Jammu & Kashmir High Court – Srinagar Bench
P. K. Sehrawat Age 43 Years vs Union Territory Of Jammu & Kashmir on 27 November, 2024
Author: Justicejaved Iqbal Wani
Bench: Justicejaved Iqbal Wani
Page 1 of 33
Sr. No. 02
Supplementary list
IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 06.11.2024.
Pronounced on 27.11.2024
CRM(M) 562/2024
C/W
Bail App 105/2024
CRM(M) 643/2024
P. K. SEHRAWAT age 43 years ...Appellant(s)/Petitioner(s)
S/O R. S. Sehrawat
R/O Air Force Station, Srinagar.
Through: Mr. Z. A. Shah, Sr. Advocate with
Mr. Surjeet Singh, Advocate
Mr. Khowaja Siddiqui, Advocate.
Mr. J.K. Khera, Advocate.
Mr. Sohail Khan, Advocate.
Vs.
1. Union Territory of Jammu & Kashmir, ...Respondent(s)
through Station House Officer,
Police Station Budgam
2. Fg. OFFR XXX
37086-G EDN
C/O Air Station Srinagar Budgam
Through: Mr. Mohsin Qadri, Sr. AAG
with Mr. Zahid Qais Noor, GA for R-1
MS. Ayeshia, Advocate. For R-2.
CRM(M) 643/2024
Union of India, Ministry of Defence ...Petitioner(s)
through Air Cmde AOC 1
Wing Air Force Station,
Srinagar C/O 56 APO
Through: Mr. T. M. Shamsi, DSGI with
Mr. Faizan Ahmad Ganie, Advocate.
Vs.
1. UT of J & K through...Respondent(s)
Principal Secretary
Home Department, J & K Civil Secretariat, Srinagar.
2. Inspector General of Police, Kashmir Srinagar.
3. Sr. Superintendent of Police, Budgam
SHO Police Station Budgam.
4. XYZ
5. Wingh Commander PK Sehrawat, S/O R.S. Sehrawat,
R/O Air Force Station, Srinagar ....Respondent(s)
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Through: Mr. Mohsin S. Qadri, Sr. AAG with
Mr. Mr. Zahid Qais Noor, GA, for R-1 to 3
Ms. Ayeshia, Advocate, for R-4
Mr. Z. A. Shah, Sr. Advocate with
Mr. Surjeet Singh, Adv, for R-5.
CORAM:
HON'BLE MR. JUSTICEJAVED IQBAL WANI, JUDGE
JUDGMENT
The instant petitions arise from a common incident of alleged sexual assault
by P.K. Sehrawat, petitioner in CRM(M) 562/2024 and respondent 5 in
CRM(M) 643/2024 against respondent 2 in CRM(M) 562/2024 and
respondent 4 in CRM(M) 643/2024.
CRM(M) 562/2024
Facts
1. On a complaint filed by respondent 2 herein, FIR No. 0370/2024 (For short
“the impugned FIR”)came to be registered on 08.09.2024 at Police Station
Budgam against the petitioner herein for commission of offence punishable
under Section 376 (2) of the Indian Penal Code 1860, which is being
impugned by the petitioner herein in the instant petition while invoking
inherent power of this Court enshrined in Section 528 of BNSS.
2. The petitioner herein has pleaded in the instant petition that he came across
with the respondent 2 herein in the year 2023 and upon noticing her
professional conduct, pointed out to the various mistakes on several
occasions stating further that on 23.01.2024 the respondent 2 herein filed a
false and frivolous complaint of sexual harassment against the petitioner
herein before the authorities of the Air Force, whereupon, a Court of
Inquiry came to be constituted for enquiring into the said complaint vide
SRO No. 08/2024 dated 25.01.2024 and that the filing of the said complaint
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came to the knowledge of the petitioner herein on 26.01.2024, whereafter,
the petitioner came to be summoned by the Court of Inquiry on 29.01.2024
in which Court of Inquiry, the respondent 2 herein made a statement, which
statement was neither coherent nor made any sense pointing towards the
artificiality of the allegations in the complaint which were also noticed in
the said Court of Inquiry, and, according to the petitioner herein this forced
the respondent 2 herein to fabricate a protest and seek quashment of the
proceedings on the ground of violation of Regulation 788 (a) of the
Regulations of the Air Force and that the said proceedings of the Court of
Inquiry came to be cancelled vide SRO 10/2024 and on the very same date,
petitioner herein was removed from the President Mess Committee duties.
3. It has also been pleaded by the petitioner herein that he was informed that a
new Internal Committee has been constituted by the Competent Authority
upon the demand of the respondent 2 herein, whereupon, the petitioner
herein came to be called upon to file a statement to the fresh, improved and
a back dated complaint filed by the respondent 2 herein after a delay of 20
days and the said Internal Committee after considering the statement of the
parties and their respective witnesses recorded a finding in its report dated
15.05.2024 that the allegations against the petitioner herein had not been
established, and, therefore, the Internal Committee was of the opinion that
the subject matter remains inconclusive and not proven against the
petitioner herein and no action thereupon was required to be taken in the
matter.
4. The petitioner has also pleaded that after a period of 3 months of the
conclusion of the proceedings of the said Internal Committee, the impugned
FIR came to be registered against the petitioner herein at the instance of the
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respondent 2 herein on the same set of allegations as were looked into
earlier by the Court of Inquiry and Internal Committee.
5. The petitioner herein while maintaining the instant petition has urged
following grounds of challenge against the impugned FIR:-
a. That it is pertinent to mention here that the Petitioner has
not committed any such offence as alleged in the FIR and
the present FIR deserves to be quashed.
b. That all the allegations leveled against the Petitioner as
mentioned in the above-mentioned FIR registered by the
Respondent NO.2, are false and frivolous, the Petitioner
herein has neither committed is nor related with the
commission of offences as mentioned in the FIR, as
mentioned above.
c. That once the Concerned Authority initiates inquiry, the
Criminal Court then have no jurisdiction to try and
investigate the Civil offences as mentioned in Section 71
and 72 Of the Air Force Act, 1950 more specifically
section 71 as the complainant and the proposed accused
are subject to Air force Act, 1952 .
d. That the Hon’ble High Courts in number of judgments
have given a finding that the jurisdiction to try civil
offences has also been conferred on the Court Marshall
Of Concerned Authority, in View Of the and exigencies
known to the Armed Forces. The IC in the present case
had the jurisdiction to try and decide the present
complaint and the findings will be binding on the subject
concerns of the particular inquiry.
e. That as per Section 72 of the Air Force Act, 1950 (“Act”)
which states that any offences pertaining to murder, rape
or culpable homicide not amounting to murder, committed
by any member Of the Air Force on Active Service can be
tried by “Court martial” under the Act.
f. That as per Section 124, it is worthwhile to extract those
provisions below: “Section 124. Choice between criminal
court and court- martial” “When a criminal court and a
Page 5 of 33court martial have each jurisdiction in respect of an
offence, it shall be in the discretion Of [the Chief Of the
Air Stan, the officer commanding any group, wing or
station in which the accused prisoner is serving of 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 a court-
martial, to direct that the accused person shall be
detained in Air force custody.”
g. That as per Section 124 of the Act, the officer
commanding any wing, group or station have jurisdiction
to try offences relating to civil offences.
h. That as per Section 125 of the Act, the Criminal
Courts/PoIice can only assume jurisdiction to try offences
mentioned under Section 72 of the Act only after giving a
written notice to the concerned authority Of the Air Force.
i. That the Criminal Court and Competent Authority under
the Act have concurrent jurisdiction to try offences under
Section 72 of the Act, however, if the Competent Authority
has the trial/proceedings and has come to a finding, then
the Criminal Court have no jurisdiction or power to try and
entertain the same.
j. That if any offence is committed against a person who is
also subject Of the Military, Navy and Air Force then the
Court Martial cannot excluded from exercising his 13
option to assume jurisdiction. In the present case
Petitioner is also a subject of Air Force and hence, the
Court Martial has the jurisdiction to try the present matter.
k. That the Hon’ble High Court has stated that “Though the
system of Court Martial appears to be an in-house
mechanism, proceedings before the Court Martial are not
mere disciplinary præeedings but they are akin to criminal
proceedings before a regular Criminal Court and hence
the Court Martial has been conferred with the power of a
Session Judge”.
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l. That in Som Dat Datta vs Union Of India and Others
(AIR 1969 SC 414) States that’s once an option under
section 124 is exercised there is no necessity to continue
or complete investigation by the Police and hence an
order should be passed that the police shall not continue
the investigation unless it is expressly desired by the
Competent Authority. In the present case, the Competent
Authority have undertaken the investigation and after
considering the facts, evidences and the witness have
come to a conclusion/findings and therefore, the Police
investigation is not required.
m. That the present FIR is nothing but an act Of animus and
vengeance against the Petitioner as the Respondent No.2
has improper conduct and the Petitioner being PMC had
rightly corrected her indisciplined conduct.
n. That the complaint by Respondent No. 2 is motivated
from her own dismal record of service and likelihood Of
serious disciplinary actions initiated against her in other
on disciplinary matters.
6. The respondents herein have filed reply to the petition wherein the petition
has been opposed.
7. In the objections filed respondent 1 herein, it has been averred that on
08.09.2024, the complainant respondent 2 herein approached the Police
Post Humhama along with a complaint alleging therein that during the
intervening night of 31.12.2023/01.01.2024, she was raped by the
petitioner herein at 01 Wing Air Force Station Srinagar, after the
culmination of New Year celebration party, having stated further in the
complaint that the matter was brought in the notice of the senior officers of
the Air Force Station Srinagar, and a Court of Inquiry was ordered followed
by an Inquiry by an Internal Committee against the petitioner herein,
however, nothing concrete came out of the said enquiries and consequently
both were closed on frivolous grounds.
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It is further stated in the objections that upon the receipt of the
complaint, the FIR under challenge came to be registered at Police Station
Budgam, and, in view of the sensitivity of the case, a Special Investigation
Team headed by Additional Superintendent of Police Budgam was
constituted and entrusted with the investigation of the case and during the
course of investigation the petitioner herein has been found involved in the
heinous crime of rape and that the petitioner herein is trying to mislead the
Court by referring to the provisions of Sections 71, 72 and 124 of the Air
Force Act 1950.
8. In the objections filed by the respondent 2 herein, the petition has been
opposed, inter alia, on the premise that the answering respondent herein got
the impugned FIR registered qua the commission of offence of rape
committed by the petitioner herein against her after nothing concrete came
out in two inquiries conducted by the Senior Officers of the Air Force
Station Srinagar, stating further that the FIR under challenge is detailed and
graphically explaining the incident of rape as it occurred with the answering
respondent on the intervening night of 31.12.2023/01.01.2024, and, upon
taking up the investigation in the matter, by the police, the statement of the
answering respondent came to be got recorded before a Magistrate by the
Investigating Agency in terms of Section 183 BNSS 2023 and that the
offence committed by the petitioner herein was initially confided in two
lady officers immediately upon its commission by the answering respondent
and that the Court of Inquiry proceedings were cancelled only after two
days of its commencement on account of gross procedural lapses,
whereupon, another inquiry was undertaken by the Internal Committee
upon a fresh application filed by the answering respondent herein and the
said Internal Committee opined on 14.05.2024 that the occurrence or non-
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occurrence of the alleged incident cannot be confirmed, against which
opinion, the answering respondent filed a representation which
representation was not considered and instead complete lack of propriety
came to be shown by the Internal Committee during the conduct of its
proceedings, especially hasteful recommendations came to be made by it
contrary to the findings given on the next date i.e. 15.04.2024, without
considering the representation of the answering respondent, leaving no
option available to the answering respondent except to seek lodgment of an
FIR in the matter against the petitioner herein.
Lastly in the objections filed by the respondent 2 herein, the grounds
urged in the petition have been opposed and consequently the dismissal of
the petition is sought.
Heard learned counsel for the parties and perused the material on
record including the CD file produced by the Investigating Agency.
9. It is significant to mention here that notwithstanding more than ten grounds
of challenge urged in the petition by the petitioner herein, Mr. Z. A. Shah
Senior Advocate, appearing counsel for the petitioner herein restricted his
arguments to the grounds enumerated in Section 528 of BNSS for its
exercise being “to give effect to any order under the Sanhita, to prevent
abuse of the process of any Court and to secure the ends of justice”.
In addition thereto, Mr. Shah would also urge the application of the
provisions of Section 124 of the Air Force Act 1950 to the matter and
would seek transfer of the investigation in the FIR under challenge along
with the instant matter to the jurisdiction of the authorities under the Air
Force Act 1950.
10. In so far as the contention of Mr. Shah qua the application of Section 124 of
the Act of 1950 to the case in hand is concerned, same would be dealt later
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while considering CRM(M) No: 643/2024 wherein application of Section
124 supra is the central and core issue.
11. The gist of the arguments put forth by Mr. Shah insofar as the instant
petition is concerned is that in view of the findings recorded by the Court of
Inquiry and Internal Committee in the matter, the registration of impugned
FIR is an abuse of process of Court and, thus, needs to be quashed in order
to secure the ends of justice, in that complaint filed by respondent 2 herein
which resulted in the registration of the impugned FIR was actuated with
mala fides as the conduct of the respondent 2 herein was such so as to make
her liable to disciplinary action, and, in order to shift attention of superiors
from her conduct and to prevent any adverse order vis-à-vis her service, the
impugned FIR came to be got registered by the respondent 2 herein which
is false much like the previous complaints filed by the respondent 2 herein
before the Court of Inquiry and the Internal Committee.
12. It is pertinent to note here that while considering the instant matter at its
threshold, this Court vide order dated 12.09.2024 directed that the
investigation shall continue pursuant to the impugned FIR, however, the
charge-sheet shall not be filed.
13. As has been noticed in the preceding para pursuant to the order dated
12.09.2024 supra passed by this Court, the police has conducted
investigation in the FIR and perusal of the CD file tends to show that same
seems to be nearing completion.
14. Before proceeding further in the matter for the purposes of rendering a
decision on the merits of the case, it would be appropriate and profitable to
discuss the ambit and scope of the inherent power vested in this Court under
Section 582 BNSS pari materia with Section 482 of Cr.P.C hereunder,
which scope and exercise of inherent power in fact has been dealt with by
Page 10 of 33
the Apex Court in a series of judgments including in case titled as
“Neeharika Infrastruture Pvt. Ltd. Vs State of Maharastra & Ors”
reported in AIR 2021 SC 1918 wherein at Para 7 following has been laid
down:-
7. While considering the aforesaid issue, law on the
exercise of powers by the High Court under Section 482
Cr.PC. and/or under Article 226 of the Constitution of India
to quash the FIR/complaint and the parameters for exercise
of such powers and scope and ambit of the power by the
High Court under Section 482 Cr.PC. and/or under Article
226 of the Constitution of India are required to be referred to
as the very parameters which are required to be applied
while quashing the FIR will also be applicable while granting
interim stay/protection.
7.1 The first case on the point which is required to be
noticed is the decision of this Court in the case of R.P.
Kapur (supra). While dealing with the inherent powers of the
High Court under Section 561-A of the earlier Code (which
is pari materia with Section 482 of the Code), it is observed
and held that the inherent powers of the High Court under
Section 561 of the earlier Code cannot be exercised in
regard to the matters specifically covered by the other
provisions of the Code; the inherent jurisdiction of the High
Court can be exercised to quash proceedings in a proper
case either to prevent the abuse of the process of any court
or otherwise to secure the ends of justice; ordinarily criminal
proceedings instituted against an accused person must be
tried under the provisions of the Code, and the High Court
would be reluctant to interfere with the said proceedings at
an interlocutory stage. After observing this, thereafter this
Court then carved out some exceptions to the above-stated
rule, which are as under:
“(i) Where it manifestly appears that there is a legal bar
against the institution or continuance of the criminal
proceeding in respect of the offence alleged. Absence of
the requisite sanction may, for instance, furnish cases
under this category.
(ii) Where the allegations in the first information report or
the complaint, even if they are taken at their face value
and accepted in their entirety, do not constitute the
offence alleged; in such cases no question of
appreciating evidence arises; it is a matter merely of
Page 11 of 33looking at the complaint or the first information report to
decide whether the offence alleged is disclosed or not.
(iii) Where the allegations made against the accused
person do constitute an offence alleged but there is
either no legal evidence adduced in support of the case
or the evidence adduced clearly or manifestly fails to
prove the charge. In dealing with this class of cases it is
important to bear in mind the distinction between a case
where there is no legal evidence or where there is
evidence which is manifestly and clearly inconsistent with
the accusation made and cases where there is legal
evidence which on its appreciation may or may not
support the accusation in question.
In exercising its jurisdiction under Section 561- A the High
Court would not embark upon an enquiry as to whether
the evidence in question is reliable or not. That is the
function of the trial Magistrate, and ordinarily it would not
be open to any party to invoke the High Court’s inherent
jurisdiction and contend that on a reasonable
appreciation of the evidence the accusation made
against the accused would not be sustained.”
7.2 In the case of Kurukshetra University (supra), this Court
observed and held that inherent powers under Section 482
Cr.PC. do not confer an arbitrary jurisdiction on the High Court
to act according to whim or caprice; that statutory power has to
be exercised sparingly with circumspection and in the rarest of
rare cases. In the case before this Court, the High Court
quashed the first information report filed by the Kurukshetra
University through Warden and that too without issuing notice to
the University, in exercise of inherent powers under Section 482
Cr.PC. This Court noticed and observed that the High Court was
not justified in quashing the FIR when the police had not even
commenced investigation into the complaint filed by the Warden
of the University and no proceedings were at all pending before
any Court in pursuance of the FIR.
7.3 Then comes the celebrated decision of this Court in the case
of Bhajan Lal (supra). In the said decision, this Court considered
in detail the scope of the High Court powers under Section 482
Cr.PC. and/or Article 226 of the Constitution of India to quash
the FIR and referred to several judicial precedents and held that
the High Court should not embark upon an inquiry into the
merits and demerits of the allegations and quash the
proceedings without allowing the investigating agency to
complete its task. At the same time, this Court identified the
following cases in which FIR/complaint can be quashed:
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“102.(1) Where the allegations made in the first
information report or the complaint, even if they are
taken at their face value and accepted in their entirety
do not prima facie constitute any offence or make out a
case against the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support
of the same do not disclose the commission of any
offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the Act concerned
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the Act
concerned, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for wreaking
vengeance on the accused and with a view to spite him
due to private and personal grudge.”
7.4 In the case of Golconda Lingaswamy (supra), after considering
the decisions of this Court in the cases of R.P. Kapur (supra) and
Bhajan Lal (supra) and other decisions on the exercise of inherent
powers by the High Court under Section 482 Cr.P.C., in paragraphs
5, 7 and 8, it is observed and held as under:
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“5. Exercise of power under Section 482 of the Code in a
case of this nature is the exception and not the rule. The
section does not confer any new powers on the High Court.
It only saves the inherent power which the Court
possessed before the enactment of the Code. It envisages
three circumstances under which the inherent jurisdiction
may be exercised, namely: (i) to give effect to an order
under the Code, (ii) to prevent abuse of the process of
court, and (iii) to otherwise secure the ends of justice. It is
neither possible nor desirable to lay down any inflexible
rule which would govern the exercise of inherent
jurisdiction.
No legislative enactment dealing with procedure can
provide for all cases that may possibly arise. Courts,
therefore, have inherent powers apart from express
provisions of law which are necessary for proper discharge
of functions and duties imposed upon them by law. That is
the doctrine which finds expression in the section which
merely recognises and preserves inherent powers of the
High Courts.
All courts, whether civil or criminal, possess in the absence
of any express provision, as inherent in their constitution,
all such powers as are necessary to do the right and to
undo a wrong in course of administration of justice on the
principle quando lex aliquid alique concedit, conceditur et id
sine quo res ipsa esse non potest (when the law gives a
person anything, it gives him that without which it cannot
exist). While exercising powers under the section, the Court
does not function as a court of appeal or revision. Inherent
jurisdiction under the section though wide has to be
exercised sparingly, carefully and with caution and only
when such exercise is justified by the tests specifically laid
down in the section itself. It is to be exercised ex debito
justitiae to do real and substantial justice for the
administration of which alone courts exist. Authority of the
court exists for advancement of justice and if any attempt is
made to abuse that authority so as to produce injustice, the
court has power to prevent such abuse. It would be an
abuse of the process of the court to allow any action which
would result in injustice and prevent promotion of justice.
In exercise of the powers court would be justified to quash
any proceeding if it finds that initiation or continuance of it
amounts to abuse of the process of court or quashing of
these proceedings would otherwise serve the ends of
justice. When no offence is disclosed by the complaint, the
Page 14 of 33
court may examine the question of fact. When a complaint
is sought to be quashed, it is permissible to look into the
materials to assess what the complainant has alleged and
whether any offence is made out even if the allegations are
accepted in toto.
7. In dealing with the last category, it is important to bear in
mind the distinction between a case where there is no legal
evidence or where there is evidence which is clearly
inconsistent with the accusations made, and a case where
there is legal evidence which, on appreciation, may or may
not support the accusations. When exercising jurisdiction
under Section 482 of the Code, the High Court would not
ordinarily embark upon an enquiry whether the evidence in
question is reliable or not or whether on a reasonable
appreciation of it accusation would not be sustained. That
is the function of the trial Judge. Judicial process, no doubt
should not be an instrument of oppression, or, needless
harassment. Court should be circumspect and judicious in
exercising discretion and should take all relevant facts and
circumstances into consideration before issuing process,
lest it would be an instrument in the hands of a private
complainant to unleash vendetta to harass any person
needlessly. At the same time the section is not an
instrument handed over to an accused to short-circuit a
prosecution and bring about its sudden death…..
8. As noted above, the powers possessed by the High
Court under Section 482 of the Code are very wide and the
very plenitude of the power requires great caution in its
exercise. Court must be careful to see that its decision in
exercise of this power is based on sound principles. The
inherent power should not be exercised to stifle a legitimate
prosecution.
High Court being the highest court of a State should
normally refrain from giving a prima facie decision in a case
where the entire facts are incomplete and hazy, more so
when the evidence has not been collected and produced
before the Court and the issues involved, whether factual
or legal, are of magnitude and cannot be seen in their true
perspective without sufficient material. Of course, no hard-
and-fast rule can be laid down in regard to cases in which
the High Court will exercise its extraordinary jurisdiction of
quashing the proceeding at any stage. [See Janata Dal v.
H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 :
AIR 1993 SC 892] and Raghubir Saran (Dr.) v. State of
Bihar [AIR 1964 SC 1 : (1964) 1 Cri LJ 1] .] It would not be
Page 15 of 33proper for the High Court to analyse the case of the
complainant in the light of all probabilities in order to
determine whether a conviction would be sustainable and
on such premises, arrive at a conclusion that the
proceedings are to be quashed.
It would be erroneous to assess the material before it and
conclude that the complaint cannot be proceeded with. In a
proceeding instituted on complaint, exercise of the inherent
powers to quash the proceedings is called for only in a
case where the complaint does not disclose any offence or
is frivolous, vexatious or oppressive. If the allegations set
out in the complaint do not constitute the offence of which
cognisance has been taken by the Magistrate, it is open to
the High Court to quash the same in exercise of the
inherent powers under Section 482 of the Code. It is not,
however, necessary that there should be meticulous
analysis of the case before the trial to find out whether the
case would end in conviction or acquittal.
The complaint/FIR has to be read as a whole. If it appears
that on consideration of the allegations in the light of the
statement made on oath of the complainant or disclosed in
the FIR that the ingredients of the offence or offences are
disclosed and there is no material to show that the
complaint/FIR is mala fide, frivolous or vexatious, in that
event there would be no justification for interference by the
High Court. When an information is lodged at the police
station and an offence is registered, then the mala fides of
the informant would be of secondary importance. It is the
material collected during the investigation and evidence led
in court which decides the fate of the accused person. The
allegations of mala fides against the informant are of no
consequence and cannot by themselves be the basis for
quashing the proceeding.”
7.5 In the case of Zandu Pharmaceutical Works Ltd. (supra), in
paragraph 11, this Court has observed and held as under:
“11. … the powers possessed by the High Court under
Section 482 of the Code are very wide and the very
plenitude of the power requires great caution in its
exercise. Court must be careful to see that its decision in
exercise of this power is based on sound principles. The
inherent power should not be exercised to stifle a legitimate
prosecution. The High Court being the highest court of a
State should normally refrain from giving a prima facie
decision in a case where the entire facts are incomplete
and hazy, more so when the evidence has not been
Page 16 of 33collected and produced before the court and the issues
involved, whether factual or legal, are of magnitude and
cannot be seen in their true perspective without sufficient
material. of course, no hard-and-fast rule can be laid down
in regard to cases in which the High Court will exercise its
extraordinary jurisdiction of quashing the proceeding at any
stage.
It would not be proper for the High Court to analyse the
case of the complainant in the light of all probabilities in
order to determine whether a conviction would be
sustainable and on such premise arrive at a conclusion that
the proceedings are to be quashed. It would be erroneous
to assess the material before it and conclude that the
complaint cannot be proceeded with. In a proceeding
instituted on complaint, exercise of the inherent powers to
quash the proceedings is called for only in a case where
the complaint does not disclose any offence or is frivolous,
vexatious or oppressive. If the allegations set out in the
complaint do not constitute the offence of which
cognizance has been taken by the Magistrate, it is open to
the High Court to quash the same in exercise of the
inherent powers under Section 482 of the Code.
It is not, however, necessary that there should be
meticulous analysis of the case before the trial to find out
whether the case would end in conviction or acquittal. The
complaint has to be read as a whole. If it appears that on
consideration of the allegations in the light of the statement
made on oath of the complainant that the ingredients of the
offence or offences are disclosed and there is no material
to show that the complaint is mala fide, frivolous or
vexatious, in that event there would be no justification for
interference by the High Court. When an information is
lodged at the police station and an offence is registered,
then the mala fides of the informant would be of secondary
importance. It is the material collected during the
investigation and evidence led in court which decides the
fate of the accused person. The allegations of mala fides
against the informant are of no consequence and cannot by
themselves be the basis for quashing the proceedings.”
7.6 In the case of Sanapareddy Maheedhar Seshagiri (supra), in
paragraph 31, it is observed and held as under:
“31. A careful reading of the abovenoted judgments makes
it clear that the High Court should be extremely cautious
and slow to interfere with the investigation and/or trial of
criminal cases and should not stall the investigation and/or
Page 17 of 33prosecution except when it is convinced beyond any
manner of doubt that FIR does not disclose commission of
any offence or that the allegations contained in FIR do not
constitute any cognizable offence or that the prosecution is
barred by law or the High Court is convinced that it is
necessary to interfere to prevent abuse of the process of
the Court.
In dealing with such cases, the High Court has to bear in
mind that judicial intervention at the threshold of the legal
process initiated against a person accused of committing
offence is highly detrimental to the larger public and
societal interest. The people and the society have a
legitimate expectation that those committing offences either
against an individual or the society are expeditiously
brought to trial and, if found guilty, adequately punished.
Therefore, while deciding a petition filed for quashing FIR
or complaint or restraining the competent authority from
investigating the allegations contained in FIR or complaint
or for stalling the trial of the case, the High Court should be
extremely careful and circumspect.
If the allegations contained in FIR or complaint disclose
commission of some crime, then the High Court must keep
its hands off and allow the investigating agency to complete
the investigation without any fetter and also refrain from
passing order which may impede the trial. The High Court
should not go into the merits and demerits of the
allegations simply because the petitioner alleges malus
animus against the author of FIR or the complainant. The
High Court must also refrain from making imaginary
journey in the realm of possible harassment which may be
caused to the petitioner on account of investigation of FIR
or complaint. Such a course will result in miscarriage of
justice and would encourage those accused of committing
crimes to repeat the same. However, if the High Court is
satisfied that the complaint does not disclose commission
of any offence or prosecution is barred by limitation or that
the proceedings of criminal case would result in failure of
justice, then it may exercise inherent power under Section
482 CrPC.”
7.7 In the case of Arun Gulab Gawali (supra), this Court set aside
the order passed by the High Court quashing the criminal
complaint/FIR which was even filed by the complainant. In the
case before this Court, prayer for quashing the FIR before the
High Court was by the complainant himself and the High Court
quashed the FIR/complaint in exercise of the powers under
Page 18 of 33
Section 482 Cr.P.C. Quashing and setting aside the judgment
and order passed by the High Court quashing the FIR, this Court
in paragraphs 13 and 27 to 29 has observed as under:
“13. The power of quashing criminal proceedings has to be
exercised very sparingly and with circumspection and that
too in the rarest of rare cases and the Court cannot be
justified in embarking upon an enquiry as to the reliability or
genuineness or otherwise of allegations made in the
FIR/complaint, unless the allegations are so patently absurd
and inherently improbable so that no prudent person can
ever reach such a conclusion. The extraordinary and
inherent powers of the Court do not confer an arbitrary
jurisdiction on the Court to act according to its whims or
caprice. However, the Court, under its inherent powers, can
neither intervene at an uncalled for stage nor can it “soft-
pedal the course of justice” at a crucial stage of
investigation/proceedings.
The provisions of Articles 226, 227 of the Constitution of
India and Section 482 of the Code of Criminal Procedure,
1973 (hereinafter called as “CrPC”) are a device to advance
justice and not to frustrate it. The power of judicial review is
discretionary, however, it must be exercised to prevent the
miscarriage of justice and for correcting some grave errors
and to ensure that stream of administration of justice
remains clean and pure.
However, there are no limits of power of the Court, but the
more the power, the more due care and caution is to be
exercised in invoking these powers. (Vide State of W.B. v.
Swapan Kumar Guha [(1982) 1 SCC 561 : 1982 SCC (Cri)
283 : AIR 1982 SC 949] , Pepsi Foods Ltd. v. Special
Judicial Magistrate [(1998) 5 SCC 749 : 1998 SCC (Cri)
1400] , G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 :
2000 SCC (Cri) 513 : AIR 2000 SC 754] and Ajay Mitra v.
State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703] )xxx xxx xxx
27. The High Court proceeded on the perception that as the
complainant himself was not supporting the complaint, he
would not support the case of the prosecution and there
would be no chance of conviction, thus the trial itself would
be a futile exercise. Quashing of FIR/complaint on such a
ground cannot be held to be justified in law. Ordinarily, the
Court of Session is empowered to discharge an accused
under Section 227 CrPC even before initiating the trial.
Page 19 of 33
The accused can, therefore, move the trial court itself for
such a relief and the trial court would be in a better position to
analyze and pass an order as it is possessed of all the
powers and the material to do so. It is, therefore, not
necessary to invoke the jurisdiction under Section 482 CrPC
for the quashing of a prosecution in such a case. The reliance
on affidavits by the High Court would be a weak, hazy and
unreliable source for adjudication on the fate of a trial. The
presumption that an accused would never be convicted on
the material available is too risky a proposition to be accepted
readily, particularly in heinous offences like extortion.
28. A claim founded on a denial by the complainant even
before the trial commences coupled with an allegation that
the police had compelled the lodging of a false FIR, is a
matter which requires further investigation as the charge is
levelled against the police. If the prosecution is quashed, then
neither the trial court nor the investigating agency has any
opportunity to go into this question, which may require
consideration. The State is the prosecutor and all prosecution
is the social and legal responsibility of the State. An offence
committed is a crime against society and not against the
victim alone. The victim under undue pressure or influence of
the accused or under any threat or compulsion may resile
back but that would not absolve the State from bringing the
accused to book, who has committed an offence and has
violated the law of the land.
29. Thus, while exercising such power the Court has to act
cautiously before proceeding to quash a prosecution in
respect of an offence which hits and affects the society at
large. It should be a case where no other view is possible nor
any investigation or inquiry is further required. There cannot
be a general proposition of law, so as to fit in as a straitjacket
formula for the exercise of such power. Each case will have
to be judged on its own merit and the facts warranting
exercise of such power. More so, it was not a case of civil
nature where there could be a possibility of compromise or
involving an offence which may be compoundable under
Section 320 CrPC, where the Court could apply the ratio of
Madhavrao Jiwajirao Scindia [(1988) 1 SCC 692 : 1988 SCC
(Cri) 234 : AIR 1988 SC 709] .”
What emerges from the law enunciated by the Apex Court in the
judgment supra inter alia, is that when a prayer for quashing of an FIR is
made by an accused, the Court exercising power under Section 482 Cr.P.C
Page 20 of 33
(now Section 528 BNSS) has only to consider whether the allegations under
the FIR disclose commission of a cognizable offence or not and that the
High Court must keep its hands off and allow the investigating agency to
complete the investigation without any fetter and also refrain from passing
any order which may impede the trial and also the High Court should not go
into the merits and demerits of the allegations simply because the accused
alleges malus animus against the author or FIR or the complainant and that
quashment of an FIR has to be an exception and a rarity than an ordinary
rule as the inherent power of the Court do not confer an arbitrary power or
jurisdiction upon the High Court.
12. Coming back to the case in hand it is manifest that the conclusions of
the Court of Inquiry as also the Internal Committee over which much
emphasis and reliance has been placed by the counsel of petitioner herein
while seeking quashment of the impugned FIR, seemingly have not
conclusively determined that the petitioner herein is not guilty. A reference
hereunder to the concluding para of the report of the said Internal
Committee would be profitable;
15. After in depth analysis of the entire proceedings, the IC was not
in a position to establish the occurrence (or non-occurrence) of the
alleged incident. The act of misconduct charges against the
Respondent based on the complaint by the Complainant have not
been established. The IC is of the opinion that the subject matter
remains inconclusive.”
Recommendations made by the Internal Committee are as follows:
“2. The following recommendations are made:
(a) Since the act of misconduct/charges against the Respondent
(taking into consideration the entire proceedings) have not been
established, it is concluded that the charges have not been proved
and the case remains inconclusive. Therefore, no action is required
to be taken in the matter.
(b) Para 14 (a) and (b) of the finding highlights the incorrect methods
adopted by the Complainant and Respondent. Necessary
counselling may be rendered to both to refrain from such approach
in future.”
15. As is manifest from above, the Internal Committee has not been able to
reach to any conclusion. Therefore, based on such inconclusive findings
Page 21 of 33
and recommendations of the Internal Committee, the petitioner herein
cannot be said to have been exonerated in the matter and in the process
same would result in quashing of the impugned FIR, as in law, it is only in
case of exoneration on merits where allegations are found to be not
sustainable at all and a person held innocent, criminal prosecution on the
same set of facts and circumstances cannot be allowed to lie on the basis of
underlying principle being the higher standard of proof in criminal cases.
It is also revealed that the Investigation Agency has gathered evidence
tentatively pointing towards the involvement of the petitioner herein in the
commission of the alleged offence covered in the FIR. Besides above
position obtaining in the mater, a plain reading of the impugned FIR
manifestly demonstrates and discloses the commission of the alleged
offence by the petitioner herein, so is also revealed from a deeper and closer
examination of the CD file produced by the counsel for the respondent
herein.
16.Having regard to what has been observed, considered and analyzed herein
above inasmuch as the principles of law laid down by the Apex Court in the
case of Neeharika Infrastructure supra, this Court is not inclined to
exercise inherent jurisdiction, more so, in view of the latest law laid down by
the Apex Court in case titled as “Achin Gupta Vs. State of Haryana”
reported in 2024 SCC online SC 759, wherein it has been held that the
investigation of an offence is the field exclusive reserved for the Police
Officers, whose powers in that field are unfettered, so long as the power to
investigate a cognizable offence is legitimately exercised in strict
compliance with the provisions under Chapter XII of the Cr.P.C.
17. Viewed thus, what has been observed, considered and analyzed herein
above, the instant petition fails and is accordingly dismissed.
Page 22 of 33
CRM(M) No. 643/2024.
1. In the instant petition filed by Union of India through Air Cmd AOC 1 Air
Force Station Srinagar C/O 56 APO, inherent power of this Court enshrined
in Section 528 of BNSS, has also been invoked.
2. The facts pleaded in the petition are that a Court of Inquiry was held at Air
Force Station, Srinagar, between 6th December 2023 to 6th January 2024
which found the respondent 4 herein blameworthy on certain counts and the
case accordingly came to be recommended by Headquarter Western Air
Command, IAF for initiation of a suitable action against respondent 4 herein
and, while the said Court of Inquiry was in progress, the respondent 4 herein
submitted a complaint to AOC 1 Wing Air Force Station, Srinagar on 23rd
January 2024 alleging inappropriate behaviour by the respondent 5 herein
during the intervening night of 31st December 2023/1st January 2024
whereupon, a Court of Inquiry was ordered by AOC 1 Wing Srinagar, on
25th January 2024, however the respondent 4 herein submitted an application
on 31st January 2024 requesting therein that instead of Court of Inquiry, an
Internal Committee be constituted to investigate the matter, whereupon, the
Internal Committee was constituted with an independent member from an
NGO which Internal Committee investigated the matter from 29th March
2024 to 15th May 2024 and recorded its finding which thereafter came to be
forwarded to the respondent 4 herein as also to the accused respondent 5
herein on 14th June 2024 for their comments and instead of submitting her
comments the respondent 4 herein filed a complaint before the police
agency which led to the registration of FIR No 370/2024 by police station,
Budgam against respondent 5 herein for commission of an offence
punishable under Section 376(2) IPC.
3. It is further stated in the petition that the police upon the registration of the
FIR supra started its investigation and called the accused respondent 5 herein
Page 23 of 33
to Police Station Budgam, and, after recording the statement of the
respondent 4 herein under Section 164 Cr.P.C. (applicable then), before a
Magistrate, respondent 3 herein on 11th September 2024 sought the custody
of the respondent 5 herein for investigation, whereupon, the respondent 3
herein came to be informed by the petitioner herein that the case being of
concurrent jurisdiction, the Air Force has opted to try the respondent 5
herein as per the provision of Air Force Law.
4. It is significant to mention here that though not stated in the instant petition,
an application came to be filed by one Prabhat Malik AIR Cmde AOC 1
wing Air Force before the Chief Judicial Magistrate Budgam (For short, the
court below) purported to be one under Section 124 of Air Force Act 1950
(For short, the Act of 1950) for taking over the case under Rule 5 of
Criminal Courts and Courts Martial (Adjustment of Jurisdiction), Rules
1978 (For short the Rules of 1978). In the said application which was taken
on record by this Court on 4th November 2024, it was pleaded that the
complaint filed by the respondent 4 herein on 23rd January 2024 was
enquired into initially by a Court of Inquiry, which was subsequently
converted into an enquiry by the Internal Committee under the provisions of
Prevention of Sexual Harassment of Women at Work Place (Prevention,
Prohibition and Redressal Act 2013) (for short the ‘POSH Act’) read with
Air Force Order 3/2023 at the instance of the respondent 4 herein and the
said Internal Committee has submitted its report and further action as per the
provisions of the POSH Act has been initiated, therefore, in view of the
exercise of option in terms of Section 124 of the Act of 1950, it came to be
prayed that all the case documents be handed over to the duly authorized
officer named in the application.
Page 24 of 33
5. The Court below after entertaining the said application vide order dated 10 th
October 2024 disposed of the same directing the Incharge Police station
Budgam, to stop investigation in the matter and handover all the case papers
to the Competent Authority under the Act of 1950 or his duly authorized
representative, however, subsequent to the passing of the said order dated
10th October 2024 , an application came to be filed by the Assistant Public
Prosecutor before the Court below, seeking recalling of order dated 10th
October 2024 on the ground that the said order is in direct conflict with the
order dated 12th September 2024 passed by the High Court in the quashment
petition filed by the accused respondent 5 herein by virtue of which the High
Court had directed continuation of investigation by the Police, and the Court
below, as such, consequently vide Order dated 16th October 2024 directed
the police to follow the order passed by the High Court and continue with
the investigation though observing that an order passed in exercise of
criminal jurisdiction cannot be reviewed and by virtue of the same order
dated 16th October 2024, the court below had put the above named Prabhat
Malik Air Cmde AOC 1 Wing AF who had filed the application for transfer
of case under Section 124 of the Act of 1950, to notice to show cause and
explain as to why he suppressed the material fact qua passing of the order by
the High Court dated 12th September 2024 supra.
6. The petitioner herein has questioned order dated 16th October 2024 passed
by the Court of Chief Judicial Magistrate, Budgam primarily on three
grounds, firstly, that the AOC, 1 wing who has been put to show cause by
the Court below vide the impugned order for concealing the material fact of
passing of order dated 12th September 2024 supra by this Court is not a party
in the said petition, as such, cannot be said to have been aware of the same,
secondly, that there is no provision in the BNSS which empowers the court
Page 25 of 33
below to review or recall its order, and thirdly, in terms of Section 124 of the
Act, 1950 the competent authority has the primary right to conduct the
proceedings in view of the fact that besides the offence of the rape
punishable under Section 376 of Indian Penal Code, the complaint filed by
respondent 4 herein also allege commission of additional offences under
Section 45 and 46 (A) of the Act 1950, which can only be enquired and tried
in terms of the provision of the Act 1950.
7. This Court upon consideration of the instant petition on 25th October 2024
stayed the orders passed by the Court below dated 10th October 2024 and
16th October 2024 and directed the continuation of order of investigation
dated 12th September 2024 passed by this Court in CRM(M) No. 562/2024
supra being the petition filed by the respondent 5 herein against FIR No
370/2024.
Heard learned counsel for the parties and perused the record.
8. The moot question that arises for consideration of this court in the instant
petition is whether the Designated Authority under the Act of 1950 can
invoke the provisions of Section 124 of the Act 1950, at the stage of
investigation.
9. Before proceeding to advert to the said question, it would be appropriate to
refer hereunder to sections 124 and 125 of the Act 1950 being relevant and
germane to the controversy:-
124. Choice between criminal court 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 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 instituted
Page 26 of 33before a court-martial, to direct that the accused person shall be
detained in Air force custody.
125. Power of criminal court to require delivery of offender.-(1)
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 section 124 at his option, either to deliver over the
offender to the nearest Magistrate 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 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.
What emanates from the plain reading of Section 124 supra is that it
addresses a situation where an offence is committed by a person subject to
the Act of 1950 and the said offence is triable by both a Criminal Court and
a Court Martial and the provision vests discretion in the Designated
Authority under the Act of 1950 to determine the Court before which
proceedings for the offence shall be instituted, and such discretion ensures
procedural flexibility and accommodates the peculiar circumstances of each
case, particularly in light of the nature of the offence, the interests of justice,
and the administrative and disciplinary needs of the armed force. However,
such discretion has to be exercised, judiciously, adhering to the principles of
fairness and ensuring that the accused is afforded an appropriate forum in
tune with the statutory and constitutional mandates.
Page 27 of 33
10. It is significant to mention here that the term “instituted” appearing in both
Section 124 and 125 supra of the Act of 1950 thus assumes critical
significance requiring interpretation as to whether the said term “instituted”
denotes the act of filing, presenting or submitting the charge sheet before the
Court, or the Courts act of taking cognizance thereof.
11. The Apex Court in case titled as General Officer Commanding Vs. CBI
and Another reported in 2012 6 SCC 228 while interpreting the term
“institution” has observed at para’s 13, 18, 19, 20 and 21 as follows:-
“13. The meaning of the aforesaid term has to be ascertained
taking into consideration the scheme of the Act/Statute
applicable. The expression may mean filing/presentation or
received or entertained by the court. The question does arise as
to whether it simply means mere presentation/filing or something
further where the application of the mind of the court is to be
applied for passing an order.
14…
15…
16…
17…
18. In Jamuna Singh & Ors. v. Bhadai Shah, AIR 1964 SC 1541,
this Court dealt with the expression institution of a case and held
that a case can be said to be instituted in a court only when the
court takes cognizance of the offence alleged therein. Section
190(1) Cr.P.C. contains the provision for taking cognizance of
offence (s) by Magistrate. Section 193 Cr.P.C. provides for
cognizance of offence (s) being taken by courts of Sessions on
commitment to it by a Magistrate duly empowered in that behalf.
This view has been reiterated, approved and followed by this
Court in Satyavir Singh Rathi, ACP & Ors. v. State through CBI,
(2011) 6 SCC 1.
19 A similar view has been reiterated by this Court in Kamalapati
Trivedi v. The State of West Bengal, AIR 1979 SC 777,
observing that when a Magistrate applies his mind under Chapter
XVI, he must be held to have taken cognizance of the offences
mentioned in the complaint. Such a situation would not arise
while passing order under Section 156(3) Cr.P.C. or while issuing
a search warrant for the purpose of investigation. In Devarapalli
Lakshminarayana Reddy & Ors. v. V. Narayana Reddy & Ors.,
AIR 1976 SC 1672, this Court held that institution’ means taking
cognizance of the offence alleged in the chargesheet.
20 Mere presentation of a complaint cannot be held to mean that
the Magistrate has taken the cognizance. (Vide: Narsingh Das
Tapadia v. Goverdhan Das Partani & Anr., AIR 2000 SC 2946).
21. Thus, in view of the above, it is evident that the expression
“Institution” has to be understood in the context of the scheme of
the Act applicable in a particular case. So far as the criminal
proceedings are concerned, “Institution” does not mean filing;
presenting or initiating the proceedings, rather it means taking
cognizance as per the provisions contained in the Cr.P.C.
Page 28 of 33
Thus, what emerges from the above interpretation of the term
“instituted” it is clear that the same does not mean filling, presenting or
initiating the proceedings, rather it means taking cognizance as per the
provisions contained in the CrPc/BNSS.
12. Having regard to the aforesaid position qua the term “instituted” when both
Court Marital and Criminal Court have concurrent jurisdiction over an
offence, Section 124 of the Act of 1950, entrusts the discretion of choosing
the appropriate forum to a Designated Officer who is empowered to decide
before which Court the proceedings shall be instituted, and in this regard
Section 124 supra further includes a connective condition, accentuated by
the phrase, “and, if that officer decides that they should be instituted
before a Court Martial….” meaning that the Designated Officer must first
exercise his discretion to choose the forum, and if the decision is made in
favour of the Court Marital, the Designated Officer must direct the accused
to be detained under the custody of the Air Force, and this decision can only
be made when there is material before him in the form of police
report/charge sheet filed/presented by the police before a Magistrate after
conducting investigation, and in fact this decision cannot be taken by the
Designated Officer merely on the basis of an FIR.
Thus, from above it can safely be concluded that the discretion
envisaged under Section 124 of the Act of 1950, can be exercised by the
Designated Officer only upon completion of the investigation and the
presentation of the police report/ charge sheet under Section 173 of the Code
of Criminal Procedure (now Section 193 of BNSS), but before taking
cognizance of the same by the Magistrate in view of the Judgment of the
Apex Court passed in General Officer Commanding supra.
Page 29 of 33
13. It is pertinent to mention here that though, Section 124 and 125 supra of the
Act 1950 operate in different domains, yet a combined reading of Section
124 supra rules out the possibility of exercising of discretion by the
Designated Officer during investigation and if read otherwise, same would
render section 125 supra, otiose, in other words, if it is held that the
Designated Officer can exercise the discretion under Section 124 supra at the
stage of investigation, it would effectively preclude the police from
completing the investigation, thereby preventing the preparation and
submission of police report/charge sheet before the Magistrate and in
absence of such report/charge sheet, the Magistrate would have no basis of
forming an opinion under Section 125 supra, thus rendering the same
redundant.
14. It is profitable to mention here that a situation may arise where, for any
reason, the Designated Officer fails to exercise the power vested in him
under Section 124 supra, however, such a scenario is contemplated under
Section 475 of the Code of Criminal Produce, (now Section 521 of BNSS)
which is an enabling provision and empowers the Central Government to
frame rules regarding the cases involving individuals subject to Military,
Naval or Air Force Law, or any analogous law, as to whether they shall be
tried by a Criminal Court or a Court Martial.
Section 521 of BNSS is extracted hereunder for convenience:-
“(1) The Central Government may make rules consistent with this
Code and the Army Act, 1950, the Navy Act, 1957 and the Air
Force Act, 1950 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-
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 applies 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 Commanding Officer of the unit to
which he belongs, or to the Commanding Officer of the nearest
Page 30 of 33
military, naval or air force station, as the case may be, for the
purpose of being tried by a Court-martial.”
What emerges from above is that when a person subject to such law is
brought before a Magistrate and charged with an offence triable either by a
Court governed by the CrPc or a Court Marital, the Magistrate is mandated
to act in accordance with rules framed under Section 475 Cr.P.C/Section 521
BNSS supra and in appropriate cases, the Magistrate shall deliver accused
along with the statement of the offence charged, to the commanding officer
of the relevant unit or the nearest Military, Naval or Air Force Station, as the
case may be, for trial by a Court Martial. However, the Magistrate can
forward the statement of offence charge to the commanding officer only
when such a statement is filed or presented before the Magistrate by the
police. The expression, “shall deliver the accused, along with the
statement of offence charged, to the Commanding Officer” is to be
interpreted as referring to the report/charge sheet filed or presented by the
police before the Magistrate upon the conclusion of the investigation,
15. It is pertinent to note here that in exercise of power under Section 475
Crpc/Section 521 BNSS supra, the Central Government has notified
“Criminal Courts and Courts Martial (Adjustment of Jurisdiction)
Rules 1978”, which provide a structured framework for resolving
jurisdictional conflict between a Criminal Court and a Court Martial. The
said Rules of 1978, come into play at the point where an accused, subject to
the Army Act, 1950, the Navy Act, 1957 and the Air Force Act 1950, has
been brought before the Magistrate and charged with an offence and in term
of the said Rules, before proceeding to try the accused or to commit the case
to the Court of Sessions, the Magistrate has to give a written notice to the
Commanding Officer of the accused and refrain for the period mentioned in
Page 31 of 33
the Rules from doing any of the act or making any order in relation to the
trial of such an accused.
A reference in this regard to the Judgment of the Apex Court passed
in case titled as “State of Assam Vs. Jasbir Singh” reported in 2022
volume 7 SCC 287 would be germane herein, wherein at para 34 following
has been held:-
“34. An order of a two-judge Bench of this Court in SK Jha v.
State of Kerala, (2011) 15 SCC 492 arose from a case where
three naval officers were arrested for offences punishable under
Sections 143, 147, 148, 452, 307, 326 and 427 read with Section
149 of the IPC. An application was filed by the Commanding
Officer of the Naval Unit for handing over the accused for trial
under the Navy Act 1957. The application was rejected by the
Magistrate on the ground that the stage for consideration would
only be on the completion of the police investigation. The order of
the Magistrate was challenged before the High Court in revision
and the challenge was rejected. The two-judge Bench held that
the decision in Som Datt Datta (supra) governed the case and
the option as to whether the accused should be tried before the
criminal court or by a court-martial could be exercised only after
the police had completed the investigation and submitted the
charge-sheet. In that case, the police had merely commenced the
investigation and hence the rejection of the request of the
Commanding Officer by the Magistrate was upheld.”
16. Having held in the preceding para that the discretion of the Designated
Authority under Section 124 of the Act of 1950 cannot be exercised at the
stage of investigation, the question framed hereinabove is answered
accordingly and the pleas raised by the appearing counsel for the parties
supporting the applicability of the provisions of Section 124 of the Act of
1950 at the stage of investigation thus pale into insignificance and the
judgment of the Apex Court passed in case titled as “Som Datt Datta vs
Union of India & Others” reported in AIR 1969 SC 414 as also the
Judgment of the High Court of Madras passed in case titled as “State Rep.
Page 32 of 33
by the Inspector of Police vs. Commandant, Air Force Administrative
College” reported in 2023 SCC online Mad 4769, relied upon by the said
appearing counsel do not lend any support to their case being otherwise also
quite distinguishable from the case in hand.
17. Even otherwise also in the application filed by Air Cmd AOC 1 Wing, AF,
in terms of the Section 124 of the Act 1950 before the court below does not
specifically state that it has been decided by the Designated Authority that
the respondent 5 herein would be tried by a Court Martial, instead, what is
stated in the application is that respondent 5 will be proceeded against in
terms of the POSH Act, which cannot be said to be the exercise of discretion
and taking of a decision under Section 124 supra of the Act of 1950 to try
the respondent 5 herein before the Court Martial.
18. For what has been observed, considered and analyzed hereinabove, the
instant petition thus is disposed in the following manner:-
(i) The orders dated 10th October 2024 and 16th October 2024 passed by
the Court of Chief Judicial Magistrate , Budgam shall stand quashed.
(ii) The Special Investigation Team/Investigating Agency shall continue
with and conclude the investigation in FIR No. 370/2024, and upon
completing the investigation, shall file charge sheet strictly in terms of
the relevant provision of Cr.Pc./BNSS, and
(iii) Upon filling of such charge sheet, the Designated Authority
under Section 124 of Air Force Act, 1950 shall be at liberty to invoke
said Section 124, if it decides to try the respondent 5 herein in a Court
Martial.
19. Disposed of.
20.A copy of this judgment shall be placed separately on the record file of both
the petitions.
Page 33 of 33
21.The original record produced by Mr. T. M. Shamsi, Counsel for the
petitioner herein be returned back forthwith after retaining a xerox copy of
the same on the record file of the instant petition.
Bail App No. 105/2024.
P. K. SEHRAWAT age 43 years ...Applicant (s)
S/O R. S. Sehrawat
R/O Air Force Station, Srinagar.
Through: Mr. Z. A. Shah, Sr. Advocate with
Mr. Surjeet Singh, Advocate
Vs.
1. Union Territory of Jammu & Kashmir, ...Respondent(s)
through Station House Officer,
Police Station Budgam
2. Fg. OFFR XXX
37086-G EDN
C/O Air Station Srinagar Budgam
Through: Mr. Mohsin Qadri, Sr. AAG with
Mr. Bikramdeep Singh, Dy. AG for R-1
MS. Ayeshia, Advocate. For R-2.
The instant bail application is segregated and is directed to be listed on
10.12.2024.
(JAVED IQBAL WANI)
JUDGE
SRINAGAR
27.11.2024
Hilal Ahmad
Whether the Judgment is reportable? Yes
Whether the Judgment is speaking? Yes