H C PATHAK Vs. S K SHARMA

JUDGEMENT

(1.) In this petition, the petitioner has invoked the inherent power of this Court under section 482 of the Code of Criminal Procedure to quash the, order dated 15/5/1986 taking cognizance of the offence and also the criminal case No. CR. 150/86 pending in the Court of the Magistrate Jorhat.

(2.) The facts of the case are in narrow compass. The opposite party on 12/5/1986 lodged a complaint before the Additional Chief Judicial Magistrate, Jorhai, alleging, inter alia that Brig. 5.5. Randhawa and Lt. Col. Amrik Singh had no authority to engage Government Pleader to file a, complaint case, viz. CR Case No. 16/86, before the Magistrate, Jorhat. The said accused persons; also had no authority or competence to represent the petitioner. Besides, the said accused persons gave false information to the Government Pleader and forged the confidential communications given by the petitioner in the above criminal case. The contention of the petitioner is that under the Army Act; the General Commanding Officer of 101 Area is the only competent authority to move the Court. He is also the financial authority under the Army Regulation to engage the Government Pleader at public expenses. The petitioner and the accused persons are all Army Officers and subject to Army Act. The alleged offences are civil offences and punishable by the, Army Authorities. The Criminal Court had no jurisdiction, whatsoever, to entertain the complaint and direct the Army Authorities to deliver the offenders to the Court. Therefore, the cognizance taken by the Magistrate is without jurisdiction. Hence the present petition.

(3.) I have heard both sides. Mr. 5k. Chand Mohammad, learned Senior Central Government, Standing Counsel, straneously argues that the criminal proceedings initiated, by the, Magistrate is not maintainable; inasmuch as, the Magistrate has no competence to take cognizance of the offences under the provisions of the Army Act. He further submits that under section 70 of the Army Act ordinarily the Army Authorities have the concurrent jurisdiction in respect of only three offences mentioned in the said section and only in those offences a Magistrate of a Criminal Court can take cognizance of the offence and direct-the Army Authorities to deliver the offender as envisaged under section 126 of the Army Act or to direct the Army Authority to refer to the Central Government for its opinion. According to Mr. Sk. Chand Mohammad the offences mentioned in the Criminal case are exclusively triable by the Army Authorities under the Army Act and the Rules framed there under and, therefore, the Magistrate cannot take cognizance of the offences and proceed with the criminal trial. He also submits that, the complaint petition does not disclose any of fence against the accused persons. Even if any, offence had been committed by the accused such offences are triable in a Court Martial. Mr. Chand Mohammad further contend that the Magistrate of a Criminal Court has concurrent jurisdiction to try the offence in respect of offence of murder, culpable homicide not amounting to murder or rape, against a person not subject to Army Act as, mentioned in section 70 of the Army Act. In respect of those offences the Magistrate may direct the Army Authorities to deliver the offenders or refer the matter to the Central Government for its opinion who should try the case. According to the learned Standing Counsel, in the instant case, the alleged offences do not come within the purview of section 70 of the Army Act and,therefore, taking cognizance of the offence and continuance of diecriminat proceeding before the Magistrate is only an abuse of process of Court and therefore, liable to be set aside and quashed.