JAI PAL SINGH Vs. THE STATE OF HARYANA

JUDGEMENT

(1.) THE circumstances, giving rise to this criminal revision, may be briefly, stated as under: The Petitioner was military personnel being, most probably, a Sepoy in the Army. In the month of June, 1969, he had gone on leave to his village Mokhra. On the night intervening 25th and 26th June, 1969, he murdered his father Bhagtu and his brother Balwan with gun fire in their enclosure and then he proceeded towards his house. There, he murdered his mother Shrimati Kamli, his daughters Sarvshrimati Murti and Sunehri and his son Hawa Singh. The report of the said incident was lodged with the Police, Meham, by Om Parkash who was eye -witness. The said police arrested the Petitioner and, after necessary investigation, prosecuted him under Section 302, Indian Penal Code. The learned Magistrate committed him to the Court of Sessions, Rohtak, for standing trial on charges under Section 302, Indian Penal Code, for committing the aforesaid six murders. The learned Second Additional Sessions Judge, Rohtak, who tried the case, convicted the Petitioner under Section 302, Indian Penal Code, and sentenced him to death. On appeal to this Court, his conviction and sentence were set aside and the case was remanded for fresh trial. Towards the close of the trial, an application was moved on behalf of the Petitioner, in the trial Court, that since his commitment for trial was in contravention of provisions of the Code of Criminal Procedure and the Army Act (hereinafter called the Act), his trial had been illegal and it was prayed that his commitment be quashed. The learned Ex -Officio Additional Sessions Judge, Rohtak, rejected the said application and the Petitioner has come to this Court in revision.

(2.) IN this Act, unless the context otherwise requires - - ******

(3.) IT would, thus, appear from Section 69 read with Section 3(ii) of the Act that all offences punishable under Indian Penal Code except that of murder, culpable homicide not amounting to murder and rape committed by a military personnel are triable by the court -martial as well as by the criminal courts. The offences of murder culpable homicide and rape, when committed by a military personnel in relation to a person who is not subject to military, naval or air force law are exclusively triable by criminal Court and shall not be tried by court martial (vide Section 70 of the Act). But the said bar, provided by Section 70 of the Act, against the trial of military personnel with regard to the aforesaid offences is removed when the offender, who is admittedly military personnel, was on active service at the time of commission of the offence. Since in view of the notification No. S.R.O. 6E issued by the Central Government on 28th November, 1962, the Petitioner, though he was on leave, has to be deemed to be on 'active service', therefore, Section 70 of the Act would not exclude the jurisdiction of the court -martial and it has to be conceded that court -martial as well as criminal Court have concurrent jurisdiction to try him for causing the six murders. The provisions of Section 549, Criminal Procedure Code, have to be construed very strictly and the jurisdiction of the criminal Court to try the Petitioner for causing the six murders cannot be axed unless the provisions contained in the Act or the Rules made thereunder exclude the same wholly and specifically. Sections 125 and 126 of the Army Act or the Criminal Courts and Court -Martial (Adjustment of Jurisdiction) Rules, 1952, do not bar, much less expressly, the jurisdiction of the criminal Court to try the Petitioner for the offence of murder. As indicated above, the offences of murder, committed by the Petitioner, are triable both by the criminal Court and the court -martial. Sections 125 and 126, and the Rules referred to above, have made suitable provisions to avoid a conflict of jurisdiction between the criminal Court and the court -martial. It may be noted that, in the first instance, discretion was left to the officer, mentioned in Section 125 of the Act, to decide before which Court the proceedings could be instituted and the Officer -Commanding of the Army, the Division or Brigade, in which the Petitioner was serving, or any other officer so prescribed, was to exercise his discretion and decide, under Section 125 of the Act, in which Court the proceedings should be instituted against the Petitioner. It was only when he so exercised his discretion and decide that the proceedings should be instituted before the court -martial that the provisions of Section 126(1) could come into operation. If the said officer, i.e., mentioned in Section 125 of the Act, did not exercise his discretion and decide that the proceedings should be instituted before the court -martial, the Army Act could not debar ,the criminal Court from exercising its jurisdiction in the manner provided by law. I am guided in this view by the judgment of the Supreme Court recorded in Joginder Singh v. The State of Himachal Pradesh : A.I.R. 1971 S.C. 500. It is, therefore, clear that the provisions contained in Sections 125 and 126 of the Army Act give the choice to the officer, mentioned in Section 125 of the Act, to choose the Court, out of the criminal Court and the court -martial, in which the criminal proceedings could be instituted against the Petitioner. But there is nothing in the said sections, and no provision of law ?was referred to me, to show that the Petitioner had any choice in the matter. In other words, the law, as now stands, whether contained in the Army Act or under the Rules made thereunder or in the Criminal Procedure Code, does not give any right to the Petitioner to say that he should be tried by the Criminal Court or by the court -martial. It appears that the Petitioner was arrested by the police on 26th June, 1969 and he had been in jail thereafter. He had gone on leave in the month of June, 1969 to his village. After expiry of his leave period; the Army Authorities; especially the officers of the Regiment; in which the Petitioner had been employed, must have made inquiry for the non -return of the Petitioner from leave to his Regiment. It is, therefore, reasonable to presume that in the said inquiry they must have come to know about the arrest of the Petitioner for the offence of murders, relating to the death of six persons. Not only that the Petitioner had been committed to the Court of Session, Rohtak, more than two years ago, he was also convicted and sentenced to death on 20th March, 1970, for causing the aforesaid murders. His appeal against the conviction and sentence was allowed by this Court on 1st September, 1970 and the case was remanded for de novo trial and the same had been pending since then. Therefore, in the circumstances of the case, it is reasonable to assume that the Army Authorities had ample time to know that the Petitioner was being prosecuted for causing murder of six persons. So, they had adequate and full opportunity to exercise the discretion, allowed by Section 125 of the Act, to choose or to determine the Court, whether criminal Court or court -martial, where the Petitioner could be tried for the aforesaid offences of murder. It was not represented by the learned Counsel for the Petitioner that the Army Authorities concerned had ever taken the decision that he (the Petitioner) should be tried by the court -martial. In that view of the matter, when the Army Authorities had sufficient time to know and, in fact, that knowledge can be safely attributed to them, that the Petitioner was being prosecuted for causing murders in the criminal Court, and they had ample opportunity to exercise the discretion, allowed by Section 125 of the Act, but they did not decide that he should be tried by court -martial, the inherent jurisdiction vested in the Magistrate, to inquire into the offence and to commit the Petitioner for trial, could not be taken away. The provisions, contained in Section 549, Criminal Procedure Code, Sections 125 and 126 of the Act and in Rules 3, 4, 5 and 6 of the Criminals Courts and Court -Martial (Adjustment of Jurisdiction) Rule?, 1952, referred to above, deal with the proceedings instituted in the court of Magistrate. The said provisions do not relate to the Court of Session. It may be seen that the Magistrate, before making inquiry into the commitment proceedings, is required to give written notice to the Commanding Officer of the accused, who is military personnel, at least of seven days and, after giving the said notice, he could proceed with the inquiry, though after recording reasons thereof, without his being moved in that respect by the Army Authorities. The purpose of the Rules seems that when an accused, who is military personnel, is brought before the Magistrate for trial, or for inquiry into the commitment proceedings, he should inform the Army Authorities so that they can exercise their discretion, allowed by Section 125, and take up decision with regard to the forum of the trial of the said accused. When, in the circumstances of a given case, it can be reasonably presumed that it is in the knowledge of the Army Authorities concerned that the military personnel, accused of a criminal offence, is being prosecuted in the criminal Court, the omission on the part of the Magistrate to give the written notice, as required by Rule 4, or to record reasons for proceeding with the case, as required by Clause (a) of Rule 3, does not per se vitiate proceedings taken by him and does not divest him of the jurisdiction given to him by the statute. It has been observed in Joginder Singh v. State, (1969) 71 P.L.R. 61, that - -