K. S. LODHA, J. - (1.) THIS revision has been filed by three accused persons against the order dated December 18, 1986 of the learned Sessions Judge, Sriganganagar for quashing the proceedings and setting aside the order framing the charges against them.
(2.) I have heard learned counsel for the petitioners and the learned Public Prosecutor. The order has been challenged before me by the learned counsel on two counts : (1) so far as the accused Bachansingh is concerned, it has been argued that the learned Magistrate, who committed the case to the learned Sessions Judge, could not have proceeded against this accused, as, admittedly, he was a military employee and could not be proceeded against without complying with rules 3 and 4 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 (hereinafter referred to as 'the Rules') framed under s. 475, Cr. P. C. and as a matter of fact in this case proper compliance with these Rules has not been made. Reliance in support of this contention has been placed upon Suptd- & Remembrancer of Legal affairs, W. B. Vs. Usha Ranjan (1) and Delhi Police Vs. Lt. Co. S. K. Loraiya (2) and it was pointed out that these Rules have been held to be mandatory and non compliance thereof has vitiated the proceedings; and (2) as regards the other two petitioners, it has been urged that the incident out of which this case has arisen, had taken place on April 16, 1977. More than 10 years have already passed and the trial has not yet started. In these circumstances, the petitioners are liable to be discharged as their right of speedy trial has been jeopardized. In this connection, reliance has been placed on Madheswardhari Singh Vs. State of Bihar (3 ). As a second limb of argument it was also pointed out that no charge under sec. 307, I. P. C. could have been framed against the petitioners and the case would not travel beyond sec. 324, I. P. C. as the gun-shot injuries have not hit any vital part of the injured, but the injuries had been caused in the lower extremities only. In this connection reliance has been placed upon Madansingh vs. State of Rajasthan (4), Ashok Singh vs. State of Raj. (5), and Harji v. State of Rajasthan (6 ). Learned Public Prosecutor, on the other hand had refuted these contentions and has urged that the compliance of rules 3 and 4 has properly been made and in any case, the proceedings have been initiated on the concurrence of the Officer commanding and, therefore, no exception can be taken to the same. As regards the second contention, he urged that the delay in the trial is attributable to the accused them selves and therefore, they cannot be allowed to take advantage of their own wrong. Regarding the charge, he urged that in the circumstances of the case, the learned Sessions Judge was justified in framing the charge under sec. 307, I. P. C. In order to appreciate the contentions raised by the learned counsel for the petitioners, a few facts may be stated. The Incident, out of which this matter has arisen had taken place on April 15, 1977 at about 7. 00 or 7. 15 P. M. when Hansa SIngh was standIng out-side the house of NihalsIngh, he heard the accused and one KapoorsIngh, who were takIng liquor at the liquor shop nearby, sayIng that MangalsIngh be got arrested and when his sons come back from the field, they may be caught and done to death. At that time KuldeepsIngh and HajoorsIngh were seen comIng from the field and when they reached near the liquor shop, BachansIngh fired pistol on them, which hit KuldeepsIngh. FaujasIngh also fired a pistol, which hit HajoorsIngh. DarshansIngh fired twice or thrice In the air and KapoorsIngh asked them not to leave the victims. Mean-while, some other persons reached the spot and thereupon the accused fled away. The Injured were taken to the Ganganagar Hospital and a report was lodged by HansasIngh at the Police Station. Chunawad on April 16, 1977 at about 3. 00 A. M. After Investigation, the police filed a fInal report holdIng that the case was concocted one on account of enmity. It appears that In the meantime, one of the accused KapoorsIngh had died, but this fact was not brought to the notice of the learned Magistrate and he, by his order dated August 28, 1980 took cognizance agaInst the three petitioners and KapoorsIngh. Non-bailable warrants were issued for the arrest of the accused persons. When accused BachansIngh came to know of the issue of the non-bailable warrant agaInst him on June 18, 1982, he filed a revision agaInst the order dated August 28, 1980, which was partly accepted by the learned Additional Sessions Judge, Ganganagar by order dated July 26, 1985. The learned Additional Sessions Judge upheld the order takIng cognizance agaInst the accused persons and set aside the order regardIng issue of bailable warrants holdIng that this could be done only after complyIng with sec. 475 and the Rules made thereunder. In compliance of this order of the learned Additional Sessions Judge, the learned Magistrate directed that BachansIngh may be called by summons through CommandIng Officer-44, Arm d Regiment, C/o. 56 A. P. O. Learned counsel for the petitioners, however, urges that it was on May 8, 1986 that a letter was addressed to the CommandIng Officer In connection with the trial beIng held by the learned Magistrate agaInst BachansIngh and later In reply to it, the CommandIng Officer sent a letter dated August 4, 1986 In which he mentioned that sec. 122 of the Army Act debars the Army from tryIng an Individual after the expiration of three years of the commission of the offence less desertion or fraudulent Involvement. He further submits that it was there after that the proceedIngs contInued agaInst the accused IncludIng BachansIngh and they were committed to the Court of Additional Sessions Judge. Now, coming to the first contention raised by the learned counsel for the petitioner, it may be stated that according to the learned counsel, accused Bachansingh had appeared before the learned Magistrate for the first time on August 11, 1986, much after the letter dated May 8, 1986 had been written by the learned Magistrate and the reply dated August 4, 1986 had been sent by the Commanding Officer, whereas according to a bare reading of rule 3, the Magistrate could have addressed the letter to the Commanding Officer only after the accused had been brought before him and not before he was so brought. Therefore, the writing of the letter dated May 8, 1986 and the Commanding Officer's reply dated August 4, 1986 are of no avail and cannot be said to be in compliance with rules 3 and 4 of the Rules. He, further urged that in view of the authorities referred to above, the provisions of rules 3 and 4 have been held to be mandatory and non-compliance thereof vitiates the proceedings of the trial. Let me first quote the rules 3 and 4. Rule 3.- Where a person subject to Military, Naval or Air force Law, or any other law relating the Armed Force 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 being moved thereto any such authority. Rule 4.- Before proceeding under clause (b) of rule 3, the Magistrate shall give a written notice to the Commanding Officer or the competent mili-tary, naval or air force authority, as the case may be, of the accused and until expiry of a period of fifteen days from the date of service of the notice he shall not- (a) convict or acquit the accused under section 252, sub-section (1) and (2) of section 255, sub-section (1) of section 256 or sec. 257 of the Code or Criminal Procedure, 1973 (2 of 1974), or hear him in his defence under section 254 of the said Code; or (b) frame in writing a charge against the accused under section 240 or sub-section (1) of section 246 of the said Code; or (c) make an order committing the accused for trial to the Court of Sessions under section 209 of the said Code; or (d) make over the case for inquiry or trial under section 192 of the said Code. "
(3.) IN my opinion, this contention cannot be accepted in the circumstances of this case. A perusal of the order-sheets would go to show that even before the alleged letter dated May 8, 1986 was sent by the learned Magistrate, the accused Bachansingh had already put in appearance through his counsel Shri K. C. Jain on July 23, 1981 when he moved an application for dropping the proceedings against him, as would be clear from the order-sheet dated July 23, 1981. When Bachansingh had, thus, appeared before the learned Magistrate through his counsel on July 23, 1981 after the bailable warrant had already been issued, he must be deemed to have been brought before the Court and the court had got the jurisdiction to act under rules 3 and 4. Learned counsel, when faced with this situation, urged that the appearance through the counsel does not mean the bringing of the accused before the court, but I fail to appreciate this contention because appearance through the counsel also amounts to appearance of the accused unless the court refuses to accept the appearance through the counsel. The physical presence of the accused before the court is not absolutely necessary for arming the court with the jurisdiction to proceed under rule 3 and the appearance through the counsel would, in my opinion, be sufficient. When the appearance of Bachansingh before the court on July 23, 1981 is thus established and the letter, said to be issued by the court on May 8, 1986 is of a later date, it cannot be said that the court acted under rule 3 without the accused being brought before him. That being so, the authorities relied upon by the learned counsel in this respect would not at all apply to the facts and circumstances of the case on hand and would not be of any avail to him. Looking the matter from another point of view, it may be stated that in the letter dated August 4, 1986, from the Commanding Officer 44, Armed Regiment, addressed to the Judicial Magistrate, there is no reference to the Magistrate's letter dated May 8, 1986, but it appears to be a letter probably in pursuance of the earlier warrant, which had already been issued. That letter reads as under:- 1048724/a "44 Armed Regt. C/o 56 APO 04 Aug 86. The Judicial Magistrate, Sri Ganganagar. CASE DATED 27 AUG SO UNDER IPC 307 STATE VS. DFR BACHANSINGH Sir, 1. No. 1048724 Dft. Bachan Singh who is the accused in the above case is presently serving in 44 Armed Regt. 2. It is requested that he be granted bail for the duration of case. 3. He will be made available for hearing in the Court whenever required. 4. Army Ac 122 debars the Army from trying an individual after three years of commission of offence less desertion and fraudulent enrolment. Yours faithfully Sd/- (SS Kadan) Maj. Offg. Adjt. for Comdt. " A bare perusal of this letter would go to show that the Commanding Officer consented to the trial being held by the learned Magistrate The request in para 2 of the letter that the petitioner may be granted bail for the duration of the case and the undertaking in para 3 that he will be made available for hearing in the court whenever required, leaves no room for doubt that the Commandant wanted the court to proceed with the case. Further, in para 4 of the reply, it has clearly been stated that so far as the Army was concerned, it could not take any action in the matter as it was debarred from trying an individual after three years of the commission of offence less desertion and fraudulent involvement, as prescribed in sec. 122 of the Army Act. Sec. 125 of the Army Act clearly provides that when a criminal court and a court martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer commanding the army, army crops, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which court the proceedings shall be instituted and if that officer decides that they should be instituted before a court-martial, to direct that the accused shall be detained in military custody,, Thus, choice of jurisdiction or forum is left with the military authorities. The accused does not have a say in this matter and when, as stated above, the Commanding Officer had clearly indicated his concurrence to the proceedings being taken before the learned Magistrate, no objection can be taken by the accused to the jurisdiction of the learned Magistrate. Learned counsel, however, urged that in the letter dated August 4, 1986 of course the Commanding Officer had mentioned a bare fact that under sec. 122 of the Army Act, no person can be tried after the lapse of three years of the commission of the offence except where the matter falls within the exception contained therein, but it does not appear that the Commanding Officer had applied his mind to the fact whether in this particular case the matter fell within any of the exceptions or not and, therefore, this letter cannot be deemed to be a letter by the Commanding Officer consenting to or requesting the Magistrate to try the accused. I am unable to agree with this contention inasmuch as when after coming to know of the pendency of the criminal case against the accused, the Commanding Officer made a request referred to above in paras 2 and 3 of the letter and then added that in view of sec. 122 of the Army Act, the Army cannot try the accused, it must lead only to the conclusion that the Commanding Officer must have taken into account the circumstances, which debarred the trial of the accused before the court martial. ;