UNION OF INDIA Vs. MAJOR S.K.SHARMA

JUDGEMENT

(1.) Special leave is granted. The respondent Major S. K. Sharma addressed a letter, dated 21 December, 1985 to Brigadier S. S. Randhawa, Commander, HQ 41 Sub -Area alleging that on 15 December, 1985 he was manhandled by Col. Mir Usman Ali in the HQ 41 Sub -Area Officers Mess at Jorhat. it was stated that the incident took place in the presence of Major M. N. Subbaiah. Major Sharma was attached to B Camp, Signal Regiment while Col. Ali belonged to HQ 41, Sub -Area. Brigadier Randhawa wrote to the Officer Commanding, B. Camp, Signal Regiment on 14 January, 1986 seeking clarification from Major Sharma on some of the allegations. It appears that correspondence was exchanged in the matter but apparently Major .Sharma, having met with no satisfactory response, filed a complaint on 21 January, 1986 in the Court of the Additional Chief Judicial Magistrate, Jorhat alleging that Col. Ali had criminally assaulted him and further that Brigadier Randhawa did not report the matter to the higher authorities and was attempting to protect Col. Ali. It was alleged in the complaint that Col Ali had committed the offences under sections 323, 352 and 355 of the Indian Penal Code and Brigadier Randhawa had committed the offence under section 217 of the Indian Penal Code. The Additional Chief Judicial Magistrate examined the complaint and taking cognizance of the offences alleged to have been committed by Col. Ali and Brigadier Randhawa be directed that summons be issued to them for their appearance before him on 7 March, 1986.

(2.) On two applications moved by Major Sharma before him the Chief Judicial Magistrate made an order, dated 25 January, 1986 directing that the venue of a Court of Inquiry instituted in respect of certain complaints made against Major Sharma by his Commanding Officer be shifted from Mohanbari, where it was convened, to a place within the jurisdiction of his Court and it was directed further that Major Sharma should not be moved out of the jurisdiction of the Court during the pendency of the case. Major Sharma had complained that the Court of Inquiry had been ordered by Brigadier Randhawa at Mohanbari as a measure of retaliation because of the institution of the criminal case by Major Sharma before the Additional Chief Judicial Magistrate.

(3.) On 7 February, 1986 the Union of India moved an application before the Chief Judicial Magistrate along with an application, dated 3 February, 1986 addressed to the Court by Major General T. S. Chaudhri informing the Chief Judicial Magistrate that the G. O. Commanding was of opinion that Col. Ali should be dealt with in accordance with the procedure laid down under the Army Act and the Army Rules and the Criminal Courts and Court -martial (Adjustment of Jurisdiction) Rules, 1978, and that therefore, the case may be handed over to the Military Authorities. It was pointed out by Major Chaudhri in his letter that the complaint before the Additional Chief Judicial Magistrate against Col. Ali should, in his opinion, be disposed of under the procedure laid down in Army Rule 21 of Army Rules, 1945 and that under section 125 of the Army Act 1950 read with Army Rule, 1978 of the Army Rules and the Criminal Court and Court Martial (Adjustment of Jurisdiction) Rules 1978, Major General Chaudhri was the competent Military authority to claim the case. He requested that the case should be handed over to the Military authorities for further necessary action. On 12 February, 1986 the Union of India moved another application before the Chief Judicial Magistrate along with an application, dated 3 February, 1986 addressed to the Chief Judicial Magistrate by the Major General T. S. Chaudhri as General Officer Commanding requesting that the case against Brigadier Randhawa should similarly be handed over to the Military authorities for necessary action. On 17 February, 1986 the Chief Judicial Magistrate, Jorhat made an order disposing of the two requisitions made by Major General Chaudhri. He noted that the cognizance of the offences had been taken by the Additional Chief Judicial Magistrate and necessary process had been issued against both accused to compel their presence, and that in the light of Rule 3 of the Criminal Court and Court Martial (Adjustment of Jurisdiction) Rules 1978 the prayer for trial by a court martial by the competent authority was allowed. In this connection he made reference to Delhi Special Police Establishment v. Lt. Col. S. K. Loraiya, AIR 1972 SC 2548, He directed that the case be transferred to the Army authorities pursuant to the requisitions, and for disposal in accordance with the provisions of the Army Act, 1950 after trial by a court -martial at any place within the jurisdiction of his Court. He directed further that the progress of the case should be reported to his Court at intervals of two months and ultimately intimating the result thereof, for the purpose of determining whether a successive trial was necessary as provided for in the Army Act. While making the order the Chief Judicial Magistrate noted that the Army authorities had not shifted the venue of the Court of Inquiry mentioned earlier to any place within the jurisdiction of his court as required by his order, dated 25 January, 1986, and this prima facie amounted to contempt for which it was open to Major Sharma to apply to the High Court for necessary action. He also directed that Major Sharma should be permitted to proceed on leave to enable him to apply to the Gauhati High Court for filing a writ petition or taking other legal proceedings.