A.S. Anand, J.
1. This revision petition which calls into question an order of the learned Chief Judicial Magistrate, Kathua, dated 19-2-1979, where by he rejected an application for handing over the custody of the petitioner to the Military Authorities for the -trial of the petitioner by a Court Martial, came up for hearing before my learned brother Kotwal J., who being of the opinion that important questions of interpretation of some provisions of the Indian Army Act were involved in the case, referred it 'to a larger Bench for an authoritative pronouncement' and that is how this revision petition has been placed before this Bench for its disposal.
2. The basic question which arises for consideration in this petition is:
Whether a person, subject to the Army Act while on 'casual leave' is deemed to be on 'active service' within the meaning of Section 3(1) of the Army Act read with Section 70 thereof? The backdrop in which the above question of law arises is as follows :
3. The petitioner, along with respondent No. 1, was challaned by the Kathua Police for an offence under Section 302/34 RFC on 6-11-1978 for the alleged murder of a civilian (person not subject to military law). The case related to an occurrence dated 3-10-1878. The petitioner was arrested by. the Kathua Police on 9-10-1978, During the pendency of the proceedings in the committing court, the Commanding Officer of the petitioner, Lt Col. G. S. Somal, presented an application before the learned Chief Judicial Magistrate requesting therein that since the petitioner is an Army personnel, his custody be handed over to the Military Authorities, along with the charge-sheet, so that he may be tried by a court martial as envisaged by the provisions of Section 70 of the Army Act. The application was resisted by the prosecution on the ground that since the petitioner, at the time of the commission of the offence, was on 'casual leave', he could not be treated to be on 'active service' and as such the ordinary criminal courts alone had the jurisdiction to try him. The learned Chief Judicial Magistrate, vide the impugned order, held that since the petitioner was on 'casual leave' on the date of occurrence and was not 'actually performing his duty' the proper forum for his trial was the ordinary criminal court and rejected the application of the Commanding Officer. In this Court also, the Commanding Officer, has once again filed, an application for the transfer of the custody of the petitioner to the Military Authorities.
4. It is not disputed that the petitioner is subject to the Army Act It is also not disputed that the offence alleged against him, is of murder of a person not subject to the Army Act It further is not controverted that under Section 69 of the Army Act, any person subject to the Army Act, who commits any civil offence, shall be deemed to be guilty of an offence, against the Army Act and if charged therewith under Section 69 of the -Army Act, shall be liable to be tried by a Court Martial, Under Section 70, of the Act, a person Subject to the Army Act, who commits an offence of murder, culpable homicide hot amounting to murder or of rape, in relation to a person not subject to military, naval, : or air force law, shall not be deemed to be guilty of an offence against the Army Act and, shall not be tried by a court martial, unless he commits any of the said offences 'while on active service' or at any place outside India or at a frontier post specified by the Central Government by a notification in this behalf.
5. Mr. R. P. Sethi, learned Counsel for the petitioner, has urged that since the petitioner was serving in- the State of Jammu and Kashmir, by virtue of notification SRO 17-E dated 5-9-1977, the petitioner, even while on 'casual leave' would be deemed to be on 'active service' and therefore the option to try him under the Army Act by a court martial rests with his Commanding Officer and it is only after the Commanding Officer decides not to try him by a Court Martial, that the ordinary criminal court would have jurisdiction, over him.' It is argued that in the instant case the Commanding Officer of the petitioner had exercised option to try the petitioner by a Court Martial and, therefore, the learned Chief Judicial Magistrate fell in error in not transferring the custody of the petitioner to the Military Authorities so as to enable them to try the petitioner by a Court Martial.
6. M/s. S. D. Sharma and R. P. Bakshi) learned Counsel for respondents 1 and 2 have on the other hand argued that since the petitioner was on 'casual-leave' he could not be deemed to be on 'active service' and as such the military authorities could ,not claim to try the petitioner, by a. Court Martial. It, is, urged that the words 'while on active service' occurring in Clause (a) of Section 70 of the Act, would cover only, such persons, as, at the relevant point of time, are actually engaged in performing their duties and would not cover persons who were on 'casual leave' at the relevant time.
7. To appreciate the rival contentions raised at the bar, and to determine the scope of the expression 'while on active service', reference to some of the relevant provisions becomes necessary.
8. Section 3(1) of the Army Act specifies persons who are deemed to be on 'active service' and reads this:
(i) 'active service', as applied to a person subject to this Act, means the time during which such person:
(a) is attached to, or forms part of, a force which is engaged in operation against an enemy or
(b) is engaged in military operation, in, or is on the line of march to, a country or place wholly or partially occupied by an enemy, or
(c) is attached to or forms a part of a force which is in military occupation of a foreign country.
9. This, however, is not exhaustive, and the Central Government has the power to enlarge this definition. Section 9 gives power to the Central Government to declare persons to be on 'active service' by a notification and this is in the following terms:
Notwithstanding anything contained in Clause. (1) of Section 3, 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.
10. The Government of India in exercise of the powers conferred by Section 9 of the Army Act issued notification No. SRO 17-E on 5th September, 1977, declaring all persons subject to the Army Act, who are not on 'Active Service' under Clause (1) of Section 3 of the Act, shall, while serving in the State of Jammu and Kashmir, be deemed on 'active service' within the meaning of that Act for the purpose of the said Act and of any other law for the time being in force. The relevant portion of the notification reads as under : - .
1. Government of India, Ministry of Defence Gazette Notification No. 17-E dated 5 Sept. 1977 is reproduced below:
SRO 17-E. In exercise of the powers conferred by Section 9 of the Army Act 1950 (46 of 1950) and in supersession of the notification of the Government of India in the Ministry of Defence, SRO 6-E dated the 28th November, 1962, the Central Government hereby declares that all persons subject to that Act who are not on active service under Clause (1) of Section 3 thereof 'shall, while serving in the areas specified below, be deemed to be on active service within the meaning of the Act for the purpose of the said Act and of any other law for the time being in force:
(i) The State of-
(a) Jammu and Kashmir....
11. Thus, the effect of this notification is that whether or not a person is covered by this notification of 'active service' as set out in Section 3(1) of the Act, he is still deemed to be so, provided he is serving in the State of Jammu and Kashmir. Now if such a person is charged with any of the offences mentioned in Section 70, of the Act, he will be said to have committed an offence against the Act which would enable the Military Authorities to exercise options about the venues of his trial. This is evident from the body of that section which reads as under:
12. Section 70 of the Army Act provides:
A person subject to this Act who commits an offence of murder against a person 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) at any place outside India, or
(c) at a frontier post specified by the Central Government by notification in this behalf.
This section clearly lays down that where a person subject to the Act is charged with any of the offences listed therein while on 'active service' he will still be tried by a court martial, irrespective of the status of the victim. But whether a person on 'casual leave' is deemed to be 'on active service' is a moot question which can be answered only by a reference to the leave rules governing the Armed Force's read with this section of the Act.
13. The Central Government has framed certain rules regarding the conditions of leave of the persons subject to the Army Act and it would be profitable to refer to some of the relevant rules dealing with 'casual leave'. Relevant portion of Rule 9 of the leave Rules for service provides as follows:
9. Casual leave counts as duty except as provided for in Rule 10 (a).
14. So the only exception to the rule is Rule 10 (a) which though not applicable reads thus:
10 (a). Annual/privilege leave is not admissible in any year unless an individual has actually performed duty in that year. For purposes of this rule, an individual on casual leave shall not be deemed to have actually performed duty during such leave. The period spent by an individual on the 'Sick List Concession' 'Sick list' shall, however, be treated as actual performance of duty.
15. Rule 9 of the Leave Rules (supra) specifically states that casual leave counts as duty except as provided for in Rule 10 (a).
16. Rule 10 (a) of the Service Rules, relating to leave, only deals with grant of annual or privilege leave and for purposes of counting leave period under the said rule, it has been provided that an individual on 'casual leave' would not be deemed to have actually performed duties during such leave. Rule 10 (a), thus, applies only for calculating leave admissible to the concerned person and goes no further. This rule does not provide that a person on 'casual leave' cannot be treated on duty as is urged on behalf of the respondents. As a matter of fact, Rule 9 (supra) is quite specific on the point and it unmistakably declares that 'casual leave' shall be treated as duty except for the purposes of calculating the 'actual duty' for computing annual or privilege leave.
17. Even otherwise, the argument of the learned Additional Advocate General which gives restricted meaning to the words 'while on active service' in Clause (a) of Section 70 of the Act is unacceptable to us. The words in our opinion must be construed in the wider sense in which a person employed by another is said to be serving him by reasons of the relationship created by the factum of employment. The words 'service' has not been defined in the Act. Webster's Third New International' Dictionary, 1961 Edition, gives the following meaning to the word 'service':
to be a servant : becomes employed in domestic service, at manual labour or upon another's business : * * * to do service : * * * * *
to do military or naval service : be a soldier or sailor * * * * * to hold an office : discharge a duty or function : act in a capacity.
18. The expression 'while in service', is in our opinion, of a wide amplitude and has been used in Section 70 (supra) to mean holding an employment, as distinguished from 'actually performing the duties'. The restricted meaning sought to be placed by the learned Addl. Advocate General on behalf of the State on the expression 'service' amounts to equating the expression 'service' with the expression 'on duty' and we find no warrant for such an equation. Being 'on duty' is a part of being 'in service'. Merely, because the petitioner was on 'casual leave', it cannot be said that he was not 'on active service'. It is the factum of service in the State of Jammu and Kashmir, which under Notification 17-E, gives the status to the petitioner of being on 'active service', irrespective of the fact whether or not he is ' actually performing his duties', at the relevant time. The legislature used the expression 'while on active service' in Section 70 of the Act and not 'while on actual duty' and we find no reason to equate the two expressions. When a person covered by Section 70 of the Act, is 'on actual duty' he must be 'on active service', but it is not essential that when 'on active service', he must always be 'on actual duty'. He would be deemed to be 'on active service' even when he is either 'off duty' or availing 'casual leave'. Since, the words of the statute are clear, it is the ordinary rule of construction of statutes that plain grammatical meaning be given to it.
19. In this view of the matter, we are of the opinion, that the learned Chief Judicial Magistrate fell in error in confusing the expression 'while on active service', with 'actually performing his duty' and holding that since the petitioner was, at the relevant time, availing 'casual leave' he was not 'on active service' and hence not covered by Section 70 of the Act. We hold that the petitioner would be deemed to be 'on active service' even when availing 'casual leave' and Section 70 would be applicable to his case.
20. Having found that the petitioner at the time of the alleged occurrence was on 'active service', within the meaning of Section 3(1) read with Section 70 of the Act, the next question that arises is, what was the Magistrate required to do in such a case and it is here that sections 549, Cr. P. C. and 125 of the Army Act come into play. Section 549 of the Code of Criminal Procedure provides for the delivery to Military Authorities of persons liable to be tried by a court martial and reads as follows:
Delivery to military authorities of persons liable to be tried by Court martial, - (1) 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 persons 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 the 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.
21. Again, Section 125 of the Army 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 Army, Army Corps, Division or Independent Brigade, in which the accused person is serving, or such other officers as may be prescribed, to decide before which court the proceeding, 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 for trial by a court martial. The provisions of Section 349, Cr. P. C. and Section 125 of the Army Act have to be strictly construed and- when so construed, there is no escape from the conclusion that the option to try a person, subject to the Army Act, who commits an offence against the said Act, is in the first instance with the Military Authorities. Thus, when the petitioner was brought before the learned Chief Judicial Magistrate, and the Commanding Officer requested for the custody of the accused, he should have delivered the petitioner, together with a statement of the offence of which he is accused to the Commanding Officer of the petitioner for his trial by court martial. We do not agree with Mr. Sethi that the learned Chief Judicial Magistrate had not even the initial jurisdiction to proceed in the case because the petitioner was subject to the Army Act. The criminal court and the court-martial each have concurrent jurisdiction and therefore, Magistrate did not lack inherent jurisdiction to make an enquiry, into the commitment proceedings against the petitioner. However, when moved by the Commanding Officer, he had no option but to deliver the petitioner to the Military Authorities for trial by a court martial. The legislature in its supreme wisdom left the first option with the Army Authorities to try a person subject to the Military law who commits an offence against the Army Act by a court martial. In case the Military Authorities decide, either not to try such a person by the Court Martial, or fail to exercise their option, when approached to by the criminal courts, the accused may be tried by the ordinary criminal courts. Of course, the option to try him by court martial, is with the Military Authorities, and an accused person, has no option or right, to claim trial by a particular forum. The option has been left with the Military Authorities for good and proper reasons. There can be a variety of circumstances, which may influence the decision of the Military Authorities, as to whether the offender be tried by a Court Martial or an ordinary criminal court, and, therefore, it becomes inevitable that the discretion to make the choice, as to which forum, should try such an accused, be left to the. Commanding Officer or the other prescribed officer. The Act contains sufficient guidelines for the exercise of discretion by the Military Authorities. As observed in Earn Sarup of. Union of India : 1965CriLJ236 'Those officers are to be guided by considerations of the exigencies of the service, maintenance of discipline in the Army, speedier trial, the nature of the offence and the person against whom the offence is committed.'
22. We are, therefore, of the opinion, that the learned Chief Judicial Magistrate was not justified in rejecting the application of the Commanding Officer of the petitioner exercising his option to try, the petitioner by a Court Martial-, Since, the Commanding Officer, had exercised his discretion and decided that the proceedings should be instituted before the Court Martial, it was obligatory on the part of the Chief Judicial Magistrate to deliver the petitioner to the Military Authorities for his trial by a Court Martial.
23. In view of the aforesaid discussion, we accept this revision petition and quash the order of the learned Chief Judicial Magistrate and direct that the petitioner be delivered to the Commanding Officer, together with a statement of the offence of which he is accused, for his trial by a Court Martial.
24. Before parting with this judgment, we would like to make it clear that but for the application of the Commanding Officer under Section 70 of the Army Act in this Court, we would not have been inclined to entertain this revision petition at the instance of the accused petitioner, who has no right to claim trial by a particular forum.
I.K. Kotwal, J.
25. I agree.