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PETITIONER: DELHI SPECIAL POLICE ESTABLISHMENT, NEW DELHI

       Vs.

RESPONDENT: LT. COL.  S. K. LORAIYA

DATE OF JUDGMENT24/08/1972

BENCH: DWIVEDI, S.N. BENCH: DWIVEDI, S.N. SHELAT, J.M. PALEKAR, D.G.

CITATION:  1972 AIR 2548            1973 SCR  (1)1010  1972 SCC  (2) 692  CITATOR INFO :  R          1986 SC1655  (8)  RF         1987 SC1878  (4)

ACT: Code  of Criminal Procedure 1898, s. 549(1) and  rules  made thereunder--Army  Act  1950, ss. 122  and  125-Army  officer charged  with  offences  under  I.P.C.  and  Prevention   of Corruption  Act  1947 by Special  Judge-Procedure  under  s. 549(1)  and r. 3 not followed-Charges whether liable  to  be quashed-Lapse of more than three years between commission of offences  and framing of charges--Court martial whether  has jurisdiction  to  try  offences-Word  ’jurisdiction’  in  s. 549(1) Cr.  P.C. and s. 125 Army Act, meaning of.

HEADNOTE: The  respondent who was an army officer was alleged to  have committed  certain offences under the Indian Penal Code  and the  Prevention of Corruption Act 1947.  The  offences  were alleged  to  have  been committed in  the  year  1962.   The special  judge, Gauhati charged him with these  offences  in the  year 1967.  The High Court quashed the charges  on  the ground inter alia that the procedure in s. 549(1) Cr.   P.C. and  the rules made thereunder had not been ’followed.   The appellant in appeal by special leave to this Court contended that  since  more than three years had elapsed  between  the commission  of the offences and the framing of  the  charges the  court-martial had in view of s. 122(1) of the Army  Act ceased  to  have jurisdiction to try the said  offences  and therefore s. 549(1) and ’the rules made thereunder were  not attracted to the case. HELD,  Section  549(1) Cr.  P.C. is designed  to  avoid  the conflict  of jurisdiction in respect of offences  which  are triable  by both the ordinary criminal court and the  court- martial.   The  clause "for which he is liable to  be  tried either  by  the  court to which this code applies  or  by  a courtmartial"  qualifies  the  preceding  clause  "when  any person   is   charged  with  an  offence"  in   s.   549(1). Accordingly the phrase ’,’is liable to be tried either by a court  to  which  this  Code  applies  or  a  court-martial" imports.  that  the offence for which the accused is  to  be tried should be an offence of which cognizance can be  taken

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by an ordinary criminal court as well as court-martial.  The phrase  is intended to refer to the initial jurisdiction  of the  two  courts to take cognizance of the case and  not  to their  jurisdiction  to decide on merits.  It  was  admitted that both the ordinary criminal court and the  court-martial had concurrent jurisdiction with respect to the offences for which the respondent had been charged by the special  judge. So  s. 549 and the rules made thereunder were  attracted  to the case in hand. [1013H-1014C] Again,  sub-section  (3) of s.122 of the Army  Act  provides that while computing the period of three years specified  in sub-section (1), any time spent by the accused as a prisoner of war or in enemy territory, or in evading arrest after the commission  of  the offence, shall be excluded.  On  a  con- joint reading of sub-ss. (1) and (3) of s.122 it is  evident that  the court-martial and not the ordinary criminal  court has got jurisdiction to decide the issue of limitation.   If the  court-martial finds that it cannot try the  offence  on account of the expiry of three years from the commission  of the  offence the Central Government can under s.127  of  the Act  sanction  the  trial of the  offender  by  an  ordinary criminal court. [1014D-F] 1011 Section  125 of the Army Act provides that when  a  criminal court and a court-martial have each jurisdiction in  respect of  an  offence,  it  shall be  in  the  discretion  of  the commanding   officer  to  decide  before  which  court   the proceedings  shall be instituted.  Section 125 supports  the view that the court-martial alone has jurisdiction to decide the issue as to limitation.                                           [1014H] The  word  "jurisdiction"  in  s.125  really  signifies  the initial  jurisdiction  to take congnizance of  a  case.   It refers to the stage at which proceedings are instituted in a court  and not to the jurisdiction of the ordinary  criminal court  and the court-martial to decide the case  on  merits. Section 549(1) should be construed in the light of s.125  of the  Army Act.  Both the provisions have in mind the  object of avoiding a collision between the ordinary criminal  court and the court-martial.  Both of them should receive the same construction. [1015B] It  was  an  admitted  fact that in  the  present  case  the procedure  specified  in  rule 3 was  not  followed  by  the Special  Judge, Gauhati before framing charges  against  the respondent.    Section  549(1)  Cr.P.C.  and  rule   3   are mandatory.   Accordingly the charges framed ’by the  Special Judge against the respondent could not survive. [1013C]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 79  of 1970. Appeal  by special leave from the judgment and  order  dated May 23, 1969 of the Assam & Nagaland High Court in Cr.   Re- vision No. 31 of 1967. D.   Mukherjee,  G.  L. Sanghi and R. N. Sachthey,  for  the appellant. A. S. R. Chari and R. Nagaratnam, for the respondent. The Judgment of the Court was delivered by. Dwivedi, J. The respondent, Lt.  Col.  S. K. Loraiya, is  in the army Service.  In November-December, 1962, he was posted as  Commander,  625, Air Field Engineers,  Tejpur.   He  was charged under s. 120B, Indian Penal Code read with s. 5  (1) (e)  :and (d) and s. 5(2) the Prevention of  Corruption  Act

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and  under  ss.  467 and 471 I.P.C. by  the  Special  Judge, Gauhati,  appointed under the Prevention of Corruption  Act, in respect of the offences alleged to have been committed by him in November-December, 1962, as Commander, 625, Air Field Engineers, Tejpur. The  trial  started on June 7, 1966. but  the  charges  were framed against him by the Special Judge on January 7,  1967. The  respondent filed a revision against the framing of  the charges  in the High Court of Assam and Nagaland.  The  High Court 1012 allowed  the revision and quashed the charges.   Hence  this appeal by the Delhi Special Police Establishment, New Delhi, by special leave under Art. 136 of the Constitution. The High Court quashed the charges for two reasons : (1) The charges  were framed by the Special Judge without  following the  procedure  specified  in the Rules made  under  s.  549 Cr.P.C.;  and  (2) the trial was held in the  absence  of  a sanction  by the appropriate authority under S.  196A(2)  of the  Code of Criminal Procedure in respect of  the  offences under  s. 5 of the Prevention of Corruption Act.   The  High Court took the view that such sanction was essential as  the offence under s. 5 of the Prevention of Corruption Act is  a non-cognizable offence. Counsel  for  the  appellant has  submitted  that  both  the reasons  given by the High Court are erroneous.   Taking  up the  first  reason  first, s. 5(1)(b) of  the  Criminal  Law Amendment Act, 1966, could not give exclusive  _jurisdiction to the Special Judge, Gauhati lo try the respondent.  It  is true that the trial started against him on June 7, 1966, but the charges were framed on January 7, 1967, i.e., long after June 7, 1966.  Section 5(1)(b) does not apply where  charges are  framed  after June 7, 1966.  So, prima facie  both  the ordinary  criminal court and court-martial  have  concurrent jurisdiction  to  try  the  respondent  for  the   aforesaid offences.   And S. 549(1) Cr.P.C. applies to such  a  situa- tion.   The material part of S. 549(1) reads : "The  Central Government may make rules consistent with this Code and  the Army Act  as  to  the  cases in  which  persons  subject  to military law   shall  be  tried by a court 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  Courtmartial,  such  Magistrate shall  have  regard to such rules and shall  in  appropriate cases deliver him, together with a statement of the  offence of  which  he is accused, to the commanding officer  of  the regiment, corps .... or detachment to which he belongs or to the  commanding officer of the nearest military station  for the purpose of being tried by Court-martial." The Central Government has framed under s. 549(1) Cr.   P.C. rules  which  are known as the Criminal  Courts  and  Courts Martial  (Adjustment  of  jurisdiction)  Rules,  1952.   The relevant  rule for our purpose is rule 3. It  requires  that when a person subject to military, naval or air force law is brought before a Magistrate on accusation of an offence  for which he is liable to be tried by a court-martial also,  the Magistrate  shall  not proceed with the case  unless  he  is requested to do so by the appropriate  1013 military authority.  He may, however, proceed with the  case if he is of opinion that he should so proceed with the  case without being requested by the said authority.  Even in such a case, the Magistrate has to give notice to the  Commanding Officer  and  is  not to make any  order  of  conviction  or

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acquittal  or frame charges or commit the accused until  the expiry of 7 days from the service of notice.  The Commanding Officer  may inform the Magistrate that in his  opinion  the accused  should  be tried by the  Courtmartial.   Subsequent rules prescribe the procedure which is to be followed  where the  Commanding  Officer has given or omitted to  give  such information to the magistrate. It  is  an  admitted fact in this case  that  the  procedure specified  in rule 3 was not followed by the Special  Judge, Gauhati  before  framing  charges  against  the  respondent. Section   549  (1)  Cr.P.C.  and  rule  3   are   mandatory. Accordingly the charges, framed by the Special Judge against the   respondent  cannot  survive.   But  counsel  for   the appellant  has  urged  before  us  that  in  the  particular circumstances of this case the respondent is not ’liable  to be tried’ by a Court-martial. Section 122(1) of the Army Act, 1950, provides that no trial by  court-martial of any person subject to the Army Act  for any  offence  shall  be commenced after the  expiry  of  the period  of  three years from the date of the  offence.   The offences   are  alleged  to  have  been  committed  by   the respondent in November-December, 1962,.  So more than  three years  have  expired  from the  alleged  commission  of  the offence.  It is claimed that having regard to s. 122(1), the respondent is not liable to be tried by courtmartial. This argument is built on the phrase "is liable to be  tried either  by  the  court to which this Code applies  or  by  a Courtmartial"  in s. 549(1).  According to counsel  for  the appellant  this phrase connotes that the  ordinary  criminal court  as  well as the Court-martial should  not  only  have concurrent initial jurisdicdiction to take cognizance of the case but should also retain jurisdiction to try him upto the last  stage  of conviction or acquittal.  We are  unable  to accept this construction of the phrase. As regards the trial of offences committed by, army men, the Army Act draws a threefold scheme.  Certain offences  enume- rated  in the Army Act are exclusively triable by  a  Court- martial;  certain other offences are exclusively triable  by the ordinary criminal courts; and certain other offences are triable  both by the ordinary criminal court and the  court- martial.   In respect of the last category both  the  courts have concurrent jurisdiction.  Section 549(1) Cr.  P.C.  is’ designed to avoid the conflict of jurisdiction in respect of the last category of offences.  The clause "for which he  is liable to be tried either by the court to which this Code 1014 applies  or by a court-martial" in our view,  qualifies  the preceding  clause  "when  any  person  is  charged  with  an offence" in s. 549(1).  Accordingly the phrase "is liable to be  tried either by a court to which this Code applies or  a court-martial"  imports  that  the  offence  for  which  the accused  is  to  be  tried should be  an  offence  of  which cognizance  can  be taken by an ordinary criminal  court  as well  as  a court-martial.  In our opinion,  the  phrase  is intended  to refer to the initial jurisdiction of.  the  two courts  to  take  cognizance of the case and  not  to  their jurisdiction  to decide it on merits.  It is  admitted  that both the ordinary criminal court and the Court-martial  have concurrent jurisdiction with respect to the offences  for  which the respondent has been charged by  the Special Judge.      So, S. 549 and the rules made thereunder are attracted to the case     at hand. Again,  sub-section (3) of s. 122 of the Army  Act  provides that while computing the period of three years spectified in sub-section  any time spent by the accused as a prisoner  of

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war  or in enemy territory, or in evading arrest  after  the commission of the offence.    shall  be excluded.  On a  con joint reading of sub-ss. (1) and   of S. 122, it is  evident that the court-martial and not the ordinary  criminal  court has  got  jurisdiction to decide the  issue  of  limitation. There  it nothing on record before us to indicate  that  the respondent  had not been evading arrest after commission  of the offence.  As the court-martial has initial  jurisdiction to enter upon the enquiry in the case, it alone is competent to  decide  whether  it  retains  jurisdiction  to  try  the respondent  inspite  of subs. (1) of s. 122.  The  issue  of limitation is a part of the trial before it.  If the  court- martial finds that the respondent cannot be tried on account of the expiry of three years from the date of the commission of the offence, he’ cannot be go scot free.  Section 127  of the  Army  Act provides that when a person is  convicted  or acquitted  by  a court-martial, he may,  with  the  previous sanction  of  the Central Government, be tried again  by  an ordinary criminal court for the same offence or on the  same facts.  go  it would be open to the  Central  Government  to proceed  against the respondent after the court-martial  has recorded a finding that it cannot try him on account of  the expiry of three years from the date of the commission of the offence. Section  125 of the Army Act provides that 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  to  decide before  which court the proceedings shall be instituted  and if  that  officer  decides that they  should  be  instituted before a court-martial he will direct that the  1015 accused  person  shall  be  detained  in  military  custody. Sections 12 (1) and 12 5 both find place in Chapter X of the Army  Act.   Section 125 supports our view that  the  court- martial  alone  has  jurisdiction to  decide  the  issue  of limitation  under s. 122(1).  The word "jurisdiction" in  s. 125  really  signifies  the  initial  jurisdiction  to  take cognizance  of a case.  To put it in other words, it  refers to the stage at which proceedings are instituted in a  court and  not to the jurisdiction of the ordinary criminal  court and  the  court-martial to decide the case  on  merits.   It appears  to us that s. 549 ( 1) should be construed  in  the light  of s. 126 of the Army Act.  Both the provisions  have in  mind  the  object of avoiding a  collision  between  the ordinary  criminal court and the courtmartial.  So  both  of them should receive a similar construction. In  the  result, we are of opinion that the High  Court  has rightly  held  that  as  the  charges  were  framed  without following the procedure specified in the rules framed  under s. 549 (1) Cr.  P.C., they cannot stand. As  this  finding of ours is sufficient to dispose  of  this appeal, we are not expressing any opinion on the correctness or otherwise of the second reason assigned by the High Court for quashing the charges. The appeal is dismissed. G.C.                                  Appeal dismissed. 1016