- (1.) O. E. Jain, J. This is an application under Section 482, Cr. P. C for quashing the order passed by 1st Additional Sessions Judge, Azamgarh on 2-11-1991 in S. T No. 265 of 1990.
(2.) THE brief fact a leading to this application is that on 30-8-1987 an incident took place in which four persons namely Khellan, Ghampu, Murat and Mahendra were mur dered. THE First Information Report Annexure 1 was lodged by present applicant Jiya Lal on 2-9-1987 at Police Station Bardah, District Azamgarh. In this FIR some persons were named as the accused and it was alleged that Subai Ram, who was one of the accused was armed with a gun which he fired at the deceased persons and they died as a result thereof. Accused Subai Ram respondent No. 3 is serving in the Indian Army. It appears from order- sheet, dated 14-12-1990 (Annexure '2') in the court of the commit ting Magistrate Subai Ram was produced in military custody and he was committed to the Court of Sessions without taking him into judicial custody. It appears from Annexure '2' order-sheet of the committing court that no objection was raised by any one that Subai Ram should be taken into judicial custody. When the matter reached the Court of Sessions the present applicant Jiya Lal, who is the brother of one of the deceased persons, raised an objection that Subai Ram should be taken into judicial custody. It was also pointed out in this application An nexure '3' that Section 70 of the Army Act does not apply to this case and, therefore, it is necessary that Subai Ram should be taken into judicial custody. This application was rejected by the learned Additional Sessions Judge on 29-11-1991 vide Annexure '3' on the ground that the military authorities have undertaken that accused Subai Ram shall be produced before the Court on every date of hearing. The learned Sessions Judge also observed that no such objection was raised before the com mitting Magistrate and the Magistrate has committed the accused to the Sessions without taking Subai Ram in judicial custody. This order has been passed by the Magistrate on 14-12-1990 with the consent of the parties and, therefore, the application appears to have been filed in order to delay the proceedings.
(3.) NOTICES were issued to respondent No. 3 Subai Ram and the service has been found to be sufficient vide order of this Court, dated 26-3-1993. No one has appeared on behalf of Subai Ram. The learned Counsel for the applicant and the learned A. G. A for the State of U. P have been heard. After careful consideration of the matter the order passed by the learned Addi tional Sessions Judge is found to be unsustainable. Accused Subai Ram was to be tried under Section 302, I. P. C. Section 69 of the Army Act (hereinafter called the Act) lays down that subject the provisions of Section 70 any person subject to Army Act who commits any civil offence shall be liable to be tried by a Court-Martial. The provisions of Section 69 are subject to the provisions of Section 70 of the Act which reads as under : "a person subject to this Act who commits an offence of murder against a person not subject to military, naval of Air Force Law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person shall not be deemed to be guilty of an offence against this Act and shall not be tried by a court-martial, unless he commits any of the said offences - (a) While on active service, or (b) At any place outside India, or (c) At a frontier post specified by the Central Government by notification in this behalf. ";