RAMESH CHANDRA MOHANTY Vs. STATE

JUDGEMENT

(1.) THE present application under Section 482 read with 397 of the Code of Criminal Procedure at the instance of one Ramesh Chandra Mohanty, accused inG.R. Case No. 96 of 1993, pending in the Court of Sub -Divisional Judicial Magistrate, Nayagarh, challenges the criminal trial and for quashing the entire criminal proceeding on the ground that the accused is a member of the Armed Forces of the Union of India and at present he is working as a Naik in the Indian Army. It is further disclosed that in view of the certificate vide Annexure -1 to the writ petition that the petitioner was present in unit location on 14.3.1993 at 06.00 hrs. and on 13.3.1993 he was on his way to the Regiment. The function of the accused as Army Naik is not in dispute.

(2.) A short point of law has been raised before this Court. Attention of the Court has been drawn to Section 69 of the Army Act, 1950. It is provided that subject to the provisions of Section 70, any person subject to this Act who at any place in or beyond India commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be tried by a Court -martial and, on conviction, be punishable as follows, that is to say -

(3.) LEARNED counsel appearing for the State has also drawn the attention of the Court to a decision of the Supreme Court in the case of Joginder Singh v. The State of Himachal Pradesh, reported in AIR 1971 SC 500. It will be found that in respect of an offence which could be tried both by a Criminal Court as well as a Court -martial, Sections 125, 126 and the Rules, have made suitable provisions to avoid a conflict of jurisdiction between the ordinary Criminal Courts and the Court -martial. But discretion is left to the officer mentioned in Section 125 to decide before which Court the proceedings should be instituted. It is only when the designated officer does not exercise his discretion and decide that the proceedings should be instituted before a Court -martial, that the Army Act would not obviously be in the way of a Criminal Court exercising its ordinary jurisdiction in the manner provided by law and Section 126 would not come into operation. In the said decision it has been found that the rules have been framed by the Central Government under Section 549(i) of the earlier Criminal Procedure Code and that Section. provides for the Central Government making rules consistent with the Criminal Procedure Code and the Acts mentioned therein in respect of offences which could be tried by an ordinary Criminal Court or by a Court -martial. It enjoins upon a Magistrate when any person is brought before him, in respect of such an offence, to have due regard to the rules and to deliver him in proper cases to the appropriate officers mentioned therein, for being tried by a Court -martial. The material rules that are to be referred have been considered as Rules, 2, 3, 4, 5 and 8 and those have been dealt with in the aforesaid decision in AIR 1971 SC 500 (supra).