MAJOR A J ANAND Vs. STATE

JUDGEMENT

(1.) THIS is a reference made by the Sessions Judge Kashmir, recommending that the conviction recorded by the trial Magistrate be set aside as the Magistrate had no jurisdiction to try the accused who was a Major in the Indian Army and was triable by Court martial.

(2.) THE facts which gave rise to this reference briefly stated are these: Major A. J. Anand who was in civil clothes was driving motor cycle No. 4892 on Club Road in Srinagar on 8-10-1959. He was stopped and was asked to produce his driving licence and registration certificate. He failed to do so. He was summarily tried by the Mobile Magistrate, Srinagar and was convicted Under Section 86/112 of the Motor Vehicles Act and sentenced to pay a fine of Rs. 10/ , in default to suffer simple imprisonment for two days. The accused filed a revision application against the order of the Mobile Magistrate and the Sessions Judge has made this reference for quashing the conviction and the sentence on the ground that the accused being an Army Officer the order passed by the Mobile Magistrate was without jurisdiction as an offence Under Section 86/112, Motor Vehicles Act against an Army Officer was triable by Court martial alone.

(3.) THE first question for consideration is whether the offence of which the accused was charged was triable by the Mobile Magistrate or by Court martial alone. The accused Major, A. J. Anand, as appears from the certificate of the Commanding Officer is serving on active service within the meaning of Section 3 (1) of the Army Act and the station of Srina gar is also an active service area. Section 69 of the Army Act contains the relevant provisions pertaining to those civil offences which are triable by Court-martial and it may foe reproduced as under : Subject to the provisions of Section 70, any person subject to this Act who at any place in or beyond India commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this Section, shall be liable to be tried by a Court martial and, on conviction, be punishable as follows. . . . "civil offence" is defined in Section 3 (ii) of the Army Act as follows: Civil offence' means an offence which is trial by a criminal court. "criminal Court" is defined in Section 3 (viii) which reads as under : criminal court' means a court of ordinary criminal justice in any part of India, other than the State of Jammu and Kashmir. We have to see whether the offence of which the accused is charged falls within the definition of 'civil offence' as given in Section 3 (ii) of the Army Act. An offence Under Section 86 of the Motor Vehicles Act of the State is not a 'civil offence' as mentioned in Section 69 of the Army Act as it is not triable by any criminal Court in India. It is an offence in tills State alone and triable by a criminal Court in the State. A criminal Court of the State of Jammu and Kashmir does not come within the definition of the 'criminal court' as defined in Section 3 (viii) of the Army Act and, therefore, the offence of which the accused is charged not being "civil offence" as defined in Section 3 (ii) of the Army Act is not triable by Court martial but by a Criminal Court pf the State.