# JOGINDER SINGH v. STATE OF HIMACHAL PRADESH

- **Citation:** [1971] 2 S.C.R. 857
- **Court:** Supreme Court of India
- **Decided:** 1970-11-30
- **Case number:** Criminal Appeal No. 34 of 1969
- **Bench:** J. M. Shelat, C. A. Va!D!Al!Ngam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/joginder-singh-v-state-of-himachal-pradesh-5131
- **Pages:** 14

## Headnote

857
Army Act, 1950, .u. 70, 125 & 126(1)-Criminal Cburt and Court•
Martial (Adjustment of Jurisdiction) Rules 1952, r. 4-Army man·
charged 1vith rape-Concurrent jurisdiction of Court Mt+-rtial and Criminal
Court-Offender handed orer b,v military authorities to Civil Authorities
-Tried and convicted hy Assistant Sessions Judge-Trial is legal and
ra/itl-When c/i.1cretion under s. 125 to hold Court Martial Is not exercised by n1ilitar;v authorities and offender i') handed oVer to Civil authorities provision• of s. 126(1) and r. 4 are not attracted.
The appellant was a Lance Naik in a military regiment.
He was
appointed as Granthi of a temple used by military personnel.
While
working as such he was charged with an offence under s. 376 of the
Indian Penal Code.. The police officer investigating offence held an identification parade with the permission of the military authorities and thereafter the appellant was handed over to the civil authorities to stand his
trial.
The Assistant Sessions Judge convicted him.
The Sessions Judge
dismissed his appeal.
The appellant then filed a criminal revision in the
High Court where it was contended on his behalf that according to notification dated November 28, 1962 issued by the Ministry of Defence,
Government of India, the appellant mllst be considered to have been oo
active service on the material date and consequently the appellants' trial
should have been before a court martial.
It was further urged that it
the Assistant Sessions Judge decided to proceed with the trial it was
obligatory on him to have given notices to the Commanding Officer of
the Army under s. 126(1) of the Army Act read with 'r. 4, and since
these provisions had not been complied with the appellant's trial and conviction were null and void. The High Court dismissed the revision l)eti-
:ion.
With certificate the appellant appealed to this Court.
HELD : Since the appellant was alleged to have committed rape in
relation to a pefson who was not subject to military, naval or air law,
under s. 70 of the Army Act he would be normally triable by the ordinary criminal court but by virtue of notification dated November 28,
1962 he must be deemed to have been on active service on the material
date.
Therefore. this was a case where both the court martial and the
ordinary criminal court had concurrent jurisdiction to try the appellant.
[863 H]
The provisions of the Army Act and the decisions of this Court make
it clear that in respect of an offence whicl1 could be fried both by a
criminal court as well as a court martial, ss. 125, 126 and the rules
have made suitable provisions to avoid a conflict of jurisdiction between
the ordinary criminal court and the court martial.
But it is to be not~d
that in the first instance the discretion is left to the officer mentloned m
s. 125 to decide before which court the proceedings should be instituted ..
Hence the officer commaoding the army, army corps. division or independent brigade io which the ac.cused person is ~ervill!l, o~ su~h other
officer as may be prescribed, will hav.e to exer_Cise hIS
d1Scr~t1on and
decide under s. 125 in which court the proceedmgs shall be mstituted.
858
SUPREME COURT REPORTS
[l 971 J 2 S.C.R.
It is only when he has so exercises his discretion and. decides that the
proceedings should be instituted before the court martial that the provisions of s. 126 ( 1) come into operation. If the designated officer does
not exercise his discretion and decide that the proceedings should be
instituted before a court martial the Army Act would not b~ in the way
.of criminal court exercising its ofllinary jurisdiction in the manner pro~
vided by law. [865 H-866 CJ
In the present case surrender of the accused by the military authorities
.to the civil authorities to be dealt with the latter, after being made aware
of the nature of the offence alleged against the appellant was clear indicati0n that the decision of the military authorities was that the appellant
need not be tried by a

## Text

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JOGINDER SINGH
v.
STATE OF HIMACHAL PRADESH
November 30, 1970
[J. M. SHELAT AND C. A. VA!D!AL!NGAM, JJ.]
857
Army Act, 1950, .u. 70, 125 & 126(1)-Criminal Cburt and Court•
Martial (Adjustment of Jurisdiction) Rules 1952, r. 4-Army man·
charged 1vith rape-Concurrent jurisdiction of Court Mt+-rtial and Criminal
Court-Offender handed orer b,v military authorities to Civil Authorities
-Tried and convicted hy Assistant Sessions Judge-Trial is legal and
ra/itl-When c/i.1cretion under s. 125 to hold Court Martial Is not exercised by n1ilitar;v authorities and offender i') handed oVer to Civil authorities provision• of s. 126(1) and r. 4 are not attracted.
The appellant was a Lance Naik in a military regiment.
He was
appointed as Granthi of a temple used by military personnel.
While
working as such he was charged with an offence under s. 376 of the
Indian Penal Code.. The police officer investigating offence held an identification parade with the permission of the military authorities and thereafter the appellant was handed over to the civil authorities to stand his
trial.
The Assistant Sessions Judge convicted him.
The Sessions Judge
dismissed his appeal.
The appellant then filed a criminal revision in the
High Court where it was contended on his behalf that according to notification dated November 28, 1962 issued by the Ministry of Defence,
Government of India, the appellant mllst be considered to have been oo
active service on the material date and consequently the appellants' trial
should have been before a court martial.
It was further urged that it
the Assistant Sessions Judge decided to proceed with the trial it was
obligatory on him to have given notices to the Commanding Officer of
the Army under s. 126(1) of the Army Act read with 'r. 4, and since
these provisions had not been complied with the appellant's trial and conviction were null and void. The High Court dismissed the revision l)eti-
:ion.
With certificate the appellant appealed to this Court.
HELD : Since the appellant was alleged to have committed rape in
relation to a pefson who was not subject to military, naval or air law,
under s. 70 of the Army Act he would be normally triable by the ordinary criminal court but by virtue of notification dated November 28,
1962 he must be deemed to have been on active service on the material
date.
Therefore. this was a case where both the court martial and the
ordinary criminal court had concurrent jurisdiction to try the appellant.
[863 H]
The provisions of the Army Act and the decisions of this Court make
it clear that in respect of an offence whicl1 could be fried both by a
criminal court as well as a court martial, ss. 125, 126 and the rules
have made suitable provisions to avoid a conflict of jurisdiction between
the ordinary criminal court and the court martial.
But it is to be not~d
that in the first instance the discretion is left to the officer mentloned m
s. 125 to decide before which court the proceedings should be instituted ..
Hence the officer commaoding the army, army corps. division or independent brigade io which the ac.cused person is ~ervill!l, o~ su~h other
officer as may be prescribed, will hav.e to exer_Cise hIS
d1Scr~t1on and
decide under s. 125 in which court the proceedmgs shall be mstituted.
858
SUPREME COURT REPORTS
[l 971 J 2 S.C.R.
It is only when he has so exercises his discretion and. decides that the
proceedings should be instituted before the court martial that the provisions of s. 126 ( 1) come into operation. If the designated officer does
not exercise his discretion and decide that the proceedings should be
instituted before a court martial the Army Act would not b~ in the way
.of criminal court exercising its ofllinary jurisdiction in the manner pro~
vided by law. [865 H-866 CJ
In the present case surrender of the accused by the military authorities
.to the civil authorities to be dealt with the latter, after being made aware
of the nature of the offence alleged against the appellant was clear indicati0n that the decision of the military authorities was that the appellant
need not be tried by a court martial and that his trial could take place.
before the criminal court.
U oder these circumstances there was no occa·
sion to follow the procedure under s. 126 or r. 4 as the military authorities had made abundantly clear that the appellant need not be tried by
the court martial.
That being so it would have been alto~ther superfluous for the magistrate to give notice as required by the srud pl:oviaions.
(870 A-DJ
The High Court was therefore right in holding that there had been
substantial compliance with the provisions of the Act and the rules and
hence the trial of the appellant and his conviction by the Assistant Sessions
Judge were valid and legal. [870 D-E]
Som Datt Dalla v. Union of India, [1969] 2 S.C.R. 177, Major E. G.
Barsay v. S,•"te of Bombay, [19621 2 S.C.R. 195 and Ram Sarup v. Union
of India, [1964] 5 S.C.R. 931, applied.
In re Captain Hugh May Stollcry Mund,v & Anr. A.LR .. 1945 Mad.
289, In re Major F. K. Mistry, 1949 2 M.L.J. 44, C. Ramanuian v. State
.of Mysore, A.I.It. 1962 Mys. 196, Major Gopinathan v. Store of M~dh,va
Pradesh, A.LR. 1963 M.P. 249, Awc;dh Behari Singh v. State, A.l.R.
1967 Calcutta 323 and Ajit Singh v. State of Punjab, A.l.R. 1970 Punjab
& Haryana 351, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
34 of 1969.
Appeal from the judgment and order dated July 26, 1968 and
September 27, 1968 o.f the Delhi High Court, Himachal Bench at
Simla ih Cr. Revision No. 26 of 1968.
R. L. Kohli, for the appellant.
V. C. Mahajan and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by
Vaidialingam J. In this appeal, on certificate issued by the
Delhi High Court, the appellant who is governed by the Anny Act,
1950 (hereinafter referred to as the Act) challenges the legality
of his trial and conviction for an offence under s. 376 l.P.C. by
the Assistant Sessions Judge, Nahan.
The main attack levelled against the proceedings is that the
material provisions of the Army Act read with the Criminal Courts
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JOGINDER v. HIMACHAL PRADESH (Vaidialingam, J.)
859
and Court-Martial \Adjustment of Jurisdiction) Rules, 1952 (hereinafter referred to a the Rules) framed by the Central Government
under s. 549 (1)
r. P.C. have not been complied with by the
Assistant Sessions
Judge.
The prosecution case is briefly as
follows:
The appellant was a military personnel attached to Punjab
Regiment No. 24, which moved to Nahen on March 3, 1967. The
appellant was a l ance Naik and was appointed as a temporary
Gfanthi of the Kaccha-Johar temple used by the military personnel. One Jiwa Nand with his wife and children was living close
by the temple.
On March 8, 1967 at about 8.30 a.m. Gayatri
Devi aged about 10 years and daughter of Jiwa Nand was called
by the appellant and when she came near him she was taken inside
the adjoining room where the appellant had forcible sexu11! inter·
course with her. The victim narrated the occurrence to her mother
and sist~r. When Gayatri Devi, her mother and certain others
were proceeding towards the Cantonment to complain to the
military authorities, they met 4 or 5 sikh gentlemen and Gayatri
Devi pointed out the appellant in that group as the one who .had
misbehaved with her.
The Sikh gentlemen, who were in military
uniform declined to permit Gayatri Devi and others to go inside
the Cantonment area on the ground that the entry into the same
was prohibited to non-military personnel. Later on the father of
Gayatri Devi took her to the police station and lodged a report Ex.
12/ A.
The accused pleaded alibi aind denied ili,: offence.
He
also let in defence evidence. The learned Assistant Sessions Judge
accepted the prosecution case and disbelieving the plea of the
appellant convicted him of the offence under s. 376 I.P.C. and
sentenced him to three years rigorous imprisonment. The appeal
filed by the appellant was dismissed by the learned Sessions Judge,
whc confirmed the conviction and sentence.
The appellant filed a criminal revision No. 26 of 1968 before
the Delhi High Court, challenging his conviction and sentence
passed by the learned Assistant Sessions Judge and as confirmed
by the learned Sessions Judge. The learned Chief Justice before
whom the criminal re~ision came for hearing held that the conviction of the appellant for the offence under s. 376 I.P.C. and
the sentence imposed on him by the two subordinate courts on
facts were justified and did not require anv interference. However, a plea was taker;i before the learned Chief Justice on behalf
of the appellant that according to a notification issued by the
Ministry of Defence, Government of India dated November 28.
1962, the appellant on the material date must be considered to
have been on active service.
Based on this notification it was
further urge:! that the appellant's trial should have been before a
Court Martial and that if the Assistant Sessions Judge decided to
860
SUPREME COURT REPORTS
[1971] 2 S.C.R.
proceed with the trial, he should have given the required notice to · A
the Commanding Officer of the Army as is mandatory under s.
J 26(1) of the Act read with r. 4.
As those provisions have not
been coh1plied with, the appellant's trial and convicnion were illegal
and null and void.
The learned Chief Justice was, however, inclined to take the view that the omission by the Assistant Sessions
Judge to follow the procedure indicated above does not affect his
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jurisdic1lion to conduct the trial.
In view of certain decisions of the High Courts wherein an
opinion has been expressed that non-compliance with the provisions of the Act and the Rules vitiates the trial of a military personnel by the criminal courts, the learned Chief Justice referred
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the matter, by his order dated June 25, 1968, to a F·11l Bench.
The Full Benell which consisted of the learned Chief Justice Kapoor
and Tatachari, JJ. heard the criminal revision case. The learned
Chief Justice and Tatachari, J. after a very elaborate reference to
the material provisions of the Act and the relevant Rules held that
the magistrates, before conducting a trial of a military personnel
have to normally, conform to the relevant provisions of the Act
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and the Rules. But they held that in respect of offences for the
trial of which both the Court Martial and an ordinary Criminal
Court had concurrent jurisdiction, the mere omission by a magistrate, before conducting the trial, to issue the necessary notice
under r. 4 will not vitiate the proceedings as oeing illegal. Kapoor,
J., on the other hand, disagreed with the majority opinion and held
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that under the Act read with the Rules, the first option to try a
military personnel lies with the Army authorities and they have
to decide the forum of the trial and that the magistrate will get
jurisdiction only after a decision in his favour by the Central Government in case of a conflict between the army authorities and the
Magistrate.
The learned Judge further held that a magistrate
cannot assume jurisdiction straightaway withot1~ providing an opF
portunity to the military authorities to decide the forum.
The
iearned Judge accordingly held that the observance of the Rules is
obligatory and non-observance thereof makes the trial illegal. In
accordance with the majority judgment, the High Court by its
order dated July 26, 1968 held that non-observance of rr. 3 and
4 of the Rules does not by itself deprive the magistrate of his inG
herent jurisdiction or make the proceedings conducted by hin1
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null and void.
The High Court further held that the effect of
the violation is to be dtermined on the facts and circumstances of
each case keeping in view the nature of the violation and au other
relevant factors.
After expressing opinio11 on the lega1 aspects,
the case was remitted to the Single Judge for final disposaL
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The matter came again before the learned Chief Justice, who
by his order dated September 27, 1968 held that the trial by the
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JOGINDER v. HIMACHAL PRADESH (Vaiilialingam, J.)
861
Assistant Sessions Judge without confonning to the provisions of
r. 4 has not caused any failure of ju5tice to the appellant in this
<:ase.
The learned Chief Justice further held that in view of cerQlin circwnstances it is legitimate to infer that there has been
substantial compliance with the statutory provisions. Finally the
learned Chief Justice held that the conviction of the appellant
was proper and dismissed the revision filed by the appellant.
M1. Kohli, learned counsel for the appellan~ has reiterated
the same objections taken on behalf of the appellant before the
Delhi High Court. According to Mr. Kohli, the offence in this
case being one which could be tried, both by the Court MartiBl
and the ordinary Criminal Court, it was for tlhe competent officer
to decide, in the first instance, whether the appellant is to be tried
by-a Court Martial.. If the criminal court was of the opinion that
the proceedings should be instituted before itself in respect of the
offence alleged, it should have followed the mandatory prOvisions
contained in s. 126 of the Act read with rr. 3 and 4.
Under s. 549(1) Cr. P.C. the magistrate was bound to have
regard to the rules. In this case inasmuch as the said procedure
had not been followed and the appellant accused was tried straightaway by the criminal court, the trial is illegal and void. Being
a question of jurisdiction the objection raised by the appellant
before the High Court goes to the root of the matter and vitiates
the enilie proceedings.
Mr. V. C. Mahajan, learned counsel for the State, on the other
hand, urged two contentions : (i) as held by the High Court there
has been a substantial compliance with the provisions of the Act
and the Rules in this particular case and hence the trial by the
Assistant Sessions J udgs! is legal and valid, and (ii) even assuming
that there has been a breach of the rules, such a violation is at the
most only an irregularity and not on illegalit;y, and as no prejudice
has been shown to have been caused to the accused by such an
irregular proceeding held by the Assistant Sessions Judge, the
conviction .,is legal.
At the outset we may state that the question regarding the
competency of the criminal court to try thd appellant does not
appear to have been raised before the learned Assistant Sessions
Judg::.
It is no doubt seen, that the learned Assistant Sessions
Judge, appears to have made enquiries from the counsel appearing
for the appellant and the State regarding the position of 1!hC appet.
!ant who was in military employ. The public prosecutor drew the
attention of the Court to s. 70 of the Act and appears 1D have
pointed out that as the Punjab Regiment No. 24 to which the appellant was attached was not 'on_ active service', the appellant
could be tried by the ordinary criminal court.
862
SUPREME COURT REPORTS
tl971] 2 S.C.R.
On . behalf of the appellant it was urged that in view of the
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declaration of Emergency, the appellant must be deemed to be 'on
acti~e service'. But fuis contention was not accepted by the Court.
Nahan station where the Punjab Regfment was then stationed
being a rest station, the court proceeded with the trial reserving
liberty to the counsel for bot.h the parties to raise any further point
before the close of the trial to. establi,sh that the appellant must be
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eonsidered to be 'on active service'. Obviously neither party cared
to place any material before the Court amd the trial was proceeded
' with resulting in the conviction of the appellant.
MF. Kohli, learned .counsel for §e appellant, has .drawn oμr
attention to certain decisions of the High Courts in support of his
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contention that a trial beld by a magistrate without conforming to
the provisions of the Act and the R:ule.s is illegal and not a· mere
irregularity.
Those decisions are : 'In re_. Captain Hugh. May
Stollery Mundy and another(1), Ma/or F. K. Mistry(•), c. Ramanu/an v. State of Mysore(•), Major Goplnathan v. The State of
Madhya Pradesh and another(') and Awadh Behari Singh v. The
State(').
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On the other hand, Mr. Mahajan drew our attention to the
Full Bench decision of the Punjab and Haryana High Court reported in Ajit Singh v. S.tate of Punjab(') wherei.n the High Court
has held that the tJrial suffers not from an illegality but only an
irregularity. Such an irregularity does not render-the trial liable
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to be set aside, unless it is shown that prejudice has· been caused
to the accused.
In view of certain decisions of this Court, to which we will
presen~ly refer and having regard to the particular circumstances
of this case, we do not think it necessary to consider the question
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whether non-observance of the Rules by the magistrate trying and
convicting a person who is governed by the Act is illegal or only
irregular. The scheme of-.the Act and the Rules hav:e been considered in three decisions of this C'-0urt, which are being referre1
t? presently and hence we do not think it. necessary to ei!her quote
ss. 125 and 126 or s. 549 Cr, P.C. We will, however, refer to the
relevant rules at the appropriate stage. They have been referred
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to in particular in the latest decision o{ this Court in Som Datt
Datta v. Union of India and others(7 ).
There is no controversy that the appellant is one subject to
the Act as a person enrolled JJnder the Act under s: 2(1)(b), Sec-
(I)' A,T.R. 1945 Madras 289.
(3) A. T.R. 1962 Mysore 196.
(S) A.LR. 1967 Calcutta 323
(6) A .. T.R. 1970 Punjab & Haryan~ .151.
(2)
1949 2 M.L.J.44.
(4) A.LR,. 1963 M.P. 249.
(7) [ 1969] 2 S.C.R. 177
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tion '3 (i) defines 'on active service'. Over and above tha~ power
is given to the Central Government under s. 9, by notification.
to declare any person or class of persons subject to the Act and
who may be deemed to be 'on active service' within the meaning
of the Act. The Government of India, Ministry of Defence, had
issued the following notification on November 28, 1962·:
"In exercise of the powers conferred by Section 9 of
the Army Act, 1950 (46 of 1950), the Central Government hen;by declare that that all persons subject to
that Act, who are not on active service under clause(i)
of section 3 thereof, shall, where ever they may be ~
ing, be deemed to be on active service within the meaning of that Act for the purpose of the said Act and of any
other law for the time being in force."
By virtue of tlhis notification it follows that on the materiaJ
date Punjab Regiment No. 24, to which the appellant was attached
though it was at Nahan, which was a rest station, must be considered to have been 'on active service'.
This notification was
issued in die .year 1962.
Unfortunately, it was not brought to
the notice of the learned Assistant Sessions Judge, notwithstanding the specific enquiry he made about the position of the accused ..
Section 70 of the Act runs as follows :
"A person subject to this. Act who commits an
offence of murder against a person not subject to military, naval or air force law, or of culpable homicide notamounting 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."
As the appellant was alleged to have committed rape in relation to a person who was not subject to military, naval or air law,
under s. 70, normally he could be tried by the ordinary criminal
court, but inasmuch as he was on active service at the time of the
alleged offence, the court-martial also gets jurisdiction tG try the
appellant. Therefore. this is a case where both the oourt-martial
and the ordinary criminal court had concurrent jurisdiction t.o try
the appellant. To meet such a situatlion suitable provisions have
been made in ss. 125, 126 of the Act and the Rules framed under
SUPREME COURT REPORTS
[197i] 2 s.c.R.
s. 549 Cr.P.C. In Major E. G. Barsay v. The State of Bombay(')
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lhe jurisdiction of the Secial Judge to try an. officer who. was
subject to the Anny Act was questioned. No do1,1b~ the ultimate
.decision of the Court rested on a construction of the provisions of
the Prevention of Corruption Act, 194 7 and the jurisdiction of
lhe Special Judge to tjry the il1ilitary officer iu that case was upheld. But in dealing with tlie contention raised on behalf of the
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.appellant therein that the Special Judge had no jurisdiction tO take
cognizance of the offences with which the accused was charged
.and that he should have been. tried only by a court-martial under
.the Act, this Court had to consider the scheme of the Act.
After holding that the Act does not expressly bar the,jurisdic-
.tion of the criminal court in respect of the acts or omission punishC
.able under the Act if they are also punishable under any other Jaw...,,_
fo force in India, this Court held that ss. 125, 126 and 127 excluded any inference about prohibition regarding jurisdiction of
the criminal courts and t~ose sections in express nerms provide not
.only for resolving conflict of jurisdiction between a criminal court
:and a court-martial in respect of the san1e offence, but also proD
vide for successive trials of an accused in respect of the same
.offence. This Court has further \fl.id dowrr thaQ ss. 125 and 126
provid1~ a satisfactory machinery to resolve the conflict of jurisdic1ion having regard to the exigencies of the situation. This decision
in our opinion, lays down that there is no exclusion of jurisdiction
of the ordinary- criminal. court\; in respect of offences which are
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1riable also by the courhnJ:artial.
In·~~ with the Act, this Court in Ram Sarup v.
Th¢
iUnion of India and another(') has observed that there could be a
variety of circwnstances which may influence the decision as to
whether fue offender is to be tried by the court-martial or by the
ordinary criminal court and the military officers, who are charged F
with the duty of exercising discretion are to be guided by the cir-
·cumstanees and the e1Cigencies of the service, maintenance of discipline in the army, speedier trial, na~ure of the offence and the
person against whom the offence is committed.
In Som Datt Datta v. Uniolf/ of India ad others(') this Court
has again elaborately copsidered the scheme of the A~t. as well
as the R.ules.
Dealin,g with sections 125 and 126, at page 183
1his Court observes :
"Section
125 presupposes that in respect of an
offence both a criminal court as well as a court-martial
have each concurrel)t jurisdiction. Such a situation can
arise in the case of an act "or omission punishable both
(I) [1962] 2 S.C.R. 195.
(2) [1964] 5 S.C.R. 931.
(3) [1969] 2 S.C.R. 177.,
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865
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 ins. 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 s. 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 th~ Central Government whose order shall
be final. These two sections of the Army Act provide a
satisfactory machinery to resolve the conflict of jurisdiction having regard to the exigencies of the situation in
any particular case."
·
A reference tx> the Act particularly to Chapter VI, which comprises
of ss. 34 to 70,
under the
head~n:g 'offences'.
the
position that emerges according to the above decisions is that under
Chapter VI there are three categories of offences, namely, (1)
offences committed by a person subject to the Act triable by a
court-m.artial 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 s. 69 of the Act, triable by
a court-martial; and (3.) offences of murder and culpable homicide·
not amounting to murder or rape committed by a person subject
to th.: 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 said categorisation of offences and tribunals necessarily bring about a conflict of
jurisdiction. Where an offence is for the first time created by the
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Army Act, such as those created by ss. 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.
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It is further clear .that in respect of an offence which could be·
tried both by a criminal court as well as a court-martial sections
125, 126 and the Rules, have made suitable provisions to avoid a
13-L694SUJ> Cl/71
866
SUPREME COURT· REPORTS
(1971] 2 S.C.R.
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conflict of jurisdiction between th~ ordinary criminal courts and
the court-martial. But it is to be noted .that in the first instance,
discretion is left to the officer mentioned in s. 12.5 to decide before
which court the proceedings
should be instituted.
Hence the
officer commanding the army, army corps, division or independent
brigade in which the accused
person is serving or such other
officel" as may be prescribed will "have to exercise his discretion
.B
and decide under s. 125 in which court the proceedings shall ·be
instituted. It is-only when he so exercises his discretion and deciaes that the proceedings should be institun:d before a courtmartial, that the provisions of s. 126(1) come into -operation. If
the designated officer does not exercise his discretion and decide
that the proceeding~ should be il1stituted before a coμrt-martial,
the Army Act would not obviously be in the way. of .a criminal
court exercising its ordinary ex-jurisdiction in the manner provided
by Jaw.
. We will presently show that in the case before us the desig-
·nated officer· in s. 125 has not chosen to exercise his discretion
anif decided before whlch court the proc~edings should be institu-
.ted and in partic·ular he has also not decided that the proceedings
should be instituted before a court-martial. When that is so, in
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our opinion, there was no occasion for the Criminal Court in this
case to adopt the procedure laid dowp. in s. 126 of the Act. This
'view finds support from the second part of s. 126(1) which re-
·quires the criminal court to issue a notice to the pfficer designated E
in s. 125 of tfie Act to deliver over the offender to the nearest
magistrate or to poslpone the proceedings pending a reference to
the Central Government. This is a clear indication that s. 126(1)
presupposes that the designated officer has decided under s. 125
that the proceedings shall be instituted before a court-martial and
bas also directed that tlie accused person shall be detained "in military custody.
As the facts on which we are basing our conclusion that there
was no necessity for the criminal court in question to adopt the
.procedlire;laid down in s. 12~ of the Act, will have also bearing
·on the construction of the relevant rules, it is desirable to refer to
F
the relevant rules relied on by the appellant.
G
The rules have been fram~ by the Central Government under
·s. 549(1) Cr. P.C. That section provides for the Central Government making rules consistent with the Criminal Procedure Code
and the Acts mentioned therein in respect of offences whlch could
be tried by an ordinary criminal court or by a court-martial. It
enjoins upon a magistrate when any person is broqght beforn him,
in respect of such an offence, "to have due regard to the rules and
to deliver him in proper cases .to th\' appropriate ·officers mentioned
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1
II
JOG!NDER v. HIMACHAL PRADESH (VaidiG/ingam, !.)
867
A therein, for being tried by a court-martial.
The material rules
·that are to be referred are rr. 2, 3, 4, 5 and 8.
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Rule 2 defines the expressions "commanding officer", "competent military authority", "competent naval authority" and "com-
,petent Air Force authority". Rules 3, 4,5 and ·8 are as follows:
Rule 3. "Where a person subject to military, naval
or Air Force law is brought before a Magistrate and
charged with an offence for which he is liable to be tried
by a court-martial, such magistrate shall not proceed to
try such person ..... or to inquire with a view to his
commitment for trial by the Court of Sessions or t:he
High Court for any offence triable by such Court, unless
(a) he is of opinion, for reasons to be recorded,
he should so proceed without being moved thereto by
competent military, naval or Air Force Authority, or
(b) he is moved thereflo by such authority,
Rule 4. Before proceeding under clause (a) of rule
3, the Magistrate shall give a written notice to the Commanding Officer of the accused and until the expiry of a
period of-
·
"(i) three weeks, in the case of a notice given to a
Cornman~ Ofliccr in command of a unit or detachment loc:alled iii any of the following areas of tho hill
·districts of the State of Assam, that is to say-
(1) Mizo,
(2) Naga Hills,
{3) Garo Hills,
(4) Khasi and Jaintia Hills; and
(5) North Cachar Hills.
(ii) seven days, in the case of a notice given to any
other Commanding Offic~r in command of a unit or
detachment located elsewhere in India.
from the date of the service of such notice, he shall not-
(a) convict or acquit the accused under section
243, 245, 247 or 248 of the Code of Criminal
Procedure, i 898 (Act '5 of 1898), or hear
him in his defence under section 244 of the
said Code; or
SSS
SUPREME COURT REPORTS
[1971] 2 s.c;.&.
(bJ frame in writing a charge against the accused
A
under section 254 of the said Code; or
(c) make an order committing the ~.ccused for
trial by the High Court or the Court of Sessions under section 213 of the said Code; or
( d) transfer the case for inquiry or t;rial under
section 192 of the said Code.
B
Rule 5. Where within the period of seven days mentioned in rule 4; or at any time thereafter before the
Magistrate has done any act or made any order referred
to in that rule, the Commanding Officer of the accused
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or competent military, naval or Air Force authority,
as the case may be, gives notice to the Magistrate that
in the opinion of such authority, the accused should be
tried by a court-martial, the Magistrate shall stay proceedings and if the accused is in his power or under
his control, shall deliver him, with the statement preD
scribed in sub-section (1) of section 549 of 1!he said
Code to the authority specified in the said sub-sr.ction.
Rule 8. Notwithstanding anything in the foregoing
rules, where it comes to the notice of a MagistratP, that
a person subject to military, naval or Air Force law
has committed an offence, proceedings in respect of_
E
which ought to be instituted before him and that !he
reasons of such person
cannot be procured except
through military, naval er Air Force authorities, the
Magistrate may by a written notice require the Commanding Officer of such person either to deliver such
person to a Magistrate to be named in the said notice for
F
being proceeded against according to law, or to stay
the Central Government for determination as to the
martial, if since instituted, and to make a reference to
the Central Government for determination as to the
Court before which proceedings should be instituted."
The main contention that has been urged by Mr. Kohli, on
behalf of the appellant is chat in this case the Assistant Sessions
Judge had no jurisdiction to proceed with the trial of the appellant as he has not complied with the provisions of rr. 3 and 4.
From a perusal of rr. 3 and 4, the scheme of these two rules appears to us to be that the magistrate shall not proceed to try a
, military personnel unless he forms an opinion for reasons to be recorded to proceed with the trial withput being moved by the competent authority or the magistrate has been so moved by the comG
H
JOG!NDER v. HIMACHAL PRADESH (Vaidia/ingam, !.)
869
A petent military authority; but before a magistrate decides to proceed with the trial without being moved by the competent authority, he is obliged to give a written notice to the Commanding
Officer of the accused and is further enjoined not to pass any of
the orders enumerated as (a) to (d) in Rule 4, till the expiry of
the said p~riod of the notice mentioned in clauses (I) and (2).
B
According tu Mr. Kohli the criminal court has not been moved
by the competent military authority to conduct the trial before it.
The magistrate has not also framed an opinion that he should try
the accused without being moved by the competent military authority. Even assuming that he has formed such an opinion, he has
not given .the requisite notice and waited for the required
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period under r. 4. Hence it is argued that the criminal cc,urt has
acted illegally in proceeding with the trial of the appellant. We
are not inclined to accept this contention of the learned counsel.
Rule 4 is related to cl. (a) of r. 3 and will be attracted only
when the magistrate proceeds to conduct the trial without having
D
been moved by the competent military authority. It is uo doubt
true that in this case the Assistant Sessions Judge has not given
a written notice to the Commanding Office( as ~nvisaged under
r. 4. But,.in our view, that was unnecessary.
When the competent military authorities, knowing full well the nature of the
offence alleged against: the appellant, had released him from miliE
tary custody and handed him over to the civil authorities, the
magistrate was justified in proceeding on the basis that the military
authorities bad decided that the appellant need not be tried by the
court-martial and that he could be tried by the ordinary criminal
court.
We will now refer in some detail to the particular circum>t ances
F
in this case which will show that there has been no violation of the
· Act or the Rules. The High Court bas pointed out tliat the District
Inspector of Police. P.W. 12, has stated that after recording \he
statements of some of the witnesses he proceeded to the Cantonment area and contacted the officer comnm1ding the Punbb Regiment No. 24. The said witness bas also stated that with the perG
mission of the said officer he interrogated the accused ~·nd examined his person.
The Commanding Officer w~1s not willing to
hand over the accused till he obtained oermission from the headquarters. The Commanding Officer as'sisted P.W. 12 in carrying
out the identification pm·ade of the accused.
The High Court
has further stated that after having full knowledge of the charge
H
against the appellant and the investigation that was bein>Z conducted by the po.lice, the competent authority ultimately r~leased
the appellant from military custody and delivered him to th" civil
authorities for being tried according to law.
870
SUPREME COURT REPORTS
(1971] 2 S.C.R,
From these circumstances, in our opinion, it is legitimate to A
hold that the competent authority had handed over the appellant
to the civil authorities for beiqg tried after Vie former had considered the question of so handing him over after consulta~ons
with the headquarters. In these circumstances, ·it follows that the
designated officer under s. 125, who had the discretion in the
first instance txJ decide that the appellant should be tried before a
court-martial had decided to the contrary.
Surrender of the ac·
cused to the civil authorities to be dealt with ·by the latter, after
being made aware of the nature of the offence against the appel•
lant, is a. clear indication that the decision of the military authorities was that the appellant neaj not be tried by a court-martial
and that his trial can take place before the criminal court. Under
these circumstances there was no occasion to follow the procedure
under i'. 126 or r. 4 as the military authorities had made abundantly clear that the appellant need not be tried by the courtmartial That being so, it would have been altogether superfluous
for the. magistrate to give the notice as required by fue said provisions.
Rules 5 and 8 have no application to the facts of this
case.
We agree with the High Court that there has been a substantial compliance with the relevant provisions of the Act and the
Rules and hence the trial of the appellant and his conviction by
the learned Assistant Sessions Judge are valid and legal.
In the result, the appeal fails and is dismissed.
G.C.
Appeal dismissed.
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