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Commanding Officer, Head … vs State Of Bihar & Anr on 3 August, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.48502 of 2017
Arising Out of P.S. Case No.-19 Year-2017 Thana-SAHPUR District-
PATNA

Commanding Officer, Head Quarter, Recruiting Zone, (Bihar
Jharkhand), Danapur Cant, Police Station-Danapur,
District-Patna, through Lt. Col. Prakhar Umakant Tiwari
(Administrative Officer).

…. …. Petitioner/s
Versus

1. The State of Bihar.

2. Shri Rajesh Kumar Singh, Police Sub-Inspector, Shahpur
Police Station, District-Patna (Informant).

3. Mr. Devale Pandarinath, S. No. 6394725A HAV/CLK.

4. Mr. Shekhar Suresh Magadum, No. 6944995W HAV/CLK.
Nos. 3 and 4 – ZRO, Danapur Cantt., Patna.

…. …. Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Kumar Priya Ranjan, Adv.
For the State : Md. Aslam Ansari, APP

CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
C.A.V. ORDER

6. 03-08-2018 The present petition under Section 407 of the

Code of Criminal Procedure, 1973 (hereinafter referred to

as the Cr.P.C.) has been filed at the instance of the

Commanding Officer, Headquarters, Recruiting Zone,

Danapur Cantt., Patna, challenging the order dated
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22.04.2017, passed by the learned Additional Chief

Judicial Magistrate, Danapur (Patna) in connection with

Shahpur P.S. Case No. 19 of 2017, dated 28.01.2017,

instituted for the offences under Sections 420, 467, 468,

471/34 of the Indian Penal Code, whereby the prayer

made on behalf of the petitioner for transferring the case

of the newly added opposite party Nos. 3 and 4 (serving

Army personnel) from the Ordinary Criminal Court to the

Military Court, to be tried under the Army Act, 1950

(hereinafter referred to as the Army Act), has been

refused.

2. A written report was submitted by opposite

party No. 2, Sub-Inspector of Police, Shahpur Police

Station on 28.01.2007, alleging that five named accused

persons along with others were attempting to sabotage

the appointment process in the Indian Army by arranging

for fake documents and certificates for the purposes of

such appointment, at the instance of the applicants. On

the basis of the aforesaid written report, a case vide

Shahpur P.S. Case No. 19 of 2017, as referred to above,

was registered for investigation.

3. A petition was filed by opposite party No. 2

on 30/31.01.2017 before the learned court below seeking

issuance of warrant of arrest against opposite party Nos.
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3 and 4, as it was urged that sufficient materials had

been collected against the aforesaid two opposite parties.

One Munna Singh had disclosed the names of opposite

party Nos. 3 and 4 in his confessional statement

regarding their involvement in the occurrence.

4. It was in this context that on 27.03.2017,

an application was preferred by the petitioner under

Section 475 of the Cr.P.C. read with Section 125 of Army

Act, before the learned Additional Chief Judicial

Magistrate, Danapur (Patna), seeking transfer of the case

of opposite party Nos. 3 and 4, both of whom being

serving Army personnel, and committing them to the

Commanding Officer for them to be tried by the Military

Court in accordance with the Army Act.

5. The aforesaid prayer has been rejected by

the order impugned on following two grounds, viz. (i) the

offences do not pertain to the Army Act and (ii) no Rules

in that regard have been framed by the Central

Government as contemplated under Section 475 of the

Cr.P.C. and Section 125 of the Army Act.

6. Mr. Kumar Priya Ranjan, learned Advocate

appearing for the petitioner has submitted that both the

aforesaid grounds are erroneous as the learned court

below was not correct in saying that such a prayer could
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be made only with respect to offences relating to the

Army Act and not civil offences and that Rules with

regard to transfer of the case of the Army personnel from

the Ordinary Criminal Court to Military Court has already

been framed which is known as the Criminal Courts and

Court-martial (Adjustment of Jurisdiction) Rules, 1978

(hereinafter referred to as the Rules).

7. As opposed to the aforesaid contention

raised on behalf of the petitioner, Md. Aslam Ansari,

learned Additional Public Prosecutor has submitted that

such a prayer could have been made by the petitioner

only after charge-sheet in the case had been submitted

by the investigating agency and the provisions of Section

125 of the Army Act and Section 475 of the Cr.P.C. do

not get attracted when the investigation is

continuing/pending.

8. Section 2 of the Army Act describes

different categories of Army personnel, who are subject

to the Army Act. A civil offence has been defined under

Section 3 (ii) of the Army Act as an offence which is

triable by Criminal Court and the Criminal Court, in turn,

has been defined under Section 3 (viii) of the Army Act

as a Court of Ordinary Criminal Jurisdiction in any part of

India.

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9. An offence under the Army Act means any

act or omission punishable under the Army Act and it

includes civil offences as defined above. Thus, a civil

offence is triable by a Criminal Court as also by the

Military Court. Almost all the civil offences are triable by

Court-Martial except a few, which too have been defined

and provided for in the Army Act.

10. Section 69 of the Army Act reads as

follows:-

69. Civil offences.-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, that
is to say,-

(a) if the offence is one which
would be punishable under any law in
force in India with death or with
transportation, he shall be liable to suffer
any punishment, other than whipping,
assigned for the offence, by the aforesaid
law and such less punishment as is in this
Act mentioned; and

(b) in any other case, he shall be
liable to suffer any punishment, other
than whipping, assigned for the offence
by the law in force in India, or
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imprisonment for a term which may
extend to seven years, or such less
punishment as is in this Act mentioned.

11. Closely following the aforesaid section,

Section 70 of the Army Act has been enacted which reads

as follows:-

70. Civil offence not triable by
Court-Martial.-A person subject to this
Act who commits an offence of murder
against a person not subject to military,
naval or air force law, or of culpable
homicide not amounting to murder
against such a person or of rape in
relation to such a person, shall not be
deemed to be guilty of an offence against
this Act and shall not be tried by a Court-
Martial, unless he commits any of the
said offences-

(a) while on active service, or

(b) at any place outside India, or

(c) at a frontier post specified by
the Central Government by notification in
this behalf.

12. A reading of Sections 69 and 70 of the

Army Act makes it very clear that almost all civil offences

are triable by Court-Martial, but for three specified

offences, viz. (i) offence of murder against a person not

subject to Military laws; (ii) offence of culpable homicide

not amounting to murder against a civilian and (iii)

offence of rape in relation to a civilian. For the aforesaid
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offences also, Court-martial will have jurisdiction if the

accused, who is subject to the Army Act, were in active

service at the time of commission of the offence, or such

offence had been committed at any place outside India or

at a frontier post, specified by the Central Government

by notification in that behalf.

13. Thus, a civil offence becomes triable by

both, Ordinary Criminal Court as well as Court-Martial. It

is in such circumstance that there is a possibility of

conflict of jurisdiction.

14. In order to resolve such conflict, a scheme

for resolution of such a conflict has been provided for

under Sections 125 and 126 of the Army Act and Section

475 of the Cr.P.C.

15. For the sake of completeness, the

aforesaid sections are being quoted hereinbelow for

ready reference:-

(Army Act)

125. Choice between Criminal
Court and Court-Martial.-When a
Criminal Court and a Court-Martial have
each jurisdiction in respect of an offence,
it shall be in the discretion of the officer
commanding the army, army corps,
division or independent brigade in which
the accused person is serving or such
other officer as may be prescribed to
decide before which Court the
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proceedings shall be instituted, and, if
that officer decides that they should be
instituted before a Court-Martial, to direct
that the accused person shall be detained
in military custody.

(Army Act)

126. Power of Criminal Court
to require delivery of offender.-

(1) When a Criminal Court having
jurisdiction is of opinion that proceedings
shall be instituted before itself in respect
of any alleged offence, it may, by written
notice, require the officer referred to in
section 125 at his option, either to deliver
over the offender to the nearest
magistrate to be proceeded against
according to law, or to postpone
proceedings pending a reference to the
Central Government.

(2) In every such case the said
officer shall either deliver over the
offender in compliance with the

requisition, or shall forthwith refer the
question as to the Court before which the
proceedings are to be instituted fo r the
determination of the Central Government,
whose order upon such reference shall be
final.

(Cr.P.C.)

475. Delivery to commanding
officers of persons liable to be tried
by Court-martial.-(1) The Central
Government may make rules consistent
with this Code and the Army Act, 1950
(46 of 1950), the Navy Act, 1957 (62 of
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1957), and the Air Force Act, 1950 (45 of
1950) and any other law, relating to the
Armed Forces of the Union, for the time
being in force, as to cases in which
persons subject to military, naval or air
force law, or such other law, shall be
tried by a Court to which this Code
applies or by a Court- martial, and when
any person is brought before a Magistrate
and charged with an offence for which he
is liable to be tried either by a Court to
which this Code applies or by a Court-
martial, such Magistrate shall have
regard to such rules, and shall in proper
cases deliver him, together with a
statement of the offence of which he is
accused, to the commanding officer of
the unit to which he belongs, or to the
commanding officer of the nearest
military, naval or air force station, as the
case may be, for the purpose of being
tried by a Court- martial.

Explanation.-In this section-

(a) “unit” includes a regiment,
corps, ship, detachment, group, battalion
or company,

(b) “Court-martial” includes any
Tribunal with the powers similar to those
of a Court-martial constituted under the
relevant law applicable to the Armed
Forces of the Union.

(2) Every Magistrate shall, on
receiving a written application for that
purpose by the commanding officer of
any unit or body of soldiers, sailors or
airmen stationed or employed at any
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such place, use his utmost endeavours to
apprehend and secure any person
accused of such offence.

(3) A High Court may, if it thinks
fit, direct that a prisoner detained in any
jail situate within the State be brought
before a Court-martial for trial or to be
examined touching any matter pending
before the Court-martial.

16. From a combined and simultaneous

reading of the provisions of Sections 125 and 126 of the

Army Act, on the one hand, and Section 475 of the

Cr.P.C. on the other, it is found that when a Criminal

Court intends to proceed against an accused, who is

subject to the Army Act, it would have no jurisdiction to

proceed except after giving a notice to the officers

referred to in Section 125 of the Army Act, to either

deliver over the offender to the nearest Magistrate or to

postpone the proceedings pending a reference to be

made to the Central Government and in that event, the

order of the Central Government shall be final.

17. The Central Government has made Rules

in exercise of the powers conferred under Section 475 of

the Cr.P.C., viz. Criminal Courts and Court-martial

(Adjustment of Jurisdiction) Rules, 1952. The aforesaid

Rules have been amended and now the amended Rules is

known as Criminal Courts and Court-martial (Adjustment
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of Jurisdiction) Rules, 1978.

18. The relevant provisions of the aforesaid

Rules, viz. Rules 3, 4, 5, 6, 7, 8 and 9 read as follows:-

3. Where a person subject to
military, naval, air force or Coast guard
law, or any other law relating to the
Armed Forces of the Union for the time
being in force is brought before a
Magistrate and charged with an offence
for which is also liable to be tried by a
Court Martial or Coast guard Court, as
the case may be, such Magistrate shall
not proceed to try such person or to
commit the case to the Court of Sessions,
unless :-

(a) he is moved thereto by a
competent military, naval, air force or
Coast guard authority; or

(b) he is of opinion, for reasons
to be recorded, that he should so proceed
or to commit without being moved
thereto by such authority.

4. Before proceeding under
Clause (b) of rule 3, the Magistrate shall
give a written notice to the commanding
officer or the competent military, naval or
air force authority, as the case may be, of
the accused and until the expiry of a
period of fifteen days from the date of the
service of the notice he shall not-

(a) convict or acquit the accused
under Section 252, sub-sections (1) and
(2) of Section 255, sub-section (1) of
Section 256 or Section 257 of the Code of
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Criminal Procedure, 1973 (2 of 1974), or
hear him in his defence under Section
254 of the said Code; or

(b) frame in writing a charge
against the accused under Section 240 or
sub-section (1) of Section 246 of the said
Code; or

(c) make an order committing
the accused for trial to the Court of
Session under Section 209 of the said
Code; or

(d) make over the case for
inquiry or trial under Section 192 of the
said Code.

5. Where a Magistrate has been
moved by the competent military, naval,
air force or Coast guard authority, as the
case may be, subsequently gives notice
to such Magistrate that, in opinion of
such authority, the accused should be
tried by a Court Martial or Coast guard
court as the case may be, such
Magistrate if he had not taken any action
or made any order under rule 4, before
receiving the notice shall stay the
proceedings and if the accused is in his
power or under his control, shall deliver
him together with the statement referred
to in sub-section (1) of section 475 of the
said Code to the officer specified in the
said sub-section.

6. Where within the period of
fifteen days mentioned in rule 4, or at
any time thereafter but before the
Magistrate takes any action or makes any
order referred to in that rule, the
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commanding officer of the accused or the
competent military, naval, air force or
Coast guard authority, as the case may
be, gives notice to the Magistrate that in
the opinion of such officer or authority,
the accused should be tried by a Court
Martial or Coast guard court as the case
may be, the Magistrate shall stay the
proceedings, and if the accused is in his
power or under his control, shall deliver
him together with the statement referred
to in sub-section (1) of section 475 of the
said Code to the officer specified in the
said sub-section.

7. (1) When an accused has
been delivered by the Magistrate under
rule 5 or 6, the commanding officer of the
accused or the competent military, naval,
air force or Coast guard authority, as the
case may be, shall as soon as may be,
inform the Magistrate whether the
accused has been tried by a Court Martial
or Coast guard court as the case may be
or other effectual proceedings have been
taken or ordered to be taken against him.

(2) When the Magistrate has
been informed under sub-rule (1) that
the accused has not been tried or other
effectual proceedings have not been
taken or ordered to be taken against him,
the Magistrate shall report the
circumstances to the State Government
which may, in consultation with the
Central Government, take appropriate
steps to ensure that the accused person
is dealt with in accordance with law.

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8. Notwithstanding anything
in the foregoing rules, where it comes to
the notice of a Magistrate that a person
subject to military, naval, air force or
coast guard law, or any other law relating
to the Armed Forces of the Union for the
time being in force has committed an
offence, proceedings in respect of which
ought to be instituted before him and
that the presence of such person cannot
be procured except through military,
naval, air force or coast guard
authorities, the Magistrate may by a
written notice require the commanding
officer of such person either to deliver
such person to a Magistrate to be named
in the said notice for being proceeded
against according to law, or to stay the
proceedings against such person before
the Court Martial or coast guard court, as
the case may be if since instituted, and to
make a reference to the Central
Government for determination as to the
court before which proceedings should be
instituted.

9. Where a person subject to
military, naval, air force or coast guard
law, or any other law relating to the
Armed Forces of the Union for the time
being in force has committed an offence
which in the opinion of competent
military, naval, air force or coast guard
authority, as the case may be, ought to
be tried by a Magistrate in accordance
with the civil law in force or where the
Central Government has, on a reference
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mentioned in Rule 8, decided that
proceedings against such person should
be instituted before a Magistrate, the
commanding officer of such person shall
after giving a written notice to the
Magistrate concerned, deliver such
person under proper escort to that
Magistrate.

19. Before the amendment of the Criminal

Courts and Court-martial (Adjustment of Jurisdiction)

Rules, 1952, Section 4 did not include sub-Clause (d),

viz. “make over the case for inquiry or trial under Section

192 of the said Code”, which was added only in the

amended Rules of 1978.

20. In Som Datt Datta Vs. Union of India

Ors. [AIR 1969 SC 414], while dealing with the

provisions of the Army Act, especially Sections 125 and

126 thereto and Section 549 of the Code of Criminal

Procedure, 1898, which corresponds to Section 475 of

the Code of Criminal Procedure, 1973, the Supreme

Court clarified that the provisions of Rule 3 of the

Criminal Courts and Court-martial (Adjustment of

Jurisdiction) Rules, 1952 referred to above, applied to

such cases only where the police has laid the charge-

sheet and the accused has been brought before the

Magistrate after the charge-sheet has been submitted
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against him. It was, thus, categorically held that Rule 3

of such Rules cannot be invoked in a case where the

police had merely started investigation against a person

subject to Army Act and had not submitted the charge-

sheet against him.

21. A Division Bench of this Court in Ram

Padarath Singh Vs. The State of Bihar through the

Principal Secretary, Department of Home, Govt. of

Bihar, Patna Ors., reported in 2015 (1) PLJR (HC)

497, has, however, held that the observations in Som

Datt Datta (supra) was made when Rule 3 of the

Criminal Courts and Court-martial (Adjustment of

Jurisdiction) Rules, 1952 had not been amended. With

the amendment in the Rules, in the year 1978, sub-

Clause (d) has been added to Rule 4.

22. The amended Rule has already been

quoted before.

23. Even at the risk of repetition, it is stated

that Rule 4 refers to the orders which cannot be passed

by a Magistrate, until the expiry of a period of 7 days

from the date of service of notice to the Commanding

Officer, viz. that no accused shall be convicted or

acquitted under Sections 243, 245, 247 or 248 of the

Code of Criminal Procedure, 1898 or be heard in his
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defence under Section 244 of the said Code or frame a

charge against the accused under Section 254 of the

Code or make an order committing the accused for trial

to the Court of Sessions and will not also make over the

case for enquiry or trial under Section 192 of the Code of

Criminal Procedure, 1973 (newly added Clause (d) to the

Rules).

24. While explaining the aforesaid clause, viz.

Rule 4 (d) of the Rules, the Division Bench of this Court

in Ram Padarath Singh (supra) held that even when an

investigation is pending and the Army authority decides

to institute a proceeding before a Court-Martial, it can

seek the custody of the accused if the accused is in

judicial custody or in the police custody. While

interpreting Rule 4 (d) of the Rules, the Division Bench

was of the opinion that the judgment rendered by the

Supreme Court in Som Datt Datta (supra) was on the

basis of the unamended Rules in that regard which did

not include Clause (d) of Rule 4 of the Criminal Courts

and Court-martial (Adjustment of Jurisdiction) Rules,

1978.

25. However, what is relevant is that even

after the amendment in the Criminal Courts and Court-

martial (Adjustment of Jurisdiction) Rules, 1952 and the
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coming of the new Rules of 1978, the Supreme Court of

India in S.K. Jha Commodore Vs. The State of Kerala

and Ors. in Cr. Appeal No. 117 of 2010 has approved

and has followed the observation in Som Datt Datta

(supra) that option as to whether the accused be tried

before the Criminal Court or by a Court-Martial could be

exercised only after the police had completed the

investigation and submitted the charge-sheet and that

the provisions of the Rules could not be invoked in a case

where the police had merely started an investigation

against a personnel, subject to Military, Naval or Air-

Force law. In the aforesaid case, the Supreme Court

approved the interpretation/application of Rule 4 of the

Criminal Courts and Court-martial (Adjustment of

Jurisdiction) Rules, as was espoused in Som Datt Datta

(supra).

26. Thus, in view of the judgment of the

Supreme Court in Som Datt Datta (supra) and its

confirmation in S.K. Jha Commodore Vs. The State of

Kerala and Ors. (Cr. Appeal No. 117 of 2010) and in

other cases by the Supreme Court, Rule 3 of such Rules

can only be invoked after the charge-sheet against an

accused is submitted and not while investigation is

pending.

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27. In any view of the matter, the learned

Additional Chief Judicial Magistrate, Danapur (Patna) was

not correct in rejecting the prayer of the petitioner on the

ground that no Adjustment of Jurisdiction Rules exist.

This obviously is not correct. That apart, the learned

Magistrate shall have the jurisdiction to take a call,

supported by reasons that the present case requires to

be tried/adjudicated by the Criminal Court. The learned

Magistrate, but, shall not proceed in the matter till a

notice in that regard is given to the Commanding

Officer/competent authority as contemplated under

Sections 125 and 126 of the Army Act, Section 475 of the

Code of Criminal Procedure, 1973 read with the Criminal

Courts and Court-martial (Adjustment of Jurisdiction)

Rules, 1978.

28. For the aforesaid reasons, the order

impugned dated 22.04.2017 is, hereby, set-aside.

29. However, the petitioner would be at liberty

to approach the learned Magistrate after the investigation

in this case is completed and the charge-sheet is

submitted. It will also be open for the Magistrate to take

a call whether the offence be tried by the Criminal Court

only. As and when such a petition shall be filed by the

petitioner, the court below shall pass a reasoned order in
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accordance with law, in the light of the provisions

contained in Sections 125 and 126 of the Army Act,

Section 475 of the Code of Criminal Procedure, 1973 read

with the Criminal Courts and Court-martial (Adjustment

of Jurisdiction) Rules, 1978.

30. With the aforesaid direction, the present

petition is disposed of.

31. Any interim order/orders shall stand

vacated.

(Ashutosh Kumar, J)

Praveen-II/-

U T

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