KARAMJIT SINGH AND ANR. Vs. SONARAM KALITA

JUDGEMENT

(1.) THE Petitioners pray for quashing of the proceeding in Criminal Case No. 2252C of 1978 against the Petitioner No. 1 now pending before the Judicial Magistrate, Gauhati on the ground that he has already been tried under the Military law at the discretion of the Petitioner No. 2, his Commanding Officer.

(2.) A complaint was lodged by the Respondent Sonaram Kallin, Secretary, 222S BOD Mazdur Union, Narangi in the Criminal Court at Gauhati under Sections 323, 352 and 342 I.P.C. on 22.11.1978 alleging that on 4.10.1978 at about 10.15 A.M. (at Tea Break) when the complainant was discussing about money matters of the Union with Sri Jatin Das, Treasurer of the Union, the accused (Petitioner No. 1) Sri Karamjit Singh, Commander No. 4, Sub depot, 222 ABOD, C/o 99 A.P.O, Gauhati came out of his room and bit up the complainant and one Shri Umesh Das, Assistant Secretary of the Union. The learned Magistrate on the said complaint dated 22.11.1978 took cognizance and issued summons to the accused Petitioner No. 1 who was a member and first class Officer of Armed Forces and as such was governed by the provisions of the Army Act, 1950 and the Army Rules, 1954. The complainant was a civilian government servant. On 28.12.1978, the learned Magistrate Issued a warrant of arrest against the instant Petitioner No. 1 fixing 10.2.1979 for appearance. On 9.2.1979 the Officer Commanding of the Petitioner No. 1, namely, the instant Petitioner No. 2, filed an application before the learned Magistrate stating that he had already given his choice under Section 125 of the Army Act, 1950 that the instant case be instituted and tried before tie Court -martial and prayed that the Magistrate should not proceed with the case and recall the warrant of arrest. The learned Magistrate in the impugned order stated that as he had already assumed jurisdiction in the matter he would consider the petition later in presence of both parties after appearance of the accused. He, however, recalled the warrant of arrest. On 2.3.1979 the learned Magistrate beard the objection about his jurisdiction to try the matter and ordered that the question of jurisdiction would be finally considered after complying with all relevant laws and procedure provided by the Code of Criminal Procedure and also the Military law; and accordingly be fixed 30.4.1979 for production of the accused and directed the Commanding Officer, accordingly. Hence this petition for quashing the proceeding.

(3.) MR . A.K. Phukan, the learned Counsel appearing for the complainant -Respondent fairly submits that what the complainant wanted was that the accused Petitioner should be tried in accordance with the law and he should not escape trial taking advantage of the two alternative systems of trial. If the accused Petitioner is tried under either of the systems, the complainant naturally has no objection. The only question, therefore, it whether it has been decided by the Commanding Officer that the instant Petitioner No. 1 to be tried under the Military law, to that the criminal trial before the Magistrate should pot proceed any further.