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Judgment
This is a habeas corpus petition filed by Major Y.S.Nagar presently attached with the 8th Mountain Division, INGS Company, c/o 56 A.P.O.
He is facing summary General Court Martial trial on the charges mentioned in the petition. The chargers have emanated on the basis of registration
of FIR Nos.: 20/97 and 21/ 97 (P/S Kothibagh) as well as FIR No: 18/97 in P/S KralKhud Srinagar. The petitioner was arrested by the police
and investigation completed in respect of the offences mentioned in Cr.P.C wgre submitted before the competent judicial Magistrate with the
allegations that he was found to have committed abductions, robberies and possessed unauthorised arms etc. The Officer Commanding exercised
his discretion under section 126 of the Army Act and directed that the accused be delivered to the Army to be tried by Summary General Court
Martial. Written request was made on behalf of the Officer Commanding before the trial court (First Addl. MunsiffMagistrate, Srinagar) who vide
his order dated: 12021998 transferred the record of the case of FIR No. 20/97 (offences under section 397, 365, 201 RPC read with section
7/25 of the Arms Act) for trial to the Court Martial. Vide order dated: 20021998, the record of FIR No18/97 was transferred and similarly the
record of FIR No. 21/97 was also transferred.
From the morass of facts set out sketchy in the memorandum of writ petition it could be gathered that challenge has been thrown to the vires of
Section 125 and 126 of the Army Act that they are unconstitutional as they give the power to a Commanding Officer to take away the trial of an
accused who is a member of the Armed Forces for facing Trial in a competent court of Criminal jurisdiction. Under Section 113 of the Constitution
of J and K (which is at para materia with Article 235 of the Indian Constitution) read with Section 104 of the Constitution of J and K the control
over subordinate courts in the J and K State vests in the High Court and an Officer Commanding of the concerned Army Unit cannot take away
this control by ordering the trial before a court martial. The petitioner has a right to life and liberty and to preserve these fundamental rights, the
question of jurisdiction of his trial requires judicial adjudication. Relief is prayed that summary General Court Martial at Zirin Tangmarg constituted
by Officer Commanding, 8th Mountain Division be declared without jurisdiction and after quashing the proceedings, the petitioner may be set at
liberty. It is also prayed that sections 125 and 126 of the Army may be declared as violative of Sections 111 and 104 of the Constitution of J and
K and Article 235 of the Constitution of India.
Heard the arguments.
The learned counsel of the petitioner has contended that under section 104 of the Constitution of J and K, the High Court has the
superintendence and control over all courts and all courts are subordinate to the High Court. Section 111 of the Constitution of J and K empowers
the High Court to have control over District Courts and courts subordinate thereto including the posting and promotion and grant of leave to
persons belonging to the Judicial service. That section 125 of the Army Act gives choice to the Officer Commanding of the accused person where
he is serving to decide whether the accused (who is an army personnel) should be tried before the court martial or not when a criminal court and
court martial have each jurisdiction in respect of an offence. That this discretion takes away the control of the High Court of the subordinate courts
and section is thus violative of section 104 and 111 of the Constitution of J and K. According to him, the direction to decide the matter lies with the
High Court and since in the present case such a direction has not been exercised so the proceedings pending before the Court Martial requires to
be quashed. In rebuttal, it has been contended by the learned counsel of respondents that Section 549 of Cr.P.C regulates the trial of accused who
can be tried by court martial. That in aid of this Section rules were framed under SRO No: 73 by the Government on 02081984 and rule 3
provides as under:
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 Sessions unless;
a) he is moved thereto by a competent military, naval or air force authorities, or
b) he is of opinion, for reasons to be recorded, that he should so proceed or commit without being moved thereto by such authority"".
This rule casts a duty upon the Magistrate not to proceed with the proceedings unless moved thereto by the competent military, naval or air
force authority. In case he has to deviate from this practice, he has to record the reasons. Section 549 Cr.P.C enjoins upon the Magistrate to have
regard to the rules framed under the Section and in proper cases he has to deliver the record of the case to the Commanding Officer of the
Regiment or Corps to which the accused belongs or to the Officer Commanding of the nearest Military Station for the purpose of being tried by
the Court Martial. In the instant case, the trial Magistrate was moved by the Officer Commanding in the prescribed manner and he has handover
the record for the purposes of trial to the court martial. On facts it is found that it is not the Officer Commanding whose discretion has prevailed but
the concerned judicial Magistrate after application of mind has allowed the trial of the case before the court martial. There is not even an iota of
evidence to suggest that there was interference in the exercise of discretion of the MunsiffMagistrate from any Army authority. The word
superintendence"" came to be considered by the apex court in the case of Waryam Singh Vs. Amar Nath (AIR 1954 SC 215) wherein it was held
that the power of superintendence covers both administrative and judicial matters and it should be invoked in all cases of nonexercise or illegal
exercise of a jurisdiction vested by law in any court or Tribunal. This court had also the occasion to dilate on the superintending power in the case
reported in AIR 1984 J and K 44. The principles enunciated by the apex court in the above said case were followed. The orders passed by the
MunsiffJudicial Magistrate, 1st. class are found not transgressing any limits of law. A formal request was made by the concerned Commanding
Officer and the accused (petitioner herein) as well as the record of the case was handed over in consonance with the mandates of section 549
Cr.P.C and the rules made thereunder. The apex court in the case of ""Ram Saroop Vs. Union of India (AIR 1965 SC 44) had an occasion to
consider the legality of the provisions of the Army Act in the context whether they were violative of Indian Constitution and Hon'ble Justice
Gaghubar Dayal speaking for the Constitution Bench held as under:
Each and every provision of the Act is a law made by parliament and that if any such provision tends to effect the fundamental right under part III
of the Constitution, that provision does not on that count become void, as it must be taken that parliament has thereby, in the exercise of its power
under Act. 33 of the Constitution, made the requisite modification to affect the respective fundamental right.
Section 125 of the Army Act was also considered and it was found that it does not infringe Art. 14 of the Constitution of India. In para 22, of
the judgment the following observations were made:
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 officer are to be guided by considerations of
discipline in the army, speedier trial, the nature of the offence and the person against whom the offence is committed"".
In para 23, Section 126 of the Army Act was also discussed with the following observations:
Lastly, it may be mentioned that the decision of the relevant military officer does not decide the matter finally. Section 126 empowers a criminal
court having jurisdiction to try an officer to require the relevant military officer to deliver the offender to the Magistrate to be proceeded against
according to law or to postpone proceedings pending reference to the Central Government, if that Criminal Court be of opinion that proceedings
be instituted before itself in respect of that offence. When such a request is made, the military officer has either to comply with it or to make a
reference to the Central Government whose orders would be final with respect to the venue of the trial. The discretion exercised by the military
officer is, therefore, subject to the control of the Central Government.
Section 549 of the Cr.P.C was also discussed and the discretion of the Magistrate having regard to the rules framed thereunder to deliver the
accused to military authorities for trial by Court Martial was upheld as legal. The final choice about the forum of the trial of a person accused of a
civil offence rests with the Central Government whenever there be difference of
opinion between a criminal court and the military authorities about the forum where the accused be tried for a particular offence committed by him.
In para 27 of the said judgment the apex court has held as under:
It is clear therefore that the discretion to be exercised by the military officer specified in section 125 of the Act as to the trial of accused by Court
Martial or by an ordinary court, cannot be said to be unguided by any policy laid down by the Act or uncontrolled by any other authority. Section
125 of the Act therefore cannot, even on merits, be said to infringe the provisions of Art. 14 of the Constitution"".
From the above made statement of law it can be said with certainty that the constitutional validity of sections 125,126 of the Army Act as well
as of section 549 Cr.P.C is now no more resintegra but determined by the constitutional bench of the apex court (supra). It was held that there is
no legal infirmity in these sections. The petitioner has not approached the court with clean hands and clear conscience because material facts have
been suppressed. In the petition registration of only one FIR has been mentioned when three FIRs (state above) were registered. He had also
challenged the charges framed against him on the allegations of those FIRs through the medium of another writ petition which stand dismissed. The
counsel for the respondents has stated at the bar that the petitioner had filed five such like petitions and all stand dismissed. These submissions lend
assurance to the already held view that the petitioner is a cantankerous litigant and circuitous approach adopted by him in this writ petition was an
attempt to get the Court Martial proceedings protected. Such a conduct in reprehensible and the manner of drafting a petition is not approved. In
this view of matter, the petition is found frivolous and is accordingly dismissed with costs quantified at Rs. 2000/ to be paid in the Advocate
Welfare Fund. The interim direction date: 060801999 stands withdrawn. The office is directed to give a copy of this order, free of costs to the
petitioner.