ORDER
S.S. Saraf, J.
1. This Criminal Revision filed under Section 397 read with Sections 401 and 482 of the Code of Criminal Procedure and other three Criminal Revisions : (i) Cr. Rev. No. 84/2000 (Major E. Kumar v. Union of India through C.B.I.), (ii) Cr. Rev. No. 177/2000 (Lieutenant Colonel J.S. Virdi v. Union of India through C.B.I.) and (iii) Criminal Revision No. 178/2000(Subedar N. Prasad v. Union of India through C.B.I.) arise out of the common order dated 4-11-1999 passed by the learned Special Judge (CBI), Jabalpur in Special Case No. 7/99 framing charge against all the petitioners for offence punishable under Sections 120B and 420 of IPC and under Section 13(1)(d) read with Section 13(2)of the Prevention of Corruption Act, 1988 and Section 7/16 of the Prevention of Food Adulteration Act, 1954, therefore, all the four revision petitions are being considered and disposed of by the common order.
2. The facts giving rise to this petition are these:-- The petitioners are the working or retired Army Officers/Personnel. The edible oil was ordered to be purchased from the local market on day to day basis. The purchases were carried out between March and April, 1995. The petitioners were allegedly engaged in such purchases. It was alleged that the edible oil purchased by the petitioners was adulterated. The matter was reported to the higher army authorities. The samples were taken and the edible oil was found adulterated with linseed oil. It is alleged that the petitioners in conspiracy with the other co-accused deliberately purchased adulterated oil and thereby caused the wrongful loss to the Government of India and wrongful gain to themselves. The enquiry was entrusted to the Central Bureau of Investigation. The CB.I./respondent after completion of the investigation filed a challan against the petitioners as well as other co-accused in the Court of Special Judge (CBI), Jabalpur. The learned Judge after perusal of the material on record by order dated 4-11-1999 framed charges as above against the petitioners. Aggrieved by the impugned order dated 4-11-1999, the present petitions have been filed.
3. Though, the petitioners have challenged the framing of charges against them on merits and also challenged the jurisdiction of the learned Special Judge (CBI), Jabalpur, yet the barned counsel appearing for both the sides contended that at this stage the question of jurisdiction of the learned Special Judge (CBI), Jabalpur for holding trial against the petitioners may be considered first. Accordingly the question of jurisdiction as above is being considered and decided by this order. The petitioners shall have liberty to file fresh petitions, if necessary, challenging the framing of charges against them.
4. Having heard the learned counsel for both the sides and having gone through the entire material on record, I am of the view that these petitions deserve to be allowed. Evidently, the petitioners are or were the Army Officers/Personnel and therefore the provisions of Army Act apply in the present case. It is also manifest that for the offence alleged against the petitioners, the Special Judge as well as the Court-Martial have a concurrent jurisdiction. Section 125 of the Army Act provides that:--
'When a Criminal Court and a Court-Martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer commanding the army, army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which Court the proceedings shall be instituted, and, if that officer decides that they should be in-stituted before a Court-Martial, to direct that the accused person shall be detained in military custody.' Section 126 of the Army Act provides that:--
'When a Criminal Court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged offence, it may, by written notice, require the officer referred to in Section 125 at his option, either to deliver over the offender to the nearest magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central Government.'
5. The provisions of Sections 125 and 126 of the Army Act are to be read with Rules 3 and 4 of the Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1952. Rules 3 and 4 of the said rules are reproduced hereunder for convenience :--
'3. Where a person subject to Military, Navel or Air Force law is brought before a Magistrate and charged with an offence for which he is liable to be tried by Court-Martial, such Magistrate shall not proceed to try such person or to inquire with a view to his commitment for trial by the Court of Sessions or the High Court for any offence triable by such Court, unless--
(a) he is of opinion, for reasons to be recorded, that he should so proceed without being moved thereto by competent Military, Naval or Air Force authority, or
(b) he is moved thereto by such authority.'
'4. Before proceeding under clause (a) of Rule 3, the Magistrate shall give a written notice to the Commanding Officer of the accused and until the expiry of a period of--
(i) three weeks, in the case of a notice given to a Commanding Officer in command of a unit or detachment located in any of the following areas of the hill districts of the State of Assam, that is to say--
(1) Mizo,
(2) Naga Hills,
(3) Garo Hills,
(4) Khasi and Jaintia Hills, and
(5) North Cachar Hills;
(ii) seven days, in the case of a notice given to any other Commanding Officer in command of a unit or detachment located elsewhere in India, from the date of the service of such notice, he shall not--
(a) convict or acquit the accused under Sections 243, 245, 247 or 248 of the Code of Criminal Procedure, 1898 (Act 5 of1898), or hear him in his defence under Section 244 of the said Code; or
(b) frame in writing a charge against the accused under Section 254 of the said Code; or
(c) make an order committing the accused for trial by the High Court or the Court of Sessions under Section 213 of the said Code; or
(d) transfer the case for inquiry or trial under Section 192 of the said Code.'
6. Under Section 475 of the Code of Criminal Procedure the Central Government may frame rules consistent with the Cr.P.C. and the Army Act, regarding the trial of the persons subject to Military, Naval or Air Force law, and if such rules are framed, the Magistrate shall have regard to such rules.
7. A combined reading of the above provisions clearly indicates that if the ordinary Criminal Court decides to try accused who is subject to Army Act, it will have to give notice to the Army authorities as envisaged in Sections 125 and 126 of the Army Act and the Rules 3 and 4 of the said rules.
8. Shri R.S. Patel, learned counsel appearing for the respondent placing reliance on the decision of the Supreme Court in Joginder Singh v. State of Himachal Pradesh, (1971) 3 SCC 86, has contended that since the investigation was entrusted to the CBI by the Army authorities, there was no necessity to give notice to them. A perusal of the decision of Joginder Singh's case (supra) shows that in that case the competent military authorities knowing full well the nature of the offence alleged against the accused released him from military custody and handed him over to the civil authorities and therefore it was held by the Supreme Court that the Magistrate was justified in proceeding on the basis that the military authorities had decided that the accused need not be tried by the Court-Martial and that he should be tried by the ordinary Criminal Court. In the present case, the facts are different. The military authorities did not hand-over the petitioners for trial before the ordinary Criminal Court, they simply entrusted the investigation to the C.B.I. and therefore after investigation it is open before which Court the petitioners should be tried. Merely because the investigation into the alleged offence was entrusted by the Military Officers to the C.B.I. the requirement of mandatory provisions of Sections 125 and 126 of the Army Act and the Rules 3 and 4 of the above Rules does not come to an end. Under the circumstances, merely because the investigation was entrusted by the Army authorities to the C.B.I., it cannot be said that the Army authorities had opted for the trial of the petitioners by the ordinary Criminal Court and voluntarily abandoned their option to try them in the Court-Martial.
9. Shri R.S. Patel, learned counsel for the respondent has, further, contended that since the sanction to prosecute the petitioners have been accorded by the Government of India, there was no necessity to give notice by the Special Judge to the concerned army authorities before framing of thecharges against them. After giving thoughtful consideration to this contention of the learned counsel for the respondent, I am of the view that merely because sanction has been accorded by the Government of India, the mandatory provisions of Sections 125 and 126 of the Army Act and Rules 3 and 4 of the above Rules do not become inoperative.
10. It has been held by the Supreme Court in The Superintendent and Rememberance of Legal Affairs, West Bengal v. Usha Ranjan Roy Choudhary, Cr.L.R. (SC) 1986 page 309, that the compliance with the procedure prescribed by the above rules is mandatory requirement and in proceedings undertaken by the learned Magistrate without compliance with the aforesaid mandatory procedure would vitiate the trial before the ordinary Criminal Court and the entire proceeding be referred null and void.
11. The learned counsel for the respondent has also contended that the offence relates to the year of 1995 and since a period of three years has elapsed the Court-Martial shall have no jurisdiction to try the offence against the petitioners and therefore it cannot be said that the offence is triable by the ordinary Criminal Court as well as the Court-Martial and therefore the above provisions of Sections 125 and 126 of the Army Act and Rules 3 and 4 of the above Rules are not attracted.
12. Having given a thoughtful consideration to this contention of the learned counsel for the respondent, I am unable to agree with him. The Supreme Court in Delhi Special Police Establishment, New Delhi v. Lt. Col. S.K. Loraiya, AIR 1972 SC 2548 has considered this question and held that the phrase in Section 475, Cr.P.C. (old Section 549) 'for which he is liable to be tried either by a Court to which this Code applies or by a Court-Martial' imports that the offence for which the accused is to be tried should be an offence of which cognizance can be taken by a ordinary Criminal Court as well as Court-Martial. The Apex Court, further, held as under:--
'In our opinion, the phrase is intended to refer to the initial jurisdiction of the two Courts to take cognizance of the case and not to their jurisdiction to decide it on merits. It is admitted that both the ordinary Criminal Court and the Court-Martial have concurrent jurisdiction with respect to the offences for which the respondent has been charged by the Special Judge. So, Section 549 and the rules made thereunder are attracted to the case at hand.'
13. The learned counsel for the respondent has also contend that since the other co-accused are non-military personnel, therefore the Court-Martial shall not be in position to hold trial against the petitioners. It is up to the competent army authorities to decide that in the given facts and circumstance whether the petitioners shall be permitted to be tried before a Court-Martial or before an ordinary Criminal Court. The decision rests not with the ordinary Criminal Court. The decision rests not with the ordinary Criminal Court but with the competent army authorities.
14. Placing reliance on the decision of the Supreme Court in Major E.G.Barsey v. The State of Bombay, AIR 1961 SC 1762, the learned Special Judge has found that the provisions of Section 475 of the Code of Criminal Procedure, 1973 (old Section 549 of Cr.P.C, 1898) are not applicable in the cases tried by the Special Judge. This question has been considered by the Supreme Court in The Superintendent and Rememberance of Legal Affairs, West Bengal v. Usha Ranjan Roy Choudhary's case (supra). The Supreme Court held that after the amendment it is now clear that a Special Judge is deemed to be a Magistrate for the purposes of the Rules framed under Section 475 of Cr.P.C, 1973 (old Section 549, Cr.P.C., 1898), therefore the above provisions shall be applicable to the trial before a Special Judge.
15. Evidently, the mandatory procedure prescribed by the above law and rules has not been followed in the present case and therefore the trial against the petitioners is vitiated. The learned Special Judge (CBI), Jabalpur has no jurisdiction to proceed against the petitioners unless and until) a notice as envisaged by the above Rules is given to the competent army authorities. The petitions are, therefore, allowed. The impugned order framing charges against the petitioners is quashed and the proceedings are stayed. It is directed that the learned Special Judge (CBI), Jabalpur shall follow the above mandatory provisions and if the competent army authorities decide that the trial should be conducted by the Special Judge (CBI), Jabalpur then proceed against the petitioners from the stages of framing of charges.
16. Criminal Revision allowed.