S.K. Jha (Commodore Commanding Officer, INS Venduruthy) v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : ## THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 Crl.MC.No. 212 of 2008() ------------------------ CMP.231/2008 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... ## PETITIONER: PETITIONER; ----------------------------------------- SRI.S.K.JHA COMMODORE COMMANDING OFFICER, INS VENDURUTHY, NAVAL BASE, KOCHI-04. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SRI.R.JAYACHANDRAN SRI.SMITHA GEORGE SRI.M.H.HANIS ## RESPONDENTS: STATE AND COMPLAINANT: ---------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ## 2. STATION HOUSE OFFICER, HARBOUR POLICE STATION, WELLINGDON ISLAND, KOCHI. BY DIRECTOR GENERAL OF PROSECUTION SRI.P.G.THAMPI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16 /01 /2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **“CR”** ## **V. RAMKUMAR, J.** ## **= = = = = = = = = = = = = Crl.M.C.No.212 of 2008 = = = = = = = = = = = = = = Dated this the 16[th] day of January, 2008** ## **ORDER** The petitioner, who is the Commodore Commanding Officer, INS Venduruthy, Naval Base, Kochi and who was the applicant in CMP No.231/2007 before the J.F.C.M-I, Ernakulam in a petition filed under Section 475 Cr.P.C, challenges the order dated 14.1.08, dismissing the said petition which originated in the form of a letter dated 14.1.08 addressed to the learned Magistrate. 2. Three of the accused persons in Crime No.39/2008 of Harbour Police Station are serving officers of the Indian Navy and it was in respect of those three officers that the above request was made before the learned Magistrate. ## VERSION OF THE STATE POLICE 3. The case of the prosecution in Crime No.39/2008 of Harbour Police Station can be summarised as follows: On 10.01.08, at about 11 p.m., 100 persons including the three Naval Officers formed themselves into an unlawful **Crl.M.C.No. 212 of 2008** 2 assembly in the compound of the Harbour Police Station and in prosecution of the common object of the said assembly they committed rioting armed with deadly weapons such as iron rod, granite stones etc. After entering the Police Station compound, they attempted to murder one Police Constable by beating him with an iron rod on his head. They also caused grievous hurt to another Police Constable by pelting stones. The accused also dismantled and damaged the windows of the Station House, wireless set, police jeep etc. by pelting stones. The accused have thereby committed offences punishable under sections 143, 147, 148, 452, 307, 326, 427 read with 149 IPC and Section 3 of the Prevention of Destruction of Public Property Act. ## DEVELOPMENTS DURING THE CRIME STAGE 4. Soon after the occurrence, the aforesaid crime was registered and the three Naval Officers who figure as A1 to A3 in the F.I.R. were arrested. There is no dispute that the accused officers on production before the learned Magistrate have been remanded to judicial custody and investigation is still in progress. **Crl.M.C.No. 212 of 2008** 3 5. On 14.1.08, the petitioner herein sent a letter to the learned Magistrate making a request under Section 475 Cr.P.C. to hand over the three Naval Officers to the petitioner for being tried by a Court Martial. The said letter was treated as a petition and numbered as CMP No.231/2008 which has been disposed of by the impugned order. 6. I heard Senior Advocate Sri. K.Ramakumar, the learned counsel appearing for the petitioner and Senior Advocate Sri.P.G.Thampi, the learned Director General of Prosecution appearing for the State. ## STAND OF THE NAVAL CHIEF 7. Assailing the impugned order, Sri.K.Ramakumar made the following submissions before me: The request made by the petitioner before the learned Magistrate was one under Section 475 Cr.P.C read with Rule 3 (a) of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 (hereinafter referred to as “the Rules”). Even though the final report under Section 173(2) Cr.P.C has not so far been filed before the learned Magistrate, it cannot be said that the accused officers do not stand **Crl.M.C.No. 212 of 2008** 4 charged for the aforementioned offences. They had also been brought before the learned Magistrate pursuant to their arrest. Hence, the request under Section 475(1) Cr.P.C was fully justified and by rejecting the said request, the learned Magistrate illegally continues to retain the jurisdiction with him. The Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 are Rules framed under Section 475 (1) Cr.P.C.. Rule 3(a) also contemplates a motion by the competent military, Navy, Air Force or Coast Guard Authority before the Magistrate before whom the three members of the Armed Forces had been brought and charged with the aforementioned offences. Hence the stage was set for invoking the said two provisions and requesting to hand over the accused officers to the petitioner for the purpose of being tried before a Court Martial. There is nothing in Section 475 Cr.P.C or the aforementioned Rules framed thereunder justifying the rejection of the specific request as was made in this case. The words “and charged with an offence” occurring in Section 475(1) Cr.P.C as well as in Rule 3 of the said Rules' have to be understood in a wider sense. The word **Crl.M.C.No. 212 of 2008** 5 'charged' does not mean charge sheeted. It is enough if there is a formal accusation against them as was held by the Madhya Pradesh High Court in the decision in **Major Gopinathan v. The State of Madhya Pradesh and Another - AIR 1963 MP 249.** The Rajasthan High Court also in the decision in **Mrari Lal v. K.C. Aneja - 1982 Crl.L.J 2082** had taken the view that the filing of a charge sheet is not a sine qua non for making a request under Section 475 Cr.P.C read with Rule 3 (a) of the aforesaid Rules. Going by the view taken by the learned Magistrate, it would appear as though he was determined to try the three Naval Officers by retaining the jurisdiction with him and refusing to part with the jurisdiction at any cost forgetting the fact that the jurisdiction to try such offenders, though concurrent with the Magistrate as well as the Court-Martial has to yield to the latter forum which has a preferential claim when a request is made by the Appropriate Authority under Section 475(1) Cr.P.C. ## STAND OF THE STATE PUBLIC PROSECUTOR 8. Opposing the submissions made on behalf of the **Crl.M.C.No. 212 of 2008** 6 petitioner, Sri.P.G.Thampi, the learned Director General of Prosecutions made the following submissions before me: In order to attract Section 475 Cr.P.C, it should be possible to say that the accused is liable to be tried by the Court. The words” shall be tried by a court to which this Code applies” in Section 475(1) Cr.P.C. mean that there is a sure possibility of a trial before the learned Magistrate without which the stage is not set for making a request under Section 475 Cr.P.C. Rule 3(a) of the Rules also does not contain any different intendment. The expression 'charged' in Section 475 Cr.P.C and Rule 3 of the Rules has a definite legal connotation and it has to be understood in its proper legal sense. The wider interpretation given to the said expression by the Madhya Pradesh and Rajasthan High Courts may not be quite correct, having regard to the Scheme of the Cr.P.C. ## JUDICIAL EVALUATION 9. After hearing both sides at length, I am of the view that the submission made by the learned Director General of Prosecution should receive acceptance at the hands of this **Crl.M.C.No. 212 of 2008** 7 Court. The object of Section 475 Cr.P.C and the Rules frames thereunder is to avoid a conflict of jurisdiction regarding the forums which may have to try an offender who belongs to the Armed Forces. Hence, when the stage has reached for trying such an offender, the Law gives primacy to the Armed Forces to make a choice regarding the forum which is to try an offender serving under them. The expression “charged” occurring in both Section 475 Cr.P.C. as well as in Rule 3 of the Rules can only mean a stage after the filing of a “Police Report” under Section 173 (2) Cr.P.C. or after the filing of a “complaint” under Section 190 read with Section 200 Cr.P.C. before a Criminal Court. That stage cannot be said to have reached even if the Court takes cognizance of the offences either on such police report or on such complaint unless process is issued to the accused and he either appears before Court or is brought before Court. It is thereafter that the court frames a charge against the offender (if he is triable by that Court itself) or commits the case to the Court of Session under Section 209 Cr.P.C (if the offence is one exclusively triable by a Court of Session). It is well settled that the trial **Crl.M.C.No. 212 of 2008** 8 in a warrant case, as also in a Sessions Case, like the case on hand, starts only with the framing of the charge by the Court. It is at that stage that there is a legislative interdict on the Magistrate against proceeding further by framing the charge or committing the case to the Court of Session for trial. Once the stage has reached for the Magistrate either to frame the charge or to commit the case to the court of Session, his hands are fettered if there is a request from the Appropriate Authority under Section 475 Cr.P.C. read with the Rules. When once such a request is made at the appropriate stage, the Magistrate cannot continue to retain his jurisdiction over the offender, if he belongs to the Armed Forces. The wider interpretation to the expression “charged” as has been attempted in the decisions of the Madhya Pradesh and Rajasthan High Courts cannot be accepted. If a formal accusation as is canvased for, alone is sufficient to hold that the accused is “charged” with an offence, then even with the registration of the F.I.R. it could be said that there is a formal accusation against the accused officers entitling the competent authority to make a request under Section 475 **Crl.M.C.No. 212 of 2008** 9 Cr.P.C. Supposing in such a case, the State police, after investigation, were to file a refer report under Section 169 read with Section 173(2) Cr.P.C. then the whole exercise will be meaningless since even the Magistrate may not require the accused officers to be tried for the alleged offences. 10. The meaning and amplitude of the expression “charged” under Section 475 Cr.P.C. will have to be understood and appreciated in the backdrop of the statutory scheme under the Criminal Procedure Code itself. It is only when the Investigating Officer, after collecting the requisite materials during investigation, arrives at the subjective satisfaction that there is sufficient evidence or reasonable ground to forward the accused to the Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or to commit him for trial as envisaged under Section 170 Cr.P.C., could it be said that the accused is brought before the Magistrate and charged with an offence. That stage has not reached in the case on hand which is still under investigation and the State Police has not filed the final report yet. If an interpretation not consistent with the **Crl.M.C.No. 212 of 2008** 10 scheme of the Criminal Procedure Code, is attempted to be given to the expression “charged” under Section 475 Cr.P.C. it may result in anomalous consequences. 11. In as much as the Officer of the State Police in charge of the investigation has not yet made up his mind either to forward the accused to the learned Magistrate for the purpose of trial, or to file a refer report under Section 169 read with Section 173(2) Cr.P.C. and release him for the reason that the evidence is deficient, the stage is not yet set for the competent authority to make a request under Section 475 Cr.P.C. read with Rule 3 (a) of the Rules; nor can the Magistrate entertain such a request at this stage. In this view of the matter, the request made by the petitioner before the learned Magistrate on 14-01-2008 was really premature. I, therefore, uphold the impugned order. 12. If the petitioner is aggrieved by the order passed by the Magistrate remanding the three Naval Officers to judicial custody, the remedy is elsewhere by seeking bail from the appropriate forum at the appropriate stage. 13. It is thus clarified that in case the three accused 11 ## **Crl.M.C.No. 212 of 2008** officers are charge sheeted by the State Police by filing a Police Report under Section 173(2) Cr.P.C., it shall be open to the petitioner to make a request under Section 475 (1) Cr.P.C. read with Rule 3(a) of the Rules. Subject to the above clarification, this Crl.M.C is dismissed. I place on record the submission made by the Director General of Prosecution that the investigation of the case will be expedited and a final report shall be filed at the shortest possible time, having regard to the fact that three accused persons are officers of the Armed forces. ## **V. RAMKUMAR, JUDGE** sj