BERI, J. - (1.) THE Special Judge No. 2, Jaipur rejected the claim of the four applicants before me, who are commissioned officers of the Indian Army to be dealt with in accordance with the provisions of sec. 549 of the Code of Criminal Procedure, which prescribes trial by Court Martial by his order dated 10th October, 1966 and it is against this order that they have come up in revision.
(2.) THE facts which are necessary to be noticed for the disposal of this revision application briefly stated are : A charge sheet was submitted before the Special Judge on 27th January, 1966 against 8 persons accusing them of offences of criminal conspiracy, bribery, criminal breach of trust, cheating and falsification of accounts under the I. P. C. and under secs. 5 (2) read with sec. 5 (l) (a) and 5 (1) (d) of the Prevention of Corruption Act, 1947. One of them K. S. Oberoi turned an approver. Out of the remaining 7 accused three are civilians and the four are officers of he Indian Army who are applicants before me. On 5th March, 1966 the case was adjourned to 4th July, 1966 at the request of the Public Prosecutor enabling him to supply the copies of documents envisaged by S. 173 of the Code of Criminal Procedure and for enforcing the attendance of the two accused persons, who were not served till then. No progress of the case was made until 13/14. 9. 1966 when the four applicants, Army Officers, moved a joint application praying that in view of the 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 sec. 549 of the Code of Criminal Procedure. THE Special Judge rejected their application, and, therefore the present revision application. Mr. Agarwal appearing for the applicants urged that the order of the learned Special Judge is erroneous because he failed to give effect to sec. 5 (l) (a) of the Criminal Law Amendment (Amending) Act, 1966. Mr. Mehta for opposite party supported the order of the Special Judge. In order to appreciate the rival contentions of the learned counsel it is proper to briefly notice the relevant law and the changes made therein. The Criminal Law Amendment Act (Act No, XLVI of 1952) amended the Indian Penal Code and the Code of Criminal Procedure to provide for more speedy trial of certain offences. 1 he Act empowers the State Government to appoint Special Judges who alone could try offences of bribery and offences under the Prevention of Corruption Act and of criminal conspiracy or any attempt or abatement concerning the said offences. Under sec. 8 of the Act it is provided that the procedure prescribed for the trial of warrant cases was to be followed by them. In a Bombay case a question was raised whether a Special Judge appointed under the Criminal Law Amendment Act was required to follow the procedure prescribed by sec. 549 of the Code of Criminal Procedure and the rules made thereunder. The Bombay High Court in Major E. G. Barsay vs. The State (l) held that the provisions of sec. 549 of the Code of Criminal Procedure did not apply to Special Judges appointed under the Criminal Law Amendment Act, because they were not Magistrates. The matter went up to the Supreme Court and in Major E. G. Barsay vs. State of Bombay (2) their Lordships upheld the decision of the Bombay High Court. In the light of the judgment of the Supreme Court in the said case it became necessary to amend the Criminal Law Amendment Act and to insert a new section therein, as from the commencement of the Act, to save the jurisdiction exercisable by a court-martial or other authority under the Army, Navy and Air Force Acts (c. f. the statement of Objects and Reasons, Gazettee of India, Extra-ordinary, Sec. 2, dated December 3, 1965) introducing the bill to amend the Criminal Law Amendment Act, 1952 ). An Ordinance was issued on 30th June, 1966 called the Criminal Law Amendment (Ordinance) No. 7 of 1966) wherein certain provisions were made for the aforesaid purpose. This Ordinance later on became the Criminal Law Amendment (Amending) Act, 1966 (Act No. 22 of 1966) dated 3rd December, 1966. In sec. 8 the sub-sec. 3 (A) was amended to make secs. 350 and 549 of the Code of Criminal Procedure applicable to the procedure to be adopted by Special Judges. Under sec. 3 of the Amending Act sec. 11 was newly inserted in the following language - 3. After sec. 10 of the principal Act the following section shall be inserted and shall be deemed always to have been inserted, namely - "11 (1) Nothing in this Act shall affect the jurisdiction exercisable by, or the procedure applicable to, any court or other authority under military, naval or air force law. (2) For the removal of doubt it is hereby declared that for the purposes of any such law as is referred to in sub-sec. (f), the court of the special Judge shall be deemed to be a court of ordinary criminal justice " Sec. 5 which is the material section for the purposes of the present case reads as follows - "5 (1) Notwithstanding anything contained in this Act or in the principal Act as amended by this Act - (a) cases pending immediately before the 30th day of June, 1966, before a special Judge in which one or more persons subject to military, Naval or Air Force law is or are charged with and tried for an offence under the principal Act together with any other person or persons not so subject, and (b) cases pending immediately before the said date before a special Judge in which one or more persons subject to military, naval or air force law is or are alone charged with and tried for an offence under the principal Act and charges have already been framed against such person or persons. shall be tried and disposed of by the Special Judge. (2) Where in any case pending immediately before the 30th day of June, 1966, before a special Judge, one or more persons subject to military, naval or air force law is or are alone charged with and tried for an offence under the principal Act and charges have not been framed against such person or persons before the said date, or where an appeal or a revision against any sentence passed by a special Judge in any case in which one or more persons so subject was or were alone tried, the appellate court has directed chat such person or persons be retried and on such retrial charges have not been framed against such person or persons before the said date, then, in either case, the special Judge shall follow the procedure laid down in sec. 549 of the Code of Criminal Procedure 1898 as if the Special Judge were a Magistrate. The question which emerges for consideration before me is whether the case of the applicants is covered by the provisions contained in sec. 5 (1) (a) of the Amending Act. The material words of sec. 5 (1) (a) on the interpretation of which the answer to this! question depends are : "charged with and tried for an offence" which I have underlined for the purpose of convenient reference. Mr. Agrawal contends that the word "tried" should mean that the case against the accused has been considered by the Special Judge. Mr. Mehta, on the other hand, submitted that in the context the word "tried" means that the accused has been prosecuted. In State of Bihar vs. Ram Naresh (3), an authority on which both the learned counsel placed their reliance the words "trial"and "tried" came to be considered with reference to the procedure contained in sec. 494 of the Code of Criminal Procedure. Their Lordships observed, "the words "tried" and "trial" appear to have no fixed or universal meaning. No doubt, in quite a number of section in the Code to which our attention has been drawn the words "tried" and "trial" have been used in the sense of reference to a stage after the inquiry. That meaning attaches to the words in these sections having regard to the context in which they are used. There is no reason why where these words are used in another context in the Code, they should necessarily be limited in their connotation and significance. They are words which must be considered with regard to the particular context in which they are used and with regard to the scheme and purpose of the provision under consideration. (The reference is mine.) Several text books and authorities have been cited before me by the learned counsel regarding the meaning of the words "tried" and "trial". I will notice some of them. Trial is "the formal examination of the matter in issue in a cause before a competent tribunal for the purpose of determining such issue : the mode, of determining a question of fact in a court of law : Webster's Third New International Dictionary, Vol. II, p. 2439 ). Trial "1. Law. The examination and determination of a cause by a judicial tribunal ; determination of the guilt or inno-cense of an accused person by a court. " (The Oxford English Dictionery, 1933 Ed. Vol. XI, p. 334 ). Trial : "a judicial examination in accordance with law of the land, of a cause, either civil or criminal, of, the issue between the parties, whether of law or fact, before a court that has jurisdiction over it. (Black's Law Dictionary, Fourth Ed. p. 1675), Trial : (1) A 'trial' is the conclusion, by a competent tribunal of questions in issue in legal proceedings, whether civil or criminal. Therefore, the hearing of the reference of an action "and all matters in difference "is not a trial within Attendance of Witnesses Act. 1954, (Stroud's Judicial Dictionary, 3rd Ed. , Vol. 4, p 3092 ). These words have been considered in some judicial decisions. I have already noticed the Supreme Court decision above where for the purposes of sec. 494 of the Code of Criminal Procedure in the words "tried" and "trial" enquiry was held to be included by the Supreme Court. In Sajjan Singh vs. Bhogilal (4) this Court has observed - "broadly speaking, however, a trial is the examination by a competent court of the facts or law in dispute or put in issue in a case. It is the judicial examination of issues between the parties whether they are of law or of fact. " This appears to have been taken from Tomlin's Law Dictionary. In Ganesh vs. The State (5) this Court has held - "the proceedings under sec. 251-A (1) and (2), Cr. P. C. , cannot be regarded as in the nature of a trial. The procedure laid down under these sections in fact begins in the accepted sense of that ;term when the charge is read and explained to the accused and he is asked whether he is guilty or claims to be tried. " Broomfield J. in Dagdu Govindset vs. Punjab Vedu (6) observed. "but according to my experience of the administration of criminal justice in this Presidency, which is not inconsiderable, the Courts have always accepted the definition of trial which has been given in 25 Cal. 863, that is to say, 'trial' has always been understood to mean the proceeding which commences when the case is called on which the Magistrate on the Bench, the accused in the dock and the representatives of the prosecution and defence, if the accused be defended, present in court for the hearing of the case. " Mr. Agarwal invited attention to Balmukund Marwari vs. Lachmi Narain Marwari (7), Manohar Das vs. Birandari (8) and Mt. Barkat Bibi vs. Fateh Ali (9 ). They are decisions relating to the Code of Civil Procedure, and they are not helpful in determining the question before me. It is not disputed that the four applicants before me are governed by the provisions of the Army Act, 1950. Sec. 69 of the Army Act provides that subject to the provisions of sec. 70, any person subject to this Act, who at any place in or beyond India commits any civil offence shall be deemed to be guilty of an offence under this Act and if charged therewith under this section, shall be liable to be tried by a court-martial and punishable as indicated in the said section. The only civil offences not triable by court-martial are indicated in sec. 70. Briefly speaking they are : murder, culpable homicide not amounting to murder and rape. Under R. 3 framed under sec. 549 of the Code of Criminal Procedure where a person subject to military, naval or air force laws is brought before a Magistrate and charged with an offence for which he is liable to be tried by a court-martial, such Magistrate shall not proceed to try such person or to inquire with a view to his commitment for trial by the court of session or the High Court, unless (a) he is of opinion for reasons to be recorded that he should so proceed without being moved thereto by competent military, naval or Air Force authority, or (b) he is moved there to by such authority. Under R. 4 before proceeding under cl. (a) of rule 3 the Magistrate shall give a written notice to the commanding officer of the accused and until the expiry of a period as prescribed in this rule he shall not convict or acquit the accused or frame in writing a charge against the accused or make an order committing the accused for trial or transfer the case for enquiry or trial Major Barsay's case raised the question whether the Special Judges were bound by the provisions of rules 3 and 4. The Supreme Court answered the question as already noticed in the negative. To eliminate this difficulty the Criminal Law Amending Act, 1966 came into being. Sec. 5 makes provision regarding pending cases and the crucial date is 30th day of June, 1966. The concrete question, therefore, is whether the applicants were charged with and tried for an offence before the 30th day of June, 1966, before the Special Judge No. 2 Jaipur. Under sec. 8 of the Criminal Law Amendment Act, 1952 a Special Judge shall follow the procedure prescribed by the Code of Criminal Procedure, 1898 for the trial of warrant cases by Magistrates. Under sec. 251 of the Code of Criminal Procedure in the trial of warrant cases by Magistrate they shall follow in any case instituted on police report the procedure specified in sec. 251-A sub-sec. (l) of sec. 251-A lays down that when in any case instituted on a police report the accused appears or is brought before a Magistrate at the commencement of the trial,such Magistrate shall satisfy himself that the documents referred to in S. 173 have been furnished to the accused,and if he finds that the accused has not been furnished with the documents or any of them he shall cause them to be so furnished. Sub-sec. (2) lays down that if upon consideration of all the documents referred to in S. 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard the Magistrate considers the charge against the accused to be groundless he shall discharge him. In the case before me the prosecution had not even furnished the documents envisage by sub-sec. (1) of sec. 251-A of the Code of Criminal Procedure. Ihey are to be furnished "at the commencement of the trial". The documents having not been furnished, in my opinion, on the very language of sec. 251-A the trial did not commence. The language of sec. 5 (1) of the Criminal Law Amending Act, 1966 clearly makes a distinction between the two categories of cases (i) cases in which persons governed by the Army Act are accused along with others ; and (ii), cases where persons governed by the Army Act alone are being prosecuted. In the first category of cases the proviso of sec. 549 read with rule 3 need not be followed if the trial has commenced and the accused is thus tried and for the purposes of cases falling in category (ii) unless the charge is framed. The language of both sub-sec. 5 (l) (a) and 5 (1) (b) is identical to a certain extent. In my opinion it will be reasonable to hold that the word 'tried' in the context of the historical back ground of the Amending Act and in view of the purpose it aimed to attain means that the Special Judge has applied his mind to the documents submitted by the prosecution. Until therefore the stage envisaged by sub-sec. (2) of sec. 251-A is reached the case does not fall under sec. 5 (l) (a) of the Amending Act. In the case before me even the documents envisaged by sec. 173 remained to be supplied to the accused persons on 30. 6. 1966. In fact the learned Public Prosecutor sought time on the 4th July, 1966 to do so. The stage contemplated by sec. 251 A (2) was not reached before the 30th day of June, 1966. It cannot therefore be said that the applicants were 'charged with and tried' before the 30th day of June, 1966. In my opinion, therefore, the learned Special Judge was in error when he held that the case of the applicants could not be referred to the military authorities under rule 3 and 4 of the Rules framed under sec. 549 of the Code of Criminal Procedure.
(3.) THE result is that this revision application is allowed and the order of the Special Judge of 10th October, 1966 is set aside. THE learned Special Judge will now proceed in accordance with the provisions of Rules 3 and 4 of the Rules framed under sec. 549 of the Code of Criminal Procedure. .;