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| Army Captain, Ors facing trial in alleged rape case | | HC allows revision petition, sets-aside Trial Court order | | Early Times Report
Jammu, Apr 14- Setting aside the order of the Trial Court, Justice Sunil Hali of Jammu and Kashmir High Court, in a criminal revision petition filed by Captain Vinod Kumar and others who are facing trial u/s 376/458/342 RPC, has observed that Trial Court has exercised the jurisdiction which did not vest in it, the order of committal made by the CJM Poonch on the basis of which the trial against the accused was commenced by the Trial Court at Jammu, shall stand vitiated. Consequently the order of the Trial Court is set-aside and allowed the revision petition filed by the petitioners.
Justice Hali, after hearing Advocate AP Singh appearing for the petitioners and Additional Advocate General PC Sharma appearing for the respondent state, observed that the option has been exercised by the commanding officer of the unit who is not an officer designated u/s 125 of the Act. The person who was competent u/s 125 r/w section 127-A was the commanding officer of the Brigade, who was designated officer to give such option. Notice which has been issued to the said commanding officer is also not in consonance with the rules. The Magistrate had issued notice to the Commanding officer of the unit, who has given the option that the accused be tried by Criminal Court. The only question is required to be seen that while exercising his power u/s 126 with Rule 4, the Magistrate has complied with the requirement of law. Compliance with procedure prescribed by the Act and Rules, is mandatory requirement and any proceeding undertaken by the Trial Judge without complying the mandatory procedure would vitiate the Trial before the ordinary criminal court and the entire proceedings be rendered null and void.
A Criminal Revision was filed by Captain Vinod Kumar and other who are facing trial u/s 376/458/342 RPC before the 2nd Additional Sessions Judge Jammu under FIR No 47/1998 registered with P/S Mandi, Poonch against the petitioners who are the members of the armed force and at that time were working under the Brigade Commander Poonch. CJM Poonch on June 2, 1999 issued a notice to the commanding Officer under whose Unit the petitioners were working seeking option from him whether the accused are required to be tried by the Court Martial or by the Civil Court, the Commanding Officer Satish Dua in his communication that accused be tried by the Criminal Court. CJM Poonch committed the case for trial to court of Session Poonch. A transfer application was filed by the petitioners seeking transfer of the file from Poonch to any court competent jurisdiction at Jammu. The case was transferred to 2nd Additional Sessions Judge Jammu and the petitioners filed an application before this Court seeking dropping of proceedings against the petitioners on the ground that the present trial was being conducted in violation of section 125 of the Army Act. Trial Court after hearing the petitioner dismissed the application vide its order January 8, 2005 and aggrieved by the said orders, the petitioners filed this criminal revision petition which was allowed by the High Court. JNF
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