S. Chatterji, J.
1. The present application under Section 482 read with 397 of the Code of Criminal Procedure at the instance of one Ramesh Chandra Mohanty, accused inG.R. Case No. 96 of 1993, pending in the Court of Sub-Divisional Judicial Magistrate, Nayagarh, challenges the criminal trial and for quashing the entire criminal proceeding on the ground that the accused is a member of the Armed Forces of the Union of India and at present he is working as a Naik in the Indian Army. It is further disclosed that in view of the certificate vide Annexure-1 to the writ petition that the petitioner was present in unit location on 14.3.1993 at 06.00 hrs. and on 13.3.1993 he was on his way to the Regiment. The function of the accused as Army Naik is not in dispute.
2. A short point of law has been raised before this Court. Attention of the Court has been drawn to Section 69 of the Army Act, 1950. It is provided that subject to the provisions of Section 70, 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 a Court-martial and, 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 or with transportation he shall be liable to suffer any punishment, other than whipping, assigned for the offences, by the aforesaid law and such less punishment as in this Act mentioned; and
(b) in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the law in force in India, or imprisonment for a term which may extent to seven years, or such less punishment as is in this Act mentioned.
Section 70 of the Army Act indicates inter alia, the Civil offences not triable by Court-martial. The offences have been enumerated therein. It is argued from the Bar that in view of Section 125 of the said Act, choice between Criminal Court and Court-martial, 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 instituted before a Court-martial, to direct that the accused person shall be detained in military custody.
3. In view of the Section 475 of the Code of Criminal Procedure there is scope for delivery to commanding officers of persons liable to be tried by Court-martial. It envisages that the Central Government may make rules consistent with this Code and the Army Act, 1950 and any other law, relating to the Armed Forces of the Union, for the time being in force, as to cases in which persons subject to military, naval or air force law, or such other law, shall be tried by a Court to which this Code applies or by a Court-martial; and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which this code applies or by a Court-martial such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the commanding officer of the unit to which he belongs, or to the commanding officer of the nearest military, naval or air force station, as the case may be, for the purpose of being tried by a Court-martial. There are explanations and the procedure as to how every Magistrate shall, on receiving a written application for that purpose by the commanding officer or any unit or body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavours to apprehend and secure any person accused of such offence. There is scope that a High Court may, if it thinks fit, direct that a prisoner detained in any jail situated within the State be brought before a Court-martial for trial or to be examined touching any matter pending before the Court-martial.
4. Learned counsel appearing for the State has also drawn the attention of the Court to a decision of the Supreme Court in the case of Joginder Singh v. The State of Himachal Pradesh, reported in AIR 1971 SC 500. It will be found that in respect of an offence which could be tried both by a Criminal Court as well as a Court-martial, Sections 125, 126 and the Rules, have made suitable provisions to avoid a conflict of jurisdiction between the ordinary Criminal Courts and the Court-martial. But discretion is left to the officer mentioned in Section 125 to decide before which Court the proceedings should be instituted. It is only when the designated officer does not exercise his discretion and decide that the proceedings should be instituted before a Court-martial, that the Army Act would not obviously be in the way of a Criminal Court exercising its ordinary jurisdiction in the manner provided by law and Section 126 would not come into operation. In the said decision it has been found that the rules have been framed by the Central Government under Section 549(i) of the earlier Criminal Procedure Code and that Section. provides for the Central Government making rules consistent with the Criminal Procedure Code and the Acts mentioned therein in respect of offences which could be tried by an ordinary Criminal Court or by a Court-martial. It enjoins upon a Magistrate when any person is brought before him, in respect of such an offence, to have due regard to the rules and to deliver him in proper cases to the appropriate officers mentioned therein, for being tried by a Court-martial. The material rules that are to be referred have been considered as Rules, 2, 3, 4, 5 and 8 and those have been dealt with in the aforesaid decision in AIR 1971 SC 500 (supra).
5. It is submitted by the Addl. Government Advocate inter alia that in an appropriate case under aforesaid Section 549(1), Cr.P.C., the Magistrate was bound to refer to the rules. In the present case the said mandatory was not followed. The Addl. Government Advocate has submitted inter alia that there are errors and the Magistrate may be directed to take effective steps for necessary trial.
The learned counsel for the petitioner has, however, drawn the attention of the Court to a decision reported in the case of Delhi Special Police Establishment, New Delhi v. Lt. Col. S.K. Loraiya, reported in AIR 1972 SC 2548. It has been elaborately observed that the Central Government has framed under previous Section 549(1), Cr.P.C. rules which are known as the Criminal Courts and Courts Martial (Adjustment of Jurisdiction) Rules, 1952. The relevant rule for the purpose is Rule 3. It requires that when a person subject to military, naval or air force law is brought before a Magistrate on accusation of an offence for which he is liable to be tried by a Court-martial also, the Magistrate shall not proceed with the case unless he is requested to do so by the appropriate military authority. He may, however, proceed with the case if he is of opinion that he should so proceed with the case without being requested by the said authority. Even in such a case, the Magistrate has to give notice to the Commanding Officer and is not to make any order of conviction or acquittal or frame charges or commit the accused until the expiry of seven days from the service of notice. The Commanding Officer may inform the Magistrate that in his opinion the accused should be tried by the Court-martial. Subsequent rules prescribe the procedure which is to be followed where the Commanding Officer has given or omitted to give such information to the Magistrate.
6. Learned counsel for both the parties have submitted in the present case that the learned Magistrate has not followed the mandatory provision, and, therefore, the order passed by the said Magistrate should be quashed. Learned Addl. Government Advocate has, however, submitted that it may be open to the Magistrate to follow the procedure and to give notice to the commanding officer and thereafter proceed with the case in accordance with law and if the law permits the learned Magistrate shall initiate such proceeding and he may take such steps. But in the facts and circumstances of the case, this Court finds that the grievance of the petitioner is justified. The trial without following the rule and the impugned order passed by the Magistrate cannot be sustained and the same are quashed accordingly.
7. The Crl. Misc. Case succeeds. Order is made accordingly.