M.R.A. Ansari, C.J.
1. Major Mahabir Singh, the petitioner herein, who was serving in the army, is an accused in a case Under Section 364, R. P. C. He has been committed to take his trial in the Court of Session at Srinagar. He was committed on 5-11-1974 and the trial has not yet started ; even the charge has not been framed against him by the Sessions Judge. At this stage, he filed an application before the Sessions Judge challenging his jurisdiction to try him. According to the petitioner he was governed by the Army Act, 1950 (hereinafter referred to as the Army Act) as amended by the Air Force and Army Laws (Amendment) Act, 1975 (hereinafter referred to as the amendment Act) and by virtue of the provisions of the Army Act he was liable to be tried only by a court-martial. The learned Sessions Judge rejected this application holding that as the petitioner was accused of an offence under the B. P. C. and not under the I. P. C., the Army Act even as amended did not apply to the petitioner's case and that the petitioner was triable only by the ordinary criminal courts. In so holding the learned Sessions Judge purported to follow the rule laid down by a Full Bench of this Court in State v. Ram Lakhan AIR 1971 J & K 54 : 1971 Cri LJ 470 (FB). The decision was given under the Army Act before it was amended in 1975. The effect of the amendment to the Army Act on the rule laid down by the Full Bench is a question that arises for consideration. The further question arises whether the amendment made to the Army Act was retrospective in operation. The revision petition was heard in the first instance by one of us namely myself sitting singly and as it was felt that the questions which arise for consideration were of sufficient importance to be considered by a larger Bench, this revision petition has been placed before this Full Bench.
2. The position before the amendment of the Army Act may be firstly stated. The relevant provisions of the Army Act are as follows ;--
Under Section 3(ii) 'civil offence' means an offence which is triable by a criminal court.
'Criminal Court' is denned in Section 3(viii) as follows :--
Criminal Court means a court of ordinary criminal justice in any part of India, other than the State of Jammu & Kashmir.
Under Clause (xvii) of the same section 'offence' means any act or omission punishable under this Act and includes a civil offence as hereinbefore defined. Clause (xxv) reads :
All words, and expressions used but not defined in this Act and defined in the I. P. C. shall be deemed to have the meanings assigned to them in that Code.' Section 69 reads as follows :--
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 imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned.
Finally Section 70 lays down :--
A person subject to this Act who commits an offence of murder against a persion 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) of any place outside India, or
(c) at a frontier post specified by the Central Government by notification in this behalf.
Explanation : In this section and Section 69, 'India' does not include the State of Jammu & Kashmir.
The effect of the above provisions of the Army Act in the rest of India excluding the State of Jammu & Kashmir is that except the offences mentioned in Section 70 all other offences either under the I. P. C. or any other penal law committed by a person serving in the army are triable by a court-martial and not by a criminal court. It is only when the Officer Commanding the company or the division in which the accused person is serving decides not to try the accused before a court-martial and that the accused should be tried by a criminal court that the criminal court may try the accused. But so far as the State of Jammu and Kashmir is concerned, a person in the army who has committed an offence under the Ranbir Penal Code or any other penal laws of this State is triable only by the ordinary criminal courts and not by a court-martial.
3. This is in short what the Full Bench of this Court decided in the case to which reference has been made. Jaswant Singh J. (as his Lordships then was) who spoke for the Full Bench stated the position thus ;
A close and careful scrutiny of the first of these provisions i. e., Section 69 in the light of the above-mentioned rulings of the Supreme Court makes it clear that It is only when a civil offence is also an offence under the Act or deemed to be an offence under the Act, that both an ordinary criminal court as well as a court martial would have jurisdiction to try the person committing the offence. It follows therefore that if the act or omission is not punishable under the Act, as well as under any law in force in India or is not a civil offence which can be deemed to be an offence against the Act, a court-martial would not have concurrent jurisdiction with an ordinary criminal court to try the person committing the offence... ... .... Thus it is evident that it is only offences which are triable by an ordinary criminal court in any part of India excepting the State of Jammu and Kashmir that have been classified as civil offences under the Act. Now it cannot be gainsaid that offences under the Ranbir P. C. or offences created by any other penal Statute enacted by the State legislature and having operation in the State cannot be tried by a court of ordinary criminal justice in any other part of India outside the State. As acts or omissions punishable under the Penal Code are not triable by courts of ordinary criminal justice in the rest of India, they neither amount to civil offences as defined by Section 3(ii) read with Section 3(viii) of the Act nor can they be deemed to be offences against the Act by virtue of Section 69 of the Act but for which a court martial would not have jurisdiction to take cognizance of and try an offence which is triable by a court of ordinary criminal justice... ... ... ... Reading Section 69 of the Act in the light of the definitions contained in Clauses (ii) and (viii) of Section 3 of the Act, it becomes absolutely clear that an offence triable by an ordinary court of criminal justice in Jammu & Kashmir is not a civil offence as contemplated by the Act.
4. It would therefore appear that the rule laid down by the Full Bench was based upon the provisions of the Army Act as they stood at the time when the applicability of the relevant provisions was specifically excluded so far as the State of Jammu & Kashmir was concerned. But by virtue of the amendment Act the words 'other than the State of Jammu and Kashmir' occurring in Section 3(viii) and the Explanation to Section 70 were omitted. The effect of the amendments made by the amendment Act was that the Army Act as it stood before the amendment was made applicable to the State of Jammu and Kashmir also in the same manner as it was applicable to the rest, of the country. The Statement of Objects and Reasons appended to the Bill by which the amendment Act was passed indicates that the amendment Act was passed only in order to meet the situation created by the decision of the Full Bench of this Court (Supra), Paragraphs 3 and 4 of the Objects and Reasons bring out the intention of the legislature and they may be usefully reproduced :
3. A Full Bench of the Jammu and Kashmir High Court has held recently that as an offence against the Ranbir P.C. in force in that State cannot be tried by a court of ordinary criminal justice in any part of India other than that State, offences under that Code committed by service personnel do not qualify as civil offences and cannot, therefore, be tried by court-martial. The court rejected the argument that such offences when committed by service personnel can be treated also as offences under the I. P. C and tried by court-martial and overruled its earlier decision based on such argument.
4. It is therefore proposed to amend the Air Force Act, 1950, and the Army Act, 1950, to ensure that offences triable by courts of ordinary criminal justice in Jammu & Kashmir also qualify as civil offences to the same extent as offences triable by courts of ordinary criminal justice in other parts of India and that the provisions as to civil offences contained in these Acts do not make any distinction between the State of Jammu & Kashmir and the rest of India.
5. The learned Judge who delivered the judgment of the Full Bench in Ram Lakhan's case 1971 Cri LJ 470 (J & K) (FB) (supra) had occasion to consider the position resulting from the passing of the amendment Act in M. L. Yaday v. G. O. C. 18th Inf. Div. 1976 J & K LR 153 and he explained the present position in the following words :--
It will be noticed that the law with regard to a civil offence has also undergone a radical change as a result of the amendments in the Army Act, 1950, introduced by Act No. 13 of 1975(Supra). By virtue of this Act the State of Jammu & Kashmir has been brought on par with the rest of India. Now plenary jurisdiction has been conferred on a court-martial to try a person subject to the Army Act who has committed a civil offence in the State of Jammu & Kashmir, if the conditions mentioned in Section 69 of the Act are satisfied.
6. We are in respectful agreement with the above observations of the Division Bench.
7. The learned Sessions Judge has merely followed the rule laid down by the Full Bench of this Court in the case of Ram Lakhan and has not considered the effect of the amendment Act on the rule laid down by the Full Bench. He has therefore come to the erroneous conclusion that the rule laid down by the Full Bench was still applicable after the corning into force of the amendment Act. This wrong approach on the part of the learned Sessions Judge has resulted in a wrong order passed by him.
8. The amendment Act having thus made the Army Act applicable to the State of Jammu & Kashmir in the same manner as it is applicable to the rest of the country, let us state the position with regard to the jurisdiction of the ordinary criminal courts vis-a-vis the court martial for trying a person serving in the army who is accused of a civil offence which falls within the scope of Section 69 and which falls outside the scope of Section 70 of the Army Act. The position can best be stated in the words of the Supreme Court in E. G. Barsay v. State of Bombay : 1961CriLJ828 :--
The scheme of the Act therefore is self-evident. It applies to offences committed by army personnel described in Section 2 of the Act ; it creates new offences with specified punishments, imposes higher punishments to pre-existing offences, and enables civil offences by a fiction to be treated as offences under the Act ; it provides a satisfactory machinery resolving the conflict of jurisdiction. Further it enables, subject to certain conditions, an accused to be tried successively both by court-martial and by a criminal court. It does not expressly bar the jurisdiction of criminal courts in respect of acts or omissions punishable under the Act, if they are also punishable under any other law in force in India ; nor is it possible to infer any prohibition by necessary implication. Sections 125, 126 and 127 exclude any such inference, for they in express terms provide not only for resolving conflict of jurisdiction between a criminal court and a court-martial in respect of the same offence, but also provide for successive trials of an accused in respect of the same offence.
9. The further question arises whether the Army Act as amended by the amendment Act is applicable to cases which have been instituted prior to the passing of the amendment Act. In the present case the petitioner was committed on 5-11-1974 to take his trial in the court of session. The trial has not yet started and charges have also not been framed. The amendment Act was preceded by the Air Force and Army Laws (Amendment) Ordinance and the said Ordinance came into force on 25-1-1975. Section 4(1) of the amendment Act repealed the Ordinance but Section 4(2) provided that
Notwithstanding such repeal, anything done or any action taken under the Air Force Act, 1950 or the Army Act, 1950 as amended by the said Ordinance shall be deemed to have been done or taken ... ... ... ... the Army Act, 1950, as amended by this Act, as if this Act had come into force on the 25th day of January, 1975.
10. The question is whether the amendment Act became applicable to the petitioner's case. The answer to this question is to be found in the Division Bench judgment of this Court in M. L. Yadav's case 1976 J & K LR 153 (supra). The Division Bench has held as follows :--
The contention of Mr. S. P. Gupta that the amendment brought about with regard to the civil offences by virtue of Act No. 13 of 1975(Supra) is not retrospective in operation, is also in our opinion not well-founded. The said Act has affected the forum which belongs to the realm of procedure and is not a matter of substantive right of a party or a litigant. It has made it possible for a court martial to try a person subject to the Act who has been guilty of a civil offence, provided other conditions mentioned In Section 69 of the Army Act are satisfied.
We are in respectful agreement with the above observations and we hold that the Army Act as amended in 1975 has to be applied to the petitioner's case.
11. The net result of the above discussion is that the offence which Is alleged to have been committed by the petitioner Under Section 364, R. P. C. is a civil offence which though ordinarily triable by a criminal court becomes triable by court-martial by reason of the provisions of Section 69 of the Army Act and both the criminal court as well as the court-martial have concurrent jurisdiction to try the petitioner. In such a case the provisions of Sections 125 and 126 of the Army Act and Section 549 of the Criminal P. C. come into operation. Them provisions are repro duced below :
Section 125. 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 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.
Section 126(1) When a criminal court having jurisdiction is of the opinion that proceeding 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 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 determination of the Central Government, whose order upon such reference shall be final.
Section 549 of the Criminal P. C. :
The Government may make rules consistent with this Code and the Army Act in force in the State or any similar law for the time being in force as to the cases in which persona subject to military law, shall be 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 under the Army-Act in force in the State to be tried by a court-martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of offence of which he is accused, to the Commanding Officer of the regiment, corps or detachment, to which he belongs, or to the commanding officer of the nearest military station for the purpose Of being tried by court-martial.
(2) Every Magistrate shall on receiving ; a written application for that purpose by the commanding officer of any body of troops stationed or employed at any such place, use his utmost endeavours to apprehend and secure any person accused of such offence.
12. It has been contended on behalf of the State that the conduct of the Commanding Officer concerned in handing over the custody of the petitioner to the police for being produced before the criminal court for trial indicates that he did not exercise his option Under Section 125 of the Army Act and therefore the criminal court could proceed to try the petitioner. The learned Counsel for the petitioner has however contended that the Commanding Officer could not have exercised the option Under Section 125 of the Army Act in view of the decision of the Full Bench in Ram Lakhan's case 1971 Cri LJ 470 (J & K) (FB) (supra). We are of the view that in the peculiar circumstances of this case the Commanding Officer may still exercise the option Under Section 125 of the Army Act and if he does not do so within a reasonable time it may be presumed that he does not want to exercise the option ; in which case the criminal court may proceed with the trial of the petitioner. There would therefore be no justification for quashing the proceedings altogether which are now pending against the petitioner in the trial court. It would be sufficient if a direction is given to the trial court to either write to the Commanding Officer as provided in Section 549 of the Criminal P. C. or await the decision of the Commanding Officer for a reasonable time.
13. The revision petition is disposed of in the above terms.