K.P.S.SANDHU, J. - (1.) RAM Chander petitioner has filed this petition under section 482 of the Code of Criminal Procedure for quashing the orders dated 6th November, 1982 and 11th April, 1983 passed by the learned Judicial Magistrate First Class and Additional Sessions Judge, Sonepat respectively. By these orders, both the Courts refused the custody of the petitioner (accused) to the military authorities.
(2.) THE facts which gave rise to this petition are that the petitioner, admittedly, is employed as a Sepoy in the Indian Army and attached to 5 Rajput C/o 56 APO. On 17.10.1982 while the petitioner was on leave from the Army, he allegedly committed murder of Ishwar Singh and Smt. Santosh wife of one Rajinder in his village Khewra. A case was registered against the petitioner and he was challanged under Section 302 I.P.C. by the local police. The petitioner could not be arrested by the police and the learned Magistrate on a written request by the police, issued non-bailable warrants for the arrest of the petitioner vide order dated 23rd October, 1982. In response to the warrants, the Officiating Commanding Officer, vide letter dated 26th October, 1982 informed the Magistrate that the accused would be produced before the Court on 3rd November, 1982 under military escort. In the same letter, the Officiating Commanding Officer requested that the petitioner be permitted to be detained in the military custody till finalisation of his case under the provisions of section 125 of the Army Act, 1950. However, the learned Magistrate declined the request of the Officiating Commanding Officer and passed the order, Annexure P-1 vide which he committed the petitioner for trial to the Court of Sessions, which order is under challenge in this petition. The learned Magistrate was pleased to hold that :- "Since against the accused Ram Chander there are allegations of committing murder of Ishwar Singh and Santosh, in view of the Section 70 of the Army Act, 1950 this civil offence of murder is not triable by the Court of Martial. Section 125 of the Army Act, 1950 and the above mentioned notification have no application." Consequently, the learned Magistrate committed the case of the petitioner, for trial, to the Additional Sessions Judge, Sonepat. The jurisdiction of the Court of Additional Sessions Judge was also challenged by the counsel for the petitioner on the ground that in view of provisions of Section 475 of the Code of Criminal Procedure read with section 70 of the Army Act, a Civil Court was not competent to try the petitioner. However, this objection was over-ruled by the learned counsel Additional Sessions Judge vide his aforesaid order. The petitioner has now come up to this Court, under Section 482 of the Code of Criminal Procedure for quashing of both the orders. Mr. U.D. Gaur, learned counsel for the petitioner has, at the outset, contended that the view taken by the learned Magistrate that the offence committed by the petitioner was not triable by the Court Martial, is erroneous. The provisions of Section 70 of the Army Act are as under :- "A person subject to this Act who commits an offence of murder against a person not subject to military, naval or 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." The learned counsel has placed reliance on notification No. S.R.O. 6-E dated 28.11.1962 which is in the following terms :- "In exercise of the powers conferred by Section 9 of the Army Act, 1950 (46 of 1950), the Central Government hereby declares that all persons subject to that Act who are not on active service under clause (1) of Section 3 thereof, shall wherever they may be serving, be deemed to be on active service within the meaning of the said Act, for the purposes, of the said Act and of any other law for the time being in force." So in view of the above notification, learned counsel has contended that the petitioner even of leave was to be considered on active service. Thus any offence committed by him even on leave would be triable by the Court Martial as well. Mr. S.K. jain, Learned counsel for the State has very fairly conceded this position and has stated this is view of Full Bench decision of this Court in Ajit Singh v. State of Punjab, AIR 1970 Punjab and Haryana 351, the petitioner while on leave would also be considered as on active duty and the Court Martial will have the jurisdiction to try him for the offence committed by him during his leave period.
(3.) NOW the spinal and the short question which remains for adjudication is as to whether the non-compliance of the provisions of section 475 Cr.P.C. and the rule made thereunder vitiates the proceedings or is a mere irregularity. Mr. Jain, learned counsel for the State of Haryana has placed reliance on Ajit Singh's are (supra) wherein it has been held that section 549 of old Cr.P.C. (S-475 of new Cr. PC) and the rules made thereunder are not mandatory in nature and their non-compliance does not vitiates the proceedings. Mr. U.D. Gaur, learned counsel for the petitioner on the other hand, has relied upon the later authority of the Supreme Court in Delhi Special Police Establishment New Delhi v. Lt. Col. S.K. Loraiya, AIR 1972 S.C. 2548, wherein their Lordships of the Supreme Court were pleased to uphold the view taken by the High Court of Assam and Nagaland that the provisions of section 549 of old Cr.P.C. were mandatory in nature and their non-observance vitiates the proceedings. This view of the Supreme Court was followed by this Court in Ram Sarup v. State, 1977(4) Cr.L.T. 98 and Nathu Ram v. Siri Ram, 1977(4) Cr.L.T. 265. Mr. Gaur has rightly pointed out that in view of the later pronouncement of Supreme Court, the above mentioned Full Bench judgment in Ajit Singh's case (supra) does not hold the filed. The Central Government, while exercising its powers under section 475(1) of the Code of Criminal Procedure and Court Martial (Adjustment of Jurisdiction) Rules, 1952 and framed new rules vide notification No. S.O. 488 of 9.2.1978. According to rule 3 where a person subject to military, naval or air force law, or any other law relating to the Armed Forces of the Union for the time being in force is brought before a Magistrate and charged with an offence for which he is also liable to be tried by a Court Martial, such Magistrate shall not proceed to try such person or to commit the case to the Court of Session unless :- (a) he is moved thereto by a competent military, naval or air force authority; or (b) he is of opinion, for reasons to be recorded, that he should so proceed or to commit without been moved thereto by such authority. ;