CRIMINAL APPELLATE JURISDICTION v. The State of West Bengal

exercise is to be resorted to at the very first instance (i.e. at the pre- committal stage) by the magistrate (or a special court having original jurisdiction and created by a special statute) having jurisdiction to remand on production of an accused before it subsequent to his arrest. iv. It was further contended that if one referred to Rule (6) then it would be further evident that the power to try an accused as a primary option lies with the military authorities and not the ordinary criminal court. In this regard, reference was made to the judgement of this Hon'ble Court passed in the case of Captain U.R. Roy Choudhury v. State, reported in 1976 CrLJ 796 (Cal), where the similar issue had cropped up and the Division Bench of this Hon'ble Court, after dealing with the said provisions of law, was pleased to hold that 11 proceedings initiated in the ordinary criminal court in violation of such mandatory provision was completely without jurisdiction and non- est in the eyes of law and was further pleased to set aside the entire proceedings. The said decision fell for consideration on an appeal being preferred by the State of West Bengal before the Hon'ble Apex Court and the Hon'ble Apex court, on its part, after considering the relevant provisions of law, was pleased to uphold the decision passed by the Division Bench of this Hon'ble Court. The said order of the Hon'ble Apex Court is reported in AIR 1986 SC 1655 (Superintendent and Remembrancer of Legal Affairs, West Bengal v. Usha Ranjan Roy Choudhury & Anr.). It was further submitted that from a plain reading of the said judgment of the Hon'ble Apex Court, it is abundantly clear that the procedure as referred to hereinabove is mandatory in nature and cannot be brushed aside lightly. A similar view has also been expressed in the case of Delhi Special Police Establishment, New Delhi v. Lt. Col. S.K. Loraiya, reported in AIR 1972 SC 2548. In the said case, the Hon'ble Apex Court, after referring to section 475 and the rules framed thereunder vis-a-vis the relevant provisions of military laws, was pleased to hold that charges, framed in violation of the provisions indicated hereinabove, cannot be sustained and the same are liable to be quashed. Such explanation of the legal provision has also been accepted by the Hon'ble Allahabad High Court in the case of S.R. Tripathi v. State & Anr., reported in AIR 1964 All 371. 12 v. Further attention was drawn to the provision engrafted under the Airforce Act, 1950 in relation to "civil offences". Sections 71 and 71 of the Airforce Act, 1950 may be referred to in this context. The said sections read as follows:- “71. Civil offences-Subject to the provisions of section 72, 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 that is to say,- (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 any 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.

72. Civil offences not triable by court-martial.-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 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 said Government by notification in this behalf." vi. A plain reading of the aforesaid sections would indicate that apart 13 from the offences, of murder and culpable homicide not amounting to murder and rape, all other offences have been classified as civil offences and are not tried by court martial law unless such offences are committed by the delinquent "while on active service" as stipulated under clause (a) of section 72. The words "active service" have received judicial interpretation from this Hon'ble Court as well as the Hon'ble Apex court and it has been held that any person who is employed with military and para-military forces even while he is on 'casual leave' remains on active service. Reference was made in this regard to the judgments of Balbir Singh & Anr. v State of Punjab, reported in (1995) 1 SCC 90 (Reference paragraphs No. 14-16). It has been further held in this judgment that even the person who is/was on active service shall be subject to the provisions of section 475 of the Code of Criminal Procedure, 1973 and the rules framed thereunder. In the instant case, the allegations revolve around commission of offence allegedly punishable under sections 326 and 307 of the Indian Penal Code, 1860 and are not designated offences which are not to be tried by court martial as envisaged under section 72 of the Airforce Act, 1950. Thus, a wholesome conspectus of the provision contained in section 475 of the Code of Criminal Procedure, 1973 and the rules framed thereunder qua the provisions as engrafted under the Airforce Act, 1950 would clearly indicate that it was an obligatory duty on the part of the Learned Magistrate to comply with the mandatory provisions as indicated hereinabove and 14 the appellant (as in this case) could not have been directly tried by any ordinary criminal court without any reference to the commanding officer. Such a procedure is wholly prejudicial and in fact is de hors the jurisdiction of the Learned Court to proceed with the matter far less to record an order of conviction subsequently. vii. It was further argued that the appellant had been convicted for commission of offences punishable under sections 326/307 of the Indian Penal Code, 1860. A plain reading of the said two sections would indicate that the offences are cognate in nature and conviction on both counts was not proper or rather illegal in as much as a person at the same time cannot commit both the offences punishable under sections 326 and 307 on the same victim. It is trite law that where a particular fact in issue or a given set of facts may be so interconnected with other facts that at the stage of framing charges, it is not clear to the court as to which of the offences was committed and, thus, the law permits the Learned Court to frame alternative charges in this regard for the court to finally reach a logical conclusion. However, at the end of the trial, the court cannot convict the accused for both the charges so framed alternately against him. Framing of charge is permissible but conviction on all counts of alternative charges is not permissible in law. Such a course of action not only derails the theory of free and fair trial but also seeks to punish an accused on two or more counts for the same offence. This is precisely what has happened in the instant case. Law in this regard has been explained by this Hon'ble Court in the judgment of 15 Sunil Kumar Ghash & Ors. v State of West Bengal, reported in (2016) 3 CCLR (Cal) 505 and the appellant would like to beseech this Hon'ble Court to consider Paragraph No. 25 of the said judgment in this regard. viii. Another important issue argued was the stage when violation of a mandatory provision can be brought before the Hon'ble Court. The law in this regard was clear and there was no element of confusion that a pure question of law can be raised at any stage of the proceedings, which would mean investigation, enquiry, and/or appeal inasmuch as an appeal is the continuation of the trial. There can be principles of res judicata and/or constructive res judicata and/or waiver may have some application qua the facts of a particular case, but when the question of applicability of a particular provision of law is concerned, there can be no estoppel to such provision receiving attention of the Hon'ble Court. Any law which even attempts to throttle legal issues on the ground of same not being argued earlier is de hors the constitutional mandate of Article 21 and cannot be deemed to be fair, just, and/or equitable in its true sense. Such proposition has been succinctly dealt with by the Hon'ble Apex Court in the case of B.C. Goswami v Delhi Administration, reported in AIR 1973 SC 1457. In the said case, it has been held that in respect of a question of law, which goes to the root of the matter relating to the conviction appellant, the Hon'ble Supreme Court/Appellate Court can appreciate all the arguments that can be advanced in law. Similarly in the case of Isabella Johnson v M.S. 16 Susai, reported in AIR 1991 SC 993 it has been held that a court cannot be tied down by jurisdiction in law and the principles of res judicata cannot be made applicable when a pure question of law is advanced and the same cannot be dispelled on the ground of estoppel. ix. The legal issues involved with respect of section 475 of the Code of Criminal Procedure, 1973 and the rules framed thereunder qua the conviction of the appellant, the proceedings were wholly without jurisdiction and non-est in the eyes of law.

6. The Learned Advocate for the State submitted that- i. The very fact that the appellant was in active service of the Indian armed forces has not been argued before the Learned Trial Judge before whom the trial was conducted at any point of time. Although it was true that an appeal was a continuation of the proceedings before Learned Trial Judge, but it was the bounden duty of the appellant to inform the Learned Magistrate before whom he was produced on the very first day that he was a member of the Indian Arms Forces and that he was in active service. ii. The appellant miserably failed and neglected to bring the fact of his being a member of the Indian Arms Forces before the Learned Magistrate for his enquiry and or necessary actions being taken in compliance of the provisions of sec 475 of Cr.P.C. and the rules framed there under for the applicability of sec 475 of the Cr.P.C. it was imperative on the part of the appellant to intimate the Learned Magistrate the fact that he was a member of the Indian Arms Forces, 17 and that he was in active service at the time of commission of the offence since the appellant has failed to bring this fact which was his special knowledge to the notice of the Learned Magistrate before whom he was produced, it is impossible for the Learned Magistrate to infer such knowledge only on the basis of the statement given by the I.O before him. iii. It is apparent from the record that the appellant has raised this issue at the belated stage and is trying to take advantage of a provision which has been incorporated by the legislature at the wisdom to avoid conflict of decisions of the competent tribunal under the Indian Army Act and the Learned Magistrate's court under code of criminal procedure. The only intention of the legislature for incorporation of this section in the code is to avoid any conflict of decision and or multiplicity of judgements. The cardinal principal on which this section revolves is to avoid a person who is a member of any arm forces govern by the Indian Army Act to be convicted twice. The appellant was at liberty to intimate the Learned Magistrate about his being in active service at the time of commission of the offence to enable him to take recourse of sec 475 of the code and intimate his superiors to know as to whether the superiors intend to take action against the offenders or they intend the Learned Magistrate to proceed with the trial. Since the appellant has intentionally avoided passing on the information to the Learned Magistrate, it should be construed to be a waiver of his rights. iv. On the basis of the arguments made above. It is quite clear that the 18 appellant has not shown any conduct on his part to intimate the Learned Magistrate about his being in active service with Indian Arms Forces and hence it was beyond the power of the Learned Magistrate to even contemplate or conduct any enquiry that weather the appellant was in fact a member of the Arm Forces or not or weather he was in active service at the time of commission of the offence. Since the appellant had waived his right at the time of the trial, the Trial Judge or the Learned Magistrate who were not in a position to apply the provisions of Section 475 of code and also to appreciate the rules framed there under along with Section 71, 72 of the Airforce Act, 1950. v. The arguments advanced on behalf of the defence and the judgements relied there on have no manner of application whatsoever in the facts in circumstances of this present case. This arguments could have been substantiated if the appellant would have intimated the fact of his being the members of the Indian Arms Forces or the Indian Air force to the Learned Magistrate for enquiry and on any further actions in compliance of sec 475 of the code of criminal procedure. vi. The evidence of the injured victim and the other witnesses along with the exhibited medical documents prove the prosecution case beyond all reasonable doubts. On perusal of the depositions and the exhibit. It is clear that the appellant had in fact committed the offence an 19 alleged by the prosecution, Hence the judgment and order of conviction so passed should be upheld by the Hon'ble Court.

7. At the outset, whether the appellant is to be tried by a Court-martial as envisaged in Section 475 of the Criminal Procedure Code requires consideration. Reference in the above context can be reckoned to the Order passed in S.T. 13 (4) 06 as replicated hereunder: S. T. 13 (4) 06 “Accused on bail is present. Ld. P. P. is present. The petitions dated 29.4.09, 4.5.09 and 5.5.09 filed by the witnesses praying for recall the order of the Court passed on 3.2.09 on the grounds as stated in the petition is taken up for hearing. Heard the Ld. P.P. and the accused person. On perusing the record I find that the accused person has called Air Chief Marshal S.P. Tyagi, Air Chief Marshal F.H. Major, Air Commodore S.P.S. Virk, Group captain M.B. Krishna, A.R.S. 1, 3 Base repair depot, Squadron Leader S.K. Saha, Flying Officer Naresh Goyel, Group Captain Urmi krishnan, Defence Secretary, Ministry of defence Joint Secretary, Ministry of Law and Justice and Deputy Director of the Staff Selection Commission as the defence witnesses in this case on perusing the materials on record I find that the above witnesses cannot have any connection with the incident of this case. On being asked the accused person submits that for his service matter the examination of the above witnesses as the defence witnesses is necessary. But this case is not concerned with the service matter of the accused person and for proper adjudication of this case, the examination of the above defence witnesses not necessary and the accused person may examine the above witnesses in the case relating to his service matter. 20 So on perusing the entire materials on record I hold that examination of the above witnesses as the defence witnesses is not required for proper adjudication of this case. Hence, the above witnesses are discharged without examination and they need not attend the Court on the dates fixed in the summons. The D.W. 1 Rupa Nath is examined and cross examined and discharged. The accused person orally submits that he will not examine any other defence witness in this case. Hence the defence case is closed. The schedule fixed earlier for the examination of the defence witnesses is cancelled today. To 26.5.09 for hearing the argument. D/C by me Addl. S.J. Addl.S.J., F.T.C. III. BKP, North 24 Pgs.”

8. The petitions dated 29.04.2009, 04.05.2009 and 05.05.2009 state as follows respectively: Letter dated 29.04.2009. “Most respectfully showeth:

1. That the applicant has received a witness summon from the learned court to appear on or after 08.05.2009. Xerox copy of the same is filed herewith.

2. That the accused Ramgopal Sikder had been discharged from the Air Force under the provisions of Rule 15 (2) g (i) of Air Force Rules, 1969 as he was a habitual offender and repeatedly remained absent from duty without prior permission /leave.

3. He was discharged from service with effect from 18.06.2006 and officially all steps had been taken in this regard as required under departmental rules/law and as per principles of natural justice and equity. It is submitted that the above 21 mentioned case has got nothing to do with the service of Air Force and same in absence of clarification and /or particulars about the matter.

4. That since the witnesses summoned namely Group Captain. Station Commander, 6 Wing. Air Force along with D/W 9, 10, 11, 12, 13, 14, 15 and 22 are acting under the official capacity and put-up at different places, it becomes very difficult, if not impossible for them to appear personally in the court specially when they are completely ignorant and irrelevant to the peculiar facts and circumstances of the present case.

5. The present case was absolutely a personal prerogative of the accused in his individual capacity and he himself is responsible for his act of alleged offence and has no relation whatsoever with Air Force service.

6. That on the day of incident i.e. on 05.07.2005 Shri Ramgopal Sikder was neither on the duty of Air Force nor he was carrying out any lawful orders of any superior officer. On the very day he was not even discharging any kind of duty whatsoever linked to Air Force or Air Force Authorities as he was on annual leave and the leave was from 26 June to 10 July 2005. Even, the Air Force authorities had no knowledge of the incident till 07 Jul 2005 when West Bengal Police informed Air Force about the arrest of the accused Shri Ramgopal Sikder.

7. That the applicant along with D/W 9. 10. 11. 12. 13. 14, 15 and 22 have no role whatsoever linked to the instant case and have nothing to depose relating to the assault complaint of State Vs Ramgopal Sikder. The above said defence witnesses cannot be relevant in any manner to the case filed by the state against the accused. It is also respectfully submitted that accused was not discharging any kind of duty relating to Air Force as he was on annual leave much prior to the day of incident and was residing at his home town beyond the limits of Air Force jurisdiction at the time of alleged offence. In regard to his discharge from service it is further submitted that he was given discharge from service as his service was no longer required and he was unsuitable for retention in service because of his repeated offence of absence from duty without any prior 22 permission authorized leave. He was not amenable to service discipline as even after giving sufficient opportunity and cautionary waming he continued to be absent from duty and preferred to carryout in disciplinary activities. Copy of the warning letter dated 26 June 2004 is hereby annexed and marked as Annexure- 'A. Accordingly, he was issued with show cause notice as per rules and was given proper opportunity to present his case prior to his discharge from service. In this manner he could not complete the minimum qualifying service to earn service pension. It is absolutely the fault of accused which resulted in his unscheduled discharge from service without any pensionary benefits. However, in regard to terminal benefits if any accrued to him, he has to approach the appropriate authorities in prescribed manner. In case of any grievance, the accused herein has alternate remedy by way of appealing to the concerned authorities. However instead of availing the same, he intended to harass the authorities in all manners and tired to bring down the image of Air Force. He kept sending threatening letters wherein he did not hesitate to use obscene languages. His malicious intention and low moral character can be revealed from the letter dated 10.09 2007 sent by him to the applicant herein. A copy of the said letter is annexed herewith and marked as annexure- 'B'. It is evident from the activities of Shri Ramgopal Sikder that he intended to blame the esteemed organization of defence without accepting his own fault.

8. Since the instant case has no direct or indirect connection to the Air Force service, the various officials of defence services would not be helpful to the Hon'ble Court as defence witnesses. The officials have no clue of the incident and they will not be able to depose any substance in the instant case.

9. Therefore, in this peculiar circumstances your petitioner prays that your honour would graciously be pleased to consider that your petitioner and D/Ws numbering 9, 10, 11,12,13,14,15 and 22 namely – (a) Air Chief Marshal SP Tyagi (Retd) (b) Air Chief Marshal FH Major (Present Chief) (c) Air Commodore SPS Virk (Air Officer Commanding 3 Base Repair 23 Depot) (d) Group Captain MB Krishna ARS-1 3 Base Repair Depot (e) Squadron Leader SK Saha (f) Flying Officer Naresh Goel (g) Group Captain Unnikrishanan( former Station Commander 6 wing Force, Barrackpore) (h) Defence Secretary, Ministry of Defence are nowhere concerned with the facts and circumstances of the instant case and he along with D/W 9, 10, 11, 12, 13, 14,15 and 22 may please be exonerated and released from appearing before your Hon’our by recalling the order of Hon’ble Court passed on 03.02.2009 and to pass any such order or orders as your honour may deem fit and proper and your petitioner as in duty bound shall ever pray.” Letter dated 04.05.2009 “Most respectfully sheweth :- 1) That a Summon has been issued through the Learned Court to Joint Secretary, Ministry of Law & Justice for Deposition as Defence Witness in connection with the above noted case. (Xerox copy of the Some filed here with.) 2) That the Learned Counsel has been appointed in this regard for taking necessary steps and after going through the Record and/or after inspection of the Record, it appears that Summon in question had/has not been duly issued to the Defence Witness. 3) That there is none as Joint Secretary, Ministry of Law & Justice and the Applicant, Sr. Govt. Advocate, namely, Sm. Sarmistha Bhattacharyya, at present is working as In-Charge of the Branch Secretariat of Ministry of Law & Justice. 24 4) That the Applicant has no way connection with the instant case and has nothing to depose relating to the assaulting or alleged offence committed by the Accused. 5) That the present case was/is absolutely prerogative of the Accused in his individual capacity and he himself is responsible for his act of alleged offence. 6) That the Applicant, a responsible Office having no knowledge or information nor even the Applicant was/is connected in this matter in any manner whatsoever and thus the Applicant's appearance in the Court as Witness has got no relevancy and it will not be improved the case of any one of the either party nor it will help to the Learned Court came to any rightful decision in any way whatsoever, so the Applicant's name may kindly be expunged from the List of the Defence Witness. Perhaps same has been added through mistake. In this circumstances stated above, it is therefore prayed that Your Honour may be graciously pleased to pass necessary order by re-calling the Order dated

03.02.2009 as Your Honour may deem fit and proper. And your Petitioner, as in duty bound, shall ever pray.” Letter dated 05.05.2009 “Most respectfully sheweth :-

1. That a summon has been issued through the Learned Court to Deputy Director of Staff Selection Commission for deposition as defence witness on 16.5.2009 before your Honour's Court in connection with the above mentioned case.(Xerox copy of the summon filed herewith.)

2. That learned Councel is appointed by Ministry of Law for taking necessary steps in this regard. 25

3. That applicant has no way connection with the instant case and has nothing to depose relating to the assaultation or alleged offence committed by the accused.

4. That the applicant a responsible official having no knowledge nor even the applicant was/is connected in this matter in any manner whatsoever and thus the applicant's appearance in the court as witness has got no relevancy and it will not improved the case of any one of the either party nor it will help the learned court to come to any rightful decision. So the applicant's name may kindly be expunge from the list of the defence witness. In this circumstances stated above it is therefore prayed that your Honour may be graciously pleased to expunge the name of Deputy Director of Staff Selection Commission as defence witness by recalling the order dated 3.2.2009 and pass such other order or orders as your Honour may deem fit and proper. And your petitioner as in duty bound, shall ever pray.”

9. In the case of The State of Sikkim Vs. Jasbir Singh & Anr.1, the Hon’ble Supreme Court observed as follows: “14 Chapter VI of the Army Act deals with offences. The expression ‘civil offences’ is defined in Section 3(ii) to mean “an offence which is triable by a criminal court”. Section 692 deals with civil offences. Section 703 deals with civil offences which are not triable by a court-martial. 1 Criminal Appeal No. 85 of 2022 2 “69. Civil offences. 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, that is to say,-- (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 26 15 Section 1254 deals with a situation where both a criminal court and a courtmartial 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 proceedings 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 125, in other words, confers the discretion on the designated officer to decide whether the accused should be tried by a court martial or by the regular criminal court. 16 Section 126, as the marginal note indicates, deals with the powers of the criminal court “to require delivery of offender”. Section 126 provides that when a criminal court having jurisdiction is of the opinion that the proceedings should be instituted before itself in respect of “any alleged offence”, it may by written notice require the officer referred to in Section 125 to either deliver over the offender to the nearest magistrate to be dealt with in accordance with law or in the alternative to postpone the proceedings, pending a reference to the Central Government. Under Section 126, the designated officer has two courses of action open: (i) deliver the offender in compliance with the requisition of the criminal court; or (ii) refer the question to the Central Government for determining the court before (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.” 3 “70. Civil offence not triable by court-martial. 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 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.” 4 “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 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.” 27 which the proceedings are to be instituted. The determination by the Central Government is to be final. 17 Sections 125 and 126 operate in different domains. Section 125 envisages that there is a discretion in the designated officer to determine as to whether the accused should be tried by a court-martial or by the competent criminal court. Section 126 on the other hand recognises that the criminal court may require the officer designated in Section 125 by a written notice, to deliver the offender to the nearest magistrate to be proceeded with in accordance with law. Upon the issuance of such a written notice, the designated officer has the discretion either to accept the decision of the criminal court by delivering the offender or the officer may decide to refer the matter to the Central Government for its decision. Section 126 explicitly recognises that in the event of a difference of view between the officer designated under Section 125 and the criminal court under Section 126, the matter has to be referred to the Central Government for resolution, finality being attached to the decision of the Central Government. Section 126, in other words, has provided the modalities for resolving a situation where a criminal court decides to proceed against the accused, while on the other hand the designated officer under Section 125 decides to have the accused tried by a court-martial. It is to resolve a situation of this nature that a reference is envisaged to the Central Government. 18 Section 4755 of the CrPC has empowered the Central Government to make rules consistent with the CrPC and the Army Act, Navy Act 1957 and 5 “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 persons subject to military, navel or air force law, or such other law, shall be tried by a Court to which this Code applies or by a Court-martial, and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which this Code applies or by a Court-martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the commanding officer of the unit to which he belongs, or to the commanding officer of the nearest military, naval or air-force station, as the case may be, for purpose of being tried by a Court-martial. Explanation.—In this section— 28 the Air 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 the 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 the 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. 19 In exercise of the powers which have been conferred by Section 475 of the CrPC, the Central Government framed the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules 1952 which were notified and published in the Gazette of India on 26 April 1952. These Rules were superseded by the Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules 1978. Rules 3, 4, and 5 of the 1978 Rules are extracted below: “3. Where a person subject to military, naval or air force law, or any other law relating to the Armed Forces of the Union for the time being in force is brought before a Magistrate and charged with an offence for which he is also liable to be tried by a Court- martial, such Magistrate shall not proceed to try such person or to commit the case to the Court of Session, unless— (a) he is moved thereto by a competent military, naval or air force authority; or (b) he is of opinion, for reasons to be recorded, that he should so proceed or to commit without being moved thereto by such authority. (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 purposes by the commanding officer of any unit or body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavours to apprehend and secure any person accused of such offence. (3) 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.” 29

4. Before proceeding under clause (b) of rule 3, the Magistrate shall give a written notice to the Commanding Officer or the competent military, naval or air force authority, as the case may be, of the accused and until the expiry of a period of fifteen days from the date of service of the notice he shall not- (a) convict or acquit the accused under section 252, sub-sections (1) and (2) of section 255 sub-section (1) of section 256 or section 257 of the Code of Criminal Procedure, 1973 (2 of 1974), or hear him in his defence under section 254 of the said Code; or (b) frame in writing a charge against the accused under section 240 or sub-section (1) of section 246 of the said Code; or (c) make an order committing the accused for trial to the Court of Session under section 209 of the said Code; or (d) make over the case for inquiry or trial under section 192 of the said Code.

5. Where a Magistrate has been moved by the competent military, naval or air force authority, as the case may be, under clause (a) of rule 3, and the commanding officer of the accused or the competent military, naval or air force authority, as the case may be, subsequently gives notice to such Magistrate that, in the opinion of such officer or authority, the accused should be tried by a Court- martial, such Magistrate if he has not taken any action or made any order referred to in clauses (a), (b), (c) or (d) of rule 4, before receiving the notice shall stay the proceedings and, if the accused is in his power or under his control, shall deliver him together with the statement referred to in sub-section (1) of section 475 of the said Code to the officer specified in the said sub-section.” 20 Under Rule 3, where a person who is subject to military, naval or air force law, (or any other law relating to the Armed Forces of the Union) is brought before a Magistrate and is charged with an offence liable to tried by a court-martial, the Magistrate cannot proceed to try such a person or commit the case to the Court of Session, except in one of the two eventualities specified in clauses (a) and (b). Clause (a) envisages a situation where the Magistrate is moved by a competent military, naval, or air force authority. Clause (b) envisages a situation where the Magistrate is of the opinion that the person should be tried by him or that the case should be committed to the Court of Session. 21 Rule 4(c) provides that before proceeding under clause (b) of Rule 3, the Magistrate has to give a written notice to the Commanding Officer or the competent authority of the accused and until the expiry of fifteen days, the Magistrate cannot make an order committing the accused for trial to the Court of Session under Section 209 of the CrPC. Rule 5 deals with a 30 situation where the Magistrate has been moved by the competent military, naval or air force authority under clause (a) of Rule 3 and subsequently, the Commanding Officer or competent authority gives notice to the Magistrate that in the opinion of the officer, the accused should be tried by a court-martial. 22 The purpose underlying Rule 3 and Rule 4 is that unless the Magistrate has been moved by a competent military, naval or air force authority, the Magistrate must furnish a written notice to the Commanding Officer or the competent authority, if he is of the opinion that either the trial should proceed before the Magistrate or an order of committal of the case to the Court of Sessions should be passed against the accused held liable to be tried by a court-martial. The object and purpose of giving the notice is to facilitate an exercise of discretion by the designated officer to determine whether the accused should be tried by a court-martial or in the alternative, should be proceeded with before the ordinary criminal court. The above provisions have been interpreted in several decisions of this Court. 23 In Ram Sarup v. Union of India and another6, the petitioner, who was a sepoy subject to the Army Act, was charged under Section 69 of the Army Act read with Section 302 of the IPC. The petitioner was tried by the General Court-Martial for having shot dead two sepoys, and was found guilty and sentenced to death. The Central Government confirmed the findings and the sentence awarded by the General Court-Martial. The petitioner inter alia challenged the provisions of Section 125 of the Army Act on the ground that they were in violation of Article 14 of the Constitution. While dealing with the constitutional challenge, Justice Raghubar Dayal, speaking for the Constitution Bench observed as follows: “17. Section 69 provides for the punishment which can be imposed on a person tried for committing any civil offence at any place in or beyond India, if charged under Section 69 and convicted by a Court Martial. Section 70 provides for certain persons who cannot be tried by Court Martial, except in certain circumstances. Such persons are those who commit an offence of murder, culpable homicide not amounting to murder or of rape, against a person not subject to Military, Naval or 6 (1964) 4 SCR 931 31 Air-Force law. They can be tried by Court Martial of any of those three offences if the offence is committed while on active service or at any place outside India or at a frontier post specified by the Central Government by notification in that behalf. This much therefore is clear that persons committing other offences over which both the Court Martial and ordinary criminal courts have jurisdiction can and must be tried by Courts-Martial if the offences are committed while the accused be on active service or at any place out-side India or at a frontier post. This indication of the circumstances in which it would be better exercise of discretion to have a trial by Court Martial, is an index as to what considerations should guide the decision of the officer concerned about the trial being by a Court Martial or by an ordinary Court. Such considerations can be based on grounds of [maintenance] of discipline in the army, the persons against whom the offences are committed and the nature of the offences. It may be considered better for the purpose of discipline that offences which are not of a serious type be ordinarily tried by a Court Martial, which is empowered under Section 69 to award a punishment provided by the ordinary law and also such less punishment as be mentioned in the Act. Chapter VII mentions the various punishments which can be awarded by Court Martial and Section 72 provides that subject to the provisions of the Act a Court Martial may, on convicting a person of any of the offences specified in Sections 31 to 68 inclusive, award either the particular punishment with which the offence is stated in the said sections to be punishable or in lieu thereof any one of the punishments lower in the scale set out in Section 71, regard being had to the nature and degree of the offence.” 24 In the above extract, the Court dealt with the considerations which would ultimately weigh in determining as to whether a trial by a court- martial should be convened. In that backdrop, the Court noted : “21. In short, it is clear that there could be a variety of circumstances which may influence the decision as to whether the offender be tried by a Court Martial or by an ordinary criminal court, and therefore it becomes inevitable that the discretion to make the choice as to which Court should try the accused be left to responsible military officers under whom the accused be serving. Those officers are to be guided by considerations of the exigencies of the service, maintenance of discipline in the army, speedier trial, the nature of the offence and the person against whom the offence is committed.” (emphasis supplied) 25 Hence in the view of the Constitution Bench, 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 32 Section 549 of the Code of Criminal Procedure 1898 (equivalent to Section 475 of the 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. 26 In Som Datt Datta v. Union of India7, the Constitution Bench considered a challenge under Article 32 to the proceedings before a General Court-Martial, pursuant to which the petitioner had been found guilty of charges under Section 304 and Section 149 of the IPC and sentenced to rigorous imprisonment of six years and cashiering. The first question which was considered by the Constitution Bench was whether the Court-Martial had jurisdiction to try and convict the petitioner for the offences. Justice V Ramaswami, speaking for the Constitution Bench, elaborated that under Chapter VI of the Army Act, Sections 34 to 68 define the offences against the Act which are triable by a court-martial. After alluding to Sections 69 and 70, the Court observed: “4. […] 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 murder or rape committed by a person subject to 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.” 7 (1969) 2 SCR 177 33 27 The Court noted that where a civil offence is also an offence under the Army Act or is deemed to be an offence under the Act, both the ordinary criminal court as well as the court-martial have jurisdiction to try the accused committing the offence. In that case, the petitioner argued that the Commanding Officer had not furnished a notice under Rule 5 to the Magistrate that the petitioner should be tried by a court-martial and hence the criminal court alone had jurisdiction. This submission was held to be misconceived for the following reasons: “7. It was argued on behalf of the petitioner that there was no notice given by the Commanding Officer to the Magistrate under Rule 5 that the petitioner should be tried by a Court Martial and hence the criminal court alone had jurisdiction under Rule 3 to conduct proceedings against the petitioner for the offences charged. In our opinion, the argument on behalf of the petitioner is misconceived. The Rules framed by the Central Government under Section 549 of the Criminal Procedure Code apply to a case where the proceedings against the petitioner have already been instituted in an ordinary Criminal Court having jurisdiction to try the matter and not at a stage where such proceedings have not been instituted. It is clear from the affidavits filed in the present case that the petitioner was not brought before the Magistrate and charged with the offences for which he was liable to be tried by the Court Martial within the meaning of Rule 3 and so the situation contemplated by Rule 5 has not arisen and the requirements of that Rule are therefore not attracted. It was pointed out by Mr Dutta that after the first information report was lodged at Pallavaran police station a copy thereof should have been sent to the Magistrate. But that does not mean that the petitioner “was brought before the Magistrate and charged with the offences” within the meaning of Rule 3. It is manifest that Rule 3 only applies to a case where the police had completed investigation and the accused is brought before the Magistrate after submission of a charge-sheet. The 24 provisions of this Rule cannot be invoked in a case where the police had merely started investigation against a person subject to military, naval or air force law. With regard to the holding of the inquest of the dead-body of Spr. Bishwanath Singh it was pointed out by the Attorney-General that Regulation 527 of the Defence Services Regulations has itself provided that in cases of unnatural death that is death due to suicide, violence or under suspicious circumstances information should be given under Section 174 of the Criminal Procedure Code to the civil authorities, and the conduct of Maj. Agarwal in sending information to the civil police was merely in accordance with the provisions of this particular regulation. For these reasons we hold that counsel for the petitioner is unable to make good his argument on this aspect of the case.” (emphasis supplied) 34 28 From the above extract, it is evident that the Constitution Bench held that the Rules applied in a situation where proceedings had already been instituted in an ordinary criminal court. In that case, the petitioner was not brought before the Magistrate and charged with an offence for which he was liable to be tried by the court-martial. Rule 3 only applied, as the Court noted, where the police had completed the investigation and the accused was brought before the Magistrate after the submission of the charge-sheet. The decision in Som Datt Datta (supra), in other words, dealt with a situation where the offender had been tried by a courtmartial. The argument that the Rules applied but had not been followed by the competent officer was rejected. 29 In Joginder Singh v. State of Himachal Pradesh8, a two-judge Bench of this Court dealt with a case where the appellant, who was governed by the Army Act, challenged the legality of his trial and conviction for committing the offence under Section 376 of the IPC by the Assistant Sessions Judge, Nahan. Unlike the situation before the Constitution Bench in Som Datt Datta (supra) (where the accused had been tried by a court-martial), in Joginder Singh (supra) the accused had been tried and convicted by the Sessions Court. In that case, the appellant who was subject to the Army Act was alleged to have committed rape in relation to a person who was not subject to military, naval or air force law and hence under Section 70, the accused could normally be tried by an ordinary criminal court. However, since the appellant was in active service at the time of the alleged offence, the courtmartial also had the jurisdiction to try him and the case involved a situation where both the court-martial and the ordinary criminal court had concurrent jurisdiction. After considering the earlier judgments of this Court in Major EG Barsay v. State of Bombay9, Ram Sarup (supra) and Som Datt Datta (supra), the Court observed: “22. 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 8 (1971) 3 SCC 86 9 (1962) 2 SCR 195 35 the Rules, have made suitable provisions to avoid a conflict of jurisdiction between the 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 Section 125 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 officer as may be prescribed will have to exercise his discretion and decide under Section 125 in which court the proceedings shall be instituted. It is only when he so exercises his discretion and decides that the proceedings should be instituted before a Court-martial, that the provisions of Section 126 (1) come into operation. If the designated officer does not exercise his discretion and decides that the proceedings should be instituted before a Court-martial, the Army Act would not obviously be in the way of a criminal court exercising its ordinary jurisdiction in the manner provided by law.” (emphasis supplied) 30 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-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 it is 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 courtmartial, the Army Act would not interdict the exercise of jurisdiction by the ordinary criminal court. After adverting to the provisions of the Rules, the Court noted: “29. Rule 4 is related to clause (a) of Rule 3 and will be attracted only when the Magistrate proceeds to conduct the trial without having been moved by the competent military authority. It is no doubt true that in this case the Assistant Sessions Judge has not given a written notice to the Commanding Officer as envisaged under Rule 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 military custody and handed him over to the civil authorities, the Magistrate was justified in proceeding on the basis that the military authorities 36 had decided that the appellant need not be tried by the Court- martial and that he could be tried by the ordinary criminal court.” 31 In Joginder Singh (supra) therefore the Court noted that the absence of a written notice to the competent officer under Rule 4 was unnecessary where the competent military authorities, knowing about the nature of the offence alleged against the appellant, released him from military custody and handed him over to the civil authorities. In such a situation, it was held that the Magistrate was justified in proceeding on the basis that the military authorities had decided that the appellant need not be tried by a court-martial and that he should be tried by the ordinary criminal court. […..] 35 In Extra-Judicial Execution Victim Families Association and Another v. Union of India10, a submission was urged on behalf of the Union of India that an offence committed by a member of the Armed Forces must be tried under the provisions of the Army Act through a court-martial and not under the CrPC. Justice Madan B Lokur, speaking for the two- judge Bench, inter alia adverted to the decisions of the Constitution Benches in Ram Sarup (supra) and Som Datt Datta (supra). The Court also referred to the following extract from the decision in Balbir Singh and Another v. State of Punjab11: “240. In para 17 of the Report in Balbir Singh case [Balbir Singh v. State of Punjab, (1995) 1 SCC 90 : 1995 SCC (Cri) 202] , this was held as follows : (SCC pp. 99-100) ““17. A conjoint reading of the above provisions shows that when a criminal court and court martial each have jurisdiction in respect of the trial of the offence, it shall be in the discretion of the officer commanding the group, wing or station in which the accused is serving or such other officer as may be prescribed, in the first instance, to decide 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 persons shall be detained in air force custody. Thus, the option to try a person subject to the Air Force Act who commits an offence while on “active service” is in the first instance with the Air Force Authorities. The criminal court, when such an accused is brought before it shall