NASIRUDDIN KHAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an appeal by special leave under Art. 136 of the Constitution from the judgment and order of the High Court of Judicature at Patna dated January 23, 1968 affirming on appeal the appellant's conviction and sentence under S. 5 (f) of the Bengal Military Police Act, V of 1892 (hereinafter called the Act). The appellant was appointed as sepoy in Bihar Military Police V on November 11, 1962. The headquarters of the Bihar Military Police V as also of the Bihar Military Police VIII are at Phulwari Sharif. The appellant was later transferred to 'C' Company of Bihar Military Police VIII. After some time this company was posted on active service at Kathua in Kashmir and the company left Phulwari Sharif on June 2, 1964. On September 2, 1965 the appellant deserted from the police force without giving any intimation to the officers of the company. He was tried for desertion by the Second Assistant Sessions Judge at Patna on alternative charges under S. 5 (f) and S. 6 (o) of the Act and also on the additional charge under S. 29 of the Police Act, 1861. In defence he pleaded that at the relevant time he was under suspension and further that he had received information from his home that his wife was ill and for that reason he had applied for leave which was refused. The trial court convicted him under S. 5 (f) of the Act and sentenced him to rigorous imprisonment for seven years. He was, however, acquitted of the charges under S. 6 (o) of Act and S. 29 of the Police Act.

(2.) On appeal the High Court affirmed his conviction and sentence. After the disposal of the appellant's appeal by the High Court an application was made there for a certificate of fitness under Art. 134 (1) (c) of the Constitution which was rejected as being without merit.

(3.) In this Court it was contended by Shri D. P. Singh, on behalf of the appellant, that the offence of desertion was committed at a place where the Act was not in force and, therefore, the appellant's desertion did not constitute an offence. In any event this offence could not be tried at Patna, the criminal courts there having no jurisdiction to try this case because of S. 177, Cr. P.C. It was strongly emphasised that the Act creating the offence in question had no application to the areas of Jammu and Kashmir, and, therefore, the appellant's act of desertion in the said area could not be treated as an offence. Assuming, however, that his desertion in the State of Jammu and Kashmir was an offence, said the counsel it having been committed at a place where the Act was inapplicable, the appellant's trial for his desertion in Kashmir in the courts at Patna was without jurisdiction and, therefore, wholly illegal. The counsel indeed described it as a nullity.