Y S NAGAR, MAJOR Vs. UNION OF INDIA AND ORS
HIGH COURT OF JAMMU AND KASHMIR
Y S Nagar, Major
Union of India And Ors
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(1.) In quick succession, information regarding commission of offences under Section 392 of the Ranbir Penal Code and Sections 25 and 27 of the Army Act. was given to the concerned police station situated in the district of Srinagar. The First Information Report was lodged on 20th Feb. 97. This was with regard to the offence of robbery vis-a-vis an amount o Rs. 40,000 This was registered with the police station Krai Kud. The other report came to be lodged on 21st Feb. 97 at 1235 hrs at police station Kothi Bagli in the district of Srinagar. This was for robbing an amount of more than Rs. one lakh. The third report with the same Police station came to be lodged in the evening at 1600 hrs. This was with regard to an amount of Rs. 1,50,000. The concerned police officers posted in the Police stations started investigating the matter. The needle of suspicion was pointed out towards the appellant. The General Officer Commanding the Force where the appellant was serving formed an opinion on 12th Aug. 97............. to the effect that there is a prima-facie case against the appellant and he was required to be brought to trial before the Summary General Court Martial. As the above order passed by the General Officer Commanding led to the convening of a Summary General Court Martial, the appellant challenged these proceedings. These were challenged inter-alia on the ground that the appellant being a citizen of India could be dealt with only under the Indian Penal Code and not under Ranbir Penal Code. Some procedural lacunas in the matter of convening the Summary General Court Martial were also pointed out. These matters were considered by a learned Single Judge of this Court. Finding no merit in the submissions made on behalf of the appellant, the writ petition was dismissed. It is under these circumstances, the present appeal has been preferred under Clause 12 of the Letters Patent. The learned counsel for the appellant has repeated all those arguments which were raised before the learned Single Judge of this Court. In addition, some other submissions have also been made. These are to the effect that the appellant being a public servant could not be proceeded against unless and until there was sanction in terms of Sec. 197 of the Code of Criminal Procedure. Some allegations of bias against the officers who are to take part in the Summary General Court Martial have also been made. With a view to appreciate these submissions, it would be apt to notice some further facts.
(2.) The appellant herein is holding a permanent Commission in Indian Army. He stands accused of having committed offence of Robbery punishable under Section 392 of the Ranbir Penal Code. Having been in possession of fire arms and ammunition without valid license, he is sought to be proceeded against under Section 25 of the Army Act of 1959. These offences as noticed above are alleged to have been committed in the month of Feb. 97. As the General Officer Commanding of the appellant formed an opinion that the appellant has committed civil offence as defined under Section 3 of the Army Act. 1950, he is required to face a trial before the Summary General Court Martial. These proceedings are challenged inler-alia on the following grounds:
i/that the appellant is an Indian Citizen, and therefore, he can be only for as offence which falls within the purview of Indian Penal Code;
iil that so far as Ranbir Penal Code is concerned that applies only to the state subject and the appellant being not a State Subject, therefore, he cannot be tried for an offence which falls within the purview of Ranbir Penal Code;
iii/that the appellant being a public servant cannot be proceeded against unless and until there is a scansion of the competent authority;
iv/that Rules-22 and 23 of the Rules are mandatory and unless and until reasons are mentioned for initiating proceedings for holding the Summary General Court Martial, the order would be bad: and
v/that the appellant has alleged malafide against the officers who are the members of the Summary General Court Martial and, therefore, he cannot be tried by the persons who are prejudiced against him. First the contention of the appellant's counsel that the appellant being a citizen of India can be tried only by the Indian Penal Code be examined.
(3.) It be seen that the Penal Code of 1860 extends to the whole of India except the State of Jammu and Kashmir. The appellant submits that in view of the provisions contained in Sections 3 and 4 of the Penal Code of 1860. any person liable under any Indian Law to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code as if such act had been committed within India. Reliance is again placed on Section 4 of the Penal Code wherein the provisions of Indian Penal Code have been given territorial operation. Section 4 of the Indian Penal Code would apply to any offence commitled by any citizen of India in any place within or beyond India. It is on the basis of Sections 3 and 4 of the Indian Penal Code, arguments raised is that notwithstanding the fact that the appellant is in the State of Jammu and Kashmir, he being citizen of India, is to be governed by the provisions of Indian Penal Code of 1860. Before examining this argument, it would also be apt to notice the provisions of Sections 3 and 4 of the Ranbir Penal Code of Svt. 1889 i.e. 1932 A.D.;
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