AI Structured Summary
Not yet generated for this judgment
Judgment
Y.P. Nargotra, J.—The petitioners are seeking to invoke the inherent jurisdiction of this Court vested u/s 561-A Cr.P.C. for quashing FIR
Nos. 75 and 103/2005 registered at Police Station Leh and order dated 22.9.2005 passed by Chief Judicial Magistrate Leh. The controversy
involved relates to petroleum scam in which instead of petrol products water was being supplied to the army. Petrol products i.e. kerosene, diesel
and petrol in private trucks/tankers was to be carried from Ambala Depot of Indian Oil Corporation to Army Field Petrol Depot (FPD) Leh.
When the trucks/tankers carrying petrol products reached at Leh the Commandant of the Unit under whose control FPD Leh was received
information from military intelligence that some of the tankers/trucks instead of petrol products were carrying water. He then lodged a report with
Police Station Leh and issued instructions that no tanker/truck shall be allowed to enter the premises of FPD Leh. Simultaneously the Station
Commandant Leh constituted a Board of officers for checking the products in the trucks. The police after registering the FIRs also swung into
action and seized the trucks/tankers. The drivers of the trucks/tankers were arrested, since they were found to be carrying water instead of petrol
products. During investigation the petitioner No. l who is a Captain in the army, was also arrested and remand u/s 167 Cr.P.C. was obtained for
his custody from C.J.M.Leh.The FIRs registered by the police are for commission of offences Under Sections 467, 409, 420 and 120B RPC and
5(2) of P.C.Act. Investigation is still in progress and charge sheets are yet to be filed before the criminal court for trial of the accused.
The army on its part also initiated inquiry into the matter. G.O.C. 14 Corps in whose over all control FPD Leh falls by his order dated
18.7.2005 ordered for convening of Court of Inquiry, After Court of Inquiry proceedings various army personnel, including the petitioners herein,
were found to be involved in the scam and consequently G.O.C. 14 Corps directed initiation , of action under Army Act 1950 against them for
various acts of omission and commission punishable under Army Act. Pursuant to his directions petitioners were removed from their respective
posts on which they were posted and were attached to different units for investigation of charges against them under Army Act. This apart the
petitioners 1&3 have also been suspended from duty in terms of para 349 of Army Regulations under Army Act 1987 which amounts to open
arrest.
One of the FIR was registered at the instance of petitioner No. 3 against seven civilian drivers who had brought water instead of diesel from
Ambala to FDP Leh on 16.7.2005. Petitioner No. 2 had also lodged report with I.O.C. Amabla and Jammu to take disciplinary action against the
civilian drivers for blacklisting them. Tentative charge sheets have also been served upon petitioner Nos. 3&4. Petitioner No. 3 has been charged
for commission of offence u/s 52F and 45 of Army Act whereas petitioner No. 4 for commission of offence u/s 69 of the said Act. Summary of
evidence is being collected and recorded. It is admitted case of the petitioners that they have yet not been tried, convicted or sentenced for the said
offences under the Army Act. Petitioners 1&2 having applied before learned C.J.M.Leh, seeking quashment of the orders dated 8th and 13th
Sept. 2005 issued u/s 167 Cr.P. C. by which petitioner No. l had been remanded to police custody, petitioners prayed for maintenance of status
quo-ante/release from custody on the ground that they were governed by Army Act and therefore Code of Criminal Procedure had no application
and as such the remand orders were not valid and legal. Learned C.J.M.Leh by his order dated 22.9.2005 has rejected the application.
I have heard the learned Counsel for the parties. The contention of Mr.Bhardwaj, learned Counsel for the petitioners, is that Army Act and the
Rules framed thereunder contain a complete Code in itself, therefore, the civil police has no jurisdiction to investigate into the offences against army
personnel. He submits that in terms of the provisions contained in Section l, Sub-section (2) read with Section 5(2) of Cr.P.C. offences under
Special Acts can be investigated under special Acts and not under Cr.P.C. According to him the offences alleged are also offences under Army
Act, therefore, civil police has no jurisdiction to conduct investigation. Section l of J&K Cr.P.C. reads as follows:
Short title, commencement, (1) This Code may be called the Code of Criminal Procedure, and it shall come into force on the first day of Phagan
1989.
Extent, (a) It extends to the whole of Jammu and Kashmir State but in the absence of any specific provision to the contrary, nothing herein
contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure
prescribed, by any other law for the time being in force, (b) Repealed.
Section 5 provides; (1) All offences under the Ranbir Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to
the provisions hereinafter contained. (2) Trial of offences against other law-All offences under any other law shall be investigated, inquired into,
tried and otherwise dealt with according to the same provisions but subjected to any enactment for the time being in force regulating the manner or
place of investigating, inquiring into, trying or otherwise dealing with such offences.
The contention of Mr.Bhardwaj is that the facts on which petitioner Nos. 3&4 have been charged also constitute offences under the Army Act,
therefore, Army Act being a special Act those offences can be investigated and inquired into and tried under Army Act alone and not under the
Cr.P.C. in terms of the aforesaid provisions.
There is no force in the contention of Mr.Bhardwaj. It is not disputed that the facts alleged in the FIRs constitute offences under Ranbir Penal
Code. The FIRs relate to the offences under Ranbir Penal Code, therefore, in terms of the mandate of Sub-Section (l) of Section 5 Cr.P.C. these
offences can be investigated by the civil police. If those facts constitute offences under Army Act, same can be investigated under Army Act too.
There is no bar under law for parallel investigation by the Army into the offences under Army Act. Now the question is if on the same facts
offences under Army Act as well as under Ranbir Penal Code are found established then in such a situation which of the courts, i.e. Ordinary
Criminal Courts or Army Courts can try the accused? The accused would be triable for offences under Army Act, by Army Court and by ordinary
criminal court for offences under Ranbir Penal Code in accordance with the provisions contained under Cr.P.C.
However, Article 20 of the Constitution of India prohibits the prosecution and punishment of such a person for the same offence for more than
once. In order to abide by the guarantee, guaranteed by the constitution and to avoid double prosecution and conviction/punishment of an accused
for the same offence, a provision has been made under Cr.P.C. in Section 549 which provides as follows:
549 -- Delivery to military authorities of persons liable to be tried by Court-martial.
(1) The Government may make Rules consistent with this Code and the Army Act in force in the State or any similar law for the time being in force
as to the cases in which persons subject to military law, shall be tried by a Court to which this Code applies, or by Court-martial, and when any
person is brought before a Magistrate and charged with an offence for which he is liable, under the Army Act in force in the State to be tried 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 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.
(2) Apprehension of such persons-Every Magistrate shall, on receiving a written application for that purpose by the Commanding Officer of any
body of troops stationed or employed at any such place, use his utmost endeavours to apprehend and secure any person accused of such
offences.
Thus u/s 549 Cr.P.C. on the presentation of the charge sheet for commission of offences under R.P.C. for which the accused who is subject to
military law, can be tried by a Court-martial under Army Act an option is required to be given by the Magistrate before whom the charge sheet is
filed to the army to decide as to which of the two i.e. Army or the Criminal Court would try him. For adjusting parallel jurisdiction of Army Courts
and Criminal Courts, Rules called Criminal Court and Court-martial (Adjustment of jurisdiction) Rules 1978 have been framed. Under Rule 3 it is
provided that where a person subject to military, naval.air force or coast guard 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 or
Coast guard court, as the case may be 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,air force or Coast guard 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.
And under Rule 4 before proceeding under Clause (b) of Rule 3,the Magistrate is enjoined upon a duty to give a written notice to the Commanding
Officer or the competent military, naval,air force or coast guard 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 notice he shall not convict or acquit the accused or make order committing the accused for trial to the Court
of Session or make over the case for inquiry or trial and under Rule 5 where a Magistrate has been moved by the competent military,naval,air
force or coast guard authority, as the case may be, under Clause (a) of Rule 3 and such authority, as the case may be, subsequently gives notice to
such Magistrate that, in opinion of such authority, the accused should be tried by a Court-martial or coast guard court as the case may be, such
Magistrate if he has not taken any action or made any order under Rule 4,before receiving the notice shall stay the proceedings, and in terms of
Rule 6 where within a period of fifteen days or at any time thereafter but before the Magistrate makes any order, the Commanding Officer or the
competent military,naval,air force or coast guard authority, as the case may be, gives notice to the Magistrate that in the opinion of such officer or
authority the accused should be tried by a court-martial or coast guard court, as the case may be, the Magistrate shall stay the proceedings and if
the accused is in his power or under his control, shall deliver him together with statement, referred to in Sub-section (l) to the officer specified.
The aforesaid restrictions relate to the trial of the accused and not to the investigation. Therefore, in view of the fact that the accused petitioners
are yet to be put on trial under the Army Act, no question of scuttling the investigation by the ordinary police into the FIRs registered against the
accused arises.
To urge that there is a bar for investigation of offences by the police under Cr.P.C . Mr.Bhardwaj seeks to rely upon a case titled Ajmer Singh
and Others Vs. Union of India (UOI) and Others, . This authority has no application to the present case. In the case before the Supreme Court the
appellants who had been convicted by Court-martial for offences under the Army Act and were undergoing imprisonment had applied for benefit
of the provision of set off contained in Section 428 of Central Cr.P.C. The High Court of Punjab and Haryana had rejected their claims. Their
lordships of the Supreme Court observed as follows:
The relevant chapters of the Army Act, the Navy Act and the Air Force Act embody a completely self-contained comprehensive Code specifying
the various offences under those Acts and prescribing the procedure for detention and custody of offenders, investigation and trial of the offenders
by Court-martial, the punishment to be awarded for the various offences, confirmation and revision of the sentences imposed by Court-martial, the
execution of such sentences and the grant of pardons, remissions and suspensions in respect of such sentences. These enactments, therefore,
constitute a special law in force conferring special jurisdiction and powers on courts-martial and prescribing a special form of procedure for the
trial the offences under those Acts. The effect of Section 5 of the Criminal P.C. is to render the provisions of the Code inapplicable in respect of all
matters covered by such special law. Inasmuch as Section 176 of the Act specifically deals with the topic of the date of commencement of the
sentences of imprisonment, there is absolutely no scope for invoking the aid of Section 428 of the Criminal P.C. in respect of prisoners convicted
byCourts-martial under the Act. The effect of Section 5 of the Code is clearly to exclude the applicability of the Code in respect of proceedings
under any special or local law or proceedings under any special jurisdiction or form of procedure prescribed by any other law. Whatever doubt
might otherwise have existed on this point is totally set at rest by Section 475 of the Criminal P.C, which furnishes a conclusive indication that the
provisions of the Code are not intended to apply in respect of proceeding before the Courts-martial. Further, there is also intrinsic indication
contained in the very wording of Section 428 of the Code of Criminal Procedure that the Section cannot have any application in respect of persons
tried and sentenced by Courts-martial.
In the present case the petitioners are yet to be tried for the offences under Army Act and no question of applicability of the provisions of
Code of Criminal Procedure to the trial under Army Act of the accused is involved here.
For the aforesaid reasons I do not find any merit in this petition and the same is accordingly dismissed, alongwith connected CMPs.