IN RE: MAJOR F.K. MISTRY Vs. STATE

JUDGEMENT

(1.) THE petitioner Major F.K. Mistry who was an Ordinance Officer in charge of the Returned Stores Depot, Almadi, Avadi Sub -Area, along with two others was prosecuted firstly for having conspired to remove and continually misappropriate, tentage from the Returned Stores Depot; and secondly in pursuance to that conspiracy for having with his two associates managed, in their capacity as officers belonging to the Ordinance Department in the Indian Army, to remove quantities of tentage from the Returned Stores Depot; and in compensation for which act, the petitioner was paid Rs. 800 out of the sale proceeds of these articles on or about the 31st August, 1946. The charge -sheet was filed on the 24th July, 1947, alleging that the offences were committed on 28th August, 1946, and the petitioner received his share of the proceeds of misappropriation on the 31st August, 1946. Fourteen witnesses were examined for the prosecution and thereafter charges were framed on the 1st of November, 1947, the charge against the petitioner being one under Section 409 of the Indian Penal Code which is in the following terms:

(2.) IT is unnecessary to dwell at any length on the facts and circumstances which have led up to the prosecution or the details of the evidence adduced, for in an application to quash a charge under Section 561 -A of the Criminal Procedure Code, all that this Court is concerned with, is whether the Court which has framed the charge had jurisdiction on the materials placed before it to act as it did. The specific provision of the Criminal Procedure Code dealing with the quashing of the charge is that contained in Section 215 which empowers the High Court to quash a commitment made by a competent Magistrate, or a civil, or revenue Court, under Section 478, only on a point of law. Therefore, every instance of quashing a charge framed, must be brought within the ambit of the residuary powers not specifically dealt with under the Code. In the interests of the speedy administration of justice, the High Court ought to exercise its inherent powers if it finds that the lower Court has acted without jurisdiction in framing a charge and not for any other reason. It is not the function of this Court to examine the evidence on which the charge has been framed in any detail to find out how far the charge is justifiable. The proper time for doing that is in an appeal against the conviction if the proceedings result in a conviction. Such being the case, in the present application under Section 561 -A of the Criminal Procedure Code, I am only concerned with the circumstance whether the lower Court had jurisdiction .to entertain the complaint or proceed with the enquiry.

(3.) IT is undisputed that the petitioner who holds the rank of a Major in the Indian Army is governed by the provisions of the Indian Army Act (Act VIII of 1911), which consolidated and amended the law relating to the Government of His Majesty's Indian forces, such as Indian Commissioned Officers, Viceroy's Commissioned Officers, soldiers and other persons in His Majesty's Indian forces. This Act came into force on the 1st of January, 1912. Section 31 of this Act is contained in Chapter V and it comes under a separate heading designated " Disgraceful Conduct." It states that any person subject to the Indian Army Act who commits any one of the following offences, that is to say : (a) dishonestly misappropriates or converts to his own use any money, provisions, forage, arms, clothing, ammunition, tools, instruments, equipments, or military stores of any kind, the property of the Crown, entrusted to him, shall, on conviction by court -martial, be punished with imprisonment, or with such less punishment, as is in this Act mentioned. It is admitted that if the prosecution story is accepted, the offence mentioned above has been committed. Section 41 is also contained in the same Chapter V and is under the heading "Civil Offences." It lays down that every person subject to this Act who, either Within British India or at any place beyond British India commits any civil offence shall be deemed to be guilty of an offence against military law, and, if charged therewith under this section, shall, subject to the provisions of this Act, be liable to be tried for the same by court -martial, and on conviction to be punished as prescribed thereunder. The term "civil offence" is defined in Section 7, Sub -section (18) as meaning an offence which, if committed in British India, would be triable by a criminal Court, and this is followed by the definition of the word " offence " as meaning any Act or omission punishable under this Act, and includes a " civil offence " as hereinbefore defined. It is contended on behalf of the petitioner that the Acts complained against him constitute an offence under Section 31 of the Indian Army Act, and such an offence is triable only by, a court -martial. Any offence other than that contemplated by Section 31 will come within the residuary Section 41 and may be tried either by a court -martial or by the ordinary criminal Court; but if the offence is one which comes directly within Section 31, the ordinary criminal Courts of the land have no jurisdiction. Therefore, Mr. Jayarama Aiyar argues that the offence of having committed breach of trust in relation to the materials of tentage can, when the person accused is one to whom the Indian Army Act applies, only be tried by a court -martial, and for this purpose, he has devoted much time and energy on an intensive study of the history and development of the various Army Regulations which existed in India during the time of the East India Company subsequent to the thirties of the last century. According to him, criminal breach of trust by a person in the employ of the Army of the East India Company, was made an offence punishable by a court -martial even prior to the enactment of the Indian Penal Code in 1861, previous to which year there existed no codified penal law in India, so that an Army Officer committing the offence of criminal breach of trust was liable to be dealt with only by a court -martial before the enactment of the Indian Penal Code. The present Section 31 had its predecessors in the various Army Acts and Regulations from 1845 onwards; and a study of those Acts will reveal that from the early times to the enactment of Act VIII of 1911 by which many offences committed by Army personnel were made triable by the ordinary criminal Courts, such offences as criminal breach of trust were triable by a court -martial.