TMI Blog2015 (7) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... to be consistent with it and if a rule goes beyond what the Act contemplates or is in conflict thereof, the rule must yield to the Act. It is emphasized that Section 80 of the Act confers discretion on the Officer within whose Command the accused person is serving the choice between Criminal Court and Security Force Court without any rider, whereas Rule 41 of the Rules specifies grounds for exercise of discretion. Accordingly, it is submitted that this rule must yield to Section 80 of the Act. - One of the most common mode adopted by the legislature conferring rule making power is first to provide in general terms i.e., for carrying into effect the provisions of the Act, and then to say that in particular, and without prejudice to the generality of the foregoing power, rules may provide for number of enumerated matters. Section 141 of the Act, with which we are concerned in the present appeal, confers on the Central Government the power to make rules is of such a nature. Rule 41 of the Rules has been made to give effect to the provisions of the Act. In our opinion, it has not gone beyond what the Act has contemplated or is any way in conflict thereof. Hence, this has to be treat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Force personnel, they got stuck in a traffic jam. This led to a verbal duel with some boys present at Boulevard Road, Brain, Srinagar. The verbal duel took an ugly turn and the Force personnel started chasing the boys. It is alleged that at the instigation of R.K. Birdi, constable Lakhwinder Kumar fired twice and one of the rounds hit Zahid Farooq Sheikh. Zahid died of the fire arm injury instantaneously. The aforesaid incident led to registration of FIR No. 4 of 2010 at Police Station, Nishat. It is relevant here to state that the Commandant of the Force by his letter dated 10.02.2010 handed over the investigation to the police. The case was investigated without any murmur by the local police and, during the course of investigation, both R.K.Birdi and Lakhwinder Kumar were arrested. On completion of investigation, the police submitted the charge-sheet on 05th of April, 2010 against both the accused for commission of offence under Section 302, 109 and 201 of the Ranbir Penal Code before the Chief Judicial Magistrate, Srinagar, whereupon an application was filed on behalf of the Force seeking time to exercise option for trial of the accused by Security Force Court. Accordingly, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under custody so the applicant together with charge-sheet and the supporting material as well as all the seized articles. The Officer concerned shall try the accused expeditiously and convey the final out-come of the case to this court as soon as it is completed Aggrieved by the aforesaid order Ghulam Mohammad Sheikh and the State of Jammu Kashmir filed separate revision applications before the High Court. Both the applications were heard together by the High Court and have been dismissed by the impugned order dated 21st of October, 2011. It is against this order the State of Jammu Kashmir and Ghulam Mohammad Sheikh have preferred separate special leave petitions under Article 136 of the Constitution of India. Leave granted. We have heard Mr. Gaurav Pachnanda, Senior Advocate on behalf of the appellant, the State of Jammu Kashmir and Ms. Kamini Jaiswal, Advocate for the appellant, Ghulam Mohammad Sheikh. We have also heard Mr. R.F. Nariman, learned Solicitor-General of India. Despite service of notice, Respondent Nos. 1 and 2 i.e., Lakhwinder Kumar R.K. Birdi respectively have not chosen to appear. It may be mentioned here that Section 47 of the Act bars trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial Number 16 of the said Notification. It is common ground that offence committed is a civil offence which is triable by a Criminal Court and at the time of commission of the offence, the accused persons were not engaged in any operation against any enemy or operating at a picket or engaged on patrolling or other guard duty along the borders of India. According to the appellants, accused persons were not engaged in the duty of the nature specified above pursuant to any lawful command, therefore, they cannot be said to be on active duty so as to give jurisdiction to the Force to try them before Security Force Court. The learned Solicitor General does not join issue and accepts that accused persons were not performing duty of the nature mentioned in clauses (i) and (ii) of Section 2(1)(a) of the Act, but, according to him, in view of declaration of the Central Government, their act shall come within the inclusive definition of active duty. There is no connection, not even the remotest one, between their duty as members of the Force and the crime in question. The situs of the crime was neither under Force control nor the victim of crime was in any way connected with the Force. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t amounting to murder against, or of rape in relation to, a person not subject to this Act shall not be deemed to be guilty of an offence against this Act and shall not be tried by a Security Force Court, unless he commits any of the said offences,- (a) while on active duty; or (b) at any place outside India; or (c) at any place specified by the Central Government by notification in this behalf. The aforesaid provision makes it clear that a member of the Force accused of an offence of murder or culpable homicide not amounting to murder or rape shall not be tried by a Security Force Court, unless the offence has been committed while on active duty. As we have found that the accused persons have committed the offence while on active duty within the extended meaning, the bar under Section 47 of the Act shall not stand in their way for trial by a Security Force Court. The bar of trial by a Security Force Court though is lifted, but it does not mean that the accused who had committed the offence of the nature indicated in Section 47 of the Act shall necessarily have to be tried by a Security Force Court. In a given case, there may not be a bar of trial by a Security Force C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Force or a person subject to the Act, or (c) where the offence is committed against a person subject to the Act, direct that any person subject to the Act, who is alleged to have committed such an offence, be tried by a Court; and (ii) in any other case, decide whether or not it would be necessary in the interests of discipline to claim for trial by a Court any person subject to the Act who is alleged to have committed such an offence. (2) In taking a decision to claim an offender for trial by a Court, an officer referred to in section 80 may take into account all or any of the following factors, namely:- (a) the offender is on active duty or has been warned for active duty and it is felt that he is trying to avoid such duty; (b) the offender is a young person undergoing training and the offence is not a serious one and the trial of the offender by a criminal court would materially affect his training. (c) the offender can, in view of the nature of the case, be dealt with summarily under the Act. Rule 2 (c) of the Rules defines Court to mean the Security Force Court. A bare reading of Rule 41(1) makes it evident that where the offence is committed in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to provide in general terms i.e., for carrying into effect the provisions of the Act, and then to say that in particular, and without prejudice to the generality of the foregoing power, rules may provide for number of enumerated matters. Section 141 of the Act, with which we are concerned in the present appeal, confers on the Central Government the power to make rules is of such a nature. It reads as follows: 141. Power to make rules.-(1) The Central Government may, by notification, make rules for the purpose of carrying into effect the provisions of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for,- (a) the constitution, governance, command and discipline of the Force; (b) the enrolment of persons to the Force and the recruitment of other members of the Force; (c) the conditions of service including deductions from pay and allowances of members of the Force; (d) the rank, precedence, powers of command and authority of the officers, subordinate officers, under- officers and other persons subject to this Act; (e) the removal, retirement, release or discharge from the service of persons subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case, the particularlisation in respect of specified subject is construed as merely illustrative and does not limit the scope of general power. Reference in this connection can be made to a decision of this Court in the case of Rohtak Hissar Districts Electric Supply Co. Ltd. v. State of U.P., AIR 1966 SC 1471, in which it has been held as follows: .Section 15(1) confers wide powers on the appropriate Government to make rules to carry out the purposes of the Act; and Section 15(2) specifies some of the matters enumerated by clauses (a) to (e), in respect of which rules may be framed. It is well-settled that the enumeration of the particular matters by sub-section (2) will not control or limit the width of the powers conferred on the appropriate Government by sub-section (1) of Section 15; and so, if it appears that the item added by the appropriate Government has relation to conditions of employment, its addition cannot be challenged as being invalid in law .. (Underlining ours) The Privy Council applied this principle in the case of Emperor v. Sibnath Banerji, AIR 1945 PC 156, to uphold the validity of Rule 26 of the Defence of India Rules, which though was fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery wide and they take in within their scope bye-laws like the ones with which we are concerned in the present appeal, it cannot be said that the powers enumerated under Section 298(2) control the general words used by Section 298(1). These latter clauses merely illustrate and do not exhaust all the powers conferred on the Board, so that any cases not falling within the powers specified by Section 298(2) may well be protected by Section 298(1), provided, of course, the impugned bye-law can be justified by-reference to the requirements of Section 298(1). There can be no doubt that the impugned bye-laws in regard to the markets framed by Respondent No. 2 are for the furtherance of municipal administration under the Act, and so, would attract the provisions of Section 298(1). Therefore, we are satisfied that the High Court was right in coming to the conclusion that the impugned bye-laws are valid. In view of what we have observed above it is evident that Rule 41 of the Rules has been made to give effect to the provisions of the Act. In our opinion, it has not gone beyond what the Act has contemplated or is any way in conflict thereof. Hence, this has to be treated as if the same i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is not even a whisper as to why said discretion has been exercised for trial of the accused persons by a Security Force Court. The Commanding Officer has nowhere stated that the trial of the accused by Security Force Court is necessary in the interest of discipline of the Force. Once a statutory guideline has been issued for giving effect to the provisions of the Act, in our opinion, the exercise of discretion without adherence to those guidelines shall render the decision vulnerable. In our opinion, the Commanding Officer has exercised his power ignorant of the restriction placed on him under the Rules. Having found that the Commanding Officer s decision is illegal, the order passed by the learned Chief Judicial Magistrate as affirmed by the High Court based on that cannot be allowed to stand. It has also been pointed out on behalf of the appellant that after lodging of the first information report, the Force voluntarily handed over the custody of accused Lakhwinder Kumar on 10th of February, 2010 and R.K. Birdi on 4th of March, 2010 and allowed the investigation to be conducted by the police without any objection and did not exercise option for trial by Security Force Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easing the accused from military custody and handing over the accused to the authorities and in that background observed that the Criminal Court was justified in proceeding with the trial and failure to give notice to the Commanding Officer by the Criminal Court shall not vitiate the conviction. Here, in the present case, the Force has exercised his option for trial of the accused immediately on submission of the charge-sheet and before the commencement of the trial. Hence, the submission made has no substance and is rejected accordingly. In the facts and circumstances of the case, we give liberty to the Director General of the Force, if so advised, to re-visit the entire issue within eight weeks bearing in mind the observation aforesaid in accordance with law and if he comes to the conclusion that the trial deserves to be conducted by the Security Force Court, nothing will prevent him to make an appropriate application afresh before the Chief Judicial Magistrate. Needless to state that in case the Director General of the Force takes recourse to the aforesaid liberty and files application for the trial by the Security Force Court, the Chief Judicial Magistrate shall consider the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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