Sunil Kumar vs State of Punjab

J. B. Garg, J.

Sunil Kumar, Sepoy No. 4262899 L son of Shri Dur Prasad Ram Dauli, 7Bihar, ASC (MT) has moved this Court under Section 482 of the Code of Criminal Procedure for quashing First Information Report No. 62 of 1990 for offences under Sections 302/307/452 of the Indian Penal Code of Police Station Adampur, District Jalandhar.

Briefly, the facts are that on the intervening night of 5th and 6th November 1990, Janardhan Mandan, a Sepoy was abducted by a couple of persons alleged to be terrorists. When the abduction of a Sepoy was noticed, four or five soldiers followed after constitution of patrol party and a horse car was noticed and the patrol party challenged that it should step. Sepoy Sunil Kumar and Sepoy Sita Ram allegedly fired and in that process Balkar Singh died by a given shot. A challan for prosecution of Sunil Kumar was presented and the case was committed for trial on July 27, 1992, by Judicial Magistrate First Class, Jalandhar. The challan is now pending in the Court of Additional Sessions Judge, Jalandhar, where a charge has also been framed.

In the present petition moved by Sunil Kumar, it has been alleged that under Section 125 of the Army Act, 1950, it was the discretion of the Officer Commanding to proceed with the case itself or to inform the trial Court to conduct the trial. It has been pointed out on behalf of the petitioner that there was an error in as much as the Officer Commanding, 14 Bihar Regiment informed the Judicial Magistrate concerning Police Station Adampur that he had no objection if the case in question was tried by the Judicial Court. The learned counsel for the petitioner has pointed out that Sunil Kumar belonged to 7 Bihar Regiment and not to 14 Bihar Regiment and obviously, Annexure R1, the letter which was taken into consideration by the committing Magistrate was issued by a person who was not competent to do so in respect of Sunil Kumar, the present petitioner who belongs to 7 Bihar Regiment. This question of fact has not been controverted in this Court.

The learned counsel for the petitioner has referred to Ram Chander v. State of Haryana, 1983 CL. C. Cases 541 wherein it was observed that the accused should not be committed to the Court of Sessions without being moved thereto by the Commanding Officer. In this case, as seen above the actual Commanding Officer of the petitioner never moved the Committing Court or the trial Court.

The learned counsel for the petitioner has referred to the proceedings conducted by the concerned Commanding Officer in para 6 of the present petition and it has also been pointed out that his own Commanding Officer disliked Sepoy Sunil Kumar''s production before a Magistrate in Civil Court or summoning him to the Civil Jail. This is apparent from the proceedings conducted by the Commanding Officer which goes to show that it preferred to hold its own enquiry and not that the petitioner was to be subjected to trial by the Judicial Court.

To sum up, it may be mentioned that in this case, the Commanding Officer imposed punishment of one year''s rigorous imprisonment on Sepoy Janardhan Mandal a co accused and also dismissed him from Millitary Service as per communication No. GCM/Bihar/PC/ST 12 dated 29.5.1992 and the present petitioner was exonerated by the Commanding Officer. In these peculiar circumstances, the present petition succeeds. The impugned commitment proceedings and the charge framed by the trial Court as well are hereby quashed.

JUDGMENT accordingly.