Acts & Rules handed over the case record to the
Assam Rifles for Court-Martial.
[33] Thereafter, vide order dated 31.01.2002 of the Ld.
Additional Sessions Judge, the Ld. Court considered the rival
contentions of the parties and elaborately discussed the Sections, Rules
of the Assam Rifles and provision of Cr.P.C. and rightly passed the
following -
"45. In the matter G.M. Rao v. Union of India 2003 CRI. L.J
4028, it has been held that it is the discretion of Army
Authorities under Section 125 and 126 to decide whether
particular accused should be tried by Court Marital or by
Criminal Court.
46. There is therefore no legal impediment, on the part of
the military authority, to obtain from the Judicial Magistrate Fist
Class, Moreh, the records of the case from the Criminal Court to
enable them to try the accused by a Court Martial.
Cril. Petn. No. 4 of 2022 Page 32
47. The Ld. Judicial Magistrate First Class, Moreh committed
no illegality in directing that the relevant records be handed
over to the Army authority concerned.
48. Because of what have been discussed and pointed out
above, I do not find that the impugned order suffer from any
infirmity, factual or legal. The revision is, therefore, wholly
without merit and the same shall accordingly stand dismissed."
[34] The issue here is whether the Ld. JMFC while passing
the orders dated 26.10.2020, 02.12.2020, wherein the case was
transferred to the Assam Rifles Court for Court martial commits
irregularities and malafide. this Court is of the view that there is no
such irregularity as well as malafide was committed by the Ld. JMFC
and there is no question of violation of natural justice.
For deciding this issue, I have gone through the petition
of the petitioner, counter affidavit, written arguments filed by both
parties, documents filed therewith the citations submitted by both
parties in support of their cases.
[35] The contentions of the petitioner are that while passing
the order dated 02.12.2020 of the Ld. JMFC, Moreh and the order dated
31.01.2022 of the Ld. Additional Sessions Judge (FTC), Manipur were
passed erroneously and by violating natural justice with the above
mentioned facts and relying on the relevant Sections:
Section 102, 103 of Assam Rifles Act (supra); Rule 44, 45
of Assam Rifles Rule, 2010; Section 475 Cr.P.C.; the learned counsel for
the petitioner submits that as the case at hand was initiated on the
police report Section 102 of the Assam Rifles is not applicable; but on
Cril. Petn. No. 4 of 2022 Page 33
perusal of Section 102, it is evidently clear that the choice whether to
conduct trial by the Assam Rifles Court and Criminal Court is given to
the Director General, or Inspector General, or Deputy Inspector
General. In the case at hand, the Deputy Inspector General rank
officer, approached Ld. JMFC, Moreh to hand it over the case to the
Assam Rifles Court for trial. As such, the submission made above by the
learned counsel appearing for the petitioner is not acceptable. Further,
the learned counsel appearing for the petitioner submits that Section
103 of Assam Rifles Act clearly states that the criminal court having
jurisdiction can on its own proceed with the case before itself. However,
on further perusal of the Section 103, here again, the option for trial is
given to the officer referred in Section 102 and again, it is also
observed that this Section 103 is not applicable in the instant case, as
the Ld. JMFC himself has given option to the officer of the Assam Rifles
as evident in its order dated 26.10.2020 and subsequently, confirmed
regarding the trial to be conducted by the Assam Rifles Court by order
dated 02.12.2020.
Even though the petitioner filed for revision of the Ld.
JMFC's order, the Ld. Additional Sessions Judge (FTC) confirmed the
order of the Ld. JMFC, Moreh vide its order dated 31.01.2022.
[36] Further, the learned counsel for the petitioner submits
that the Ld. JMFC failed to appreciate the contents of Rule 44 and 45 of
Assam Rifles Rule, 2010 saying that the facts and circumstances of the
Cril. Petn. No. 4 of 2022 Page 34
case were tried by the Criminal Court under the Cr.P.C. But, on careful
perusal of both Rule 44 and 45 of Assam Rifles Rule, the contention
made herein above by the petitioner goes against the petitioner as
nowhere in both Rule 44 and 45 of Assam Rifles Rule mentioned
about it.
[37] The learned counsel for the petitioner further submits that
the Courts below failed to appreciate the principle of natural justice by
stating that the allegation of a commission of offence is against the
Assam Rifles personnel, the Assam Rifles authorities are taking interest
in the case as can be evident from the contents of FIR. This contention
of the learned counsel for the petitioner cannot be taken as true as this
contention is a kind of apprehension only when the trial is ensued in the
Court of Assam Rifles and only when the petitioner came across the
violation of natural justice by the Assam Rifles Court only then the
petitioner can approach the Court again citing the violation.
[38] The learned counsel for the petitioner further submits that
the letter dated 26.11.2020 addressed to the Chief Judicial Magistrate
First Class, Moreh which was submitted before the same Court in
pursuance of the order dated 26.10.2020 is not an application
envisaged under Section 475 Cr.P.C. For convenient sake, the
contention of the letter is reproduced herein below:
Cril. Petn. No. 4 of 2022 Page 35
"Headquarter
26 Section Assam Rifles
P/S 932500
..... 26 Nov 2020
.......... 1012 OS(Op) 2020/2209
Chief Judicial Magistrate First Class
Moreh (Manipur)
PIN -7951....1
CONCURRENT JURISDICTION ASSAM RIFLES
1. Please refer Court Order dt. 26 October 2020 in the Court of
Judicial Magistrate First Class, Moreh on the Cril (P) Case
No. 10 of 2020.
2. You are requested to hand over to the Assam Rifles as per
provision of Section 102 and 103 of Assam Rifles Act 2006
read with Paragraph 227 of Assam Rifles Regulations, 2016
and Section 475 of the Criminal Procedure, 1973.
3. No. IC75891P Rank Maj Name Rajiv Kumar of 43 AR whose
specimen signature is appended below has been authorized
by the concerned authority to take over the case
documents.
4. For information and necessary action please.
(SPS Rautel)
Colonel
Officiating Deputy Inspector General
26 Sector Assam Rifles"
[39] On going through the above mentioned letter, it clearly
referred to about the order dated 26.10.2020 of the Ld. JMFC, Moreh,
and on further perusal of the order of the Ld. JMFC referred to above, it
clearly mentioned about the facts and circumstances of the case leading
to resorting to Section 475. As such, the allegation of an application is
not acceptable.
[40] Further, the learned counsel for the petitioner submits
that the order dated 02.12.2020 of Ld. JMFC, Moreh was passed
without assigning any reasons and cannot be said to be a speaking
order. But, on careful perusal of the order of Ld. JMFC, Moreh, the
Cril. Petn. No. 4 of 2022 Page 36
order was passed in continuation of the order dated 26.10.2020 and in
which order the Ld. JMFC passed the said order with due consideration
of the facts and circumstances of the case and relying upon the
relevant Acts and Rules of the Assam Rifles and provision of Cr.P.C. and
relying on the observations made by the Hon'ble Apex Court. In this
circumstance, the Ld. JMFC's order dated 02.12.2020 cannot be said to
without assigning any reason and cannot be that of a speaking order.
[41] On perusal of orders of Ld. JMFC, Moreh and Ld.
Additional Sessions Judge (FTC), this Court is of the view that both the
orders were passed after considering the facts and circumstances and
the relevant Rules and Acts of Assam Rifles and Cr.P.C. and also after
due consideration the Hon'ble Supreme Court's orders.
[42] Apart from the narration and observation made above,
after considering the facts and circumstances of the parties, this Court
relied upon the observations of the Hon'ble Supreme Court which are
reproduced hereunder:
S.K. Jha Commodre v. State of Kerala & Anr. [(2011) 15
SCC 492 : (2012) 4 SCC (Crl) 630 : 2011 SCC OnLine
151] -
"2. It is clear to us that the judgment of the High Court is in
conformity with the judgment of the Constitution Bench of this
Court in Som Dutta v. Union of India. The Constitution Bench
while construing Rule 3 of the Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules, 1952 read with Section 549
CrPC, 1898 (now Section 475 CrPC, 1973) held that the option
as to whether the accused be tried before the criminal court or
by a Court Martial could be exercised only after the police had
completed the investigation and submitted the charge-sheet
and that the provisions of the Rule could not be invoked in a
Cril. Petn. No. 4 of 2022 Page 37
case where the police had merely started an investigation
against a personnel subject to military, naval or air force law.
4. We see from the facts that the observations of the
Constitution Bench in Som Datt Dutta case apply fully to the
facts herein. The stage at which the option can be exercised by
the Commanding Officer (as to whether the accused should be
tried before a Court Martial or a criminal court) cannot be
examined at this stage as the investigation has not been
completed and a charge sheet has yet to be submitted."
In the case, the Ld. JMFC after application of mind of the
facts and circumstances of the case and after consideration of the
relevant Acts, Rules handed over the case after receiving the charge
sheet.
Som Datt Dutta v. Union of India & Ors. [1968 SCC
OnLine SC 73 : (1969) 2 SCR 177 : AIR 1969 SC 414 :
1969 Crl LJ 663 : (1969) 1 SCJ 835) -
"4. The first question to be considered in this case is
whether the Court Martial had jurisdiction to try and convict the
petitioner of the offences under Sections 304 and 149 of the
Indian Penal Code. It was contended by Mr. Dutta on behalf of
the petitioner that the Court Martial had not jurisdiction having
regard to the mandatory provisions contained in Section 125 of
the Army Act and having also regard to the fact that Maj.
Agarwal had, in the first instance, decided to hand over the
matter for investigations to the civil police. In order to test
whether this argument is valid it is necessary to scrutinize the
provisions of the Army Act in some detail. Section 2 of the Army
Act, 1950 (Act 46 of 1950), hereinafter called the "Army Act",
describes the different categories of army personnel who are
subject to the Army Act. Section 3(ii) defines a "civil offence" to
mean "an offence which is triable by a criminal court"; Section
3(vii) defines a "court martial" to mean "a Court Martial held
under this Act"; Section 3(viii) defines "criminal court" to mean
"a court of ordinary criminal justice in any part of India other
that the state of Jammu and Kashmir"; Section 3(xvii) defines
"offence" to mean "any act or omission punishable under this Act
and includes a civil offence"; and Section 3(xxv) declares that "all
words and expressions used but not defined in this Act and
defined in the Indian Penal Code shall be deemed to have the
meanings assigned to them in that code". Chapter VI is
comprised of Sections 34 to 70. The heading of the chapter is
"Offences". As we have already noticed, the word "offence" is
defined to mean not only any act or omission punishable under
the Army Act, but also a civil offence. Sections 34 to 68 define
Cril. Petn. No. 4 of 2022 Page 38
the offences against the Act triable by Court Martial and also
indicate the punishments for the said offences. Section 69 states
as follows:
"69. 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
follows:
(a) if the offence is one which would be
punishable under any law in force in India with
death or with transportation, he shall be liable to
suffer any punishment, other than whipping,
assigned for the offence, by the aforesaid law and
such less punishment as is in this Act mentioned;
and
(b) 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 in this Act mentioned."
Section 70 provides:
"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 homicidal 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.
Explanation- In this section and in Section 69, "India" does
not include the State of Jammu and Kashmir."
Shortly stated, under this Chapter there are three categories of
offences, namely, (1) offences committed by a person subject
to the Act triable by a Court Martial in respect whereof specific
punishments have been assigned; (2) civil offences committed
by the said person at any place in or beyond India, but deemed
to be offences committed under the Act and, if charged under
Section 69 of the Act, triable by a Court Martial; and (3)
offences of murder and culpable homicide not amounting to
Cril. Petn. No. 4 of 2022 Page 39
murder or rape committed by a person subject t6o the Act
against a person not subject to the military law. Subject to a
few exceptions, they are not triable by Court Martial, but are
triable only by ordinary criminal courts. The legal position
therefore is that when an offence is for the first time created by
the Army Act, such as those created by Sections 34, 35, 36, 37
etc. it would be exclusively triable by a Court Martial; but where
a civil offence is also an offence under the Act or deemed to be
an offence under the Act, both an ordinary Criminal Court as
well as a Court Martial would have jurisdiction to try the person
committing the offence. Such a situation is visualized and
provision is made for resolving the conflict under Sections 125
and 126 of the Army Act which state:
125. 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 officer decides that they should
be instituted before a Court Martial, to direct that the
accused person shall be detained in military custody.
126. (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."
Section 125 presupposes that in respect of an offence both a
Criminal Court as well as a Court Martial have each concurrent
jurisdiction. Such a situation can arise in a case of an act or
omission punishable both under the Army Act as well as under
any law in force in India. It may also arise in the case of an
offence deemed to be an offence under the Army Act. Under
the scheme of the two sections, in the first instance, it is left to
the discretion of the officer mentioned in Section 125 to decide
before which court the proceedings shall be instituted, and, if
the officer decides that they should be instituted before a Court
Cril. Petn. No. 4 of 2022 Page 40
Martial, the accused person is to be detained in military
custody; but if a Criminal Court is of opinion that the said
offence shall be tried before itself, it may issue the requisite
notice under Section 126 either to deliver over the offender to
the nearest Magistrate or to postpone the proceedings pending
a reference to the Central Government. On receipt of the said
court or refer the question of proper court for the examination
of the Central Government whose order shall be final. These
two sections of jurisdiction, having regard to the exigencies of
the situation in any particular case."
[43] In this regard, the learned counsel appearing for the
petitioner relied on the decision of the Hon'ble Supreme Court in Extra
Judicial Execution Victims Association [(2016) 14 SCC 536]. In
paragraph 246, the Hon'ble Supreme Court held that -
"246. The result of the interplay between Section 4 and
Section 5 Cr.P.C. and Sections 125 and 126 of the Army Act
makes it quite clear that the decision to try a person who has
committed an offence punishable under the Army Act and who
is subject to the prosecution of the Army Act does not always or
necessarily lie only with the Army - the criminal court under
CrPC could also try the alleged offence in certain circumstances
in accordance with the procedure laid down by CrPC."
[44] Mention is made here that the Section 102 and 103 of the
Assam Rifles Act and Section 125 and 126 of Army Act, are integra to
each other. In the instant case, the Ld. JMFC, Moreh does opt for
Section 103 i.e. Section 126 of Army Act, hence handed over the case
for the Assam Rifles Court for Court marital by resorting to Section 102
of the Assam Rifles Act i.e. Section 125 of Army Act as such, the above
mentioned paragraph of the Hon'ble Supreme Court does not have the
petitioner's case at all.
Cril. Petn. No. 4 of 2022 Page 41
[45] However, the same Court at paragraph No. 237 and 238
speaks against the petitioner herself and observation made therein is
extracted hereunder:
"237. The Constitution Bench in Som Datt Datta, AIR 1969 SC
414 then considered the provisions of Section 125 and Section
126 of the Army Act in this context. It was held that Section
125 presupposes that in respect of an offence both a criminal
court and a court martial have concurrent jurisdiction. Section
125 of the Army Act read with Section 126 thereof gives
discretion to the officer mentioned in Section 125 to decide
before which forum the proceedings shall be instituted. If it is
decided that the proceedings should be instituted before a
court martial then the accused is taken into military custody.
However, if the criminal court is of opinion that the offence
should be tried before itself then it must follow the procedure
laid down in Section 126 of the Army Act pending a reference
to the Central Government. It was held that these two sections
of the Army Act provide a satisfactory machinery to resolve a
conflict of jurisdiction, having regard to the exigencies of the
situation, in any particular case.
238. At this stage, it may be mentioned in the above context
that in Ram Sarup v. Union of India, AIR 1965 SC 247, a
Constitution Bench of this Court held that the exercise of
discretion by the competent authority under Sections 125 and
126 of the Army Act is not unguided and does not violate Article
14 of the Constitution."
The observation of the Hon'ble Supreme Court goes
against the petitioner.
[46] The learned counsel further relied on State of Sikkim V.
Jasbir Singh [(2022) 7 SCC 287] at paragraph 48 wherein the Hon'ble
Supreme Court on the interplay of the provisions under the Army Act
and CrPC at para 48 inter alia held that the language of Section 69 is a
clear indicator that it does not ipso jure oust the jurisdiction of ordinary
criminal court. Per contra, the Hon'ble Supreme Court in the same
judgment at para No. 16, 19, 20, 27, 33, 49 observed that -
Cril. Petn. No. 4 of 2022 Page 42
"16. Section 125 deals with a situation where both a criminal
court and a court martial have jurisdiction in respect of an
offence. In such a case, it is the discretion of the Commanding
Officer, of the unit where the accused person is serving to
decide before which court the proceeding shall be instituted,
and if that officer decides that the proceedings should be
instituted before a court martial, he may direct that the accused
be retained in military custody. Section Officer to decide
whether the accused should be tried by a court martial or by
the regular criminal court.
19. Section 475 CrPC has empowered the Central
Government to make rules consistent with CrPC and the Army
Act, the Navy Act, Armed Force Act, 1950 and any other law
relating to the Armed Forces of the Union, as regards the cases
in which persons subject to military, naval or air force law or
such other law, shall be tried by a court to which CrPC applies
or by a court martial. The first part of Section 475(1) recognizes
the rule making power of the Central Government. The latter
part of Section 475(1) contemplates an eventuality in which a
person is brought before a Magistrate and is charged with
offences for which that person is liable to be tried either by a
court to which CrPC applies or by a court martial. In such a
situation, the Magistrate is to have regard to the rules and shall
in proper cases deliver the person together with a statement of
the offences of which he is accused to the Commanding Officer
of the unit of the nearest military, naval or air force station, for
the purpose of being tried by a court martial.
20. In exercise of the powers which have been conferred by
Section 475 CrPC, the Central Government framed the Criminal
Courts and Court Martial (Adjustment of jurisdiction) Rules,
1952 which were superseded by the Criminal Courts and Court
Martial (Adjustment of Jurisdiction) Rules, 1978 and explained
under Rules 3, 4 and 5 of the same.
27. Hence in view of the Constitution Bench in Ram Sarup
v. Union of India, AR 1965 SC 247, there are a wide variety of
circumstances which may be relevant in deciding whether an
accused should be tried by a court martial or by an ordinary
criminal court. Due to this, the choice of making this decision is
entrusted to the military officer under whom the accused was
serving. The Court also noted that under Section 549 of the
Code of Criminal Procedure, 1898 (equivalent to Section 475
CrPC), the final choice about the forum of the trial of a person
accused of a "civil offence" rests with the Central Government,
whenever there is a difference of opinion between a criminal
court and the military authority.
33. In the above observation, the Court clarified that
Sections 125 and 126 have made provisions to avoid a conflict
of jurisdiction between ordinary criminal courts and a court
Cril. Petn. No. 4 of 2022 Page 43
martial in respect of an offence which could be tried by both
the criminal court and by a court martial. The court observed
that section 125 leaves the discretion, in the first instance, with
the competent officer and its only when he so exercises the
discretion and decides that the proceedings should be instituted
before a court martial that section 126 would come into
operation. If the Designated Officer does not exercise this
discretion to institute proceedings before a court martial, the
Army Act would not interdict the exercise of jurisdiction by the
ordinary criminal court...........
49. Moreover, Section 125 has a conjunctive requirement
which is amplified by the expression "and, if that officer decides
that they should be instituted before a court martial". Thus, the
conjunctive requirement under Section 125 is that the
competent officer has the discretion to decide before which
court the proceedings shall be instituted and if the officer
exercises that discretion to institute proceedings before a court
martial, then the officer will direct that the accused be detained
in military custody. Section 125, in other words, not only
recognizes that an element of discretion has been vested in the
Designated Officer, but is also postulates that the Designated
Officer should have decided that the proceedings be instituted
by the court martial in which event the court martial would take
place."
This observation of the Hon'ble Supreme Court goes
against the petitioner.
[47] Regarding the 3rd and 4th citations i.e. (2011) 8 SCC 38
[P.D. Dhinkaran v. Judges Enquiry] and (2002) 4 SCC 388 [Rupa
Ashok Hura v. Ashok Hura], the discussions made therein and
observation made by the Hon'ble Supreme Court are not at all
applicable in the present facts and circumstances of the case.
In this regard, reference is made to the discussion and
observation made at para No. 33.
Cril. Petn. No. 4 of 2022 Page 44
[48] Over and above, the Hon'ble Supreme Court in Criminal
Appeal No. 1456 and 1457 of 2015 dated 31.08.2023, 2023 LiveLaw
(SC) 731 : 2023 INC 779 [Abhishek v. State of Madhya Pradesh]
regarding the exercise of the extraordinary power under Article 226 of
the inherent powers under Section 482 of the Code by the High Court
observed at para No. 17 and the same is extracted herein below:
"17. In Bhajan Lal (supra), this Court had set out, by way of
illustration, the broad categories of cases in which the inherent
power under Section 482 Cr.P.C. could be exercised. Para 102
of the decision reads as follows:
'102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter
XIV and of the principles of law enunciated by this Court
in a series of decisions relating to the exercise of the
extraordinary power under Article 226 of the inherent
powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such
power could be exercised either to prevent abuse of the
process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelized and
inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein such
power should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even if they
are taken at their face value and accepted in
their entirely do not prima facie constitute any
offence or make out a case against the accused.
(2) Where the allegations in the first
information report and other materials, if any,
accompanying the FIR do not disclose a
cognizable offence, justifying an investigation by
police officers under Section 156(1) of the Code
except under an order of a Magistrate within the
purview of Section 155(2) of the Code.
Cril. Petn. No. 4 of 2022 Page 45
(3) Where the uncontroverted allegations
made in the FIR or complaint and the evidence
collected in support of the same do not disclose
the commission of any offence and make out a
case against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute
only a non-cognizable offence, no investigation is
permitted by a police officer without an order of
a Magistrate as contemplated under Section
155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever each a just conclusion that there
is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of the Code or
the Act concerned (under which a criminal
proceeding is instituted) to the institution and
continuance of the proceedings and/or where
there is a specific provision in the Code or the
Act concerned, providing efficacious redress for
the grievance of the aggrieved party.
(7) Where a criminal proceeding is
manifestly attended with malafide and/or where
the proceeding is maliciously instituted with an
ulterior for wreaking vengeance on the accused
and with a view to spite him due to private and
personal grudge."
[49] After going through the facts and circumstances of the
case in hand after due consideration to the discussion and observation
made above and in the line of the Hon'ble Supreme Court's observation
as extracted and discussed above, this Court is of the view that the
present case of the petitioner does not make out the case for which this
Court to exercise the inherent power under Section 482 of the Cr.P.C.
Cril. Petn. No. 4 of 2022 Page 46
[50] The learned counsel for the petitioner further submits that
as per Section 98 of the Assam Rifles Act, 2006, the period of limitation
for commencement and completion of trial by an Assam Rifles Court or
a Force Court is 3 years from the date of offence. As per the submission
made by the counsel for the Assam Rifles Authority, the date of
commencement of the offence that is 19.01.2020. And as such, the
period of 3 years had already lapsed by 19.01.2023. However, this
Hon'ble Court by its order dated 16.10.2023 has stayed the proceedings
of the Force Court and by such time the period of limitation of 3 years
had already been lapsed. Therefore, no purpose can be served in
transferring the present case to the Force Court for Court martial
proceedings, wherein the Force Court cannot exercise jurisdiction for
lapsed of time. However, on the contrary justice will be done and seen
to be done if the trial in the present case is done by the Court under
the Cr.P.C.
For convenient sake, Section 98 of the Assam Rifles Act is
reproduced herein below:
"98. Period of limitation for trial. -
(1) Except as provided by sub-section 92), no trial by an Assam
Rifles Court of any person subject to this Act for any offence
shall be commenced after the expiration of a period of three
years and such period shall commence -
(a) on the date of the offence; or
(b) where the commission of the offence was not
known to the person aggrieved by the offence or
the authority competent to initiate action, from
the first day on which such offence comes to the
Cril. Petn. No. 4 of 2022 Page 47
knowledge of such person or authority,
whichever is earlier; or
(c) where it is not known by whom the offence was
committed, from the first day on which the
identity of the offender is known to the person
aggrieved by the offence or to the authority
competent to initiate action, whichever is earlier.
Provided that in computing any period under this
Section, the period during which the proceedings
of investigation has been stayed by any court in
such offence by injunction or order, the day on
which it was issued or made; and the day on
which it was withdrawn, shall be excluded.
(2) The provisions of sub-section (1) shall not apply to a trial
for an offence of desertion or for any of the offences mentioned
in section 24 or an offence under Section 30.
(3) In computation of the period of three years under sub-
section (1), any time spent by such person in evading arrest
after the commission of the offence, shall be excluded."
Section 89 of the Assam Rifles Act is with regard to
commence of the trial and not for the conclusion of the trial. It is to
mention that the Ld. JMFC, Moreh handed over the trial of the case to
Assam Rifles Court on 02.12.2020. In the instant case, the proviso to
Section 1 is applicable. This Court vide order dated 16.10.2023 stayed
the proceeding till 30.10.2023 and thereafter, the interim order was
extended from time to time as such, the bar on limitation period is not
called for.
[51] It is further submitted by the learned counsel appearing
for the petitioner that in a defamation suit instituted by the petitioner
against the two officers of Assam Rifles arising out of the same
incident, the Assam Rifles authority before this Hon'ble Court in CRP
(CRP Article 227) No. 46 of 2021 categorically admitted that the acts of
Cril. Petn. No. 4 of 2022 Page 48
the two Officers Assam Rifles were done in their official capacity. It
further states that Assam Rifles Authority would not shy away from
owning or taking up responsibility. The same is recorded in the order
dated 06.05.2022 in CRP(CRP Article 227) No. 46 of 2021 which is part
of the record and Annexure - P9 in the rejoinder affidavit dated
11.11.20-22 filed by the petitioner before this Hon'ble Court.
[52] It is further submitted by the learned counsel appearing
for the petitioner that as the Assam Rifles Authority or the entire
establishment of the Assam Rifles Authority is litigating/suiting against
the petitioner. Thus, any proceedings before the Assam Rifles Authority
against the petitioner cannot be said to be free from bias. The principle
of fairness is paramount for all courts and judicial forums including the
proceedings of the Court Martial under the Assam Rifles Act, 2006. The
importance of the principle of natural justice in the adjudication of
justice is held in the catena of cases. The Supreme Court of India in
P.D. Dinakaran v. Judges Enquiry [(2011) 8 SCC 38] at para No. 50
held that it is of course, clear that any direct pecuniary or proprietary
interest in the subject matter of proceedings, however small, operates
as an automatic disqualification. In such a case the law assumes bias.
In Rupa Ashok Hura v. Ashok Hura [(2002) 4 SCC 388] the Hon'ble
Supreme Court of India creating a curative jurisdiction in para 49 held
that to prevent abuse of process and to cure a gross miscarriage of a
justice may consider its judgment in exercise of its power. Grounds for
invoking the jurisdiction of a curative petition are laid down as para 51
Cril. Petn. No. 4 of 2022 Page 49
of the said judgment wherein a violation of the principle of natural
justice is the criteria or grounds for invoking the jurisdiction of a
curative portion. In the present case, as the Assam Rifle authorities is
actively litigating against the petitioner it can be safely assumed that
the entire establishment of the Assam Rifles are suiting against the
petitioner. A person or authority or the Tribunal established and
manned by the Assam Rifles officials cannot be said to be free from
bias. The Assam Rifles authorities cannot be a judge in a proceeding
against the petitioner when it is a contesting respondent in the above
Criminal Case, CRP (CRP Art. 227) No. 46 of 2021 before this Hon'ble
Court and in OS No. 32 of 2021 in the Court of Civil Judge, Senior
Division, Imphal East.
1. Justice P.D. Dinakaran vs. Hon'ble Judges Inquiry
Committee and Ors., (2011) 8 SCC 380
32. The traditional English Law recognised the following
two principles of natural justice:
(a) "Nemo debet esse judex in propria causa: No man
shall be a judge in his own cause, or no man can
act as both at the one and the same time - a party
or a suitor and also as a judge, or the deciding
authority must be impartial and without bias; and
(b) Audi alteram partem: Hear the other side, or both
the sides must be heard, or no man should be
condemned unheard, or that there must be
fairness on the part of the deciding authority.
However, over the years, the Courts through out the world
have discovered new facets of the rules of natural justice
and applied them to judicial, quasijudicial and even
administrative actions/decisions. At the same time, the
Courts have repeatedly emphasized that the rules of
natural justice are flexible and their application depends
upon the facts of a given case and the statutory provisions,
if any, applicable, nature of the right which may be
Cril. Petn. No. 4 of 2022 Page 50
affected and the consequences which may follow due to
violation of the rules of natural justice.
33. In Russel v. Duke of Norfolk (1949) 1 All ER 108,
Tucker, L.J. observed: (All ER p. 118 D-E)
"..................There are, in my view, no words which
are of universal application to every kind of inquiry
and every kind of domestic tribunal. The
requirements of natural justice must depend on the
circumstances of the case, the nature of the inquiry,
the rules under which the tribunal is acting, the
subject-matter that is being dealt with, and so forth."
35. In Union of India v. P.K. Roy, AIR 1968 SC 850,
Ramaswami, J. observed: (AIR p. 858, para 11)
"11. .........the extent and application of the doctrine
of natural justice cannot be imprisoned within the
strait-jacket of a rigid formula. The application of the
doctrine depends upon the nature of the jurisdiction
conferred on the administrative authority, upon the
character of the rights of the persons affected, the
scheme and policy of the statute and other relevant
circumstances disclosed in the particular case."
36. In Suresh Koshy George v. University of Kerala, AIR
1969 SC 198, K.S. Hegde, J. observed: (AIR p.201, para 7)
"7. .......The rules of natural justice are not embodied rules.
The question whether the requirements of natural justice
have been met by the procedure adopted in a given case
must depend to a great extent on the facts and
circumstances of the case in point, the constitution of the
Tribunal and the rules under which it functions."
2. Rupa Ashok Hura vs. Ashok Hura and Ors., (2002) 4
SCC 388
This matter is regarding the issue of whether a writ petition
under Article 32 of the Constitution can be maintained to
question the validity of a judgment of this Court after the
petition for review of the said judgment has been
dismissed. It is a matrimonial dispute between the parties.
It was held that the Supreme Court after review can
reconsider a judgment on the ground that it is vitiated
being in violation of principles of natural justice or scope
for apprehension of bias due to a judge or on account of
abuse of the process of the court.
45. In Antulay's case (supra), (1988) 2 SCC 602, the
majority in the seven-Judge Bench of this Court set aside
an earlier judgment of the Constitution Bench in a collateral
Cril. Petn. No. 4 of 2022 Page 51
proceeding on the view that the order was contrary to the
provisions of the Act of 1952; in the background of that Act
without precedent and in violation of the principles of
natural justice, which needed to be corrected ex debito
justitiae.
51. Nevertheless, we think that a petitioner is entitled to
relief ex debito justitiae if he establishes (1) violation of
principles of natural justice in that he was not a party to
the lis but the judgment adversely affected his interests or,
if he was a party to the lis, he was not served with notice
of the proceedings and the matter proceeded as if he had
notice and(2) where in the proceedings a learned Judge
failed to disclose his connection with the subject-matter or
the parties giving scope for an apprehension of bias and
the judgment adversely affects the petitioner.
[53] It is to mention that as discussed and narrated above and
observation of this Court, this Court is of the view that the submission
made above by the learned counsel for the petitioner does not help the
case of the petitioner at all to get the relief sought for and the
citations/judgments relief upon hereinabove by the learned counsel
appearing for the petitioner instead of supporting her case goes against
the case of the petitioner.
[54] In addition to the discussion and observation made above,
the submissions made by the learned counsel appearing for the
respondents No. 2 & 3 are reasonable and supports the facts and
circumstances of the case and citations relied upon by both the learned
counsels in support of their cases are applicable in the present case.
[55] Given the totality of the facts and circumstances, this
Court is of the view that the Deputy Inspector General, 26 Sector
Assam Rifles duly exercised his discretion under Section 102 of the
Cril. Petn. No. 4 of 2022 Page 52
Assam Rifles Act, 2006 and filed petition before the Ld. JMFC, Moreh
under Section 475 Cr.P.C. read with Section 102 of the Act requesting
for handing the trial of the present FIR case before the Assam Rifle
Court.
[56] And, the Ld. JMFC, Moreh duly applied his mind and
passed the impugned order dated 02.12.2020 after considering facts
and circumstances of the case and provisions of applicable laws and
thereafter, passed the transfer order after receiving the charge sheet
filed by the prosecution and after giving due notice to the parties of the
case in accordance with the Hon'ble Supreme Court's judgment and
accordingly, handed over the case for trial before the Assam Rifle Court
to the duly authorized officer.
[57] Considering the facts and circumstances of the case and
the provision of law as laid down in the Acts and Rules and laws laid
down by the Hon'ble Supreme Court, the orders passed by the Ld.
JMFC, Moreh and Addl. Sessions Judge (FTC), Manipur West passed the
impugned order 02.12.2020 and 31.01.2022 by strict compliance with
provision of law and law laid down by the Hon'ble Supreme Court.
As narrated and discussed above regarding the limitation
of transferring the case for trial to the Assam Rifle Court, nothing more
is to be discussed as there is no bar in transferring the case to the
Assam Rifle Court.
Cril. Petn. No. 4 of 2022 Page 53
[58] With the above observation, the present petition filed by
the petitioner is dismissed and the impugned orders 02.12.2020 and
31.01.2022 passed by the Ld. JMFC, Moreh and Ld. Additional Sessions
Judge (FTC), Manipur West are hereby upheld.
JUDGE
FR/NFR
Lucy/Bipin
Cril. Petn. No. 4 of 2022 Page 54
