Judgment:
ORDER
N. Dhinkar, J.
1. The question that arises for consideration is the stage at which the Magistrate should give a written notice to the Commanding Officer or the competent military, naval or air force authority as contemplated under Rule 4 of the Criminal Courts and Court martial (Adjustment of Jurisdiction) Rules, 1978, for short 'the Rules.'
2. Cri. M.C. 1456 of 1996 is filed by the Flag Officer, Comanding in Chief, Southern Naval Command, Kochi, with a prayer to cancel the bail granted by this Court by Annexure-A order to respondents 1 and 2 (who will hereinafter in this order be referred to as accused 1 and 2) or in the alternative for a direction to the learned Judicial First Class Magistrate-I, Ernakulam to hand over the accused to the petitioner for the purpose of proceeding against them under the Navy Act.
3. Cri. M.C. 1678 of 1996 is filed with a prayer to quash the order dated 11-7-1996 passed by the Judicial First Class Magistrate-I, Ernakulam, whereby he handed over the records and the 3rd accused in Crime No. 46 of 1996 registered at Harbour Police Station, Kochi, to the petitioner in Cri. M.C. No. 1456 of 1996.
4. As the question that arises for consideration in both Cri. M.C. 1456 of 1996 and Cri. M.C. 1678 of 1996 is common, I propose to pass the following common order in the above two cases.
5. To decide the question raised in the above two petitions few facts, shorn off unnecessary details, have to be summarised and they are as follows: Respondents 1 and 2 in Cri. M.C. 1456 of 1996 and one G.V. Koshy are accused in Crime No. 46 of 1996 which was registered at Harbour Police Station, Kochi, for offences under Section 457 and 380 read with Section 34, I.P.C. The above crime came to be registered on the basis of a first information statement laid by the Regulating Officer, I.N.S. Garuda, Southern Naval Command, Kochi, on 1-5-1996. The allegation in the said first information statement was to the effect that some computer components valued at about Rs. 1,55,000/- were stolen. Accused 1 to 5 were at the relevant point of time working as Artificer Apprentice in Naval Aeronotical Technical School, Naval Base, Kochi.
6. Investigation in the above crime was taken up and accused 1 and 2. were arrested on 22-6-1996 at Mysore. On the basis of their statements admissible under Section 27 of the Evidence Act some of the stolen articles were recovered from Mysore under mahazar and they were brought to Ernakulam and produced before the Judicial First Class Magistrate-I, Ernakulam. On 24-6-1996 the 3rd accused, Koshy was arrested from the Naval Base. Police custody was sought from the Court and obtained. All the three accused were later remanded to judicial custody up to 15-7-1996. On a statement made by the Assistant Public Prosecutor that the accused are likely to be tried by Court Martial, the Judicial First Class Magistrate-I, Ernakulam, issued notice to the petitioner in Cri. M.C. 1456 of 1996 as contemplated under Rule 4 of the Rules asking him whether the accused persons in the crime are required for trial by a Court martial or not and adjourned the case to 12-7-1996 awaiting reply from the petitioner for the said notice so issued by him. In the meanwhile on a petition filed by accused 1 and 2 for bail this Court by Annexure-A order released accused 1 and 2 on bail as the prosecution had no objection in releasing them. This order under Annexure-A releasing accused 1 and 2 on bail was passed on 10-7-1996.
7. On 11-7-1996 the Commanding Officer in response to the notice issued by the magistrate under Rule 4 of the Rules informed the Magistrate by way of a letter expressing the willingness to try the accused by Court martial. Thereafter the magistrate passed an order dated 11-7-1996 ordering the custody of the 3rd accused and the records in the crime number to the Officer deputed by the petitioner in Crl.M.C. 1456 of 1996 with a further direction that the proceedings in the said crime will stand stayed in terms of Rule 6 of the Rules. While passing the said order dated 11-7-1996, which is now sought to be quashed in Crl. M.C. 1678 of 1996, the Magistrate did not pass any order regarding the custody of accused 1 and 2 though in the said order he has observed in the bracketed portion that they were released on bail by the High Court on 10-7-1996. The order of the learned Magistrate D/- 11-7-1996 is extracted below:-
'In pursuance of the request D/-10-7-1996 by the Flag Officer, Commanding in Chief, Southern Naval Command, Kochi, to hand over the accused Nos. 1 to 3 in Cr. 46/96 of Harbour Police Station, it is hereby ordered that the proceedings in the said Crime stayed Under Rule 6 Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978. The records of the case and accused No. 3 in Judicial custody shall be handed over to the officer deputed by the Flag Officer, Commanding-in-chief, Southern Naval Command, Kochi (A-1 and A-2 have been ordered to be released on bail by Hon'ble High Court in Crl. M.C. 1364/96 D/- 10-7-1996).'
8. Counsel for the petitioner in Crl. M.C. 1456 of 1996 submits that the learned Magistrate ought to have delivered accused 1 and 2 together with the statement of offence of which they are accused to the Commanding Officer of the Naval Base, where they were working as contemplated under Section 475 Crl. P.C. and the Rules. He submits that the learned Magistrate having acted under Rule 4 of the Rules by issuing a notice to the petitioner ought to have delivered the custody of the accused 1 and 2 to him. In short, his submission is that the words 'charged with' occurring in Section 475, Crl. P.C. will mean that as soon as a crime is registered and copy of the first information report is sent to Court and the accused are produced before the Magistrate, the Magistrate shall issue notice as contemplated under Rule 4 of the Rules and the Court need not wait to act under the said rule till a final report under Section 173 Crl. P.C. is filed in the crime. In support of his plea he relies upon three decisions.
9. Per contra counsel for the petitioner in Crl. M.C. 1678 of 1996 submits that the order of the learned Magistrate D/- 11-7-1996 has to be quashed, as according to him, it is premature and beyond the scope of Rule 4 of the Rules. In support of his plea he relied upon two judgments.
10. Let me now consider the rival contentions put forward by the respective counsels.
11. Section 475 Crl. P.C. postulates that 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 nearest military, naval or air force station, as the case may be, for the purpose of being tried by a Court-martial. The said section also empowers the Central Government to make rules consistent with this Code and the Army Act, the Navy Act and the Air Force Act 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 the Code applies or by a Court-martial. It is not in dispute that the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 have been framed under Section 475 Crl. P.C. A perusal of the Rules show that under Rule 3 of the said rules that where a person subject to military, naval or air force law, or any other law relating to the Armed Forces of the Union for the time being in force is brought before a Magistrate and charged with an offence for which he is also liable to be tried by a Court-martial, such Magistrate shall not proceed with such person or commit the case to the Court of Session, unless-
(a) he is moved thereto by a competent military, naval or air force authority; or
(b) he is of opinion, for reasons to be recorded, that he should so proceed or to commit without being moved thereto by such authority.
Rule 4 states that the Magistrate before proceeding under Clause (b) of Rule 3, shall give a written notice to the Commanding Officer or the competent military, naval or air force authority, as the case may be, of the accused and until the expiry of a period of fifteen days from the date of service of notice he shall not convict or acquit or frame in writing a charge or make an order committing the accused for trying to the Court of sessions or make out the enquiry or trial under Section 192 of the Code. Rule 5 is to the effect that where a Magistrate has been moved by a competent military, naval or air force authority, as the case may be, under clause (a) of Rule 3, the commanding officer of the accused or the competent military, naval or air force authority, as the case may be, subsequently gives notice to such Magistrate that, in the opinion of such Officer or authority, the accused should be tried by a Court-martial, such Magistrate if he has not taken any action or made any order as contemplated in Clauses (a), (b), (c) or (d) of Rule 4, before receiving the notice he shall stay the proceedings and if the accused is in his power or under his control shall deliver him together with the statement referred to in Sub-section (1) of Section 475 of the Code to the officer specified in the said subsection. Rule 6 indicates that within the period of fifteen days mentioned in Rule 4, or at any lime thereafter but before the Magistrate takes any action or makes any order referred to in that rule, the commanding Officer of the accused or the competent military, naval or air force authority, as the ease may be, gives notice to the Magistrate that in the opinion of such officer or authority, the accused should be tried by a Court-martial, the Magistrate shall stay the proceedings and if the accused is in his power or under his control, shall deliver him together with the statement referred to in Sub-section (1) of Section 475 of the Code to the Officer specified in the sub-section. The chronological order in which the rules are framed shows that Rule 4 will come into operation only after the stage contemplated under Rule 3 reaches. The language used in Section 475, Crl. P.C. is significant and refers to a person who 'is brought before a Magistrate and charged with an offence' which means that he must be a person respecting whom the Magistrate had taken the proceedings and in respect of whom the Magistrate has found that there is a case for trial. It is only for that purpose Section 475, Cr. P.C. says that when such person is delivered to the commanding officer of the unit to which he belongs it will be 'for the purpose of being tried by a Court-martial.' In my view the notice under Rule 4 before the final report is filed is bad and premature.
12. Now let me refer to the decisions relied on by the counsel for the petitioner in Crl. M.C. 1456 of 1996. The first of the three decisions that he referred in support of his contention is by the Madhya Pradesh High Court in Major Gopinathan v. State of Madhya Pradesh, (AIR 1963 Madh. Pra. 249) : (1963 (2) Cri LJ 161). The Madhya Pradesh High Court while interpreting Section 549, Cr. P.C. (present Section 475 Crl. P.C.) held that the expression 'charged' has been used both in the Army Act as well as in the Code of Crl. Procedure in two senses, viz, as meaning accused or charge-sheeted i.e. formally accused by the drawing up of a written accusation. A reading of the above judgment of the Madhya Pradesh High Court would indicate that in the case before the High Court the proceedings came to be initiated on a private complaint against a major in Army and the Magistrate after the examination of the complaint registered a case for offences under Sections 342, 352 and 500 read with Section 34, I.P.C. and/issued summons to the accused when the applicant filed an application before the magistrate claiming that he should be tried by a Court-martial alone and not by an ordinary criminal Court. The facts in the above case are entirely different from the facts in the present case, as the proceedings in the above case were initiated on a private complaint and the Magistrate decided to take the case on file and try the offender in the said private complaint. The other judgment of the Rajasthan High Court in Murari Lal v. K.C. Aneja, 1982 Cri LJ 2082, will not, in my opinion, help the contention of the petitioner. In the above case also the proceedings came to be initiated on the basis of a private complaint and the Rajasthan High Court while interpreting Section 475. Crl. P.C. took the view that a request for trying the offender by a Court-martial can be made by the Commanding Officer even when cognizance is taken by the Magistrate and a person is brought before him for trial. It is not in dispute that in the present case the magistrate had not taken cognizance of an offence or offences againt the accused and that the accused have not been brought before him for a trial. So the above judgment of the Rajasthan High Court will in no way support the plea of the petitioner. Neither the Madhya Pradesh High Court nor the Rajasthan High Court had taken a view that as soon as a crime is, registered the Magistrate shall send notice as contemplated under Rule 4 of the Rules. The third judgment of the Mysore High Court on which reliance was placed by the petitioner's counsel is in fact not supportive of the petitioner's contention. In C. Ramanujan v. State of Mysore, (AIR 1962 Mysore 196 : (1962 (2) Cri LJ 389) an argument was advanced that it was not competent for the magistrate to deliver the accused to the military authorities and such delivery even though permissible under Section 549, Cr. P.C. (Present Section 475, Cr. P.C.) could be made only before a chargesheet was placed against the accused. The said argument was advanced mainly relying upon the expression 'shall be instituted' occurring in Section 125 of the Army Act. This argument of the accused that the delivery of the accused in a case can be made to the authorities concerned only before the charge sheet was filed was in fact negatived by the Mysore High Court.
13. When the Supreme Court had an occasion to deal with Section 549, Cr. P.C. (present Section 475, Cr. P.C.) in, Som Datt Datta v. Union of India, AIR 1959 SC 414 : (1969 Cri LJ 663), it observed that it is manifest that Rule 3 only applies to a case where the police had completed investigation and the accused is brought before the Magistrate after submission of a charge-sheet. The Apex Court further observed that the provisions of Rule 3 cannot be invoked in a case where the police had merely started investigation against a person subject to military, naval or air force law. Similarly in Union of India v. Major S.K. Sharma, 1987 SCC (Cri) 584 : (1987 Cri LJ 1912), the Supreme Court while interpreting Section 475 Cri. P.C. and the Criminal Courts and Court Martial (Adjustment: of Jurisdiction) Rules, 1978 held that the rules have been framed under Section 475, Cri. P.C. and that Rule 3 comes into play at the point where the person has been brought before a Magistrate and charged with an offence. That is the stage, according to the Supreme Court, adverted to in Section 475, Cr. P.C. which refers to a person who 'is brought before a Magistrate and charged with an offence' and after the Magistrate has determined that there is a case for trial. Before proceeding further with the case and either proceeding to try the accused or to commit the case to the Court of Sessions the Magistrate must, under Rule 4, give written notice to the .Commanding Officer of the accused and refrain for a period of 15 days from doing any of the acts or making any of the orders in relation to the trial of the accused in Rule 4. It was further held that the policy of the law is clear and once the criminal Court determines that there is a case for trial, and pursuant to the aforesaid rule, delivers the accused to the Commanding Officer or the competent military, naval or air force authority, the law intends that the accused must either be tried by a Court-martial or some other effectual proceedings must be taken against him. It is not in dispute that in the present case the stage has not been reached where the Court could determine that there is a case for trial which will automatically attract the relevant rules under the Criminal Courts and Court-martial (Adjustment of jurisdiction) Rules, 1978. The crime is still pending investigation and the possibility of the investigating agency referring the case as mistake of fact cannot be ruled out. Even if it is assumed that the investigating agency will file a final report against the accused the Court on perusal of the materials collected during investigation may take the view that the materia Is so collected do not make out an offence against the accused. In my view unless and until the criminal Court determines that there is a case for trial issuance of a notice by the Magistrate as contemplated under Rule 4 of the Rules does not arise. Section 475, Cr. P.C. says that when such person is delivered to the Commanding Officer of the unit to which he belongs it will be 'for the purpose of being tried by a Court- martial,' and if he is so delivered, a statement of the offence of which he is accused will also be delivered to the Commanding Officer. As the Supreme Court observed that the relevance of delivering such statement can easily be understood, for it is to enable the authority to appreciate the circumstances in which a Court-martial is required by the law. At the risk of repetition it is to be stated that the investigation in the above crime is still pending and no report under Section 173, Cr. P.C. is filed for the Magistrate to determine that there is a case for trial. The case has not even reached the stage contemplated by Rule 3 and in my view unless that stage is reached issuance of a notice by the Magistrate under Rule 4 of the Rules is premature.
14. On the discussion made above, I am of the view that the order of the learned magistrate D/-11-7-1996 filed as Annexure-I in Crl. M.C. 1678 of 1996 has to be quashed and accordingly it is quashed. In view of the order in Crl. M.C. 1678 of 1996, Crl. M.C. 1456 of 1996 has to be dismissed and accordingly it is dismissed. The petitioner in Crl. M.C. 1456 of 1996 is now directed to return the custody of the documents and the 3rd accused to the Judicial First Class Magistrate-I, Ernakulam.
15. Crl. M.C. 1481 of 1996 is filed with a prayer to direct the magistrate to release the 2nd accused by accepting the bond and sureties produced by him without insisting for local sureties as directed by him. On the facts, I feel that the Magistrate can be directed to accept the sureties offered by the 2nd accused without insisting upon the local sureties if he is satisfied about the bona fides of the sureties produced by the 2nd accused.
16. Counsel for the petitioner in Crl. M.C. 1456 of 1996 submitted during the course of his arguments that a petition filed before the learned Magistrate in Crl. M.P. No. 2127/96 is pending disposal wherein the petitioner asked for handing over of the first two accused in Crime No. 46/96 on the file of the Harbour Police Station to the custody of the petitioner and the same is not disposed of by the learned Magistrate, it is stated that the petition was filed by the petitioner before the magistrate on 17-7-1996 and as the same is pending adjudication before the learned Magistrate, I feel, the learned Magistrate can take up the petition now and dispose it of on its merits in accordance with law.
17. In the result, Crl. M.C. 1456 of 1996 is dismissed. Crl. M.C. 1678 of 1996 is allowed. Crl. M.C. No. 1481 of 1996 is disposed of with the above observations.