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IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE JURISDICTION  

CRIMINAL APPEAL NO. 1273   OF 2013

(Arising out of SLP(Crl.) No.4808/2012)

SOWMITHRI S.                               Appellant(s)

                    :VERSUS:

STATE OF ASSAM & ORS.                      Respondent(s)

O R D E R

Leave granted.

2. Heard  Mr.  Radhakrishnan,  learned  senior  

counsel  in  support  of  this  petition  and  Mr.  

Balasubramanium,  learned  counsel  appearing  for  the  

respondents.  

3. This appeal has been filed to challenge the  

judgment and order dated 5th June, 2012 rendered by  

the  Gauhati  High  Court  in  Criminal  Petition  

No.43/2010 which was filed by the appellant herein  

under Section 482 of the Code of Criminal Procedure  

to quash the criminal case filed against him bearing

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GR  Case  No.965/2004.  The  appellant  was  being  

prosecuted under Section 302 of the Indian Penal Code  

for, allegedly, being responsible for the death of a  

civilian.  The  appellant  filed  Criminal  Petition  

No.43/2010 submitting that he could not be proceeded  

in the regular criminal court. At the highest, he  

could be proceeded in the Court Martial. He relied  

upon the judgment of this Court in General Officer  

Commanding, Rashtriya Rifles Vs. Central Bureau of  

Investigation  &  Anr.,  (2012)  6  SCC  228  and  

particularly  paragraphs  82  and  95.2  thereof  in  

support.  The  High  Court  did  not  accept  that  

submission,  holding  that  the  murder  was  committed  

while the appellant was not on active service. Being  

aggrieved  by  that  judgment  and  order  of  the  High  

Court, appellant has filed this appeal.  

4. We have perused the above referred judgment -  

rendered by this Court. This judgment clearly states  

in  paragraph  95.2  that  in  such  cases,  it  is  the  

authorities of the Armed Forces who have to take a  

decision as to whether the trial would be by a court  

martial or criminal court.  Now, an affidavit has  

been filed by one Mr. Anil Yadav, who is a Major in

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the Army and in paragraph 8 of the affidavit he has  

stated that the Armed Forces have decided to take  

over the case from civil authorities to hold a more  

comprehensive  and  detailed  inquiry  and  thereafter  

proceed  further  in  accordance  with  Army  Act  and  

Rules.  

5. The complainant has been served in July, 2012  

but he neither entered appearance before this Court  

nor  cared  to  file  any  reply.  In  the  facts  and  

circumstances of the case, we allow this appeal, set  

aside the order passed by the High Court as also the  

prosecution which is lodged against the appellant.  

The Armed Forces will now proceed with the inquiry as  

per the affidavit filed by Major Anil Yadav.  

.........................J (H.L. GOKHALE)

.........................J (J. CHELAMESWAR)

New Delhi; August 26, 2013.