VIVEK MEHTA Vs. RITESH KUMAR VISHWAKARMA

JUDGEMENT

(1.) THIS revision petition has been filed on behalf of the petitioner i. e. Commanding Officer, 14 Corps, Operating Signal Regiment of the indian Army who is aggrieved by the order of the Addl. Sessions Judge 08. 05. 2007 dismissing an application filed by the petitioner for transfer of respondent no. 1 from the custody of the Civil Courts to the custody of the Commanding Officer who wishes to try the said respondent through a Court-martial under Section 126 of the Army Act.

(2.) BRIEFLY stating the case of the petitioner is, that after coming to know from a source information that the respondent no. 1 was involved in espionage activity, a raid was conducted, when the said respondent came to Domestic Airport Palam, New Delhi on 20. 10. 2006 for parting with some secret documents which were prejudicial for the safety, security and interest of the Nation (India ). The said respondent was apprehended at the spot and was found in possession of incriminating documents as mentioned in paragraph 5 of the petition. The said respondent was guilty of offences under Section 3/9 of the Official secrets Act and accordingly a report was prepared. On that basis FIR no. 77/06 dated 20. 10. 2006 was registered. The first respondent was then arrested by the Investigating Officer of this case S. I. Anand swarup. A court of enquiry was also conducted by headquarters of 14 corps (Intelligence Branch ). A request was also sent by the Directorate general of Signal for sanction under Section 197 to prosecute the first respondent in connection with FIR No. 77/06. Till date no sanction was granted for the prosecution of the first respondent to the Army authorities. Later on the Army Court approached the Court of Addl. Session Judge to seek permission for recording the statement of respondent in the procedural Court of Enquiry as told by the ASJ a proper application under Section 125 of the Army Act for transfer of the first respondent to Army Authorities and for instituting proceedings against him before a Court-martial was also filed. However, vide impugned order the Addl. Sessions Judge rejected the prayer of the petitioner for transferring the first respondent to the Court-martial. It is against the aforesaid order the present petition has been filed.

(3.) BEFORE adverting to the issues involved in this case it would be appropriate to take note of the reasoning given by the Addl. Sessions judge in having rejected the request made by the petitioner which goes to show that after taking note of the provisions contained under section 475 of Cr. P. C. which requires delivery of an accused to the commanding Officer liable to be tried by a Court-martial, if asked for, the Addl. Sessions Judge has made the following observations: