N F CHAND Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Major N.F. Chand is petitioner before this Court and opposite party No. 2 is Retired Lt. General Jagdishwar Singh Nakal. The petitioner is a person subject to (The) Army Act, 1950. There is no dispute about it. In S.3(b)(ii) "Civil offence" has been defined as an offence which is triable by a Criminal Court. As between these two parties mentioned above, criminal proceedings giving rise to the allegations making out a case covered by Ss. 307, 147, 148, 149, 380 etc. of the I.P.C. have been started. After investigation charge-sheet has been submitted against the present applicant Major N.F. Chand. It appears that the learned Magistrate before whom the case came up was conscious of the fact that in cases of this type it is the option of the Army Authorities to decide whether they have to try the case by a court martial, or whether they have to permit it to be tried by the regular Criminal Courts. The learned Magistrate, therefore, entered into correspondence with the Army authorities. The record is before me and it appears that a letter was sent by the Magistrate informing the Authorities concerned about the pendency of the case and asking them whether they would like to try the case by a court martial. A reply was received to the effect that the matter has been referred to the higher authorities and on receipt of their direction information shall be communicated. Then on 18-12-1982 the learned Magistrate made further inquiry as to what action has been taken by the higher authorities and how the Army Authorities were going to exercise their discretion in the matter. On 24-12-1982 the Army Authorities asked for a report of police investigation and copies of the charge-sheet in this case as well as in the cross-case No. 309 A. It was clearly made out in this letter that the Army had to take a decision under S.125 of (The) Army Act and for this purpose these papers were needed. There is on record a copy of the letter dt. 11-1-1983, sent by the learned Magistrate to Army Authorities informing that the case diary has been sent to the Copying department for preparation of the copies and it was expected back by 15-2-1983 and then the Army Authorities may further contact the Court. Then there is a letter dt. 14-3-1983 from the Army Authorities asking the learned Magistrate to supply them with a copy of the case diary. Order was passed on this letter. The order was that the copies are given free of cost to accused and there is no provision of supplying the copies to the Army Authorities free of cost. The letter was directed to be kept on file. This order is also dt. 14-3-1983. There the matter ended and the learned Magistrate proceeded with the case and passed the impugned order on 18-7-1984 committing the accused Major N. F. Chand and one Irfan under Ss. 462, 380 and 307, I.P.C. to the Court of Session to stand their trial. Against this order, the present petition under S.482, Cr. P. C. has been filed.

(2.) Section 69 of (The) Army Act, 1950 clearly lays down that subject to the provisions of S.70 any person subject to this Act who at any place in or beyond India commits any civil offence shall be deemed to the guilty of an offence against this Act and if charged therewith under this section, shall be liable to be tried by a court martial.......Section 70 is not applicable to this case because it applies only to the care in which the offence of murder is committed against a person not subject to the military, naval or air force or offence of a culpable homicide not amounting to murder or rape in relation to such a person, is committed.

(3.) In view of S.69, it is now clear that the offences with which the present applicant is being charged are civil offences under S.69 of (The) Army Act, 1950 and he is liable to be tried by a court-martial.