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Sewa Ram Nagial Vs. General Officer Commanding, 39 Infantry Division and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1977CriLJ299
AppellantSewa Ram Nagial
RespondentGeneral Officer Commanding, 39 Infantry Division and anr.
Cases ReferredSom Datt Datta v. Union of India
Excerpt:
- .....according to law. section 126(1) provides that 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. it is apparent that in the first instance the criminal court should be of opinion that the proceedings should be instituted before it in respect of an alleged offience against the accused and it is only after it has reached such opinion that it will make the request for delivery of the offender or a reference contemplated by section.....
Judgment:

R.S. Pathak, C.J.

1. This is a petition filed under Section 126 of the Army Act, 1950. The petition was sought to be filed in the Court of the Chief Judicial Magistrate, Dharamsala, but as at that time the judicial officer had proceeded on promotion and the office was temporarily vacant the petition was presented before the learned Sessions Judge, Kangra at Dharamsala, who directed the petitioner to this Court.

2. The petition come on for admission before a Bench of this Court on July 23, 1976, and the Bench directed issue of notice to the respondents to show cause why the petition should not be admitted. No order was made directing service of notice on Shri H.S. Thakur, who had entered appearance on July 23, 1976, as counsel for the respondents. It appears that copies of the petition and the process fee were not furnished within time by the peritioner, and therefore, time was allowed afresh for supplying the copies and furnishing the process fee. Notice was directed to be made returnable by August 30, 1976. This petition has been listed before us today for admission, It is apparent that the date for return of notice directed to the respondents has not been reached, but learned Counsel for the petitioner has been anxious to argue the petition on the merits for the purpose of admission in the desire to obtain an interim order. It is stated that today's date has been fixed by the General Court-martial for hearing the address of the accused officer, and that the trial has reached its concluding stage. In the circumstances, we have decided to hear the petition for the purpose of admission, without waiting for the return of notice.

3. The preliminary question before us is whether the petitioner is entitled to apply under Section 126 of the Army Act. Section 125 of the Act 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 officer commanding the 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 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. The case of the petitioner is that the offences charged against the petitioner fall within the jurisdiction both of the criminal court and a court-martial. The requisite military authority contemplated by Section 125 decided to hold a court-martial proceeding against the petitioner, and, as is apparent from the record, the proceedings have reached a stage when the trial has almost concluded. The petitioner applies under Section 126 of the Act and contends that this is a case where the criminal court should direct the military authorities to hand-over the petitioner to the nearest Magistrate to be proceeded against according to law. Section 126(1) provides that 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. It is apparent that in the first instance the criminal court should be of opinion that the proceedings should be instituted before it in respect of an alleged offience against the accused and it is only after it has reached such opinion that it will make the request for delivery of the offender or a reference contemplated by Section 126.

4. The question before us is whether the facts upon which this petition has been brought constitute any basis on which a criminal court can exercise the jurisdiction conferred by Section 126. The essence of the case set out in this petition is that the court-martial has not proceeded in accordance with the Army Act and the Rules made thereunder, arid that it is acting arbitrarily in conducting the proceeding. It seems to us that this is not a ground on the basis of which Section 126 can be invoked. We are of opinion that when an offence falls within the jurisdiction both of the criminal court and a court-martial, the criminal court can exercise the jurisdiction conferred by Section 126 where the facts on the basis of which the offender has to be tried are such that the case should more appropriately be tried by the criminal court rather than by a court-martial. The petitioner before us prays for an order under Section 126 on the ground that the Court-Martial is acting improperly in the manner of conducting the trial. That is not a ground, we think, on the basis of which the jurisdiction conferred by Section 126 can be conferred. Whether the Court-Martial is proceeding in accordance with law or is acting arbitrarily is a matter for consideration by the confirming Authority under Section 153 of the Act. It may also be a matter for consideration in other remedies provided under the Act. On a proper construction of Section 126, it is not open to the Criminal Court to call for a case before itself merely because it is of opinion that the conduct of the proceeding before a court-martial lacks propriety in some respect. The Criminal Court does not enjoy superior jurisdiction in respect of the proceeding before the court martial. Learned counrsel for the petitioner has referred us to Som Datt Datta v. Union of India : 1969CriLJ663 , but we are unable to find anything therein which is opposed to the view taken by us.

5. The petition fails and is rejected.

6. After we had made this order, learned Counsel for the petitioner orally prayed for a certificate under Article 134(1)(c) of the Constitution. The point raised before us is one of first impression and it seems to us beyond dispute that it raises a substantial question of law of general importance, and therefore that the case is a fit one for appeal to the Supreme Court. Accordingly, we grant the certificate under Article 134(1)(c) of the Constitution that the case is a fit one for appeal to the Supreme Court.


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