LexUNION OF INDIA THROUGH MAJOR GENERAL H.C. PATHAK versus MAJOR S.K. SHARMA
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A B UNION OF INDIA THROUGH MAJOR GENERAL H.C. PATHAK v. MAJOR S.K. SHARMA JUNE 29, 1987 [R.S. PATHAK, CJ AND V. KHALID, J.] Criminal Procedure Code, 1973-S. 475-Read with ss. 200 to 204 of the Code, and the provisions of the Army Act, 1950 and the Army Rules-When a Magistrate has taken cognizance of an offence C committed by a member of the Armed Forces and thereafter transferred the case for trial under the Army Act and the Rules, it is not open to the Competent Authority to hold an inquiry for determining whether there is any case for trying the accused-It must proceed to hold the Court Martial or take such other 'effectual proceedings' as is contemplated by r. 7( I) of the Criminal Courts and Court Martial (Adjustment of Juris- D diction) Rules, 1978. An officer in the Army filed a complaint before a Magistrate '( alleging that another officer has assaulted him, that the Commanding Officer to whom he had complained earlier had failed to take satis- factory action and thus both of them had committed offences under the - E Indian Penal Code. The Magistrate examined the complainant under s. 200 Cr. P.C., took cognizance of the offences under s. 190(A) and, on being satisfied of the existence of a prima facie case, issued summons under s. 204(A) for the appearance of the accused. Upon applications j_ ..._ being made by the appellants urging that the case be handed over to the Military Authorities for disposal, the Magistrate made an order direct- F ing that the case be transferred to the Army Authorities for disposal in ~ accordance with the provisions of the Army Act, 1950 after trial by a Court Martial at any place within the jurisdiction of his Court and that the progress of the case be reported to him at intervals of two months. Upon the appellants making further applications praying for review of the said order on the ground that under the Army Act and the Army G Rules, it was not mandatory that all disciplinary cases against military personnel should culminate in a trial by Court Martial and submittingL that the disciplinary action against the officers concerned would be'\ initiated after an investigation of the alleged offences, the Magistrate, pointing out that the judicial process for ascertaining the prima facie existence of a case had already been completed, held that the trial of the H accused by Court Martial was mandatory under s. 475 Cr. P.C. and, 456 - U.0.1. v. S.K. SHARMA 457 ~ therefore, it was not permissible for the Army Authorities to hold a preliminary investigation. However, having regard to s. 127 of the Army Act, the Magistrate directed that the progress of the case be intimated at intervals of fo•1r months. in the Revision filed by the appel- lants, the High Court interfered with the order of the Magistrate in- sofar only that it deleted the direction requiring the Army Authorities to inform the Magistrate of the progress of the case ·at intervals of four ~ months and directed instead that the result of the Court Martial pro- ceeding be communicated to the Magistrate, as soon ·as may be, in )..- accordance with r. 7 of the Criminal Courts and Court Martial (Adjust- ment of Jurisdiction) Rules, 1978. Dismissing the appeal by Special Leave, ~· HELD: The Army Authority is not entitled to ignore the proceed- ing taken by the Magistrate and to invoke the provisions of r. 22 and related rules of the Army Rules. The Magistrate having held that there A B c is a case for trying the two accused officers and having directed their appearance, the Army Authority must proceed to hold a Court Martial D 'y for their trial or take other effectual proceedings against them as con- templated by the law. [ 468G-H] (i) It is open to a Magistrate under ss. 200-203, Cr. P.C. to inquire into a complaint of an offence alleged to have been committed by a military person, where it falls within his jurisdiction and to take E .Ac proceedings for trial of the accused. Likewise, a duly constituted Army ~~Authority has power under the provisions of r. 22 onwards of the Army Rules to investigate into a charge against a military person accused of an offence triable under the Army Act, and after such hearing to decide ~ whether his trial by a Court Martial should be ordered. The provisions of the Army Rules run parallel to the provisions in the Cr. P.C. In- F asmnch as there is always a possibility of the same offence being triable either by a Criminal
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