Union of India vs State of Tripura and Others

Heard Mr. P.K. Dhar, learned Senior Central Government Standing Counsel for the petitioner and Mr. B.B. Deb, learned senior counsel for the respondent. Heard also Mr. S. Das, learned Public Prosecutor, Tripura for the State respondent.

This Criminal Revision is directed against the order dated 28.2.2000 passed by the Assistant Sessions Judge, No.1, West Tripura, Agartala in Sessions Trial No. 133 (WT/A) 1999.

The facts leading to the present petition in brief are that the accused Devendra Rai, Head Constable No.80002767 while attached I.G. Head Quarter P&R BSF, Salbagan, was involved in Airport P.S. Case No.31/1998 u/s 354/376 IPC. The accused was arrested in the above case and subsequently the accused was charge sheeted. On case being committed, the above referred Sessions trial was registered. Vide order dated 23.9.1999 the accused was charged u/s 375 IPC and thereafter as many as 7 witnesses are examined. On 8-2-2000 i.e. during pendency of the trial, the DIG BSF, filed an application u/s 475 Cr.P.C. for transferring the matter to the Security Court for trial of the accused person on the ground that the Commanding Officer of the accused had taken a decision for trial of the accused, an Armed Force personnel, under the relevant rules. The learned Assistant Sessions Judge, after hearing both sides vide impugned order rejected the application and directed that the trial shall continue. Hence, the present revision.

On perusal of the impugned order, it is seen that the learned Assistant Sessions Judge, has relied on the observation of the Apex Court in a case of Joginder Singh Vs. State of Himachal Pradesh, So far the facts in Joginder Singh (Supra) are concerned, they are not relevant for the purpose of deciding the present case. In the above case, no decision was taken by the competent authority u/s 125/126 of the Army Act and, as the designated officer did not choose to exercise his discretion, the conviction was not interfered with. In the present case. admittedly, an application has been filed before the trial Court communicating decision of the designated authority.

Shri B.B. Deb. learned senior counsel for accused-respondent. has fairly submitted that neither u/s 475 Cr.P.C. nor 125/126 of the Army Act. any lime frame has been provided for taking such decision or for filing such application. However, it is stated that the fact that the accused, a person belonging to the Paramilitary force and subject to the Army Act and Rules, has been arrested was known to the concerned authority, but. still they have slept over the matter and did not take any effective steps. Further, as many as 7 witnesses are examined by the trial Court and the accused will be prejudiced as he has disclosed his defence plea. 1 have perused the orders and it is seen that this is a case u/s 376 I.P.C. and neither the victim nor the eye witnesses had been examined. The order dated 28.1,2000 shows that although the Investigating Police Officer was present before the Court on that day, he was not examined. In this case as the victim and other eye witnesses of the case have not yet examined. I find that the examination of other witnesses before the Assistant Sessions Judge, will not prejudice the defence.

The prayer of the designated authority was also rejected by the trial Judge on the ground that u/s 475 Cr.P.C. the Assistant Sessions Judge has no jurisdiction to decide the application as the power is exclusively vested with the Magistrate. The trial Court also observed that no other provisions of law or no other case law of the Apex Court or of our parent High Court or any other Courts were brought to their notice.

It may be mentioned here that this court vide its decision dated 19.4.1999 in Criminal Revision No. 220/1992 held that once a decision is taken by the competent authority, the Sessions Judge, is required to hand over the relevant documents and the accused persons for trial by the competent Court. The word ''Magistrate'' appearing in section 475 Cr.P.C. shall also includes Sessions Judge, after the case is committed to it.

In view of the above, it is held that the impugned order is not sustainable and, accordingly, it is set aside. The learned Assistant Sessions Judge is directed to hand over the relevant documents and the accused person, if in custody, to the officer designated by the competent authority/B.S.F., who shall make necessary arrangement to hold the trial expeditiously.

The revision stands disposed of.