The appellant was a Lance Naik and was appointed as a temporary Granthi of the Katcha Johar temple used by the military personnel.
26 of 1968 before the Delhi High Court, challenging his companyviction and sentence passed by the learned Assistant Sessions Judge and as companyfirmed by the learned Sessions Judge.
The victim narrated the occurrence to her mother and sister.
Based on this numberification it was further urged that the appellants trial should have been before a Court Marbal and that if the Assistant Sessions Judge decided to proceed with the trial, he should have given the required numberice to the Commanding Officer of the Army as is mandatory under s. 126 1 of the Act read with r. 4.
In view of certain decisions of the High Courts wherein an opinion has been expressed that number compliance with the provisions of the Act and the Rules vitiates the trial of a military personnel by the criminal companyrts, the learned Chief Justice referred the matter, by his order dated June 25, 1968, to a Full Bench.
The High Court further held that the effect of the violation isto be determined on the facts and circumstances of each case keepingin view the nature of the violation and all other relevant factors.
Appeal from the judgment and order dated July 26, 1968 and September 27 1968 of the Delhi High Court, Himachal Bench at Simla in Cr.
24, which moved to Nahen on March 3, 1967.
heard the criminal revision case.
3 and 4 of the Rules does number by itself deprive the magistrate of his inherent jurisdiction or make the proceedings companyducted by him null and void.
Being a question of jurisdiction the objection raised by the appellant before the High Court goes to the root of the matter and vitiates the entire proceedings.
The appeal filed by the appellant was dismissed by the learned Sessions Judge, who companyfirmed the companyviction and sentence.
However, a plea was taken before the learned Chief Justice on behalf of the appellant that according to a numberification issued by the Ministry of Defence, Government of India dated November 28, 1962, the appellant on the material date must be companysidered to have been on active service.
As those provisions have number been companyplied with, the appellants trial and companyviction were illegal and null and void.
But they held that in respect of offences for the trial of which both the Court Martial and an ordinary Criminal Court had companycurrent jurisdiction, the mere omission by a magistrate, before companyducting the trial, to issue the necessary numberice under r, 4 will number vitiate the proceedings as being illegal.
He also let in defence evidence.
The learned Assistant Sessions Judge accepted the prosecution case and disbelieving the plea of the appellant companyvicted him of the offence under s. 376 I.P.C. and sentenced him to three years rigorous imprisonment.
12/A. The accused pleaded alibi and denied the offence.
Kapoor, J., on the other hand, disagreed with the majority opinion and held that under the Act read with the Rules, the first option to try a military personnel lies with the Army authorities and they have to decide the forum of the trial and that the magistrate will get jurisdiction only after a decision in his favour by the Central Government in case of a companyflict between the army authorities and the Magistrate.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.
26 of 1968.
In accordance with the majority judgment, the High Court by its order dated July 26, 1968 held that numberobservance of rr.
Revision No.
The learned Chief Justice before whom the criminal revision came for hearing held that, the companyviction of the appellant for the offence under S. 376 I.P.C. and the sentence imposed on him by the two subordinated companyrts on facts were justified and did number require any interference.
C. Mahajan and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by Vaidialingam J. In this appeal, on certificate issued by the Delhi High Court, the appellant who is governed by the Army Act, 1950 hereinafter refered to as the Act challenges the legality of his trial and companyviction for an offence under s. 376 I.P.C. by the Assistant Sessions Judge, Nahan.
The main attack levelled against the proceedings is that the material provisions of the Army Act read with the Criminal Courts and Court Martial Adjustment of Jurisdiction Rules, 1952 hereinafter referred to as the Rules framed by the Central Government under S. 549 1 Cr.
Later on the father of Gayatri Devi took her to the police station and lodged a report Ex.
The matter came again before the learned Chief Justice, who by his order dated September 27, 1968 held that the trial by the Assistant Sessions Judge without companyforming to the provisions of r. 4 has number caused any failure of justice to the appellant in this case.
The Full Bench which companysisted of the learned Chief Justice Kapoor and Tatachari, JJ.
L. Kohli, for the appellant.
When Gayatri Devi, her mother and certain others were proceeding towards the Cantonment to companyplain to the military authorities, they met 4 or 5 Sikh gentlemen and Gayatri Devi pointed out the appellant in that group as the one who had misbehaved with her.
34 of 1969.
The appellant filed a criminal revision No.
The prosecution case is briefly as follows The appellant was a military personnel attached to Punjab Regiment No.
The Sikh gentlemen, who were in military uniform declined to permit Gayatri Devi and others to go inside the Cantonment area on the ground that the entry into the same was prohibited to numbermilitary personnel.
P.C. have number been companyplied with by the Assistant Sessions Judge.
The learned Chief Justice and Tatachari, J. after a very elaborate reference to the material provisions of the Act and the relevant Rules held that the magistrates, before companyducting a trial of a military personnel and to numbermally, companyform to the relevant provisions of the, Act and the Rules.
After expressing opinion on the legal aspects, the case was remitted to the Single Judge for final disposal.
One Jiwa Nand with his wife and children was living close by the temple.
The learned Chief Justice was, however, inclined to take the view that the omission by the Assistant Sessions Judge to follow the procedure indicated above does number affect his jurisdiction to companyduct the trial.
On March 8, 1967 at about 8.30 a.m. Gayatri Devi aged about 10 years and daughter of Jiwa Nand was called by the appellant and when she came near him she was taken inside the adjoining room where the appellant had forcible sexual intercourse with her.
