P.P. Prasad v. Lt. Commander & Ors 1999 CriLJ 243

In the High Court of Judicature at Calcutta
C.R.R. 2400 of 1998
Citation:
1999 CriLJ 243
Petitioner:
P.P. Prasad
Respondents:
Lt. Commander of Indian Navy and 3 others
Decided on: 
November 10th, 1998
Bench: 
Justice N. Mitra

Facts of the case:

• The petitioner had filed a complaint before the Chief Judicial Magistrate of Port Blair, under Section 200 of the Code of Civil Procedure alleging that the respondent Lt. Commander and 6 other Navy personnel had come to his residence on 29^th of September 1995 at about 11.30 at night. 
• The respondents did not show any search warrant and trespassed inside the room of the petitioner.
•  The petitioner was severely beaten by the accused-respondent No. 1.
• The respondent No. 1 then brought out certain documents and pressurised the petitioner to accept the said documents as his own and also compelled the petitioner to sign on a blank paper. 
• The respondent Lt. Commander, in addition, took Rs. 24,450/-in cash and a cheque book of a Bank from the petitioner’s house.
• The petitioner was then forcibly taken to the Fortress Head Quarter, and was illegally confined there till 2^nd October, 1995, and during the stay the petitioner was mercilessly beaten by the accused-respondent No. 1 to extort confession.
• On 2^nd October the accused took the petitioner to the Officer In-charge, Pahargaon Police Station (respondent No. 3) where the petitioner was detained upto 6^th October and on that date, the petitioner was taken to C.C. S. Police Station at Port Blair, from where the petitioner was released with a condition that he would attend the Police Station every morning and evening from 7^th to 26^th of October. 
• On the 26^th, the petitioner was arrested by the C.C.S. police as per the F.I.R. lodged by the accused-respondent No. 1 on 2^nd October at the Pahargaon Police Station. The petitioner thereafter was produced before the learned Chief Judicial Magistrate but he was asked to remain in judicial custody till 22^nd of November, when the petitioner was granted bail.
• After his release, the petitioner filed a complaint to the Station House Officer; Aberdeen Police Station (being the respondent No. 2) stating that the accused-respondent No. 1 and his men had trespassed illegally into the house of the petitioner without any search warrant and petitioner was seriously tortured and wrongfully confined. 
• The petitioner then made a personal representation before the Superintendent of Police, and no action was taken still. The petitioner therefore, had to file a complaint before the learned Court of Chief Judicial Magistrate at Port Blair, which was registered as C.R. 34 of 1995. 
• On the 9^th of February 1996, Ranbir Singh, a Lt. Commander appeared with a letter of authority and an application from the Commanding Officer, seeking charge of the petitioner and/or getting transfer of the case in terms of Section 475 of the Code of Criminal Procedure, along with Section 78 of the Indian Navy Act, 1957 before the Chief Judicial Magistrate of Port Blair.  The plea was rejected by the Magistrate.
• Next, the Commanding Officer of INS Jarawa, Port Blair filed an application on the 15^th of September 1998 for stay of the proceeding of C.R. No. 34 of 1995, on the ground that the accused was a Navy personnel and, therefore, could only be tried under the Navy Act of 1957 and also prayed for transfer of the case as per Section 475 of the Code of Criminal Procedure.
• This was allowed by the learned Magistrate, who was also pleased to stay the proceeding of C.R. No. 34, and the accused-respondent No. 1 was handed over to the authorised officer. 
• The petitioner therefore filed a Criminal Revision under Section 397 of the Code of Criminal Procedure before the Sessions Judge at Port Blair against the said order of the 15^th of September passed by the learned Judicial Magistrate. The said Criminal Revision was numbered as Criminal Revision No. 11 of 1998. 
• The learned Sessions Judge heard both the parties and after discussing the matter on merit, by order on 22^nd of September, 1998, dismissed the said criminal revision application filed by the petitioner. 
• The said order of the learned Sessions Judge is the subject matter of challenge in the present Criminal Revisional application filed by the petitioner under Article 227 of the Constitution of India.

The case presented by the Petitioner:

• Mr. B.K. Das appeared for the petitioners. He contended that that both the learned Judicial Magistrate at Port Blair as well as the learned Sessions Judge had acted in excess of their respective jurisdictions in allowing transferring of the case to be tried by a Court Martial as per the provisions of Indian Navy Act of 1957.
• Mr. Das contended that the provisions of Section 475 of the Code of Criminal Procedure would not apply in the present case as no charge sheet had yet been framed. 
• Section 475 reads as: 

Delivery to Commanding Officers of persons liable to be tried by Court-martial:- 

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 person 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-marital; 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 eases deliver him, together with the 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 military, naval or air force station, as the case may be, for the purpose of being tried by a Court-martial.

• Mr. Das, accordingly submitted that since it was stated in the said section that when a person be brought before a Magistrate and is charged with an offence, Section 475 would apply only when charges have been framed and/or the charge sheet has been issued.
• In the case at hand, no charges had been yet framed and/or no charge sheet had been issued in the criminal proceeding before the Judicial Magistrate at Port Blair under C.R. No. 34/95, therefore the learned Magistrate had acted in excess of his jurisdiction in allowing the case to be transferred to a Court-martial as per the provisions of Section 475.

The case presented by the Respondents:

• Mr. R. Shiv Saroop appeared for the respondent(s) contended that Section 475 of the Code of Criminal Procedure would become applicable as and when the learned Magistrate takes cognizance of an offence and finds that there is a triable case before him.
•  In the case at hand, as the learned Magistrate had examined the complainant and had directed to issue summons upon the respondents, it could be held that the Magistrate had taken cognizance of the complaint lodged by the petitioner before him and was satisfied that there was a triable case before him.

Judgement:

• The learned Judge states that as per contentions of Mr. R. Shiv Saroop, Section 475 of the Code of Criminal Procedure speaks of delivery to the Commanding Officer of a person liable to be tried by the Court–martial.  
• From the language of Section 475, it is quite clear that when any person is brought before the Magistrate and charged with an offence, the Magistrate shall deliver him together with a statement of the offence, for which he is accused, to the commanding officer of the unit to which he belongs for the purpose of feeing tried by a Court-martial.
• The wordings charged with an offence as mentioned in the said Section of 475 does not mean that the said section attracts only when the charge-sheet has been issued or that the charges have been framed by the Magistrate, and not during any prior stage.
• The Judge referred to the verdict of the Honorable Supreme Court in the case of Union of India v. S.K. Sharma, in which it had dealt with the scope of Section 475, and had observed:- ‘The language used in Section 475 is significant. It refers to a person who “is brought before a Magistrate and charged with an offence”. In other words, he must be a person respecting whom the Magistrate has taken the proceedings envisaged by Sections 200 to 204 of the Code. He will be a person in respect of whom the Magistrate has found that there is a case for trial.’ 
• It was then opined by the Judge that it had become quite clear that the moment a Magistrate takes cognizance of the offence and issues summons or warrant as the case is, Section 475 of the Code of Criminal Procedure is at once attracted.
• The Judge therefore, found no reason to interfere with the order of the Sessions Judge under Article 227 of the Constitution of India and the Criminal Revisional application was thus rejected.

Edited by: Purnima Ojha

• http://indiankanoon.org 
• P.P. Prasad v. Lt. Commander & Ors, C.R.R. 2400 of 1998
• Union of India v. S.K. Sharma, 1987 (Cri) 584 1987 Cri LJ 1992

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