Supreme Court of India
BALBIR SINGH AND ANR.versusSTATE OF PUNJAB
- Citation
- 1994 INSC 510
- Decided
- 10 November 1994
- Disposal
- Dismissed
- Bench
- A S ANAND
Holding
The Supreme Court upheld the murder conviction and held that the criminal court had jurisdiction, as the Air Force authorities had duly exercised their option not to try the accused by court‑martial, satisfying the statutory notice requirements.
Summary
The appellants Balbir Singh and Nachhattar Singh were convicted of murder under IPC sections 302 and 34 for inflicting fatal blows with a gandasa. They challenged the conviction on two grounds: that the offence should be culpable homicide under section 325, and that the criminal court lacked jurisdiction to try Air Force personnel on active service without complying with notice provisions of Section 475 CrPC and the Air Force Act. The Supreme Court held that the medical evidence established death by shock and haemorrhage, confirming the intention to kill, thus upholding the murder conviction. It further ruled that a person on casual leave is deemed to be on active service under the Air Force Act and that the Air Force authorities had exercised their option not to try the accused by court‑martial, satisfying the notice requirement. Consequently, the criminal court retained inherent jurisdiction to try the case, and the appeal was dismissed.
Issues considered
- The appropriate charge: murder under IPC 302/34 versus culpable homicide under IPC 325/34.
- Whether a member of the Air Force on casual leave is deemed to be on active service for jurisdictional purposes.
- Whether the criminal court had jurisdiction to try the accused without a formal notice to the Air Force authorities under Section 475 CrPC and the Air Force Act.
- Whether the Air Force authorities exercised their option to try the accused by court‑martial, and the effect of any alleged non‑compliance.
- The retention of inherent jurisdiction of criminal courts to take cognizance of civil offences despite the Air Force Act.
Legislation cited
- Air Force Act, 1950s. 124, s. 125, s. 4(1), s. 72, s. 9
- Code of Criminal Procedure, 1973s. 475
- Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952s. 3, s. 4, s. 5, s. 6
- Indian Penal Code, 1860s. 149, s. 302, s. 325, s. 34
Subjects
murderIPC 302active serviceAir Force Actcourt‑martial jurisdictionSection 475 CrPCnotice requirementcasual leaveconviction upheld
Judgment
A BALBIR SINGH AND ANR.
v.
STATE OF PUNJAB
NOVEMBER l 0, 1994
B [DR. A.S. ANAND AND FAIZAN-UDDIN, JJ.]
Indian Penal_ Code, 1860-Sections 302134-Murder-Injlicting blows
with gandasa on head of deceased-Injury to brain-Intention to cause
death-Held offence u!s 302134.
C Air Force Act, 1950-Sections 72, 124 and 125-Criminal Procedure
Code, 1973-Section 475-Criminal Courts and Court Martial (Adjustment
of Jurisdiction) Rules, .1952-Jurisdiction of Criminal Court-Accused in
'active service' ofAir Force-Trial for murder case-Option to try such as
accused by a court martial is with Air Force authorities-No option or
D right with accused person to ckzim trial by a particular forum-Inherent
jurisdiction of Criminal Courts to take cognizance of civil offence however
not taken away.
Air Force Act, 1950-Sections 72, 124 and 125-Criminal Procedure
Code, I973-Section 475-Criminal Courts and Court Martial (Adjustment
E of Jurisdiction) Rules, 1952-Member of Air Force in 'active service'-
Trial for murder case-Notice to Air Force Authorities about pendency of
criminal case-No particular form of notice prescribed-Authorities to be
made fully aware ofpendency ofcase against such a member ofthe force.
Air Force Act, 1950-Sections 4 (1), 9, 72, 124 and 125-Notification
F No. S.R.O. 8-E. on 5.12.1962-Active Service-Definition-Can a person
governed by the Act be deemed to. be 'on active service' while on casual
leave-Held, Yes.
The appellants were held guilty of the offence u/s 302/34 IPC and
sentenced to suffer life imprisonment. The complicity of the appellants
G in the crime resulting in the death of the deceased had been
satisfactorily established. The special leave petition has been filed
against the judgment of conviction and sentence as recorded by the
trial court and upheld by the High Court.
The appellants confined their argument to:the nature of the offence
H and tlie sentence and submitted that the offence for which appellant B
422
BALBIR SINGH v. STATE OF PB. 423
could be held guilty of causing only one injury to the deceased would A
not be the one u/s 302/34 IPC but would fall u/s 325/34 IPC.
Concerning the case of the appellant N, it was submitted that his
trial was illegal and vitiated for lack of inherent jurisdiction of the
criminal court to try the accused, who at the relevant time was in the
"active service" of the Air Force and could not, therefore, have been B
tried by the ordinary criminal courts. b was further argued that since
no notice as envisaged by Section 475 Cr. P.C and the Rules framed
thereunder read with Sections 124 and 125 of the Air Force Act, 1950
was given by the criminal court to the Commanding Officer of the Unit
where the appellant was serving, enabling the Air Force Authorities to
exercise their option to try the appellant by the Court Martial, the right C
of the appellant to be tried by Court Martial had been violated,
rendering his conviction and sentence bad in law.
Dismissing the appeal, this Court
D
HELD: 1.1. According to the medical report, the death was caused
by shock and haemorrhage due to the injury to the brain which was
sufficient to cause death in the ordinary course of nature. Indeed, the
death did take place almost 16 days after the occurrence but keeping in
view the testimony of eye witnesses it is obvious that by inflicting the
blows on the head of the deceased theintention of the appellants was to E
cause the death of the deceased and the offence therefore was correctly
found to be one u/s 302/34 IPC. Both the appellants had caused one
blow each with a gandasa on the head, a vital part of the body, of the
deceased and the extent of the damage as disclosed by the doctor is
indicative of the force with which the blows were inflicted. Therefore,
the conviction of B for the offence of murder was rightly recorded by F
the Trial Court and upheld by the High Court. There is no reason to
take a contrary view and the conviction and sentence for the offence u/s
302/34 IPC is upheld. (427-H, 428-A-C)
1.2. Notification No. S.R.O. 8-E issued on 5.12.62 by the G
Government of India in exercise of the powers conferred by. section 9 of
the Air Force Act, declares that whether or not a person is covered by
the definition of 'active service' as spelt out in section 4 (1) of the Act,
they still would be deemed to be so wherever they may be ~serving'.
Rule 9 of the leave rules for Air Force Service specifically states that
casual leave counts as duty except as provided for in Rule 10 (a). It H
l
424 SUPREME COURT REPORTS [1994) SUPP. 5 S.C.R.
A therefore follows that a person subject to the Act would be deemed to
be 'on active service' even when he is on 'casual leave'. (430-D, G)
1.3. A conjoint reading of section 475 Criminal Procedure Code.
Sections 124 and 125 of the Air Force Act and the Rules 3 to 6 of the
Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules,
B 1952, shows that when a criminal court and court. martial have each
jurisdiction in respect of the trial of the offence, it shall be in the
discretion of the· officer commanding the group, wing or station in
which the accused is serving, tO decide before which forum the
proceeding shall be instituted. Thus the option to try a person subject
to the Air Force Act who commits an offence while on "active service"
c is in the first instance with the Air Force authorities. In case, the Air
Force authorities decide either not to try such a person by a court
martial or fail to exercise the option within the period prescribed by
Rule 4 of the 1952 Rules, the accused can be tried by the ordinary
criminal court. An accused person has no option or right to claim trial
D by a particular forum. However, in case of conflict of jurisdiction, the
issue shall be resolved by the Central Government u/s 125 (2) of the Act
and the decision as to the forum of trial by the Central Government in
that eventuality shall be final. (434-E-H, 435-A, G)
1.4. The Criminal Courts are not deprived of their inherent
E jurisdiction to take cognizance of civil offences under the code by any
of the provisions of the Act or Section 475 Cr.P.C. and the rules framed
thereunder. (435-H, 436-A)
Ajit Singh v. State ofPunjab, AIR (1970) P and H 351 (FB); affirmed.
1.5. The object of giving a notice as envisaged by the Air Force Act
F
and the 1952 Rules to the authorities under the Act is to make them
fully aware of the pendency of a criminal case against a member of the
force and to. afford them an opportunity to exercise their discretion of
having the member of the force tried either by the court martial or to
allow the ordinary criminal court to proceed with the trial. Though the
G provisions of the Act and the Code referred to are mandatory in
character in so far as they require that the authorities under the Act
shall be given the first option to decide, no particular form of notice has
been prescribed either under the Act, the Rules or the Code. Whether
or not the authorities have been made fully aware and put on not.ice by
the criminal court to enable them tO exercise their option, would
H depend upon the facts and circumstances of each case. It is the
BALBIR SINGH v. STATE OF PB. 425
substance and not the form of notice which is relevant and important. A
All that the law envisages is that the authorities under the Act must be
made fully aware of the nature of offence, status of the victim and the
pendency of the criminal case against a member of the force on 'active
service'. Where full and complete 'information' is provided to the
authorities, the requirement of law would stand complied with,
irrespective of the fact whether the information was given by way of a B
notice or otherwise. (436-H, 437-A-D)
Superintendent and Remembrance ofLegal Affairs v. Usha Ranjan Roy
Choudhury, AIR (1986) SC 1855, distinguished.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. C
544/93.
(Appeal by special Leave against the Judgment and Order dated the 9th
February, 1993 of the High Court of Punjab ~d Haryana at Chandigarh in
Criminal Appeal No. 107-DB of 1991)
U.R. Lalit and Prem Malhotra for the Appellants. D
Ms. Rupinder Wasu for R.S. Suri for the Respondent.
The Judgment of the Court was delivered by
DR. ANAND, J. Balbir Singh, Major Singh, Nachhattar Singh, Bachan E
Singh and Kabul Singh were convicted by the learned Addi. Sessions Judge
for an offence under Section 302/149 IPC and sentenced to suffer life
imprisonment and to pay a fine of Rs. 2000 each and in default thereof to
undergo further rigorous imprisonment for six months. All the accused
persons were also convicted for an offence under Section 147 IPC and
sentenced to suffer one year's rigorous imprisonment. Major Singh was F
also convicted for an offence under Section 325 IPC and directed to
undergo rigorous imprisonment for two years' and to pay a fine of Rs. 500
and in default thereof to further undergo rigorous imprisonment for 4
months. Balbir Singh, Bachan Singh, Kabul Singh and Nachhattar Singh
were also convicted for an offence under Section 3251149 IPC and
sentenced to suffer rigorous imprisonment for two years' each and to pay a G
fine of Rs. 500 each and in default to suffer 4 months rigorous
imprisonment vide judgment dated 15 .2.1991.
On appeal filed by the convicts against their conviction and sentence,
Balbir Singh and Nachhattar Singh, the appellants herein were held guilty
of the offence under Section 302/34 IPC and sentenced to suffer life H
426 SUPREME COURT REPORTS (1994] SUPP. 5 S.C.R.
A imprisonment and to pay a fine of Rs. 2000 each and in default thereof to
suffer rigorous imprisonment for six months. The conviction and sentence
of Major Singh for the offence under Section 325 IPC was also upheld. The
remaining co-accused of the appellants were acquitted of all the charges.
The conviction and sentence of the appellants for an offence under Section
325/149 IPC was also set aside.
B
On 10.8.1993, the special leave petition in so far as Major Singh is
concerned was not pressed and the same was dismissed. Balbir Singh and
Nachhattar Singh were, however, granted leave.
According to the prosecution case, on 21st May, 1988 at about 6.00
c p.m. the appellants and their co-accused, variously armed attacked Hazara
Singh at about 6.00 p.m. Balbir Singh and Nachhattar Singh were allegedly
armed with a gandasa each while Major Singh was armed with a takwa. The
accused caught hold ofHazara Singh and dragged him towards the house of
the appellants. On his raising noise, his father Pritam Singh and brother
Karamjit Singh were attracted and they rushed to the spot to rescue Hazara
D Singh. Balbir Singh appellant gave a blow with the gandasa hitting Pritam
Singh on the right side of his head: Nachhattar Singh appellant also gave a
gandasa blow on the head of Pritam Singh who then fell down. Major Singh
gave a blow on the head of Hazara Singh and thereafter all the assailants
fled away with their respective weapons. The injured were removed to the
hospital at Ludhiana. Pritam Singh was declared unfit to make a statement.
E He succumbed to his injuries on 31st of May, 1988. The post-mortem on
the dead body of Pritam Singh was conducted by Dr. A. Sahni, who opined
that the death was caused due to injuries to the brain, which were sufficient
in the ordinary course of nature to cause death. Hazara Singh PW7 was
medically examined at the dispensary by Dr. Hari Krishan who found one
lacerated wound on his head. The first information report was recorded on
F the basis of the statement ofHazara Singh PW7 recorded on 22.5.1988. The
prosecution examined a number of witnesses to establish the guilt qf the
accused. The appellants in their statements under Section 313 Cr.P.C.
denied all the circumstances appearing in the prosecution evidence against
them and stated that they had been falsely implicated in the case on acco.unt
of their enemity with Hazara Singh PW7 whom they h~d opposed in the
G
elections for the post of Sarpanch. Nachhattar Singh, appellant pleaded
alibi and stated that at the relevant time he was posted in Tezpur (Assam) at
CPS Security Station Air Force and had got leave in April 1988 for
appearing in the examination of Masters in Physical Education at the
Nagpur University and in that connection he had remained at Dhantoli
H (Nagpur) from 14.4.1988 to 22.5.1988 and had gone back from Nagpur on
BALBIR SINGH v. STATE OF PB. [DR. ANAND, J.] 427
22.5.1988 and joined his Unit at Tezpur (Assam) on 25.5.1988. He further A
· stated that it takes 3 days to reach Dhantoli and another 3 days from
Dhantoli to Tezpur and that on the date of occurrence he was not in the
village. Rajinder Prasha.d Dwivedi DW2 was examined by him in support
of his plea of alibi. Nachhattar Singh also tendered in evidence a copy of
the Degree obtained by him in the discipline of Physical Education.
B
Both the Trial Court and the High Court very minutely considered the
prosecution evidence and critically analysed the same and found that the
prosecution had successfully established the case against the appellants and
Major Singh beyond a reasonable doubt. No infirmity has been pointed out
in the evidence of Hazara Singh and Karamjit Singh PWs before us either.
Our independent analysis of their evidence shows that both Hazara Singh C
and Karamjit Singh are trustworthy and truthful witnesses whose evidence ~
stands corroborated by the other material on the record including the
medical evidence. In our opinion, the complicity of the appellants and
Major Singh in the crime resulting in the death of Pritam Singh has been
satisfactorily established.
D
Mr. U.R. Lalit, the learned senior counsel appearing for Balbir Singh
appellant, faced with the unimpeachable evidence led by the prosecution,
confined his arguments to the nature of the offence and the sentence and
submitted that the offence for which Balbir Singh could be held liable for
causing only one injury to the deceased would not be the one under Section
30/34 IPC but would fall under Section 325/34 IPC and therefore his E
conviction and sentence needs to be modified.
Dr. A. Sahni PW8 had found the following injuries on the dead body of
Pritam Singh.
l. Partially healed wound scar 15 ems long on the right F
fronto parietal region but the wound was open 3 cmll on the
front port.
2. Pareita//y healed wound scar 5 ems long on the right
frontal region 3 ems away from injury no. 1 on the medial
side wound was open in the middle. G
On dissection he found clotted blood on the right fronto parietal region
and part of frontal and parietal bone was missing. According to Dr. Sahni
PW8, the death was caused by shock and haemorrhage due to the injury to
the brain which was sufficient to cause death in the ordinary course of
nature. During the cross-examination, Dr. Shani, PW8 stated that the H
428 SUPREME COURT REPORTS [1994] SUPP. 5 S.C.R.
A depressed fracture is normally caused by a blunt weapon. He went on to say
"it is incorrect to suggest that the injury to the brain was only likely to
cause death and not sufficient to cause death." Indeed, the death did take
place almost 10 days after the occurrence i.e. on 31st May, 1988 but
keeping in view the testimo~y of PW7 Hazara Singh, PWlO Karamjit Singh
and Dr. Sahni PWS, it is obvious that by inflicting the blows on the head of
B the deceased the intention of the. appellants was to cause the death of Pritam
Singh and the offence therefore was correctly found to be one under section
302/34 IPC. Both the appellants had caused one blow each with a gandassa
on the head, a vital part of the body, of the deceased and the extent of
damage· as disclosed by Dr. Sahni PWS is indicative of the force with which
the blows were inflicted. In our opinion, therefore, the conviction of Balbir
c Singh for the offence of murder was rightly recorded by the Trial Court and
upheld by the High Court. We do not find any reason to take a contrary
view and consequently, uphold his conviction and sentence for the offence
under Section 302/34 IPC.
Coming now to the case of Nachhattar Singh, Mr. Poti, the learned
D senior counsel appearing for him submitted that the trial of Nachhattar
Singh was illegal and vitiated for lack of inherent jurisdiction of the
criminal court to try Nachhattar Singh, who at the relevant time was in the
"active service" of the Air Force and could not therefore have been tried by
the ordinary criminal courts. It was argued that since no notice as envisaged
E by Section 475 Cr. P.C. and the Rules framed thereunder read with Sections
124 and 125 of the Air Force Act, 1950 was given by the Criminal Court to
the Commanding Officer of the Unit where the appellant was serving,
enabling the Air Force authorities to exercise their option to try the
appellant by court martial, the right of the appellant to be tried by court
martial had been violated, rendering his conviction and sentence bad in law.
F Though, before the Trial Court no such plea was raised, it appears that this
plea was raised before the High Court and after a detailed discussion, the
High Court found on the facts and circumstances of the case, that no
infirmity was attached to the trial of Nachhattar Singh by the ordinary
criminal court and his conviction and sentence did not call for any
interference.
G
With a view to appreciate the submissions raised by Mr. Poti, it is
necessary to first notice some of the relevant provisions of the Air Force
-Act, 1950 (hereinafter 'the Act'), the provisions of Section 475 of the Code
of Criminal Procedure and Criminal Courts and Court Martial (Adjustment
H of Jurisdiction) Rules, 1952 (hereinafter the '1952 Rules').
BALBIR SINGH v. STATE OF PB. [DR. ANAND, J.] 429
Section 72 of the Air Force Act (which corresponds to Section 70 of A
the Army Act) provides as under:
72. Civil offences not trial by court martial - A person
subject to this Act, who commits an offence of murder
against a person riot subject to military, naval or air force
law, or of culpable homicide not amounting to murder B
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 c
(b) at any place outside India, or
( c) at a frontier post specified by the said Government by
m
notification this behalf.
D
The Section on its plain language, lays down that where a person
subject to the Act is charged with the offences listed therein while on
"active serv.ice" he shall be deemed to be guilty of an offence against the
Act and could be tried by a court martial irrespective of the fact that the
victim is not subject to military, naval or air force law.
E
Section 4 (i) defines Active Service and provides:
4 (i) "active service", as applied to a person subject to this
Act, means the time during which such person -
(a) is attached to, or forms part of, a force which is engaged F
in operations against an enemy, or
(b) is engaged in air force operations in, or is on the line of
march to, a country or place wholly or partly occupied by
an enemy, or
G
(c) is attached to, or forms part of, a force which is in
military occupation of any foreign country;
The above definition, however, is not exhaustive. The Central
Government has the power to enlarge the definition by a declaration issued ·
under Section 9 of the Act. Section 9 reads as follows : H
430 SUPREME COURT REPORTS (1994) SUPP. S S.C.R.
A 9. Power to declare person to be an active service -
Notwithstanding anything contained in Cl. (i) of Sec. 4, the
Central Government may, by notification, declare that any
person or class of persons subject to this Act shall, with
reference to any area in which they may be serving or with
reference to any provision of this Act or of any other law
B for the time being in force, be deemed to be on active
service within the meaning of this Act.
The Government of India in exercise of the powers conferred by
Section 9 issued notification No. S.R.O. 8-E on 5.12.1962 declaring "that
all persons subject to the said Act, shall, wherever they may be serving be
C 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."
Thus, the effect of the notification is that whether or not a person is
covered by the definition of "active service" as spelt out in Section 4 (i) of
the Act they still would be deemed to be so wherever they may be
D "serving". Can a person governed by the Act be deemed to be 'on active
service' while on casual leave? The answer to the question can only be
found by a reference to the leave rules governing the Armed Forces read
with the provisions of the Act.
The Central Government has framed certain rules regarding the
E conditions of leave of the persons subject to Army Act and it would be
profitable to refer to some of the relevant rules dealing with "casual leave".
Relevant portion of Rule 9 of the leave Rules for service provides as
~~= .
"9. Casual leave counts aS duty except as provided for in
F Rule IO (a)." ·
Rule 9 of the Leave Rules (supra} thus specifically states that casual
leave counts as duty except as provided for in Rule IO (a). It therefore
follows that a person subject to the Act would be deemed to be ·"on active
service" even wlten he is on casual leave. Learned counsel for the parties,
G in view of this legal position, did not dispute that the appellant, though on
casual leave, would be deemed to be on 'active service' in view of the
notification dated 5.12.1962 (supra).
The next question that arises for our consideration is as to ·what the
ordinary criminal court is required to do when a person in "active person"
H of the Air.Force is brought, before it for trial for any of the offences listed
BALBIR SINGH v. STATE OF PB. [DR. ANAND, J.] 431
in Section 72 of the Act (supra). It is here that Section 475 Cr.P.C., the A
1952 rules and Section 124 and 125 of the Air Force Act come into
operation. Section 475 Cr.P.C. reads as follows :
475. Delivery to commanding officers of persons liable to
be tried by Court-martial. - (1) The Central Government
may make rules consistent with this Code and the Army B
Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957),
and the Air Force Act, 1950 (45of1950) and any other law,
relating to the Armed Forces of the Union, for the time
being in force, as to cases in which persons subject to
military, naval or air force law, or such other law, shall be
tried by a Court to which this Code applies or by a Court- C
martial; and when any person is brought before a Magistrate
and charged with an offence for which he is liable to be
tried either by a Court to which this Code applied or by a
Court-martial, such Magistrate shall have regard to such
rules, and shall in proper cases deliver him, together with a
statement of the offence of which he is accused, to the D
commanding officer of the unit to which he belongs, or to
the commanding officer of the nearest military, naval or air
force station, as the case may be, for the purpose of being
tried by a Court-martial.
Explanation - In this section - E
(a) "unit" includes a regiment, corps, ship, detachment,
group, battalion or company,
(b) "court-martial" includes any tribunal with the powers
similar to those of a Court-martial constituted under the F
relevant law applicable to the Armed Forces of the Union.
(2) Every Magistrate shall, on receiving a written
application for that purpose by the commanding officer of
any unit or body of soldiers, sailors or airmen stationed or
employed at any such place, use this utmost endeavours to G
apprehend and secure any person accused of such offence.
(3) A High Court may, if it thinks fit, direct that a prisoner
detained in any jail situated within the State be brought
before a Court-martial for trial or to be examined touching
any matter pending before the Court-martial. H
432 SUPREME COURT REPORTS [1994) SUPP. 5 S.C.R.
A Sections 124 and 125 of the Air Force Act provide:
124. Choke between Criminal Code and 'court-martial -
When a criminal court and a court-martial have each
jurisdiction in respect of an offence, it shall be in the
discretion of [the Chief of the Air Staff], the officer
B commanding any group, wing or station in which the
accused prisoner 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 detaµied in air force custody.
c 125. Power of Criminal Court to require delivery of
offender - (I) When a criminal court having jurisdiction is
of opinion that proceedings shall be instituted before itself
in respect of any alleged offence, it may, by written notice,
require the officer referred to in Sec. 124 at his option,
either to deliver over the offender to the nearest Magistrate
D to be proceeded against according to law, or to postpone
proceedings pending a reference to the Central
Government.
(2) In every such case the said officer shall either deliver
over the offender in compliance with the requisition, or
E shall forthwith refer the question as to the Court before
which the proceedings are to be instituted for the
determination of the Central Government whose order upon
such reference shall be final.
Rules 3, 4, 5 and 6 of the Criminal Courts and Court Martial
F ·(Adjustment of Jurisdiction) Rules, 1952 provide :
"3. Where a person...subject to military, naval or air force is
brought before Magistrate and clNlrged 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
G with a view to his commitment for trial by the Court of
Session or the High Court for any offence triable by such
Court, unless - '
(a) he is of opinion, for reasons to be recorded, that he
should so proceed without being moved thereto by
H competent mili~, naval or air force authority, or
BALBIR SINGH v. STATE OF PB. [DR. ANAND, J.] 433
(b) he is moved thereto by such authority. A
4. Before proceeding under Clause (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 of -
(i) three weeks, in the cac;e of a notice given to a B
Commanding Officer in command of a unit or detachment
located in any of the following areas of the hill districts of
the State of Assam, that is to say -
(1) Mizo,
(2) Naga Hills,
c
(3) Garo Hills,
(4) Khasi and Jaintia Hills, and
(5) North Cachar Hills; D
(ii) seven days in the case of a notice given to any other
Commanding Officer in command of a unit or detachment
located 'elsewhere in India, from the date of service of such
notice, he shall not
E
(a) convict or acquit the accused under Section 243, 245,
247 or 248 of the Code of Criminal Procedure 1898 (Act 5
of 1989), or hear him in his defence under Sec. 244 of the
said Code; or
(b) frame in writing a charge against the accused under F
Section 254 of the said Code; or
(c) make an order committing the accused to trial by the
High Court or the Court of Session under S. 213 of the said
Code; or
G
(d) transfer the case for inquiry or trial under Sec. 192 of
the said Code.
5. Where within the period of seven days mentioned in Rule
4, or at any time thereafter before the Magistrate has done
any act or made any order referred to in that rule, the H
'
434 SUPREME COURT REPORTS [1994] SUPP. 5 S.C.R.
A Commanding Officer of the accused or competent military,
naval or air force authority, as the case may be, gives notice
to the Magistrate that in the opinion of such authority, the
accused should be tried by a Court-martial, the Magistrate
shall stay proceedings and if the accused is in his power or
under his control, shall deliver him, with the statement
B prescribed in sub-section (I) of Sec. 549 of the said Code to
the authority specified in the said sub-section.
6. Where a Magistrate has been moved by competent
military, naval or air force authority, as the case may be,
under Cl. (b) of Rule 3, and the Commanding Officer of the
c accused or competent military, naval or air force authority,
as the case may be, subsequently gives notice to such
authority, the accused should be tried by a Court-Martial,
such Magistrate if he has not before receiving such notice
done any act or made any order referred to in Rule 4, shall
stay proceedings and, if the accused is in his power or under
D his control, shall in the like manner deliver him, with the
statement prescribed in sub-section (I) of Sec. 549 of the
said Code to the authority specified in the said sub-section."
A conjoint reading of the above provisions shows that when a criminal
court and court martial have each jurisdiction in respect of the trial of the
E offence, it shall be in the discretion of the officer commanding the group,
wing or station in which the accused is serving or such other officer as may
be prescribed, in the first instance, to decide before which court the
proceedings shall be instituted and ifthat officer decides that they shouid be
instituted before a 'court martial', to direct that the accused persons shall be
detained in air force custody. Thus, the option to try a person subject to the
F Air Force Act who commits an offence while on "active service" is in the
first instance with the Air Force authorities. The criminal court, when such
an accused is brought before it shall not proceed to try such a person or to
inquire with a view to his commitment for trial and shall give a notice to the
commanding officer of the accused, to decide whether they would like to'
try the accused by a court martial or allow the criminal court to proceed
G with the trial. In case, the Air Force authorities decide either not to try such
a person by a _court martial or fail to exercise the option when intimated by
the criminal court within the period prescribed by Rule 4 of the 1952 Rules
(supra), the accused can be tried by the ordinary criminal court in
accordance with the Code of Criminal Procedure. Oh th~ other hand if the
H authorities under the Act opt to try the accused by the 'Court Martial' , the
BALBIR SINGH v. STATE OF PB. [DR. ANAND, J.] 435
criminal court shall direct delivery of the custody of the accused to the A
authorities under the Act and to forward to the authorities a statement of the
offence of which he is accused. It is explicit that the option to try the
accused subject to the Act by a court martial is with the Air Force
authorities and the accused person has no option or right to claim trial by a
particular forum. The option appears to have been left with the Air Force
authorities for good and proper reasons. There may be a variety of B
circumstances which may influence the decision of the Air Force authorities
as to whether the accused be tried by a court martial or by a criminal court.
This Court in Ram Sarup v. Union ofIndia, AIR (1965) SC, 247 opined:
"In short, it is clear that there could be a variety of
circumstances which may influence the decision as to C
whether the offender be tried by a Court-martial or by an
ordinary Criminal Court, and therefore it becomes
inevitable that the discretion to make the choice as to which
Court should try the accused be left to responsible military
officers under whom the accused be serving. Those officers
are to be guided by considerations of the exigencies of the D
. service, maintenance of discipline in the army, speedier
trial, the nature of the offence and the person against whom
the offence is committed."
There appears to be sound logic to give the first option to the
authorities under the Act to decide whether the accused should be tried by E
the Court-Martial or the Criminal Court. The defence of the country being
of paramount importance, the Air Force authorities would know best as to
whether the accused should be tried by the court martial or by the ordinary
criminal court because the trial by the ordinary criminal court would
necessarily involve a member of the force being taken away for trial by the F
ordinary criminal court and not being available to the authorities and the
like considerations. However, in the event the criminal court is of the
opinion, for reasons to be recorded, that instead of giving option to the
authorities under the Act, the said Court should proceed with the trial of the
accused, without being moved by the competent authority under the Act
and the authorities under the Act decide to the contrary, the conflict of G
jurisdiction shall be resolved by the Central Government under Section 125
(2) of the Act and the decision as to the forum of trial by the Central
Government in that eventuality shall be final.
In our opinion, on a construction of the various provisions referred to
above the Criminal Courts are not deprived of their inherent jurisdiction to H .
436 SUPREME COURT REPORTS [1994) SUPP. 5 S.C.R,.
A take cognizance of civil offences under the Code. Before the Full Bench of
the Punjab and Haryana High Court in Ajit Singh v. State of Punjab, AIR
(1970) Pb. and Har., 35l it was argued on behalf of the appellant therein,
who was in 'active service' of the Air Force, that on account of the non-
compliance with the provisions of Section 125 of the Act and Section 549
Cr.P.C. (corresponding to Section 475 of the Code), the committal of the
B appellant and his trial held in pursuance thereof must be held to be without
jurisdiction. The Full Bench repelled the argument and opined:
"No room is left for doubt about the legal position being
that the inherent jurisdiction which a Magistrate has to take
cognizance of civil offences under the Code of Criminal
c Procedure is not taken away by any provisions of the Army
Act (and, therefore, of the Air Force Act), and of Section
549 of the Code of Criminal Procedure and the rules made
thereunder. What those provisions, envisage is concurrent
jurisdiction in the Criminal Courts and the court-martial and
an arrangement for the proper exercise of such jurisdiction
D including, when necessary, a way of resolving a conflict of
jurisdiction........ .
and went on to hold:
that the contention raised on behalf of the appellant that the
E trial was vitiated by lack of jurisdiction in the Magistrate
and the learned Additional Sessions Judge must be rejected
as untenable."
In our opinion, the view of the Full Bench is correct and we agree with
it and hold that the inherent jurisdiction· under which the criminal courts
F have to take cognizance of civil offences is not taken away by any of the
provisions of the Act or Section 475 Cr.P.C. and the rules framed
thereunder.
We are also unable to agree with Mr. Poti, in the facts and
circumstances of this case, that there was any non-compliance with the
G provisions of Sections 124 and 125 of the Air Force Act read with Section
475 Cr.P.C.
The object of giving a notice as envisaged by the Act and the 1952 ·
Rules to the authorities under the Act is to make them fully aware of the
pendency of a criminal case against a member of the force and to afford
H them an opportunity to exercise their discretion of having the member of
BALBIR SINGH v. STATE OF PB. [DR. ANAND, J.] 437
the force tried either by the court-martial or to allow the ordinary criminal A
court to proceed with the trial. Though the provisions of the Act and the
Code referred to ab~ve are mandatory in character in so far as they require
that the authorities under the Act shall be given the first option to decide
whether to try the accused by court martial or allow his trial by the ordinary
criminal court, no particular form of notice has been prescribed either
under the Act, the Rules or the Code. Whether or not the authorities have B
been made fully aware and put on notice by the criminal court to enable
them to exercise their option, would depend upon the facts and
circumstances of each case. It is the substance and not the form of notice
which is relevant and important. All that the law envisages is that the
authorities under the Act must be made fully aware of the nature of the
•
criminal case against a member of the force on 'active service', so that the C
authorities under the Act may exercise their option whether or not to try the
accused by a court martial. Where full and complete "information" is
provided to the authorities, the requirement of law would stand complied
with, irrespective of the fact whether the information was given by way of a
notice or otherwise.
D
In the present case, from the scrutiny of the record of the committing
Court, it transpires that in execution of the warrant of arrest issued by the
committing Magistrate on 28.7.1988, the Air Force authorities had
themselves delivered Nachhattar Singh, appellant to the custody of ASI
Daljit Singh PW15 who had carried the said warrant issued by the
competent Magistrate, for execution on 10.8.1988. PW15 Daljit Singh, ASI E
deposed at the trial that while he was posted at police station Dharamkot in
the month of August, 1988, he had obtained the warrants of arrest of he
appellant and went to Tezpur (Assam) and after obtaining necessary
permission from the Air Force authorities served the warrants on appellant
· Nachhattar Sing. The Air Force authorities then delivered the custody of F
Nachhattar Singh to him and after taking the custody of Nachhattar Singh
from the Air Force authorities, he brought him to police station Dharamkot
on 15.8.1990 to face his trial in the criminal court. There was no challenge
in the cross-examination of PW15 either about the obtaining of the
necessary permission from the Air Force authorities to serve the warrant on
the appellant or about the delivery of the custody of the appellant by the Air G
Force authorities for being taken to police station Dharamkot for trial by the
ordinary criminal courts under the Code. Handing over and taking over
<:ertificate signed by Shri Vijay Prakash, Flying Officer, Station Adjutant
No. 11 Wing, Air Force and by ASI Daljit Singh was placed on the record
before the committing Magistrate. The conduct of the Air Force authorities
· in handing over the custody of the appellant to the police authorities for H
438 SUPREME COURT REPORTS [1994] SUPP. 5 S.C.R.
A being produced before the criminal court for trial, is a clear indication of
the exercise of the option by the Air Force authorities that they did not wish
to detain the appellant in their custody under Section 124 of the Air Force
Act and had opted for the trial of the appell~t by the ordinary criminal
court. This conclusion is reinforced by the fact · that the Commanding
Officer of the Air Force Station, Halwara, had subsequently also sought
B information from the Trial Court with regard to the fate of the case, vide his
letter dated 18.2.1991. The above facts unhesitatingly show that the Air
Force authorities had been made fully aware of the pendency of the
criminal case against a member of the force by the criminal court and had
been afforded adequate· and full opportunity to exercise the option of
having the appellant tried by a court martial. Since, with the full knowledge
c of the pendency of the criminal case against the member of the Air Force,
the authorities had voluntarily delivered the custody of the appellant, for his
trial by the ordinary criminal court, the authorities would be deemed to
have exercised the option of not trying the appellant by a court martial. The
act of the authorities in voluntarily delivering the appellant to the civil
authorities for trial unmistakably show that the Air Force authorities did not
D intend to claim the trial of the appellant by a court martial. It is pertinent to
notice here that the Air Force authorities have made no grievance at any
stage that their right to decide whether or not to try the accused by court
martial had been impinge~ upon by the criminal court in any manner. They
have not questioned the validity of the trial of the appellant by the criminal
court at any forum whatsoever. The right to exercise the option is with the
E authorities and an accused has no right to demand or choose trial by a
particular forum. The authorities under the Act have made no grievance and
the grievance raised by the appellant is untenable. Since, the appellant was
admittedly on leave on the day of the occurrence as deposed to by PW9 G.S
Gill, Warrant Officer, Air Force Station, Halwara and the victims of the
offence were persons not subject to military, air force or naval law, these
F
factors may well have weighed with and persuaded the Air Force
authorities not to opt to try the appellant by court martial and to allow the
criminal court to try him under the Code. We are, therefore, of the opfuion
that in the facts and circumstances of this case that there has been no lack of
compliance with the provisions of the 1952 Rules read with Section 475 of
G the Code and Section 72, 124 and 125 of the Air Force Act, by the Trial
Court and the· trial of the appellant was not in any way vitiated.
The judgment in Superintendent and Remembrancer of Legal Affairs,
West Bengal v. Usha Ranjan Roy Choudhury and another, AIR (1986) SC,
1855, relied upon by the learned counsel for the appellant is clearly
H distinguishable and has no application whatsoever to the facts of the present
BALBIR SINGH v. STATE OF PB. [DR. ANAND, J.] 439
case. In that case three accused persons who were Army Officers were A
charged with offences which fell within the purview of Section 52 of the
Army Act. The said Section deals with the offences in respect of property
and those offences could be tried both by the ordinary criminal courts as
also by the court martial, since both have concurrent jurisdiction. The
offence under Section 52 of the Army Act is not analogous to the offences
falling under Section 72 of the Air Force Act. The Army authorities in that B
case had only requested for inwstigation to be made by the civil police.
After the investigation was complete, the criminal court proceeded to try
the case without giving option to the Army authorities as is envisaged by
Rules 3 and 4 of the 1952 Rules to exercise their option. This Court found
that the action of the Army authorities in calling for a detailed police report
at the investigation stage could not amount to the authorities under the Act C
exercising the option not to try the accused by the court martial and the
Army authorities could not be said to have voluntarily abandoned their
option to try the accused in court martial. Moreover, in Usha Ranjan Roy
Choudhury's case (supra) unlike the facts of the present case, the Army
authorities had not handed over the custody of the accused to the civil
authorities in execution of any warrant of arrest issued by the criminal court D
in that case for trial nor did the authorities keep a track of the trial of the
accused by the criminal court. That judgment therefore which was rendered
in the peculiar facts of that case does not advance the case of the appellant
at all and is clearly distinguishable.
In view of the aforesaid discussion, we find that the conviction and E
sentence of the appellant are not vitiated for the alleged lack of jurisdiction
of the criminal court to try the appellant, as urged by the learned counsel
for the appellant.
So far as the m~rits of the case are concerned, we agree with the
findings recorded by the Trial Court and the High Court with regard to the F
complicity of the appellant Nachhattar Singh in the crime and are of the
opinion that his conviction and sentence under Section 302/34 IPC are well
merited.
As a result .of the above discussion, the appeal fails and is hereby G
dismissed.
A.G. Appeal dismissed.
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