[Cites 5, Cited by 0]
Uttarakhand High Court
Unknown vs State Of Uttarakhand And Others on 11 February, 2026
2026:UHC:863
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc Application No. 163 of 2025
11th February, 2026
Suraj Chandra Joshi ..........Applicant
Versus
State Of Uttarakhand and Others .......Respondents
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Presence:-
Mr. Deep Prakash Bhatt, learned counsel for the applicant.
Mr. Deepak Bisht, learned Deputy A.G. along with Prabhat Kandpal and
Mr. Rakesh Negi, learned Brief Holders for the State.
Mr. Lalit Sharma, learned Deputy S.G. for the State.
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Hon'ble Mr. Alok Mahra, J. (Oral)
This C-528 application has been preferred by
the applicant invoking inherent jurisdiction for
quashing of the charge-sheet, the impugned
summoning/cognizance order dated 09.12.2024 passed
in Criminal Case No. 1210 of 2024 by the learned
Additional Chief Judicial Magistrate, Khatima, District
Udham Singh Nagar under Section 317(2) of the
Bharatiya Nyaya Sanhita, 2023 (B.N.S.), as well as the
entire criminal proceedings arising out of F.I.R. No. 334
of 2024, Police Station Khatima. A further direction has
been sought for expeditious disposal of Release
Application No. 16 of 2025 relating to personal articles
of the applicant.
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2. The prosecution case, in brief, is that on
04.10.2024 information was received from 237
Engineer Regiment (Assam) that Sepoy Suraj Chandra
Joshi had allegedly taken away one INSAS Rifle No.
47532656 with 60 rounds of ammunition. An F.I.R. No.
43 of 2024 was registered at Police Station Borpother,
Assam under Sections 303(2)/306 B.N.S. and Section
25(1-AA) of the Arms Act. On receipt of further
information that the applicant was present in Khatima
(District Udham Singh Nagar), search operations were
conducted and from Room No. 201 of Utsav Hotel, one
INSAS rifle with magazines and ammunition was
recovered. Consequently, F.I.R. No. 334 of 2024 under
Section 317(2) B.N.S. was lodged at Police Station
Khatima. It is not disputed that in F.I.R. No. 43 of 2024
(Assam), after investigation charge-sheet was submitted
and the learned Sub-Divisional Magistrate, Bokajan,
District Karbi Anglong, Assam acquitted the present
applicant on merits.
3. Learned counsel for the applicant would
submit that the weapon was issued to the applicant in
discharge of official duties and was not "stolen
property"; that, the second F.I.R. (No. 334 of 2024) is
based on the same occurrence and identical set of facts
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as F.I.R. No. 43 of 2024, and thus amounts to
impermissible second prosecution; that, that the
applicant having been acquitted by a competent
criminal court, continuation of proceedings would
violate the doctrine of double jeopardy, Section 337 of
the Bharatiya Nagarik Suraksha Sanhita (BNSS),
Section 26 of the General Clauses Act, 1897; that in
view of Section 125 of the Army Act, 1950, the matter
falls within the discretion of the military authorities.
Reliance has been placed upon the judgment of the
Hon'ble Supreme Court in General Officer Commanding
v. CBI, wherein it was held that the stage for exercising
discretion under Section 125 of the Army Act arises
after filing of charge-sheet and before taking cognizance
or framing of charges. It is further submitted that
disciplinary proceedings/court-martial have already
been initiated by the Commanding Officer, 237
Engineer Regiment, and therefore criminal proceedings
ought to yield to military jurisdiction.
4. Learned counsel for respondent no. 3, on
instructions from the Commanding Officer, has
submitted that the Army intends to initiate/continue
effectual proceedings by way of court-martial under the
Army Act and Rules. Learned Deputy Solicitor General,
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on instructions, has prayed that the seized weapon,
ammunition, magazines and identity card, being
Government property issued for official duty, may be
released in favour of the representative of the Indian
Army.
5. Heard learned counsel for the parties and
perused the material available on record.
6. On Maintainability of Second F.I.R., from the
record, it is evident that both F.I.R. No. 43 of 2024
(Assam) and F.I.R. No. 334 of 2024 (Khatima) arise out
of the same transaction, namely alleged unauthorized
removal and possession of INSAS rifle and ammunition
by the applicant on 04.10.2024. It is well settled that
registration of a second F.I.R. on the same cause of
action and same set of facts is impermissible, once
investigation culminated in charge-sheet and trial
resulting in acquittal, the substratum of the allegation
that the property was "stolen" stands judicially
determined. In the absence of proof that the property
was stolen, the foundational fact necessary for
prosecution under Section 317(2) B.N.S. cannot
survive. The recovery from possession of the applicant,
without independent proof of theft, is insufficient.
7. The acquittal rendered by the competent
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criminal court at Assam remains in force and has not
been set aside. Thus, continuation of the present
proceedings would offend the constitutional protection
against double jeopardy embodied under Article 20(2) of
the Constitution of India and statutory protection
under Section 337 BNSS. On Jurisdiction under the
Army Act, Section 125 of the Army Act, 1950 provides
discretion to the competent military authority to decide
whether proceedings should be instituted before a
criminal court or court-martial.
8. In General Officer Commanding v. CBI, the
Hon'ble Supreme Court clarified that such option is to
be exercised at the stage after filing of charge-sheet and
before cognizance/framing of charge. In the present
case the Army authorities have expressed their
intention to proceed departmentally/court-martial. The
alleged act arose during the applicant's service tenure.
The seized articles are Government-issued military
equipment. In such circumstances, and particularly
when earlier criminal prosecution has culminated in
acquittal, it would be appropriate to permit military
authorities to proceed in accordance with Army Act and
Rules.
9. It is submitted that the following seized
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articles are undisputedly Government property of the
Government of India, issued to the concerned
personnel for official duty. The particulars thereof are
tabulated below for ready reference:
Sl.No. Description of Seized Unit Qty
Articles
Number-187 and
Registration Number
17532656
Rifle (Ammunition lot
No.OFV 17)
322319
10. In view of the fact that the criminal
proceedings stand quashed, no useful purpose would
be served by retaining the aforesaid Government-issued
articles in judicial custody. The same are liable to be
released to the competent authority in accordance with
law.
11. In view of the aforesaid findings the C-528
application is allowed. The charge-sheet,
summoning/cognizance order dated 09.12.2024 passed
in Criminal Case No. 1210 of 2024 by the learned
ACJM, Khatima, and the entire proceedings arising out
of F.I.R. No. 334 of 2024, Police Station Khatima,
District Udham Singh Nagar are hereby quashed. It
shall be open to the competent military authority to
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proceed against the applicant in accordance with the
provisions of the Army Act, 1950 and Rules framed
thereunder.
12. The concerned Trial Court is directed to
release the aforesaid seized articles forthwith in favour
of the authorized representative of 237 Engineer
Regiment/Indian Army, upon proper identification and
due verification, subject to an appropriate application
being moved by the competent military authorities in
accordance with law.
13. Pending applications, if any, stand disposed
of.
(ALOK MAHRA, J.)
11.02.2025
Mamta
