Madras High Court Issues Guidelines To Criminal Courts On Handing Over Custody Of Armed Personnel In Criminal Offences

Justice RN Manjula held that whenever a request for custody is made by a competent authority of the Armed Forces, the Magistrate is to follow the dictum laid down in Som Datta v Union of India. The court also held that when a Court of Inquiry has undertaken an investigation in the matter, it is indicative of an assumption of jurisdiction under Section 124 of the Air Force Act.

“Once an option under Section 124 is exercised there is no necessity to continue or complete the investigation by the police and hence the necessity to lay the charge sheet by police before the Criminal Court and the consequential need to invoke Section 475 Cr.P.C read with the corresponding Court Martial (Adjustment of Jurisdiction ) Rules, will not arise. Hence an order should be passed that the police shall not continue the investigation unless it is expressly desired by the Competent Authority of the Military, Naval, Air Force, as the case may be,” the court said.

It added: "Once the Investigation is undertaken by the appropriate Authority, it is that authority or team of authorities who had investigated the offence have to appear before the Court Martial during trial to depose evidence and not the police. Hence if any summons is ordered by the Court Martial through the Magistrate for the appearance of the Police, before serving the same, the magistrate shall clarify whether it was due to the investigation carried out by the Police"

However, the court clarified that when the police has undertaken the investigation, the chargesheet is to be laid only before the Magistrate and not before the Court Martial. The court further said that such report is to be directly instituted before the Court Martial if the investigation is done by the Court of Inquiry and if the report is filed by the Appropriate Authority.

The court added that the Criminal court can assume jurisdiction only after the charge sheet is filed.  It further said that when a request is made by the Appropriate Authority after the chargesheet is filed, the due process as contemplated under Section 475 CrPC and the Court Martial (Adjustment of Jurisdiction) Rules 1978 shall be followed.

The court also noted that when an accused is arrested under Section 105 of the Act and brought before the Magistrate, the Magistrate shall hand over his custody to the Armed Forces when a request for custody is made. When no such request is made, the court held, the Magistrate shall remand the accused under Section 167 of CrPC after intimation to the Appropriate Authority when the offence is one where the Criminal Courts have jurisdiction.

The court added that when the offence is one where the Criminal Courts do not have jurisdiction, the accused is to be handed over to the Armed force even in the absence of a written request.

In the present case, the court was informed that the woman officer, who is a Flight Lieutenant in the Air Force, was raped by her male colleague, who is also a Flight Lieutenant, while undergoing a Professional Knowledge Course for seven weeks at the Air Force Administration College. The woman officer gave a complaint to her officers and a Court of Inquiry was formed.

However, it was further informed that being unsatisfied with the manner in which the matter was being handled, the woman officer gave a police complaint based on which an FIR was registered at the All Woman Police Station Central, Coimbatore. The police started the investigation and arrested the accused from the Air Force camp.

When the accused was produced before the Magistrate, the Air Force Authorities placed a request for seeking his custody and the same was ordered. Against this, a revision was filed by the police before the Sessions Court which modified the order and permitted the investigation to be done by both the police and the Air Force authorities. Thus, the present case was filed by the police against the order allowing the custody to the air force.

"The civil offences by their very nature are triable by the regular Criminal Courts. However, the jurisdiction to try the civil offences has also been conferred on the Court Martial in view of the circumstances and exigencies that are specially known to the Armed forces. In Ram Sarup Vs. Union of India & Anr., AIR 1965 SC 247, the Hon’ble Supreme Court has held that there could be variety of circumstances which may influence the justification as to whether the offender be tried by a Court Martial or by the Criminal Court, and therefore, it becomes inevitable that the discretion to make such a choice be left to the Military Officers. Military Officer is to be guided by con- siderations of the exigencies of the service, maintenance of discipline in the Army, speedier trial, the nature of the offence and the persons against whom the offence is committed," said the court.

However, it also said that the object of such special arrangement cannot be wrongly construed that an offender of heinous crime like rape should be treated like a privileged person and his authorities should act like his guardians by leaving the interest of the victim at lurch.

"Though the system of Court Martial appears to be an in-house mechanism, such proceedings before the Court Martial are not mere disciplinary proceedings 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 Sessions Judge," it added.

Case Title: State v Commandant, Air Force Administrative College

Citation: 2023 LiveLaw (Mad) 205

Counsel for the Petitioner: Mr.A.Gopinath, Government Advocate (Crl.Side)

Counsel for the Respondent: Mr.R.Rajesh Vivekananthan