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    W.A. No. 51 of 2017

    Decided On, 15 February 2018

    At, High Court of Gauhati

    By, THE HONOURABLE CHIEF JUSTICE MR. AJIT SINGH & THE HONOURABLE MR. JUSTICE MANOJIT BHUYAN

    For the Appellant: S.C. Keyal, Assistant Solicitor General. For the Respondent: K.N. Choudhury, R. Mazumdar, H. Bezbaruah, Advocates.



Judgment Text

Ajit Singh, C.J.

This intra court appeal is directed against the common order dated 10.2.2017 passed by the learned Single Judge of this Court, whereby he has allowed respondents' W.P.(C) Nos. 7950/2016 and 7963/2016.

2. Respondent No. 1 and Respondent No. 2 are posted as Subedar and Naib Subedar, respectively in the Assam Rifles (Building & Roads). On 4.8.2014, in a sting operation, Respondent No. 1 was caught attempting to accept bribe of Rs. 20,000/- from one contractor of Assam Rifles, namely, Sri CC Mathew. And, on 11.8.2014, Respondent No. 2 was caught accepting Rs. 1,03,000/- as bribe from the same contractor. The sting operation was later broadcasted in Malayalam Channel Mathrubhumi News and Tehelka.com on 24/25 September, 2014. These incidents were taken seriously by the appellants and General Assam Rifles Court (in short "GARC") was constituted to prosecute the respondents. Accordingly, charges were framed against them under Sections 49 and 55 of the Assam Rifles Act, 2006, (in short "Act of 2006") punishable under Section 7 of the Prevention of Corruption Act, 1988 (in short "Act of 1988").

3. During the course of trial, the respondents challenged the jurisdiction of GARC by filing W.P.(C) Nos. 7950/2016 and 7963/2016, which the learned Single Judge has allowed by the common impugned order. The learned Single Judge has held that the Court of Special Judge under the Act of 1988 cannot be deemed to be a court of ordinary criminal justice under the Act of 2006 and hence, GARC has no jurisdiction to try the offences charged against the respondents. Aggrieved, the appellants have filed the present appeal.

4. The appellants have argued that the learned Single Judge wrongly interpreted the provisions of the Acts of 2006 and 1988 in holding that GARC has no jurisdiction to try the offences charged against the respondents. The learned Senior counsel for the respondents, on the other hand, defended the finding of the learned Single Judge on the objection of jurisdiction.

5. Assam Rifles is an Armed Force of the Union for ensuring the security of the borders of India, to carry out Counter Insurgency Operation in the specified areas and to act in aid of civil authorities for the maintenance of law and order and for matters connected therewith. The Act of 2006 relates to governance of the Assam Rifles.

6. Section 2(1)(b), (e) & (h) of the Act of 2006 defines Assam Rifles Court, Civil Offences and criminal court. They are defined as under:-

"2(1) - In this Act, unless the context otherwise requires-

(b) "Assam Rifles Court" means a Court referred to in Section 86;

(e) "civil offence" means as offence which is triable by a criminal court;

(h) "criminal court" means a court of ordinary criminal justice in any part of India;"

And, Section 86 provides that for purpose of this Act, there shall be three kinds of Assam Rifles Courts, that is to say-

(a) General Assam Rifles Courts;

(b) Petty Assam Rifles Courts; and

(c) Summary Assam Rifles Courts.

7. Section 49 of the Act of 2006 provides for punishment of a person, who is found guilty of violation of good order and discipline. It reads as under:-

"49. Violation of good order and discipline.- Any person subject to this Act who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and discipline of the Force shall, on conviction by an Assam Rifles Court, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned."

8. Section 55 of the Act of 2006 deals with the punishment of person held guilty of committing any civil offence by the Assam Rifles Court. It reads as under:-

"55. Civil Offences.- Subject to the provisions of Section 56, any person subject to this Act who at any place in, or beyond, India commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this Section, shall be liable to be tried by an Assam Rifles Court any, on conviction, be punishable as follows, that is to say.-

(a) if the offence is one which would be punishable under any law in force in India with death, he shall be liable to suffer any punishment assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and

(b) in any other case, he shall be liable to suffer any punishment assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as in this Act mentioned."

9. Likewise, Section 56 of the Act of 2006 deals with civil offences not triable by an Assam Rifles Court. It is as follows:-

"56. Civil Offences not triable by an Assam Rifles Court.- Any person subject to this Act who commits an offence of murder or of culpable homicide not 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 an Assam Rifles 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."

10. From the reading of the above quoted definitions of civil offence and criminal court it becomes clear that civil offence under the Act of 2006 means an offence which is triable by a criminal court and the criminal court for the purpose of the Act of 2006 means a court of ordinary criminal justice in any part of India.

11. The Act of 1988 was brought into force with the avowed purpose of effective prevention of bribery and corruption. And every offence punishable under the Act of 1988 is triable by a Special Judge in view of Section 4 of the same Act. Also for removal of doubts its Section 25 clearly declares that the court of "Special Judge" shall be deemed to be a "court of ordinary criminal justice" for the purposes of laws referred in the same section and the laws referred in the section are - Army Act, 1950; Air Force Act, 1950; Navy Act, 1957; Border Security Force Act, 1968; Coastal Guard Act, 1978 and National Security Guard Act, 1986. Apparently, the Legislature has not declared GARC constituted under the Assam Rifles Act to be a court of ordinary criminal justice. Meaning thereby GARC shall have no jurisdiction to try an offence punishable under Section 7 of the Act of 1988 as the same can be tried only by a Court of Special Judge which is not declared to be a court of ordinary criminal justice. It is true that Act of 2006 is later to the Act of 1988. But this cannot be ground to assume GARC to be a court of ordinary criminal justice. Also since the charge under Section 55 of the Act of 2006 is punishable under Section 7 of the Act of 1988 and both the charges are inseparable even the charge under Section 55 also cannot be tried in the fact situation of the case by GARC. For ready reference, we deem it proper to reproduce Section 25 herein below:-

"25. Military, Naval and Air Force or other law not to be affected.- (1) Nothing in this Act shall affect the jurisdiction exercisable by, or the procedure applicable to, any court or other authority under the Army Act, 1950 (45 of 1950), the Air Force Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957), the Border Security Force Act, 1968 (47 of 1968), the Coast Guard Act, 1978 (30 of 1978), and the National Security Guard Act, 1986 (47 of 19

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86). (2) For the removal of doubts, it is hereby declared that for the purposes of any such law as is referred to in sub-section (1), the court of a Special Judge shall be deemed to be a court of ordinary criminal justice." 12. For these reasons, we affirm the finding of the learned Single Judge to the extent that GARC has no jurisdiction to try the charges framed under Section 55 of the Act of 2006 and Section 7 of the Act of 1988 against the respondents. The GARC, at the most, can try the Respondents for charge under Section 49 of the Act of 2006. The appellants shall, however, be at liberty to prosecute the respondents in accordance with the procedure prescribed under the Act of 1988 for the charges framed under that Act. 13. Subject to above modification in the impugned order, the appeal is finally disposed of.
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