CHANDRA MOHAN SHUKLA Vs. STATE OF ASSAM

JUDGEMENT

(1.) CAN an Army authority, in exercise of its powers under Section 125 of the Army Act, 1950, seek, for the purpose of investigation or trial, the custody of a person, who is subject to the Army Act, but in the custody of a criminal Court on accusation of having committed an offence, which is triable under the Army Act too. if the case, in connection with which the person is in custody, is under investigation by police or under an inquiry as contemplated by Section 202 of the Code of Criminal Procedure? when a case lodged against a person, who is subject to the Army Act, 1950, is still pending for investigation by the police, whether it is permissible for a Court of ordinary criminal justice to hand over to the army authorities, mentioned in Section 125 of the Army Act. the custody of the person, who is subject to the Army Act. but is in custody of the ordinary criminal Court on accusation of having committed an offence, which is also punishable under the Army act, 1950, for the purpose of enabling the army authorities to investigate the case or try the accused by a Court-martial in terms of the provisions of the Army Act, 1950, and the Army Rules, 1954, and if so, what are the limitations on such power? Does the fact that investigation by police is in progress into the allegation of commission of an offence by a person, subject to the Army Act. create a bar for the appropriate authorities under the Army Act to investigate, in terms of the relevant provisions of law, the accusations, which are the subject-matter of investigation by police, and also to seek, if necessary, for such a purpose, the custody of such a person from the Court of ordinary criminal justice until investigation by police is completed and the charge-sheet is filed against the accused? Does Section 475 of the Cr. P. C. bar a Court of ordinary criminal justice from handing over to the Army authority, for the purpose of investigation or trial in terms of the provisions of the Army act, 1950. and the Army Rules, 1954, the custody of a person, who Is subject to the army Act, but in the custody of the criminal court on allegation of having committed an offence, which is triable by both the criminal Court as well as the Court-martial? these are some of the important questions, which the present petition has raised.

(2.) BY making this application under Section 482, Cr. P. C. , the petitioner, who is an officer subject to the Army Act, 1950, has prayed for, inter alia, setting aside the Judgment and order, dated 2-4-2007, passed, in criminal Revision No. 18/2007, by the learned Sessions Judge, Cachar, Silchar, whereby the revision was dismissed and the order, dated 5-4-2007, passed, in GR Case no. 889/2005 (corresponding to Lakhipur police Station Case No. 73/2005), transferring the said case to the Army authorities for the purpose of trial of the accused-petitioner under the Army Act, was upheld.

(3.) THE material facts and various stages, which have given rise to the present petition, may be set out as follows : on 22-3-2005, one Satish Gupta, Superintending Manager, Binnakandi Tea Estate, lodged an Ejahar at Lakhipur Police Station, the informant's case being, briefly stated, thus : The informant had received a telephone call from one Robert in January, 2004, and also in the first week of February, 2004, demanding money from the informant claiming that the caller was commandant of an extremist group operating in the area, where the informant was serving. On 9-2-2004, the present petitioner, who was not known to the informant, but was, at the relevant point of time, serving as a lieutenant Colonel, visited the informant's bungalow, expressed his anxiety on the threat to the petitioner's life posed by the extremists and suggested to the informant that he should make the payment to the extremist group or else, the informant might be killed by the extremists. The informant also claimed, in his Ejahar, that the present petitioner had given the informant the petitioner's address at Meerut (U. P.) and also his telephone number. After the visit of the present petitioner, the informant had been receiving regularly threatening calls from the said Robert demanding money and, on 9-10-2004, when the said Robert telephoned, the petitioner could detect from the caller identity screen of his telephone that the call had been made from the very telephone number, which the petitioner had given to the informant. The informant was perplexed to notice that the call ma'de by Robert was from the very same telephone, which the present petitioner had given to the informant. However, when, on 16-10-2004, at about 6. 45 a. m. , there was a call from the said Robert to the informant giving similar threat raising demand for money, the informant realized that it was really the petitioner, who had made the calls, in the name of Robert, by changing his voice. Treating this ejahar as FIR, Lakhipur Police Station Case no. 73/2005 was registered under Sections 120-B/385, IPC. This case came to be, subsequently registered as GR Case No. 889/ 2005 in the office of the Chief Judicial Magistrate, Cachar, Silchar. On 5-3-2007, when the investigation into the said case by police was still in progress, the Station Command, Masimpur Military Station, requesting transfer of Lakhipur Police Station Case no. 73/2005 aforementioned to the Army authorities for trial of the accused-petitioner under the Army Act. By order, dated 5-3-2007. aforementioned, learned Chief Judicial Magistrate, Cachar, Silchar, allowed the said application and directed that the case record be handed over to the Army authority concerned. Aggrieved by the order, so passed, the petitioner challenged the same by way of Criminal, Revision No. 18/2007. By order, dated 2-4-2007, aforementioned, learned Sessions Judge dismissed the revision by holding, inter alia, that the Army authorities were competent under the law to seek transfer of the said case for trial of the accused-petitioner under the provisions of the Army Act inasmuch as the Army authorities were competent to take over a case pending against an Army personnel even when the case is at the stage of investigation by police. Aggrieved by the dismissal of his revision, the accused petitioner has, now, approached this Court with the help of the present application made under Section 482, Cr. P. C.