IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 212 of 2008()
1. SRI.S.K.JHA COMMODORE COMMANDING
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
2. STATION HOUSE OFFICER, HARBOUR
For Petitioner :SRI.K.RAMAKUMAR (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :16/01/2008
O R D E R
"CR"
V. RAMKUMAR, J.
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Crl.M.C.No.212 of 2008
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Dated this the 16th 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
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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.
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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
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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
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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
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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
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
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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
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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
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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
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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
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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
