DELHI SPECIAL POLICE ESTABLISHMENT, NEW DELHI versus LT. COL. S. K. LORAIYA

Citation: [1973] 1 S.C.R. 1010 · Decided: 24-08-1972 · Supreme Court of India · Bench: J.M. SHELAT · Disposal: Dismissed
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Judgment (excerpt)

1810 
DELHI SPECIAL POLICE ESTABLISHMENT, NEW DELHI 
v. 
LT. COL. S. K. LORAIY A 
August 24, 1972 
[J. M. SHELAT, D. G. PALEKAR AND S. N. DWIVEDI, JJ.J 
Code of Criminal Procedure 
1898, s. 549(1) atui rules made 1/1ere-
1111~r-Army Act 1950, ss. 122 and 125-Army officer 
charged with 
offences under I.P.C. arid Prevention of Corruption Act 1947 by Speci4J 
Judge-Procedure under s. 549(1) and r. 3 no1 followed-Charges w/ie1/1er 
liable to be quashed-Lapse. of 1nore than three years between conunission 
of offences and framing of charges-Court martial wheth~r has iurlsdic-
lion to 1ry offences-Word 'jurisdiction' iti s. 549(1) Cr. P.C. and s. 1!5 
Anny Act, 111eaning of. 
The respondent who was an army officer was alleged to have com-
mitted certain offences under the Indian Penal Code and the Prevention 
of Corruption Act 1947. 
The offences were alleged to have been com-
mitted in tbe year 1962. 
The special judge, Gauhati charged him with 
these offences in the year 1967. 
The High Court quashed the charges 
on the ground hiter alia that the procedure in s. 549(1) Cr. -P.C. and th• 
rules made thereunder had not been 'followed. 
The appellant in appea1 
by special leave to this Court contended that since more than three year. 
had elapsed between the commission of the offences and the framing of 
the charges the court-martial had in view of s. 122(1) of the Army Act 
ceased to have jurisdiciion to try the said offences and therefore s. 549(1) 
and the rules made thereunder were not attracted to the case. 
HEL~ Section 549(1) Cr .. P.C. is designed to avoid the conflict of 
jurisdiction in respect of offences which are triable by both the ordinary 
criminal court and the court-martial. The clause "for which he is liable 
to be tried either by the court to which this code applies or bJ' a court-
martial" qualifies the preceding clause "when any person is charged with 
an offence" in s. 549(1). Accordingly the phrase "is liable to bt trie~ 
either by a court to which this Code applies or a court-martial" import> 
that the offence for which the accused is to be tried should be an offence 
of which cognizance can be taken by an ordinary criminal court as well 
as court-martial. The phrase is intended to refer to the initial juriscliction 
of the two courts to take cognizance of the case and not to their jurisdic-
tion to decide on merits. It was admitted that ho.th the orninary criminal 
court and the court-martial had concurrent jurisdiction with respect t@ 
the offences for which the respondent had been ch,,ged by the spec;al 
judge. 
So s. 549 and the rules made thereunder were attracted to the 
C1aSe in hand. [I013H-1014Cl 
Again, sub-section (3) of s.122 df the Army Act provides that while 
oomputing the period of three years specified in sub-section (I), any time 
spent by the nccused =is. a prisoner of war or in enemy territory, or in 
evading arrest after the commi.,sion of the offence. shall be excluded. 01' 
a con-joint rending of sub-ss. ( 1) and (3) of s. l 22 it is evident that the 
court-martial an<l not the ordinary criminal court has got jurisdic!ion to 
decide the issue ct limitation. If the court-martial finds that it cannot try 
the offence on acco11nt of the ~piry of three years from the commission 
of the offence the Central Government can under s.127 of the Act sanc-
tion the trial of the offender by an ordinary criminal court. 
[1014D-Fl 
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DELHI POLICE v. LT. COL. s. K. LORAIYA (Dwivedi, J.) 
1011 
Section. 125 of the Army Act provides .that when a criminal court and 
a court-martial have each jurisdiction in respect di an offence, it shaU be 
in the discretiOn of lhe comnlandlng officer to decide before which court 
the proceedings shall be inst;tuted. 
Section 125 supports the view that 
the court-martial alone has jurisdiction lo decide the issue as to limitation. 
. 
' 
(I014Hl 
The word. "'juriSdictionn in s.125 really signiiies the initial jurisdiction 
to take congnizance of a case. It refers to the stage at which proceeding_11 
are inst.ituted in_ a _court and not to the jurisdiction of the ordinary. crim:nal 
court and the court-martial to decide the case on merits. Section 549(1) 
•hould be construed in the light of s.125 of the Army Act .. Both the pro-
visions have in mind the objCct of avoiding a collision between the ordi-
nary c'riminal court and the court-martial. 
Both of them should receive 
the same construction. [!015BJ 
It was an a
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