The Single Bench of Justice Javed Iqbal Wani while deciding two clubbed petitions under Section 528 Bharatiya Nyaya Suraksha Sanhita (BNSS) arising out of the common incident of sexual assault by P.K Sehrawat, Petitioner in the lead petition and one of the Respondents in the other Petition, deliberated, inter-alia, upon the nuances of concurrent jurisdiction of the Court Marshall under the Air Force Act, 1950 and a Criminal Court under the CrPC (now BNSS), and ruled in favor of completion of investigation by the Special Investigation Team/Police as well as production of chargesheet under relevant provisions of CrPC/BNSS.

The peculiar situation in the case was that both, the victim/complainant in the impugned FIR as well as the accused were subjects of the Air Force, and the FIR under challenge in the lead case was registered under Section 376(2) of the Indian Penal Code, 1980. Moreover, upon the complaint being raised by the victim before the seniors at the Air Force Station at Srinagar, a Court of Inquiry was ordered followed by an Inquiry by an Internal Committee, however, nothing concrete came out of the said enquiries and consequently both were closed.

While the first petition filed by the accused, sought quashment of the FIR, the second petitionwas filed by the Union of India through Air Commander AOC 1 Air Force Station Srinagarbeing aggrieved of the investigation being carried by the Police in terms of CrPC, primarily on account of Section 124 of the Air Force Act, 1950 as per which the officer commanding any wing, group or station has jurisdiction to try offences relating to civil offences committed by a subject of the Air Force.

The High Court upon perusal of the record of the case as also the CD file produced by the Special Investigation Team (SIT) investigating the case as per the earlier direction passed in the case, refrained from exercising its inherent jurisdiction under Section 528, BNSS, and dismissed the case seeking quashment of the impugned FIR. 

Further, with respect to assuming of jurisdiction by the Magistrate under CrPC and investigation by the Police, and the power of the competent authority under Section 124 and Section 125 of the Air Force Act, the Petitioner Union of India pleaded that in terms of Section 124 of the Act, 1950 the competent authority has the primary right to conduct the proceedings in view of the fact that besides the offence of the rape punishable under Section 376 of Indian Penal Code, the complaint filed by respondent/complainant therein also allege commission of additional offences under Section 45 and 46 (A) of the Airforce Act 1950, which can only be enquired and tried in terms of the provision of the Act 1950.

The moot question formulated by the Court in order to address the controversy was that whether the Designated Authority under the Act of 1950 can invoke the provisions of Section 124 of the Act 1950, at the stage of investigation?

In answering the said question, the Court interpreted Sections 124 and 125 of the Act, 1950 asalso the word ‘instituted’ used therein, and held, “what emerges from the above interpretation of the term “instituted” it is clear that the same does not mean filling, presenting or initiating the proceedings, rather it means taking cognizance as per the provisions contained in the CrPC/BNSS.”

The Court further, relying upon “General Officer Commanding Vs. CBI and Another” reported in 2012 6 SCC 228, ruled that the discretion envisaged under Section 124 of the Act of 1950, can be exercised by the Designated Officer only upon completion of the investigation and the presentation of the police report/ charge sheet under Section 173 of the Code of Criminal Procedure (now Section 193 of BNSS), but before taking cognizance of the same by the Magistrate.

Furthermore, upon a conjunctive reading of Sections 124 and 125 of the Act, 1950, the Court observed, “though, Section 124 and 125 supra of the Act 1950 operate in different domains, yet a combined reading of Section 124 supra rules out the possibility of exercising of discretion by the Designated Officer during investigation and if read otherwise, same would render section 125 supra, otiose, in other words, if it is held that the Designated Officer can exercise the discretion under Section 124 supra at the stage of investigation, it would effectively preclude the police from completing the investigation, thereby preventing the preparation and submission of police report/charge sheet before the Magistrate and in absence of such report/charge sheet, the Magistrate would have no basis of forming an opinion under Section 125 supra, thus rendering the same redundant.”

Thus, the Court held that the pleas raised by the appearing counsel for the parties supporting the applicability of the provisions of Section 124 of the Act of 1950 at the stage of investigation pale into insignificance. 

Therefore, the Court disposed of the Petition with the direction that the Special Investigation Team/Investigating Agency shall continue with and conclude the investigation in impugned FIR No. 370/2024, and upon completing the investigation, shall file charge sheet strictly in terms of the relevant provision of Cr.PC/BNSS, and upon filling of such charge sheet, the Designated Authority under Section 124 of Air Force Act, 1950 shall be at liberty to invoke said Section 124, if it decides to try the respondent 5 herein in a Court Martial.