1. The petitioner in this criminal revision preferred a complaint to the City Magistrate at Srinagar against five persons enrolled under and subject to the Indian Army Act accusing them of offences under Ss. 392, 448 and 506 of the Ranbir P.C which is in force in this State. After recording the statement of the complainant, the Magistrate issued process to the accused persons in respect of the offences under the aforesaid sections. This led the Officer Commanding West Station to address a letter dated 10-7-1959 to the Magistrate pointing out that the accused persons being military personnel could not be tried by a civil court unless the army authorities agreed to it. Some further correspondence ensued between the army authorities on the one hand and the Magistrate on the other. Eventually, the Magistrate held as follows:

“As the army authorities have undertaken to deal with the case therefore in view of Section 125 of Indian Army Act and Section 69 of the Jammu and Kashmir Army Act I need not proceed with the case. The military authorities be informed of this order with the direction that the accused persons will be tried for the offences under Ss. 392, 448 and 506 R.P.C by the court-martial. A copy of this order along with a copy of the complaint be sent to the Officer Commanding W. Station C/o 56 APO. The file be consigned to records”.

2. The complainant took the matter in revision to the Sessions Judge Srinagar who confirmed the order of the Magistrate. She has, therefore, come up to this court in further revision for redress. The learned counsel for the petitioner-complainant has strenuously urged that the Magistrate misled himself by relying upon Section 69 of the Jammu and Kashmir Army Act which is no longer in force. This contention is clearly correct. But it is far too inadequate to enable me to hold that the order passed by the Magistrate and confirmed by the Sessions Judge is erroneous in law. The Magistrate relied upon Section 125 of the Army Act, 1950, Central Act XLVI of 1950 (hereinafter referred to as the Act) which reads:

“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 commdanding the army, army corps, 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 person shall be detained in military custody”.

3. It is this section which apparently constituted the basis for the communication dated 10-7-1959 addressed by the Officer Commaning W. Station to the City Magistrate Srinagar. This communication claimed that military personnel could not be tried by the Magistrate unless the army authorities agreed to it. This cannot be said to be quite an accurate statement of the true scope and effect of S. 125. It is, however, not necessary to pursue this aspect of the matter in view of the important legal contention raised on either side.

4. The learned counsel for the complainant has contended that the provisions of S. 69 of the Act are not applicable to any criminal court in the State of Jammu and Kashmir. This contention is built upon the definition of ‘civil offence’ in S. 3(ii) and “criminal court” in S. 3(viii) of the Act. It will be useful to reproduce these definitions:

5. Section 3(ii): “Civil offence” means an offence which is triable by a criminal court.

6. Section 3(viii): “Criminal Court” means a court of ordinary criminal justice in any part of India, other than the State of Jammu and Kashmir.

7. The argument is that as “civil offence” is defined as one triable by a criminal court and as a criminal Court situate in the State of Jammu and Kashmir is not a “criminal court” within the meaning of S. 3(ii), an offence triable by a court of criminal justice in the State of Jammu and Kashmir is not a ‘civil offence’ as defined in the Act. This line of reasoning has led to the claim that S. 69 which deals with the commission of “civil offence” does not have operation so far as courts of criminal justice in the State of Jammu and Kashmir are concerned. Further support for the plea is sought from the Explanation to S. 70 of the Act which runs:

“In this section and in S. 69, “India” does not include the State of Jammu and Kashmir”.

8. It is frankly admitted that the unmistakable result of acceptance of this interpretation of the provisions of the Act will be to enable the courts of criminal justice in the State of Jammu and Kashmir to try the officers and men of the Indian Army for all offences under the Ranbir P.C and other penal statutes of the State without being affected in any manner by the provisions of the Act. This will be a drastic result. This apart, I think the reasoning which has prompted the arguments already adverted to, is unsound. No doubt, the Explanation to S. 70 of the Act excludes the State of Jammu and Kashmir from “India” for purposes of Ss. 69 and 70. We are not concerned with S. 70 in the case on hand. We need only see how the Explanation affects S. 69. The relevant portion of this section is as follows:

“Subject to the provisions of S. 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 against this Act and, if charged therewith under this section, shall be liable to be tried by a court-martial”.

9. As the expression ‘India’ in this section excludes the State of Jammu and Kashmir, a ‘civil offence’ committed in the State of Jammu and Kashmir will for the purpose of this section be an offence committed ‘beyond India’. This position does not, however, afford any valid foundation upon which the aforesaid contentions on behalf of the petitioner can properly rest We, therefore, have to ascertain the precise scope and the true interpretation of the definition of the expressions “civil offence” “criminal court” and “offence”. A ‘criminal court’ is defined as a court of ordinary criminal justice in any part of India other than the State of Jammu and Kashmir.

10. A ‘civil offence’ is one which is triable by a “Criminal Court”. “Offence” is defined in S. 3(xvii) as meaning “any act or omission punishable under this Act and includes a civil offence as hereinbefore defined”. A true interpretation of these three definitions read together appears to be that any act or omission which is triable by any court of ordinary criminal justice in any part of India outside the State of Jammu and Kashmir is a ‘civil offence’ within the meaning of the Act. A particular act or omission may or may not be an offence in the State of Jammu and Kashmir. But that is not the test for deciding whether it is a ‘civil offence’ as defined in the Act.

11. The true criterion is whether the act or omission constitutes an offence triable by any court of ordinary criminal justice in any part of India other than the State of Jammu and Kashmir. If it is triable by such a court of criminal justice it will be a ‘civil offence’ within the meaning of the Act. In this connection it has to be borne in mind that a ‘civil offence’ is defined in the Act can be committed not only in India but also beyond India. To illustrate: Suppose an officer of the Indian army serving, say in Cairo commits an offence which is punishable under the law in force in Cairo and suppose further that the act or omission which constitutes the offence in Cairo is not an offence triable in India by a criminal court outside the Jammu and Kashmir State. Then, the Indian army officer cannot be said to have committed a ‘civil offence’ as defined in the Act.

12. But if the act or omission committed beyond India constitutes an offence punishable by a court of ordinary criminal justice in any part of India other than the State of Jammu and Kashmir, it will be a clear instance of a ‘civil offence’ having been committed. The crucial test to determine whether or not a particular act or omission is a ‘civil offence’ as defined in the Act is therefore to ask whether that act or omission is triable by a ‘criminal court’ which means a court of ordinary criminal justice in any part of India other than the State of Jammu and Kashmir.

13. If the answer is in the affirmative, the act or omission is a ‘civil offence’ and if the answer is in the negative, the act or omission is not a ‘civil offence’. I must reiterate that it is immaterial whether the act or omission constituted or did not constitute an offence at the place outside India where it was committed. It is equally irrelevant to consider whether or not a court of ordinary criminal justice in, that place beyond India where the act or omission took place could, under the law in force there, try the person who was responsible for the act or omission.

14. Applying the above propositions to the instant case, I find it extremely difficult to hold that the respondents are not accused of a ‘civil offence’ as defined in the Act. No doubt, the offences mentioned in the petitioner's complaint in respect of which process was issued to the respondents are those which fall under Ss. 392, 448 and 506 of the Ranbir P.C But these sections are only a verbatim reproduction of the corresponding sections of the Indian Penal Code which is in force in the whole of India except the State of Jammu and Kashmir. If these offences had been committed, say, in Uttar Pradesh, they would have been triable by a court of ordinary criminal justice situate in Uttar Pradesh. Therefore, the acts complained of by the petitioner are offences triable by a criminal court in a part of India other than the State of Jammu and Kashmir.

15. This is sufficient to consitute the acts “civil offences” within the intendment of the Act. Suck civil offences could be committed, as I already stated, in India as well as beyond India. The mere circumstance that the acts which constitute the offences in the present case have allegedly been committed in the State of Jammu and Kashmir which must be deemed to be beyond India so far as the application of S. 69 of the Act is concerned does not afford even a semblance of justification for holding that ‘civil offences’ within the meaning of S. 69 of the Act have not been alleged to be committed by the accused persons.

16. I, therefore, hold that the complaint of the petitioner discloses that the accused persons have-committed ‘civil offences’ under the Act. And if a person subject to the Act commits a ‘civil offence’ he shall, by virtue of S. 69 of the Act, be deemed to be guilty of an offence against the Act, and if charged under that section, shall be liable to be tried by a court-martial. The position, therefore, is that the offences complained of can be tried by a court of ordinary criminal justice in the State of Jammu and Kashmir, and if the accused persons are charged with those offences under S. 69 of the Act, they will be liable to be tried by a court-martial. There is no express provision in the Act which ousts the jurisdiction and forbids the ordinary criminal courts to try offences committed by persons subject to the Act.

17. But S. 125 of the Act does vest a discretion in the Officer Commanding the concerned corps, brigade or Division in which the accused person is serving to decide whether proceedings should be instituted-before a criminal court or before a court-martial. There is little difficulty in applying this provision to any part of India other than the State of Jammu and Kashmir. But when it comes to the State of Jammu and Kashmir, one is confronted with the definition of ‘criminal court’ in the Act and as it excludes a court of criminal justice situate in the State of Jammu and Kashmir, S. 125 of the Act cannot, in my opinion, apply when a court of criminal justice in this State has jurisdiction to try the offence.

18. But this does not mean that courts of ordinary criminal justice in this State have unqualified power and authority to try ‘civil offences’ committed by Army personnel within the State, in spite of the admitted fact that the provisions of S. 69 of the Act apply to this State also. Section 549 of the Cr PC in force in the State of Jammu and Kashmir and the rules framed under that section show a way out of what could otherwise be characterised as a somewhat unique situation. Rules (1) and (2) made under S. 549 are as follows:

“(1) Where a person subject to Military law is brought before a Magistrate and charged with an offence for which he is liable under the Military law, 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 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 competent Military authority, or

(b) he is moved thereto by such authority.

(2) Before proceeding under Rule 1, cl. (a), the Magistrate shall give notice to the Commanding Officer of the accused, and, until the expiry of a period of five days from the date of the service of such notice, he shall not—

(a) acquit or convict the accused under Ss. 243, 245, 247 or 248 of the Cr PC, or hear him in his defence under S. 244, or

(b) frame in writing a charge against the accused under S. 254; or

(c) make an order committing the accused for trial by the High Court or the Court of Session under S. 231; or”.

19. And Rule (3) states that

“Where within the period of five days mentioned in R. (2) or at any time thereafter before the Magistrate has done any act or issued any order referred to in Rule 2, clauses (a) to (c) the Commanding Officer of the accused gives notice to the Magistrate that, in the opinion of competent Military authority, the accused should be tried by a court-martial, the Magistrate shall stay proceedings…..”.

20. Although the earlier communications addressed by Military authorities to the Magistrate cannot reasonably be construed to fall under Rule (3), a notice squarely falling under this rule has been placed before me by the Officer Commanding the accused persons. This notice states that in the opinion of the competent military authority the accused persons should be tried by a court-martial as evisaged by Rule (3), and that, therefore, the proceedings instituted in the court of the City Magistrate may be stayed. I am clearly of opinion that this notice must be acted upon.

21. The learned counsel for the petitioner has, however, urged that the notice does not expressly state that the respondents have been charged with the offences under S. 69 of the Act and that their liability to be tried by a court-martial will arise only if they are so charged. I am inclined to agree with the proposition that their liability under S. 69 to be tried by a court-martial will arise only when they are charged with “civil offences” under that section. But the notice under R. (3) to which I already adverted states that the competent military authority has arrived at the opinion that the respondents should be tried by a court-martial.

22. This statement by necessary implication shows that preliminary steps sufficient to lead to a decision on the part of the competent military authority that the persons in question should be tried by a court-martial have been taken. It is obvious that such a decision cannot possibly be taken against them without their being first accused of the offences. One cannot imagine that the decision to be tried by a court-martial was arrvied at without even levelling an accusation against the respondents. Section 69 does not contemplate the formulation in technical form and precise terms of the charges to be tried by the court-martial. The framing of formal charges is to come later when the persons are actually put up for trial before the court-martial. For the purpose of S. 69 it is sufficient if the persons are accused of offences at the earlier stage which precedes their being sent for trial to the court-martial. That this has been done can well and reasonably be gathered from the terms and language of the notice under Rule (3). The respondents are, therefore, liable to be tried by a court-martial as contemplated by S. 69 of the Act.

23. Lastly, it is pointed out on behalf of the petitioner that the Army authorities may refrain from committing the respondents to a court-martial for trial and thereby allow them to go scot free. This submission is as unfortunate as it is uncharitable. It is wholly wrong to attempt to cast doubts on the bona fides, sense of justice and fair play of Military authorities. The Parliament has, in its wisdom, entrusted them with certain powers and duties and charged them with certain responsibilities. They must be trusted to exercise those powers properly, to discharge those duties honourably add to carry out those responsibilities creditably. I am not able to see even a vestige of justification to apprehend any deliberate lapse or intentional omission on their part Besides, the provisions of the Act are not in the least intended to throw any special protection around a person who has committed an offence; on the contrary, they are conceived to bring the offender speedily to justice. It follows from the foregoing that the proceedings before the City Magistrate Srinagar should be stayed. The order already passed by the City Magistrate is more or less to this effect. In order to place it beyond the pale of doubt, that order is hereby modified as one staying the proceedings before him. Subject to this modification, the revision is dismissed.

HD/D.H.Z

24. Revision dismissed.