DASHRETH RAJ KAPILA Vs. AMIR IJAMIA

JUDGEMENT

(1.) The principal question requiring determination by us is whether non- compliance with the Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1952 framed under section 549 (1), Cr.P. C. (hereafter called the Rules) goes to the root of the inherent jurisdiction of the committing Magistrate and of the Court trying the case pursuant to the commitment order or whether it is a mere irregularity, the effect of which is to be considered on the facts and circumstances of the each case. The facts giving rise to this reference are contained in the referring order dated 25th June, 1968 and, therefore, need not be repeated. That order may be read as a part of this order. Section 549, Cr. P. C., and the relevant rules framed thereunder may now be reproduced :-

(2.) The scheme of the Army Act has been described by the Supreme Court in Major E. G. Borsay v. State of Bombay to be self-evident. It applies to offences committed by army personnel described in section 2 of the Act. It creates new offences with specified punishments, imposes higher punishments to pre-existing offences and enables civil offences by a fiction to be treated as offences under the Act. It provides a sively both by a Court-martial and by a criminal Court. It does not satisfactory machinery for resolving the conflict of jurisdiction. It further enables, subject to certain conditions, an accused to be tried succesexpressly bar the jurisdiction of criminal Courts in respect of acts or omissions punishable under the Act, if they are a!so punishable under any other law in force in India, nor is it possible to infer any prohibition by necessary implication. Sections 125, 126 and 127 exclude any such inference because they provide in express terms not only for resolving conflict of jurisdiction between a criminal court and a court-martial in respect of the same offece, but also provide for successive trials of an accused in respect of such an offence. Section 125 and 126 quite clearly apply to offences which are triable both by an ordinary criminal Court having jurisdiction to try the said offences and by a Court-martial. If to such a situation the designated officer in section 125 does not choose to exercise his discretion to decide before which Court the proceedings are to be instituted, then, to quote from the judgment of the Supreme Court in the above case, "as he has not exercised his discretion, there is no occasion for the criminal Court to invoke the provisions of section 126 of the Act, for the second part of S. 126 (1), which enables the criminal Court to issue a notice to the officer designated in S.I 25 of the Act to deliver over the offender to the nearest Magistrate or to postpone the proceedings pending a reference to the Central Government, indicates that the said sub-section presupposes that the designated officer has decided that the proceedings shall be instituted before a Court-martial and directed that the accused person shall be detained in military custody, If no such decision was arrived at, the Army Act' could not obviously be in the way of a criminal Court exercising its Ordinary jurisdiction in the manner provided by law.

(3.) It is, however, urged by Shri Ajmer Singh, the learned counsel for the aceused-petitioner, that the Rules have the effect of depriving the Magistrate of his inherent jurisdiction to comit the accused for trial by the Court of Session. Now, if, as the Supreme Court suggests, the Army Act does not take away the jurisdiction of the Magistrate, then quite clearly, the Rules-made by the Central Government under section 549 (1)- Cr. P. C., which have to be consistent with the said. Act and the Code, cannot be so construed as to deprive the Magistrates of their inherent jurisdiction conferred on them by the Code, for to do so would seem to render them inconsistent with the Code. These Rules must not be in excess of the statutory power authorising them or repugnant to the statutes with which they have expressly been directed to be consistent. It is true that Rule 3 does embody adirection in imperature form to the Magistrates concerned not to proceed to try or to enquire with a view to his commitment for trial by the Court of Session or the High Court for any offence triable by such Court, a person subject to military law brought before such Magistrates and charged with an offence for which he is liable to be tried by a Court-martial, unless. (a) he is of opinion, for reasons to be recorded, that he should so proceed without being moved thereto by competent military, naval or Air Force Authority, or (b) he is moved thereto by such authority. But this direction seems only to regulate the manner in which the Magistrate is to proceed with the enquiry or the trial, as the case may be, and it does not seem to be intended to deprive the Magistrate of his inherent jurisdiction in the matter of holding the enquiry or the trial. This delegated legislation has to be construed so as not to outstep the limits of the delegated power nor to operate in the sphere which is out-of-bounds for the rule-making authority to function. The fact that after complying with the procedure prescribed in Rules 4 and 5, the Magistrate may, in consultation with the State and the Central Government, proceed to deal with the accused person in accordance with law, as contemplated in Rule 7, also indicates that the Magistrate is not deprived of his inherent jurisdiction and that the Rules merely direct or control the manner in which he has to proceed in the matter of the enquiry or trial. At this stage, it may appropriately be observed that all laws and legislative directions are, from their very nature, intended to be obeyed and the difficulty arises only when the Court is faced with the task of determining the effect of the past violation of a given provision of law for the purpose of judicially determining whether such violation has the effect of automatically invalidating or nullifying all subsequent acts or whether its effect is dependent on the seriousness of the nature of the consequences which follow therefrom. The Court has, in that event, to look for guidance into all legitimate circumstances and relevant rules of interpretation. Each case stands pretty much on its own facts to be determined on an interpretation of the particular language used in the background of the exact circumstances under which the problem is raised, whether in proceedings to enforce compliance or to redress non-compliance or in proceedings requiring a determination of the effect of non-compliance on legal consequences. Various methods dealing with the problem, are employed, but one oft-repeated formula is that statutory requirements which are of the essence of the thing required by a statute must be strictly obeyed while those things which are not of the essence, are to be substantially complied with. Now, to what extent a given statutory requirement is of the essence going to the root of jurisdiction and what part of it pertains to non-essentialform,is a question which has to be determined on full appreciation of all the relevant circumstances of each case. The soundest judicial technique of understanding the meaning of a statute seems to be provided by the doctrine of interpreting a statute according to its purpose or spirit when properly employed. The object and purpose of. the Rules would appear to be to .see that the members of the Armed Forces are not taken away from military duty without the concrrence of the Army Authorities so that the defence of the country does not suffer. It is the larger public interest which is kept in view and the Army Authorities are given the right and the duty to determine the forum for the trial of the members of the Armed Forces. It is not meant to confer a right on the accused person different from other accused persons. The defence of the country, however, is truly not to be made to suffer because of ignorance of the Magistrates, or of the accused or the prosecution or even of the Army Authorities who may be unaware of the technicalities, of the statutory rules. But this purpose can quite effectively be served if the Army Authorities are made fully aware-of a criminal case against a member of the Armed Forces and they are afforded or have had anadequate and full opportunity to exercise the discretion of having the accused tried by a Court-martial. In order to achieve this object, it does not seem to be an essential jurisdictional condition precedent to require literal and meticulous compliance with the form and the manner of notice prescribed in Rules 3 and 4 of the Rules, failure to do which would automatically by itself, without more, nullify the proceeding rendering the trial, the sentence and the resultant punishment as if tainted with absence of inherent jurisdiction. Having had full knowledge of the charge and the opportunity to come to a decision on the question of the forum of trial, if the Army Authorities voluntarily deliver the accused to the civil authorities for trial, the statutory purpose and object may well ordinarily be held to have been accomplished. In this connection, it may be borne in mind that the Rules are not required to be pieced on the table of the parliament as is not infrequently done in case of important ruleseffecting valuable rights and jurisdiction : on the other hand, the Central Government may, at its sweet will, go on changing them from time to time to suit the changing conditions. It is, therefore, not easy to infer too readily legislative intent to leave the question of inherent jurisdiction of the Magistrates to the rule-making authority in the present case. The statutory object and purpose can satisfactorily be served if the Magistrate take steps to see that the Army Authorities have the information about the charge levelled against a person belonging to the Armed Forces so that they may have the opportunity of determining the question of handing over or not handing over accused to the civil authorities. The form in which the information goes to the Army Authorities, may not alway a necessarily affect the Magistrate's inhereent jursidiction. Emphasis has, however, been laid on rules, 7, 8 and 9 of the Rules which, in case of conflict of opinion between the Magistrates and the Army Authorities, require the Central Government to determine as to before which Court the accused is to be tried and it is argued that these rules are intended to take away the inherent jurisdiction of the Magistrates' Courts. In a case where the appropriate Army Authorities have intimated there decision to have the accused tried by a Court-martial, it may be that the trial or inquiry by the Magistrate, without securing a favourable determination from the Central Government would be liable in a given case to be quashed as illegal by the higher authorities, but this may not necessarily mean that the Magistrate has acted without jurisdiction, rendering the proceedings non-est. The power to proceed further may, in a way, be hampered but the inherent jurisdiction may seem still to vest in the Magistrate. We have in this connection to bear in mind the observations of the Supreme Court in Barsay's case. In any event, the consequence of violation of rules 3 and 4 which concerns us in the case at bar, would clearly appear to be different from that of violation of rules 7, 8, and 9 of the Rules and we would not like to express any considered opinion on the effect of such violation. We are not unmindful of the use of the words" previous sanction" in section 127 of the Army Act, which provides for successive trials for the same offence. In a case covered by this section also, ether consideration may have to be taken into account, which have not at all been fully canvessed on this occasion. We would accordingly refrain from expressing a considered opinion on such cases as well.