MAHABIR SINGH Vs. STATE

JUDGEMENT

(1.) MAJOR Mahabir Singh, the petitioner herein, who was serving in the army, is an accused in a case Under Section 364, R. P. C. He has been committed to take his trial in the Court of Session at Srinagar. He was committed on 5-11-1974 and the trial has not yet started ; even the charge has not been framed against him by the Sessions Judge. At this stage, he filed an application before the Sessions Judge challenging his jurisdiction to try him. According to the petitioner he was governed by the Army Act, 1950 (hereinafter referred to as the Army Act) as amended by the Air Force and Army Laws (Amendment) Act, 1975 (hereinafter referred to as the amendment Act) and by virtue of the provisions of the Army Act he was liable to be tried only by a court-martial. The learned Sessions Judge rejected this application holding that as the petitioner was accused of an offence under the B. P. C. and not under the I. P. C. , the Army Act even as amended did not apply to the petitioner's case and that the petitioner was triable only by the ordinary criminal courts. In so holding the learned Sessions Judge purported to follow the rule laid down by a Full Bench of this Court in State v. Ram Lakhan AIR 1971 J and K 54 : 1971 Cri LJ 470 (FB ). The decision was given under the Army Act before it was amended in 1975. The effect of the amendment to the Army Act on the rule laid down by the Full Bench is a question that arises for consideration. The further question arises whether the amendment made to the Army Act was retrospective in operation. The revision petition was heard in the first instance by one of us namely myself sitting singly and as it was felt that the questions which arise for consideration were of sufficient importance to be considered by a larger Bench, this revision petition has been placed before this Full Bench.

(2.) THE position before the amendment of the Army Act may be firstly stated. The relevant provisions of the Army Act are as follows ;-- Under Section 3 (ii) 'civil offence' means an offence which is triable by a criminal court.

(3.) THIS is in short what the Full Bench of this Court decided in the case to which reference has been made. Jaswant Singh J. (as his Lordships then was) who spoke for the Full Bench stated the position thus ; A close and careful scrutiny of the first of these provisions i. e. , Section 69 in the light of the above-mentioned rulings of the Supreme Court makes it clear that It is only when a civil offence is also an offence under the Act or deemed to be an offence under the Act, that both an ordinary criminal court as well as a court martial would have jurisdiction to try the person committing the offence. It follows therefore that if the act or omission is not punishable under the Act, as well as under any law in force in India or is not a civil offence which can be deemed to be an offence against the Act, a court-martial would not have concurrent jurisdiction with an ordinary criminal court to try the person committing the offence. . . . . . . . . . Thus it is evident that it is only offences which are triable by an ordinary criminal court in any part of India excepting the State of Jammu and Kashmir that have been classified as civil offences under the Act. Now it cannot be gainsaid that offences under the Ranbir P. C. or offences created by any other penal Statute enacted by the State legislature and having operation in the State cannot be tried by a court of ordinary criminal justice in any other part of India outside the State. As acts or omissions punishable under the Penal Code are not triable by courts of ordinary criminal justice in the rest of India, they neither amount to civil offences as defined by Section 3 (ii) read with Section 3 (viii) of the Act nor can they be deemed to be offences against the Act by virtue of Section 69 of the Act but for which a court martial would not have jurisdiction to take cognizance of and try an offence which is triable by a court of ordinary criminal justice. . . . . . . . . . . . Reading Section 69 of the Act in the light of the definitions contained in Clauses (ii) and (viii) of Section 3 of the Act, it becomes absolutely clear that an offence triable by an ordinary court of criminal justice in Jammu and Kashmir is not a civil offence as contemplated by the Act.