LexS.K. KASHYAP & ANR. versus THE STATE OF RAJASTHAN
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A B c D F G H s:'K,. ~SHYAP & ANR. v. THE STATE OF RAJASTHAN March 2, 1971 [C. A. VAJDIAL!NGAM AND A. N. RAY, JJ.J 881 Army Act, 1878 (1 of 1878)-Sections 125 and 12&-Code of Crimi- nal Procedure, 1898 (5 of 1898) Section 549-Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952-Jurisdiction of Special Judge-Ru/es 4, 5, 8 ·and 9-Scope of Rules. Criminal Law Amendment (Amendingi Act, 1966----Section 5(1)(a)(b)-"Pending", "Charged with a11d tried for an offence", mean- ing of. On January 27, 1966, a charge sheet against the four appellants and four civilians was put up before the special judge. On January 12, 1967 the Special Judge gave notice to the commanding officer notifying under rule 4 of the Criminal Courts and Courts Martial (Adjustment of Juris-· diction) Rules, 1952, framed under s. 549 of the Code of Crirr.inal Pro• cedurc, that charges would be framed against the accused. On January 16, 1967, the Officer Commanding wrote to the Special Judge, in exercise of the powers conferred on him hlle 5 of the 1952 Rules, that the four appellants belonging to his unit would be tried by Court Martial under the Army Act, 1950, and \he Court of the Special Judge was requested to stay the proceedings with immediate effect. On January 17, 1967, the State of Rajasthan made an application before the Special Judge stating that the period of limitation fclr the purpose of Court Martial had already expired and tilat the Special Judge take cognisance of the case ·on the basis of sanction by the Central Government. The Special Judite requested the Commanding Officer to make a reference to the Central Government. On January 28, 1967, the Commanding Officer wrote to the Special Judge that the notice dated January 16, 1967, unde'r Rule 5, served on the Special Judge might be treated as cancelled. Thereupon the appellants made an application before the Special Judge challenging the legality of the action of the Commanding Officer in cancelling the notice dated January 16, 1967 and praying that they be delivered to the Army autho- rities. The Special Judge held that since the notice dated January 16, 1967 had been cancelled, he had jurisdiction to try the case. A revision against this order was dismissed and the High Court directed the Special J ud2e to conduct the trial. In the appeal to this Court it was contended that the High Court was wrong, because, the Special Judge had DD jurisdiction to deal with the application of the State made on January 17, 1967 and pass an order that the Commanding Officer should make a reference to the Central Government; and that the Commanding Officer had no power to caacel the intimation dated January 16, 1967. The respondent contended !bat the effect of the cancellation of the notice dated January 16, 1967,. was that no Court Martial proceeding was to be commenced and that in any event the Special Judge had jurisdiction and authority to try and dispose of the case which was pending on June 30, 1966 in the Criminal Court by virtue of the provisions contained in the Criminal Law. Amendment (Amending) Act, 1966. Dismissiag the appeal, -!' 882 SUPREME COURT REPORTS [1971] 3 HELD : The provisions of the Army Act, the Rules under Section 549 of the Criminal Procedure Code and the decisions of this Court all support the c,onclusion that the Special Judge in the present case was justified i11 asking the Officer Con1ma-nding to make a reference .to the Central Go,·- 1..Tnmcnt and that the Officer Commandjng in the -facts and circumstances of the case expressed the opinion that the appellants should be tried bv criminal cot1rts because there would in fact he no Court Martial pro- ceedings. The contention that the Officer Comn1an<ling having once exercised the discretion under Rule 5 could not cancel the discretion is unaccept- ahlt.!. There / arc no ::illCgations of n1ala fide or abuse of power to chal- lenge the propri<:ty of !he exercise of power and discretion. Ram Sarup v. The Union of India & Anr., '(1964] 5 S.C.R. 931, So111 Datt Datta .v. Union of India & Ors., [1969] 2f S.C.R. 177; Joginder Singh v. State of Himachal Prade.h,.Criminal Appeal No. 34 of 1969 decided··on :10-11-1.970 an!'I Major /;', G. Barsay v. State of Bombay, [1962] 2 S.C.R. 195: referred to. Th~ present upi=1~<1I relates to a c~1se "pending" immetli •tely .hcfor~ Jun~ .10, 1966, before u Special Judge. within the meaning of s. 5(1)
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