1. Ajit Singh alias Gurjeet Singh son of Harbans Singh of village Asal Autar has been sentenced to death on three counts under Section 302. Indian Penal Code. He has been further convicted under Section 307, Indian Penal Code, on eleven counts and sentenced to undergo rigorous imprisonment for seven years on each count. His co-accused, i.e., Aiit Singh son of Sohan Singh, Harbhajan Singh alias Daval Singh, Gurbax Singh and Pala Singh, who were tried with Aiit Singh alias Gurjeet Singh for constructive liability for the offences for which Ajit Singh has been convicted, were given the benefit of the doubt by the learned Additional Sessions Judge and were acquitted.
2. During the pendency of this appeal and Murder Reference, the Public Prosecutor made an application under Sections 428 and 561-A, Criminal Procedure Code, for additional evidence and personal appearance of the appellant in view of a ground taken by the appellant in the grounds of appeal that in any case in the circumstances of the case capital punishment was not called for. This was on account of some dispute raised with regard to the age of Ajit Singh. In the meantime additional grounds of appeal were submitted to this Court by Aiit Singh through jail. These were forwarded by the Superintendent, Central Jail, Amritsar, on the 25th of July, 1969. In the additional grounds of appeal it was urged that at the time of the commission of the offence the appellant was L.A.C. In the Air Force and was on active service although on leave, and that under Section 549, Criminal Procedure Code, and Rule 3 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952, it was incumbent upon the Committing Magistrate and the learned Additional Sessions Judge to inform the competent air force authority in writing about the case against the appellant and to enquire, before proceeding with the appellant's case whether the said authority wanted to claim the appellant for trial by Court Martial. It was maintained that the provisions of Rule 3 of Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952, not having been complied with, the trial was vitiated.
3. While we were hearing the appeal on the 14th of August, 1969, it was pointed out that there was no evidence on the record of this case on the basis of which It could be asserted that the appellant at the time of the incident was in the Air Force so as to entitle him to trial by Court Martial. The hearing was adjourned to enable learned counsel for the appellant to place before this Court, if ho was so advised, evidence by way of affidavit or otherwise in order to lay the basis for the ground taken before us. In view of the importance of the law point involved we directed the learned Advocate-General to assist us in this matter himself.
4. We have heard learned counsel for the parties. Learned counsel for the appellant has pointed out the provisions of Section 549, Criminal Procedure Code. This section provides for delivery to military authorities of persons liable to be tried by Court Martial and is in the following terms:--
'(1) The Central Government may make rules, consistent with this Code and the Army Act, the Naval Discipline Act, the Indian Navy (Discipline) Act, 1934 and the Air Force Act and any similar law for the time being in force as to the Cases in which persons subject to military, naval or air force law shall he tried by a Court to which this Code applies, or by 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 regiment, corps, ship or detachment 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 Court-Martial.
(2) Every Magistrate shall, on receiving written application for that purpose by the commanding officer of any body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavours to apprehend and secure any person accused of such offence.'
'The following persons shall he subject to this Act wherever they may be, namely:--
(a) officers and warrant officers of the Air Force;
(b) persons enrolled under this Act;
(c) persons belonging to the Regular Air Force Reserve or the Air Defence Reserve or the Auxiliary Air Force, in the circumstances specified in Section 26 of the Reserve and Auxiliary Air Forces Act, 1952;
(d) persons not otherwise subject to air force law, who. on active service, in camp, on the march, or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of the Air Force.'
Section 4(i) of the Air Force Act specifies persons who are deemed to be on 'active service' as under:--
' 'active service' as applied to a person subject to this Act, means the time during which such person-
(a) is attached, or forms part of, a force which is engaged in operations against an enemy, or
(b) is engaged in air force operations 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 military occupation of any foreign country.'
Section 9 gives power to the Central Government, to declare persons to be on active service by a notification and is in the following terms:--
'Notwithstanding anything contained in Clause (i) of Section 4, the Central Government may, by notification, declare that any person or class of persons subject to this Act shall, with reference to any area in which they may be serving or with reference to any provision of this Act or of any other law for the time being in force, be deemed to be on active service within the meaning of this Act.'
5. Attention was also drawn to the Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1952, more particularly to Rules 3, 4, 5 and 6, which are in the following terms:--
'3. Where a person subject to military, naval or air force is brought before Magistrate and charged with an offence for which he is liable to be tried by a Court-Martial, such Magistrate shall not proceed to try such person or to inquire with a view to his commitment for trial by the Court of Session or the High Court for any offence triable by such Court, unless-
(a) he is of opinion, for reasons to be recorded, that he should so proceed without being moved thereto by competent military, naval or air force authority, or
(b) he is moved thereto by such authority.
4. Before, proceeding under Clause (a) of Rule 3, the Magistrate shall give a written notice to the Commanding Officer of the accused and until the expiry of a period of-
(i) three weeks, in the case of a notice given to a Commanding Officer in command of a unit or detachment located in any of the following areas of the hill districts of the State of Assam, that is to say-
(2) Naga Hills,
(3) Garo Hills,
(4) Khasi and Jatntta Hills, and
(5) North Cachar Hills;
(ii) seven days in the case of a notice given to any other Commanding Officer in command of a unit or detachment located elsewhere in India, from the date of service of such notice, he shall not
(a) convict or acquit the accused under Section 243, 245. 247 or 248 of the Code of Criminal Procedure 1898 (Act 5 of 1898), or hear him in his defence under Section 244 of the said Code; or
(b) frame in writing a charge against the accused under Section 254 of the said Code; or
(c) make an order committing the accused to trial by the High Court or the Court of Session under Section 213 of the said Code; or
(d) transfer the case for inquiry or trial under Section 192 of the said Code.
5. Where within the period of seven days mentioned in Rule 4. or at any time thereafter before the Magistrate has done any act or made any order referred to in that rule, the Commanding Officer of the accused or competent military, naval or air force authority, as the case may be, gives notice to the Magistrate that in the opinion of such authority, the accused should be tried by a Court-Martial, the Magistrate shall stay proceedings and if the accused is in his power or under his control, shall deliver him, with the statement prescribed in Sub-section (1) of Section 549 of the said Code to the authority specified in the said sub-section.
6. Where a Magistrate has been moved by competent military, naval or air force authority, as the case may be, under Clause (b) of Rule 3, and the Commanding Officer of the accused or competent military, naval or air force authority, as the case may be, subsequently gives notice to such Magistrate that, in the opinion of such authority, the accused should be tried by a Court-Martial, such Magistrate, if he has not before receiving such notice done any act or made any order referred to in Rule 4, shall stay proceedings and, if the accused is in his power or under his control, shall in the like manner deliver him, with the statement prescribed in Sub-section (1) of Section 549 of the said Code to the authority specified in the said sub-section.'
It is not disputed that the Central Government issued on the 5th of December, 1962, a notification No. S.R.O. 8-E in the following terms:--
'In exercise of the powers conferred by Section 9 of the Air Force Act, 1950 (45 of 1950), the Central Government hereby declares that all persons subject to the said Act shall, wherever they may be serving, be deemed to be on active service within the meaning of the said Act, for the purposes of the said Act and of any other law for the tune being in force.'
Section 124 of the Air Force Act 1950, provides that when a Criminal Court and a Court-Martial have each jurisdiction In respect of an offence, it shall be in the discretion of the Chief of the Air Staff, the officer commanding any group, wing or station in which the accused prisoner is serving or such other officer as may be prescribed to decide before which Court the 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 Air Force custody. Section 125 of Air Force Act is in the following terms:--
'(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 124 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 for the determination of theCentral Government whose order upon such reference shall be final.'
Section 71 of the Air Force Act is in the following terms:--
'Subject to the provisions of Section 72, 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 any law in force in India, or imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.'
Section 72 of the said Act is in the following terms:--
'A person subject to this Act who commits an offence of murder against a person not subiect 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 anv 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 said Government by notification in this behalf.
Explanation -- In this section and in Section 71 'India' does not include the State of Jammu and Kashmir.'
6. It is the contention on behalf of the appellant that in view of the provisions mentioned above, the appellant must be deemed to be on active service although he was on leave and consequent-ly the offence was triable by a Court-Martial and since no information was given to the appropriate officer to enable him to claim that the appellant should be tried by Court-Martial, his trial is vitiated and he is entitled to acquittal.
7. It seems to be fairly clear that neither the learned Magistrate who committed the accused for trial nor the learned Additional Sessions Judge gave any notice to the appropriate officer requiring to exercise his option as contemplated by law. Before the Committing Magistrate nothing was disclosed which would indicate to him that the appellant was in the Air Force. It is only when the charge was framed against the appellant and his plea was taken that the appellant stated his age to be 18 years and service in I.A.F. When examined under the provisions of Section 342, Criminal Procedure Code, at the trial he stated that he was an employee of the Indian Air Force. Apart from these, there was no other material on the record during the trial that the appellant had anything to do with the Air Force.
8. An affidavit has, however, been produced before us sworn by Wing Commander K. S. Suri dated 20th of August, 1969, wherein it is stated that Leading Aircraftman Gurjeet Singh son of Har-bans Singh is an Airman who is on the posted strength of his Unit with effect from 9th of July, 1966, having been enrolled in the Air Force on the 4th of October, 1963, and after the 5th of December. 1962, he was on active service in the Air Force vide declaration by the Central Government dated 5th of December, 1962 (Notification S.R.O. 8-E dated 5th of December, 1962).
9. Before us learned counsel for the appellant has urged that in view of non-compliance with Section 549. Criminal Procedure Code, read with the rules made thereunder, the trial is vitiated because these provisions were mandatory in nature. To support his contention he has relied upon some authorities.
10. In re: Captain Hugh May Stol-lery Mundy, AIR 1945 Mad 289, it was held by a Division Bench that where the attention of the Magistrate who tried the accused was not drawn to Section 549, Criminal Procedure Code, or the rules framed thereunder and he did not act in accordance therewith, the trial was illegal and the conviction and sentence must be set aside. In this case the accused was an engine-room mechanic who had been sentenced to three months' rigorous imprisonment for an offence under Section 304A, Indian Penal Code, and rigorous imprisonment for one month under Section 116, Motor Vehicles Act
11. In Awadh Behari Singh v. The State, AIR 1967 Cal 323, it has been held that when the mandatory provisions of Section 549, Criminal P. C., and the rules made thereunder are not complied with, the procedural defect is not merely an irregularity but is an illegality, which affects the jurisdiction of the Magistrate in the trial Court and in such a case the conviction and sentence passed against the accused must be set aside. It was further held that Rule 3 of Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1952, framed under Section 549, Criminal Procedure Code, must be strictly complied with before a military personnel can be tried by a Magistrate, as it provides the jurisdiction of the Magistrate to try such personnel. In that case a Naik of the Indian Army was prosecuted under the Opium Act. The Company Commander, the competent military authority, wrote a 'confidential' letter to the Deputy Commissioner of Excise asking him to try the accused under the civil law. This letter was made available to the Magistrate for trying the accused under Section 549, Criminal Procedure Code, and the accused was convicted. The Division Bench of the Calcutta High Court set aside this conviction.
12. In Re: Major F. K. Mistry, (1949) 2 Mad LJ 44 it has been held that-
'Where the Court fails in its duty to give notice to the commanding officer of the accused, the proceedings before the Magistrate relating to the recording of evidence, etc., would be illegal and without jurisdiction; and acquiescence on the part of the accused in an irregular or illegal proceeding would not regularise or legalise the proceedings. A charge so framed would be without jurisdiction and has to be quashed.'
13. Two other authorities were relied upon Emperor v. Jerry D. Sena, AIR 1945 Bom 170 and Amarendra Chandra Cha-kravorty v. Garrison Engineer, AIR 1945 Cal 340.
14. The State relied upon Maior E. G. Barsay v. State, AIR 1958 Born 354. That was a case where one E. G. Barsay and others were tried before a Special Judge set up under the Criminal Law Amendment Act. It was held that it cannot be said that the rules framed under Section 549, Criminal Procedure Code, will have to be followed by a Special Judge. It will be seen that this case hardly helps the State.
15. Reliance was mainly placed upon a judgment of the Full Bench of the Delhi High Court in Jogindor Singh v. State, 1969-71 Pun LR (Delhi Section) 61 (FB). Dua, C. J. (as he then was) and Tatachari, J. came to the conclusion that violation of Rules 3 and 4 of the Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules framed under Section 549, Criminal Procedure Code, does not by itself deprive the Magistrate of his inherent jurisdiction, thereby automatically nullifying all subsequent proceedings and that the effect of the violation is to be determined on the facts and circumstances of each case keeping in view the nature of the violation and all other relevant factors. They relied upon the observations made by their Lordships of the Supreme Court in Major E. G. Barsay v. State of Bombay, AIR 1961 SC 1762. S. K. Kapur J., however came to a contrary conclu-son and held that the observance of the above rules was obligatory and non-observance thereof will result in an illegality vitiating the trial.
16. The points raised in this appeal and Murder Reference are of considerable importance. These points were not raised in some of the appeals which had been previously disposed of in this Court where Array and Air Force personnel had been convicted by the lower Court and we, therefore, consider that this is a fit case which should be beard by a larper Bench. We, therefore, direct that the papers of this case be placed before Hon'ble the Chief Justice for constituting a larger Bench. In view of the fact that the appellant has been sentenced to death, this case be heard at a very early date.
A.D. Koshal, J.
17. I agree.