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Piar Singh Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1985CriLJ860
AppellantPiar Singh
RespondentUnion of India (Uoi) and ors.
Excerpt:
- .....pb) makes it clearthat he was put up for trial before the general court-martial for 'committing a civil offence, that is to say, criminal misconduct, contrary to sub-section (2) of section 5 of the prevention of corruption act, 1947'. the charge, therefore, was that the petitioner had committed a 'civil offence' and the particulars of such civil offence were specified in the words next following. in the margin of the charge-sheet, section 69 of the army act, 1950 (hereinafter called 'the act') was specifically mentioned.3. section 3(ii) of the act defines the term 'civil offence' to mean 'an offence which is triable by a criminal court'. section 69, in so far it is relevant, provides that 'any person subject to this act who at any place in or beyond india commits any civil offence shall.....
Judgment:

P.D. Desai, C.J.

1. The only submission which was made for our consideration was that the previous sanction of the competent authority, as required by Section 6(1) of the Prevention of Corruption Act, 1947, having not been taken before the petitioner was tried and convicted by the General Court-Martial, the proceedings culminating into the conviction of the petitioner were void ab initio. There is no merit in this submission.

2. The material part of the charge against the petitioner (Annexure PB) makes it clearthat he was put up for trial before the General Court-Martial for 'committing a civil offence, that is to say, criminal misconduct, contrary to Sub-section (2) of Section 5 of the Prevention of Corruption Act, 1947'. The charge, therefore, was that the petitioner had committed a 'civil offence' and the particulars of such civil offence were specified in the words next following. In the margin of the charge-sheet, Section 69 of the Army Act, 1950 (hereinafter called 'the Act') was specifically mentioned.

3. Section 3(ii) of the Act defines the term 'civil offence' to mean 'an offence which is triable by a criminal Court'. Section 69, in so far it is relevant, provides that '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...... '.

On a true interpretation of Section 69 of the Act, it is clear that a person, who is governed by the provisions of the Act and who commits any civil offence, that is. an offence which is triable by a criminal Court, will be regarded by a fiction as having committed an offence against the Act and, if charged with such offence under the said section, such person is liable to be tried by a Court-Martial. Section 69 is in the nature of a legislation by reference or incorporation and its provisions are of a substantive as well as of a procedural nature. The Section, in so far as it does not itself prescribe the ingredients of the offence but enacts that any person, who commits any 'civil offence', which expression, as defined, brings in any offence created under any statute provided it is triable by a criminal Court, shall be treated as guilty of an offence against the Act, is a piece of legislation by reference or incorporation and it is also a substantive provision. In so far as it provides for the trial of a person charged thereunder by a Court-Martial, the Section is procedural in nature. Be it stated that Section 11 of the Criminal Law (Amendment) Act, 1952 not only saves the jurisdiction exercisable by or the procedure applicable to, any Court or other authority under any military, naval or air force law, but also declares that for the purposes of any such law, the Court of the Special Judge set up to try, inter alia, an offence punishable Under Section 5 of the Prevention of Corruption Act, 1947, shall be deemed to be a Court of ordinary criminal Justice.

4. The charge-sheet, in the instant case, as earlier pointed out, specifically levels an allegation against the petitioner that he had committed a 'civil offence' and goes on to specify such civil offence by mentioning that he was involved in a criminal misconduct contrary to Section 5(2) of the Prevention of Corruption Act, 1947. Section 69 of the Act finds a specific mention in the margin of the charge-sheet.

5. Having regard to the legal and factual position discussed above, there is no manner of doubt that the petitioner was charged Under Section 69 of the Act with having committed an offence against the Act. Under Section.69, there is no requirement of obtaining the previous sanction of the competent authority. Section 6(1) of the Prevention of Corruption Act, 1947, is not projected into Section 69 by reference or incorporation.

6. For the foregoing reasons, there being no substance is this writ petition, it is summarily rejected.


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