SUPDT. & REMEMBRANCER OF LEGAL AFFAIRS, WEST BENGAL versus USHA RANJAN ROY CHOUDHURY & ANR.

Citation: [1986] 3 S.C.R. 113 · Decided: 21-05-1986 · Supreme Court of India · Bench: V. BALAKRISHNA ERADI · Disposal: Dismissed

Judgment (excerpt)

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SUPDT. & REMEMBRANCER OF LEGAL AFFAIRS, 
WEST BENGAL 
v. 
USHA RANJAN ROY CHOUDHURY & ANR. 
MAY 21, 1986 
[V. BALAKRISHNA ERADI AND M.P. THAKKAR JJ.] 
Criminal Courts and Court Martial (Adjustment of Jurisdiction) 
Rules, 1952, Rules 3 and 4--0ffences falling within purview of section 
52 of Anny Act, 1950---Trial by Magistrate-Procedure to be follo-
wed-'Specia/Judge", whether deemed to be a Magistrate. 
Criminal Law (Amendment) Act, 1952. Section 8(3A). 'Special 
A 
B 
c 
Judge'-Whether deemed to be a Magistrate for Trial of offences under 
D 
section 52 of the Army Act, 1950. 
The three respondents-accused were charged with offences which 
fell within the scope of section 52 of the Army Act of 1950. The ordinary 
criminal court and th~ Court Martial both had concurrent jurisdiction to 
try the said offences. They were tried by the Judge presiding over the 
Fourth Addi. Special Court, Calcutta. The learned Trial Judge, while 
convicting one of the respondents and acquitting the remaining two, 
failed to follow the procedure prescribed by the Criminal Courts and 
Court Martial (Adjustment of Jurisdiction) Rules, 1952 framed under 
Section 549(1) of the Code of Criminal Procedure of 1898. 
The High Court, in appeal, took the view that the learned Judge 
presiding over the Special Court had acted without jurisdiction in tak-
ing cognizance of the case and proceedin~ with the trial of three Army 
Officers resulting in the conviction of one of them, and the acquittal of 
the remaining two and quashed the proceedings. 
Dismissing the appeals, by the State, 
HELD: 1. The High Court was right in allowing the appeal of the 
officer who was convicted and dismissing the appeal of the State calling 
into question the acquittal of the remaining two. However, the acquittal 
rendered by the High Court is on the ground of lack of jurisdiction on 
E 
F 
G 
H 
A 
B 
c 
D· 
E 
F 
G 
114 
SUPREME COURT REPORTS 
[1986] 3 S.C.R. 
the part of the learned Special Judge who tried the case in the Special 
Court and not on merits. The expression 'acquitted' has been employed 
by the High Court though it was sufficient to say no more than this, 
'that the order of conviction and sentence was without jurisdiction and 
was therefore being quashed'. In the eye oflaw, it is not an acquittal 
since it is not on merits. It is, therefore, for the competent authority to 
decide whether or not to subject the accused to a fresh trial after follow-
ing the procedure prescribed by the Rules. I 1250-FI 
2.1 In order to avoid any conflict of jurisdiction between the 
criminal court and the court martial in regard to offenders who are 
charged with having committed offences which fall under the purview 
of Section 52 of the Army Act, 1950, Section 549(1) of Cr.P .C. provides 
that Central Government may make Rules consistent with Cr .P .C. and 
the Army Act. In pursuance of this provision contained in Section 
549(1), Cr.P.C., the Central Government has framed Rules known as 
Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules 
1952. l 117H; I ISA-Bl 
2.2 Rule 3 of the Rules requires that when a person subject to 
military, Naval or Air Force law is brought before a Magistrate on 
accusation of an offence for which he is liable to be tried by Court 
Martial also, the magistrate shall not proceed with the case unless he is 
requested to do so by the appropriate military authority. A combined 
reading of rules 3 and 4 shows that in case the Magistrate is of the 
opinion that he should proceed with the case without there being any 
such request from the appropriate military authority, the concerned 
Magistrate is enjohied to give notice to the commanding officer in this 
behalf. Till the expiry of seven days from the service of such notice on 
the commanding officer, the Magistrate is prohibited from making any 
order of conviction or acquittal or framing any charges or committing 
the accused. Therefore, the ordinary criminal court would have no 
jurisdiction to take cognizance of the case and to try the accused in a 
matter where the procedure prescribed by the Rules has not been comp-
lied with. The initial lack of jurisdiction to take cognizance and try the 
case would, of logical necessity, vitiate the trial and the order of conviction 
and sentence would be liable to be quashed as a result thereof. I 1188-FI 
In the instant case, admittedly the procedure prescribed by the 
Rules was not followed. Under the circumstances it is futi

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