BAKSHISH SINGH Vs. DISTRICT COURT MARTIAL

JUDGEMENT

(1.) THIS is an appeal under the letters Patent against the Judgment and order of Jaswant Singh J., sitting singly, dated 4 -10 -71. The facts giving rise to the present appeal are as follows: The petitioner, Bakshish Singh, was a Corporal Airman and was attached to the 23rd Wing of the Air Force. On 11 -12 -67 the appellant alongwith one Anil Chander Aircraftman Burman is alleged to have exported 14 bags of gram Dal and 46 bags of Kabli grams from the State of Punjab into the State of Jammu and Kashmir in an Air Force service vehicle No. VD 38915. It was alleged by the Air Force authorities that under a Notification issued by the Ministry of Food the export of these articles from one State to another was completely prohibited and amounted to an offence under the provisions of the Essential Commodities act, 1955, which admittedly does not apply to this State. If was further alleged that when the appellant and his friend, Anil Chander, entered the territories of the Jammu and Kashmir State at Madhopur Checkpost, he was not allowed to proceed further and he tried to offer a bribe of Rs. 20/ - to Lance Naik (hereinafter to be referred to L/N) Jacob, the official on duty. The matter was reported to the police, and after the usual investigation a complaint under S. 165 A of the Ranbir P.C. for offering bribe to L/N Jacob was presented by the Public Prosecutor, Special Police Establishment, Ambala Branch in the court of the Special Judge (Sessions Judge) Kathua. While the trial was pending before the court of Special Judge, the Wing Commander who was the Commanding Officer of the 23rd Wing, Air Force, sent a requisition to the Special Judge on 10 -6 -69 for returning the petitioner to his department for trial of the appellant by Court -martial for offences under the Indian Air Force Act of 1950. The Special Judge" acceded to the .request of the W/C and accordingly handed over the appellant to the Air Force authorities. The appellant was thereafter tried, by a District Court -Martial on three counts, 1) under S. 71 of the Indian Air Force Act for committing a civil offence punishable under S. 7 of the Essential Commodities Act 2) Under S. 65 of the Air Force Act for committing an act prejudicial to good order and air force discipline, by carrying un -authorized goods in a vehicle belonging to the air force wing and 3). An offence under S. 65 of the Air Force Act by committing acts prejudicial to good order and air force discipline in trying to offer a bribe of Rs. 20/ - to L/N Jacob. The third charge (Supra) was also an offence under S. 165 -A of the Ranbir P. C. The Court -Martial commenced the trial on January 17, 1970, and when the trial was nearing completion, the petitioner filed a writ petition in this court which was heard by Jaswant Singh J. who over -ruled all the contentions raised before him and dismissed the writ petition. Hence this appeal before us.

(2.) LEARNED counsel for the appellant, Mr. S.P. Gupta, submitted that the court -martial had no jurisdiction to try the petitioner because he is alleged to have committed an offence under S. 165 -A of the Ranbir P. C. which was exclusively triable by courts in the State of Jammu and Kashmir and, therefore, the jurisdiction of the court -martial was completely ousted The learned counsel for the appellant drew support from a Division Bench decision of this Court in Rachpal Singh V. Summary General Court Martial and ors, 1972 J & K L. R. 302. Secondly it was contended that even if S. 65 of the Air Force Act created separate category of offence, since the facts alleged constituted an offence under S. 165 -A of the Ranbir P. C. therefore, the Parliament by enacting S. 65 of the Air Force Act could not invade the field occupied by the State Legislature.

(3.) THE learned judge negatived the contention of the appellant firstly on the ground that in the present case the appellant was charged for specific offences under the Indian Air Force Act which were not triable by courts in the State of Jammu & Kashmir and, therefore, the jurisdiction of the courts in the State was ousted. The learned judge held further that so far as the Division Bench decision (Supra) is concerned, it was clearly distinguishable in so far as in that case the petitioner who was a rifleman belonging to the 9th J & K Rifles a part of the Defence Services of the Union of India was charged with the offence of murder under S. 302 of the Ranbir P. C. In other words the learned Judge held, and in our opinion rightly, that the charges framed by the court martial in the present case were not under any Act passed by the State Legislature but under the Air Force Act and, therefore, these charges could be exclusively triable by a court -martial convened under the provisions of the Indian Air Force Act. The learned Judge has quoted in extenso the charges framed against the appellant by the court -martial and we shall only briefly refer to the contents of those charges. The first charge was under S. 71 of the Air Force Act for having contravened S. 7 of the Essential Commodities Act and a Notification issued by the Food Ministry prohibiting the export of items which were carried by the appellant in an Air Force Service vehicle. It may be noted here that this offence is distinct and a separate offence under S. 71, and if at all it is in a way connected with any other offence, it is S. 7 of the Essential Commodities Act which admittedly has no application to the State. It is therefore manifest that the charge under S. 71 is for an offence which is triable by the court -martial alone and not by any court of competent jurisdiction in the State, because it neither falls under the provisions of the Ranbir P. C. nor of the State Criminal law Amendment Act. In these circumstances the learned judge was absolutely right in holding that this charge could not have been tried by courts in the State. Coming now to the second charge, that also appears to be under S. 65 of the Air Force Act which creates a distinct offence and arises out of the fact that the appellant was carrying unauthorised goods from one State to another. Such an act apart from contravening the provisions of the Essential Commodities Act, also fell within the ambit of S. 65 of the Indian Air Force Act inasmuch as it was an act prejudicial to good order and air force discipline. This act, therefore, fell beyond the purview of the jurisdiction of the Courts in the State. The last charge related to the question of offering bribe of Rs. 20/ - to L/N Jacob and was in contravention of S. 65 of the Air Force Act inasmuch as it was prejudicial to good order and air force discipline. This charge requires greater scrutiny because the learned counsel for the appellant argued that this act was really an offence under S. 165 -A of the Ranbir P.C. and, therefore, ought to have been tried by the Special Judge Kathua, particularly when the Special Police Establishment had filed a complaint before the said judge. It was further argued that even if the Air Force Act created a specific offence under S. 65. the aforesaid section was ultra -vires, inasmuch as it offended the legislative competence of the State to pass its laws and came in direct conflict with S. 165 -A of the Ranbir P. C. In our opinion, both these arguments are based on a serious mis -conception of law. As regards the first argument, it is true that the offence mentioned in the facts constituting the third charge may no doubt be punishable under S. 165 -A of the Ranbir P.C., but the act must constitute facts which may give rise to two separate offences first, under the Air Force Act and the other under the Ranbir P.C. In the instant case, the act of offering bribe fell clearly within the purview of S. 65 of the Air Force Act inasmuch as it was prejudicial to good order and Air Force discipline and was, therefore, a distinct offence under S. 65 of the Air Force Act, even though it may also have constituted an offence under the provisions of the Ranbir P. C. Once it is sheld that the act of the appellant constituted an offence under S. 65 of the Air Force Act, then the jurisdiction of the courts was completely ousted and the mere fact that the appellant may also have committed an offence punishable under the Ranbir P.C. will not oust the jurisdiction of the court -martial constituted under the Air Force Act, After all the army and the Air Force have to maintain a certain code of conduct in order that their discipline does not suffer and for this reason the Parliament has passed special statutes by making acts of indiscipline specifically punishable under special provisions incorporated in the Army Act or in the Air Force Act. Once, therefore, we hold that the third charge fell within the ambit of S. 65 of the Air Force Act, then the argument that the courts in the State had exclusive jurisdiction to try some other offences of the same nature will not deprive the court -martial of its jurisdiction to try an offence under the Air Force Act. For these reasons the first contention is over -ruled.