Decided on September 09,1968

LT.COL.U.G.MENON Appellant

Referred Judgements :-



- (1.)THIS is a revision-application filed by Lt. Col. , U. G. Menon, and Lt. Col. , S. K. Kashyan, against the order of learned Additional Special judge for Rajas-than, jaipur, dated April 5, 1968.
(2.)A charge-sheet, it appears, was put up by Special Police Establishment, Jaipur branch, on January 27, 1966, in the Court of Additional Special Judge, Jaipur, against 8 persons, accusing them of offences under Sections 120-B, 161, 165 and 409, I. P. C. , as also under Section 5 (2), read with Section 5 (1) (a) and 5 (1) (d), Prevention of Corruption Act, 1947. One of the accused persons, namely, U. S. Oberoi has turned an approver. Of the remaining seven accused, 3 are civilians and 4 are officers of the Indian army. The 4 army officers moved a joint application on 13th September, 1966, in the court of Additional Special Judge, rajasthan, to the effect that in view of Criminal Law Amendment (Amending) Act, 1966, they, being commissioned officers of the Indian army, were entitled to be dealt with in accordance with the provisions of Section 549, Cr. P. C. The said judge rejected their application on October 10, 1966. A revision-application was moved in the High Court against that order. Beri J. allowed the revision-application and set aside the above order of learned Special Judge and directed the trial Court to proceed in accordance with the provisions of Rules 3 and 4 of the Criminal courts and Court-martial (Adjustment of Jurisdiction) Rules, 1952. In compliance with the said order the trial court issued a notice to the Commanding Officer of the 4 accused-applicants, on January 12, 1967. On receipt of the notice the Officer commanding, 123, Infantry Battalion (?. ?.), Jaipur, requested the Additional special Judge to stay the proceedings against the 4 army officers and to deliver them to the military authorities. As the 4 army officers were temporarily attached to 123, Infantry Battalion (?. ?.), jaipur, during the period of their suspension to enable them to stand their trial in the court situate at Jaipur, and as these officers were working in the A. S. C. , centre at Alwar, under the Officer Commanding of that Unit during December, 1962, and the year 1963, when the criminal conspiracy was alleged to have been hatched and the offences were alleged to have been committed by them, it was objected by the Public Prosecutor that the Officer Commanding, 123, Infantry battalion, Jaipur, had no jurisdiction to take a decision in the matter for the trial of the accused by Court-martial. Learned Public Prosecutor further submitted in his application that the Officer Commanding, who could take such a decision, was the officer commanding of the A. S, C. , Centre, Alwar. It was also pointed out by the public Prosecutor that under Section 122 of the Army Act, 1950, the Limitation of three years prescribed for the trial by court-martial had expired with the close of the year 1966. It was also asserted by the Public Prosecutor that as the Central government had already accorded sanction for the trial of the accused by the special Judge, the Officer Commanding, 123, Infantry Battalion, Jaipur, could not have passed the order for the trial of the 4 military personnel by court-martial. Learned Public Prosecutor then urged that the criminal case involved not only the military officers but also civilians and that the latter could not be tried by court-martial and that the case of criminal conspiracy could not have been splitted up. In the end, it was prayed that the matter should be referred to the Central government with a view to obtain final decision on the point in issue. Learned Additional Special Judge, by his communication, dated January 7, 1967, directed the Commanding Officer that he should make a reference to the Central government or the Chief of the Army Staff in terms of the difficulties pointed out by the learned Public Prosecutor. He in the meantime stayed the proceedings. On receipt of the above message, the Officer Commanding, 123, Infantry Battalion (T. A.) Jaipur, desired the court that the notice under Rule 5 of the Criminal Courts and Court-martial (Adjustment of Jurisdiction) Rules, 1952, previously served, should be treated as cancelled. Thereupon the application of the accused for handing them over to the court-martial was rejected. Learned Judge further held that the case would be tried by his court and that the military personnel, who are accused in the case, should not be delivered to the military authorities for trial by the court-martial.
(3.)AGGRIEVED against the above order, the present revision-petition has been preferred on behalf of Lt. Col. , U. S. Menon, and Lt. Col S. K. Kashyap. Learned counsel for the petitioners has argued that the Commanding Officer, 123, Infantry battalion, Jaipur, could not have cancelled his previous order, dated January 16, 1967, (annexure 1), by his subsequent order dated January 28, 1967. Once an order was passed by the Commanding Officer for the delivery of the military personnel to the army authorities for trial by court-martial, no option was left to the Special Judge, but to hand over the accused to the military authorities for the purpose. The order once passed by the Commanding Officer, Infantry Battalion, jaipur, could not have been reviewed subsequently. Leanied counsel further pressed that the Special Judge is acting as Magistrate as has been held by Beri J. , in his order dated December 20, 1966. All proceedings, according to learned counsel, after the order of the High Court, are null and void as there was no other alternative for the Additional Special Judge but to surrender the accused to the military authorities. Learned counsel also argued that Rule 8 of the Criminal Courts and Court-martial (Adjustment of Jurisdiction) Rules, 1952, and Section 126 of the army Act are not applicable to the present case. Learned Deputy Government advo cate supported the order of Additional Special Judge, dated April 5, 1968.

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