RAM CHANDER Vs. STATE OF HARYANA

JUDGEMENT

(1.) RAM Chander petitioner has filed this petition under section 482 of the Code of Criminal Procedure for quashing the orders dated 6th November, 1982 and 11th April, 1983 passed by the learned Judicial Magistrate First Class and Additional Sessions Judge, Sonepat respectively. By these orders, both the Courts refused the custody of the petitioner (accused) to the military authorities.

(2.) THE facts which gave rise to this petition are that the petitioner, admittedly, is employed as a Sepoy in the Indian Army and attached to 5 Rajput C/o 56 APO. On 17.10.1982 while the petitioner was on leave from the Army, he allegedly committed murder of Ishwar Singh and Smt. Santosh wife of one Rajinder in his village Khewra. A case was registered against the petitioner and he was challanged under Section 302 I.P.C. by the local police. The petitioner could not be arrested by the police and the learned Magistrate on a written request by the police, issued non-bailable warrants for the arrest of the petitioner vide order dated 23rd October, 1982. In response to the warrants, the Officiating Commanding Officer, vide letter dated 26th October, 1982 informed the Magistrate that the accused would be produced before the Court on 3rd November, 1982 under military escort. In the same letter, the Officiating Commanding Officer requested that the petitioner be permitted to be detained in the military custody till finalisation of his case under the provisions of section 125 of the Army Act, 1950. However, the learned Magistrate declined the request of the Officiating Commanding Officer and passed the order, Annexure P-1 vide which he committed the petitioner for trial to the Court of Sessions, which order is under challenge in this petition. The learned Magistrate was pleased to hold that :-

(3.) NOW the spinal and the short question which remains for adjudication is as to whether the non-compliance of the provisions of section 475 Cr.P.C. and the rule made thereunder vitiates the proceedings or is a mere irregularity. Mr. Jain, learned counsel for the State of Haryana has placed reliance on Ajit Singh's are (supra) wherein it has been held that section 549 of old Cr.P.C. (S-475 of new Cr. PC) and the rules made thereunder are not mandatory in nature and their non-compliance does not vitiates the proceedings. Mr. U.D. Gaur, learned counsel for the petitioner on the other hand, has relied upon the later authority of the Supreme Court in Delhi Special Police Establishment New Delhi v. Lt. Col. S.K. Loraiya, AIR 1972 S.C. 2548, wherein their Lordships of the Supreme Court were pleased to uphold the view taken by the High Court of Assam and Nagaland that the provisions of section 549 of old Cr.P.C. were mandatory in nature and their non-observance vitiates the proceedings. This view of the Supreme Court was followed by this Court in Ram Sarup v. State, 1977(4) Cr.L.T. 98 and Nathu Ram v. Siri Ram, 1977(4) Cr.L.T. 265. Mr. Gaur has rightly pointed out that in view of the later pronouncement of Supreme Court, the above mentioned Full Bench judgment in Ajit Singh's case (supra) does not hold the filed. The Central Government, while exercising its powers under section 475(1) of the Code of Criminal Procedure and Court Martial (Adjustment of Jurisdiction) Rules, 1952 and framed new rules vide notification No. S.O. 488 of 9.2.1978. According to rule 3 where a person subject to military, naval or air force law, or any other law relating to the Armed Forces of the Union for the time being in force is brought before a Magistrate and charged with an offence for which he is also liable to be tried by a Court Martial, such Magistrate shall not proceed to try such person or to commit the case to the Court of Session unless :-