B.P. Beri, J.
1. The Special Judge No. 2, Jaipur rejected the claim of the four applicants before me, who are commissioned officers of the Indian Army to be dealt with in accordance with the provisions of Section 549 of the Code of Criminal Procedure, which prescribes trial by Court Martial by his order dated 10th October, 1966, and it is against this order that they have come up in revision.
2. The facts which are necessary to be noticed for the disposal of this revision application briefly stated are :
A charge sheet was submitted before the Special Judge on 27th January, 1966 against 8 persons accusing them of offences of criminal conspiracy, bribery, criminal breach of trust, cheating and falsification of accounts under the Indian Penal Code and under Section 5(2) read with Sections 5(1)(a) and 5(1)(d) of the Prevention of Corruption Act, 1947. One of them K.S. Oberei turned an approver. Out of the remaining 7 accused three are civilians and four are officers of the Indian Army who are applicants before me. On 5th March, 1966 the case was adjourned to 4th July, 1966 at the request of the Public Prosecutor enabling him to supply the copies of documents envisaged by Section 173 of the Code of Criminal Procedure and for enforcing the attendance of the two accused persons, who were not served till then.
No progress of the case was made until 13/14-9-1966 when the four applicants. Army Officers, moved a joint application praying that in view of the Criminal Law Amendment (Amending) Act, 1966 they being commissioned officers of the Indian Army were entitled to be dealt within accordance with the provisions of Section 549 of the Code of Criminal Procedure. The Special Judge rejected their application, and, therefore the present revision application.
3. Mr. Agarwal appearing for the applicants urged that the order of the learned Special Judge is erroneous because he failed to give effect to Section 5(1)(a) of the Criminal Law Amendment (Amending) Act, 1966. Mr. Mehta for opposite party supported the order of the Special Judge.
4. In order to appreciate the rival contentions of the learned counsel ft is proper to briefly notice the relevant law and the changes made therein.
5. The Criminal Law Amendment Act (Act No. XLVI of 1952) amended the Indian Penal Code and the Code of Criminal Procedure to provide for more speedy trial of certain offences. The Act empowers the State Government to appoint Special Judges who alone could try offences of bribery and ofences under the Prevention of Corruption Act and of criminal conspiracy and any attempt or abetment concerning the said offences. Under Section 8 of the Act it is provided that the procedure prescribed for the trial of warrant cases was to be followed by them.
In a Bombay case a question was raised whether a Special Judge appointed under the Criminal Law Amendment Act was required to follow the procedure prescribed by Section 549 of the Code of Criminal Procedure and the rules made thereunder. The Bombay High Court in E.G. Barsay v. State, AIR 1958 Bom 354, held that the provisions of Section 549 of the Code of Criminal Procedure did not apply to Special Judges appointed under the Criminal Law Amendment Act, because they were not Magistrates.
The matter went up to the Supreme Court and in E.G. Barsay v. State of Bombay, AIR 1961 SC 1762, their Lordships upheld the decision of the Bombay High Court, In the light of the judgment of the Supreme Court in the said case it became necessary to amend the Criminal Law Amendment Act and 'to insert a new section therein, as from the commencement of the Act, to save the jurisdiction exercisable by a Court martial or other authority under the Army. Navy and Air Force Acts (cf. the statement of Objects and Reasons, Gazette of India, Extraordinary, Section 2, dated December 3, 1965 introducing the bill to amend the Criminal Law Amendment Act, 1952). An Ordinance was issued on 30th June, 1966 called the Criminal Law Amendment Ordinance (No. 7 of 1966) wherein certain provisions were made for the aforesaid purpose. This Ordinance later on became the Criminal Law Amendment (Amending) Act, 1966 (Act No. 22 of 1966) dated 3rd December, 1966.
In Section 8 the Sub-section 3 (A) was amended to make Sections 350 and 549 of the Code of Criminal Procedure applicable to the procedure to be adopted by Special Judges Under Section 3 of the Amending Act Section 11 was newly inserted in the following language:
'3. After Section 10 of the principal Actthe following action shall be inserted and shall be deemed always to have been inserted, namely :--
'11. (1) Nothing in this Act shall affect the jurisdiction exercisable by, or the procedure applicable to, any Court or other authority under military, naval or air force law.
(2) For the removal of doubts it is hereby declared that for the purposes of any such law as is referred to in Sub-section (f), the Court of the Special Judge shall be deemed to be a Court of ordinary criminal justice)''.
5-A. Section 5 which is the material section for the purposes of the present case reads as follows :--
'5 (1) Notwithstanding anything contained in this Act or in the principal Act as amended by this Act, --
(a) cases pending immediately before the 30th day of June, 1966, before a special Judge in which one or more persons subject to military, naval or air force law is or are charged with and tried for an offence under the principal Act together with any other person or persons not so subject, and
(b) cases pending immediately before the said date before a special Judge in which one or more persons subject to military, naval or air force Taw is or are alone charged with and tried for an offence under the principal Act and charges have already been framed against such person or persons,
shall be tried and disposed of by the Special Judge.
(2) Where in any case pending immediately before the 30th day of June, 1966, before a special Judge, one or more persons subject to military, naval or air force law is or are alone charged with and tried for an offence under the principal Act and charges have not been framed against such person or persons before the said date, or where an appeal or a revision against any sentence passed by a special Judge in any case in which one or more persons so subject was or were alone tried, the appellate Court has directed that such person or persons be retried and on such retrial charges have not been framed against such person or persons before the said date then, in either case, the special Judge shall follow the procedure laid down in Section 549 of the Code of Criminal Procedure 1898 as if the Special Judge were a Magistrate.
6. The question which emerges for consideration before me is whether the case of the applicants is covered by the provisions contained in Section 5(1)(a) of the Amending Act. The material words of Section 5(1)(a) on the interpretation of which the answer to this question depends are :
'charged with and tried for an offence' which I have underlined for the purpose of convenient reference. Mr. Agrawal contends that the word 'tried' should mean that the case against the accused has been considered by the Special Judge. Mr. Mehta, on the other hand, submitted that in the context the word 'tried' means that the accused has been prosecuted.
In State of Bihar v. Ram Naresh, AIR 1957 SC 389, an authority on which both the learned counsel placed their reliance the words 'trial' and 'tried' came to be considered with reference to the procedure contained in 'Section 494 of the Code of Criminal Procedure'. Their Lordships observed.
'The words 'tried' and 'trial' appear to have no fixed or universal meaning. No doubt, in quite a number of sections in the Code to which our attention has been drawn the words 'tried' and 'trial' have been used in the sense of reference to a stage after the inquiry. That meaning attaches to the words in those sections having regard to the context in which they are used. There is no reason why where these words are used in another context in the Code, they should necessarily be limited in their connotation and significance. 'They are words which must be considered with regard to the particular context in which they are used and with regard to the scheme and purpose of the provision under consideration''. (Note (oo). The reference is mine).
7. Several text books and authorities have been cited before me by the learned counsel regarding the meaning of the words 'tried' and 'trial'. I will notice some of them. Trial is 'the formal examination of the matter in issue in a case before a competent tribunal for the purpose of determining such issue; the mode of determining a question of fact in a Court of law: (Webster's Third New International Dictionary, Volume II, Page 2439).
Trial '1. Law. The examination and determination of a cause by a Judicial Tribunal; determination of the guilt or innocence of an accused person by a Court'. (The Oxford English Dictionary, 1933 Edition. Volume XI. Page 334).
Trial: 'A judicial examination in accordance with law of the land, of a cause, either civil or criminal, of, the issue between the parties, whether of law or fact, before a Court that has jurisdiction over it. (Black's Law Dictionary. Fourth Edition Page 1675).
Trial: (1) A 'Trial' is the conclusion, by a competent tribunal, of questions in issue in legal proceedings, whether civil or criminal. Therefore, the hearing of the reference of an action 'and all matters in difference' is not a trial within Attendance of Witnesses Act, 1954, (Stroud's Judicial Dictionary, 3rd Edition. Volume 4, Page 3092).
8. These words have been considered in some judicial decisions. I have already noticed the Supreme Court decision above where for the purposes of Section 494 of the Code of Criminal Procedure in the words 'tried' and 'trial' enquiry was held to be included by the Supreme Court. In Sajjansingh v. Bhogilal, AIR 1958 Raj 307, this Court has observed :
'Broadly speaking, however, a trial is the examination by a competent Court of the facts or law in dispute or put in issue in a case. It is the judicial examination of issues between the parties whether they are of law or of fact'.
This appears to have been taken from Tomlin's Law Dictionary. In Ganesh v. State, ILR (1962) 12 Raj 996, this Court has held :
'The proceedings under Section 251-A (1) and (2), Cr. P. C. cannot be regarded as in the nature of a trial. The procedure laid down under these sections in fact begins in the accepted sense of that term when the charge is read and explained to the accused and he is asked whether he is guilty or claims to be tried'.
9. Broomfield J. in Dagdu Govindset v. Punja Vedu, AIR 1937 Bom 55, observed
'But according to my experience of the administration of Criminal justice in this Presidency, which is not inconsiderable, the Courts have always accepted the definition of trial which has been given in (1898) 25 Cal 863, that is to say, 'trial' has always been understood to mean the proceeding which commences when the case is called on with the Magistrate on the Bench, the accused in the dock and the representatives of the prosecution and defence, if the accused be defended, present in Court for the hearing of the case'.
10. Mr. Agarwal invited my attention to Balmakund Marwari v. Lachmi Narain, AIR 1920 Pat 595; Manohar Dass v. Birandari, AIR 1936 Lah 280 and Mt. Barkat Bibi v. Fateh Ali, AIR 1949 Lah 63. They are decisions relating to the Code of Civil Procedure, and they are not helpful in determining the question before me.
11. It is not disputed that the four applicants before me are governed by the provisions of the Army Act, 1950. Section 69 of the Army Act provides that 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 under this Act and if charged therewith under this section, shall be liable to be tried by a Court-martial and punishable as indicated in the said section.
The only civil offences not triable by court-martial are indicated in Section 70. Briefly speaking they are: murder, culpable homicide not amounting to murder and rape. Under Rule 3 framed under Section 549 of the Code of Criminal Procedure where a person subject to military, naval or air force laws is brought before a 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 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.
12. Under Rule 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 as prescribed in this rule he shall not convict or acquit the accused or frame in writing a charge against the accused or make an order committing the accused for trial or transfer the case for enquiry or trial. Major Barsay's case, AIR 1961 SC 1762 raised the question whether the Special Judges were bound by the provisions of Rules 3 and 4. The Supreme Court answered the question as already noticed in the negative. To eliminate this difficulty the Criminal Law Amending Act, 1966 came into being.
Section 5 makes provision regarding pending eases and the crucial date is 30th day of June, 1966. The concrete question, therefore, is whether the applicants were charged with and tried for an offence before the 30th day of June, 1966, before the Special Judge No. 2 Jaipur.
13. Under Section 8 of the Criminal Law Amendment Act, 1952 a Special Judge shall follow the procedure prescribed by the Code of Criminal Procedure, 1898, for the trial of warrant cases by Magistrates.
Under Section 251 of the Code of Criminal Procedure in the trial of warrant cases by Magistrates they shall follow in any case instituted on a Police report the procedure specified in Section 251-A. Sub-section (1) of Section 251-A lays down that when in any case instituted on a Police report the accused appears or is brought before a Magistrate at the commencement of the trial, such Magistrate shall satisfy himself that the documents referred to in Section 173 have been furnished to the accused, and if he finds that the accused has not been furnished with such documents or any of them he shall cause them to be so furnished.
Sub-section (2) lays down that if upon consideration of all the documents referred to in Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard the Magistrate considers the charge against the accused to be groundless he shall discharge him. In the case before me the prosecution had not even furnished the documents envisaged by Sub-section (1) of Section 251-A of the Code of Criminal Procedure. They are to be furnished 'at the commencement of the trial'. The documents having not been furnished, in my opinion, on the very language of Section 251-A the trial did not commence.
The language of Section 5 (1) of the Criminal Law Amending Act, 1966 clearly makes a distinction between the two categories of cases (i) cases in which persons governed by the Army Act are accused along with others; and (ii) cases where persons governed by the Army Act alone are being prosecuted. In the first category of cases the provision of Section 549 read with Rule 3 need not be followed if the trial has commenced and the accused is thus tried and for the purposes of cases falling in category (ii) unless the charge is framed. The language of both Sub-sections 5 (1) (a) and 5 (1) (b) is identical to a certain extent.
In my opinion it will be reasonable to hold that the word 'tried' in the context of the historical back ground of the Amending Act and in view of the purpose it aimed to attain means that the Special Judge has applied his mind to the documents submitted by the prosecution. Until therefore the stage envisaged by Sub-section (2) of Section 251-A is reached the case does not fall under Section 5 (1) (a) of the Amending Act. In the case before me even the documents envisaged by Section 173 remained to be supplied to the accused persons on 30-6-1966. In fact the learned Public Prosecutor sought time on the 4th July, 1966 to do so.
The stage contemplated by Section 251-A (2) was not reached before the 30th day of June, 1966. It cannot therefore be said that the applicants were 'charged with and tried' before the 30th day of June, 1966. In my opinion, therefore, the learned Special Judge was in error when he held that the case of the applicants could not be referred to the Military authorities under Rules 3 and 4 of the Rules framed under Section 549 of the Code of Criminal Procedure.
14. The result is that this revision application is allowed and the order of the special Judge of 10th October, 1966 is set aside. The learned Special Judge will now proceed in accordance with the provisions of Rules 3 and 4 of the Rules framed tinder Section 549 of the Code of Criminal Procedure.