GENERAL OFFICER COMMANDING Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioner challenges the order by virtue of which Judicial Magistrate 1st Class, Gandoh has declined to deliver the accused person together with the statement of offence to their Commanding Officer, who has exercised the option to try them by a Court Martial under the Army Act. The facts of the case in brief are that a case under section 302 RPC was registered against Major Virinder Malik and Major S. K. Chadha in Police Station, Gandoh. The Investigating Officer submitted report under section 174 Cr. P. C. charging both the officers for having committed the offence of murder.

(2.) SINCE both the officers are subject to Army Act, the General Officer Commanding requested for the custody of both the officers together with the statement of offence after having decided to try them by a Court Martial. This letter dated 12 -06 -1997 reads as under: From:Maj Gen Vinod Bhanot, VrC General Officer Commanding, HQ Cl Delta Force. To: Judicial Magistrate 1st Class, Gandoh (Bhalessa) District Doda. Discipline: IC -49206F Capt Virinder Singh of No. 5 DETECLU (Ex8 Maratha LI) Exercise of Jurisdiction. Sir, 1. 1C 49206F Capt Virinder Singh of No.5 DET, ECLU (Ex 8 Maratha LI) has been charged before you for offences under RPC Sec 302/404. I, as the competent military authority by virtue of the power vested in me under Army Act Sec 125 and Rule 5 of the Criminal Courts and Court Martial Adjustment of jurisdiction Rules, 1978, have decided that the accused shall be tried by court martial and shall be detained in Military custody. 2. You are, therefore, requested to hand over the case against the above said accused officer, together with the statement of the offence/s to the representative of the Commanding Officer of 17RR Bn, who has been directed to approach you for the purpose. Yours faithfully, Sd/ - (Binod Bhanot) Maj General Officer Commanding" This request was rejected by the learned Magistrate itself on 30 -7 -1997 holding that he has no power to revise his earlier order dated

(3.) -11 -96, by virtue of which it was held that since the accused were not an "active service" at the time of commission of offence, therefore, their custody cannot be delivered to the Commanding Officer. The Operative portion of the order dated 3 -11 -1996 reads as under: "The accusation levelled against the said accused is that they have committed the offence of murder in respect of a person not subject to military Navel and Air force Law. It cannot further more be said that the offence of murder was committed by the accused while on active service or out -side the India or while on frontier post. As Active Service has been defined by Section 3 of the Army Act Sec 3 of the said act provides thus: "In this act unless the context otherwise requires. (1) Active Service as applied to a person subject to this act means the time during which such person (a) is attached to or forms part of a force which is engaged in operations against an enemy; or (b) is engaged in military operation in or is on the line of march to a country or place wholly or partly occupied by an enemy, or (c) is attached to or forms part of a force which is in the military occupation of a foreign country. So keeping in consideration the definition of active service it cannot be said that the said two accused committed the offence while on active service, clauses (b) and (c) of Army Act from their plain language have absolutely no relevance to the instant case." 3. The question involved is whether the officers were on active service. The learned Magistrate, it appears was not aware of SRO 17 -E dated 05 -09 -1977 issued under section 9 of the Army Act which reads as under: S. R. 0.17(E). In exercise of the powers conferred by section 9 of the Army Act, 1950 (46 of 1990) and in supersession of the notification of the Government of India in the Ministry of Defence, No. SRO -6 -E, dated the 28th November 1962, the Central Government hereby declares that all persons subject to that Act who are not on active service under clause (1) of section 3 thereof shall, while serving in the areas specified below, be deemed to be on active service within the meaning of that Act for the purpose of the said Act or any other law for the time being in force. (1) The States of (a) Jammu and Kashmir