ORDER
N.K. Mitra, J.
1. The petitioner initially on 5th Nov. 1998 sought to move a Criminal Revision under Section 401 read with Section 482 of the Code of Criminal Procedure challenging, inter alia, the order dated 22-9-1998 passed by the learned Sessions Judge, Andaman and Nicobar Islands at Port Blair in Revision Case No. 11 of 1998 moved against the order No. 20 dated 15-9-1998 passed by the learned Judicial Magistrate First Class (II) at Port Blair in C.R. Case No. 34 of 1995 under Section 448/323/342, I.P.C., Since 1 refused to entertain the said Criminal Revisional application on the ground that no second revision lies to this Hon'ble Court against an order of the learned Sessions Judge passed on a revisional application, on the prayer of Mr. B.K. Das, learned Advocate for the petitioner, the petition was allowed to be converted into a Criminal Revision under Article 227 of the Constitution of India, and I further directed that the petitioner should be allowed to challenge the order of the learned Sessions Judge only.
2. Shorn off all details, the facts of the case, inter alia, and that the petitioner filed a complaint case under Section 200 of the C.P.C. before the learned Chief Judicial Magistrate, Port Blair, alleging that the accused-respondent No. 1 along with 6 other Navy personnel came to the residence of the petitioner on 29-9-1995 at about 11.30 p.m. without showing any search warrant and trespassed into the room of the petitioner and the petitioner was severely beaten by the accused-respondent No. 1. the accused respondent No. 1 thereafter showing a suit case containing certain documents which he had brought from out side and pressurised the petitioner to accept the said suitcase as his own and also compelled the petitioner to sign on a blank paper. The said accused respondent No. 1 also took Rs. 24,450/-in cash and a cheque book of the Punjab National Bank from the petitioner's house and the petitioner was forcibly taken to the Fortress Head Quarter, and was confined there in a small room of the Navy police at the said Head Quarters till 2-10-1975, and during the said illegal confinement, the petitioner was mercilessly beaten by the accused-respondent No. 1 to extort confession. Thereafter on the case date i.e. on 2-10-1995 at about 6 p.m. the accused-respondent No. 1 took the petitioner to the Officer In, charge, Pahargaon Police Station, who was the respondent No. 3, where the petitioner was detained upto 6-10-1995 and on that date at about 6 p.m. the petitioner was taken to C.C. S. Police Station at Port Blair, from where the petitioner was released with a condition that he would attend the C.C.S. Police Station every morning and evening from 7-10-1995 to 26-10-1995 and on 26-10-1995 at about 9.30 a.m. the petitioner was arrested by the C.C.S. police as per the F.I.R. lodged by the accused-respondent No. 1 on 2-10-1995 at the Pahargaon Police Station. The petitioner thereafter was produced before the learned Chief Judicial Magistrate but he was asked to remain in judicial custody till 22-11-1995 when the petitioner was granted bail. After the release, the petitioner filed a complaint in writing to the Station House Officer, Aberdeen P.S. being the respondent No. 2 stating, inter alia, that the accused-respondent No. 1 and his men had trespassed illegally into the house of the petitioner without any search warrant and petitioner was seriously tortured and wrongfully confined, as aforesaid. Thereafter the petitioner made a personal representation before the Superintendent of Police, since no action was taken on the said representation the petitioner had to file a complaint case before the learned Court of Chief Judicial Magistrate at Port Blair, which was registered as C.R. 34 of 1995.
3. On 9-2-1996 one Lieutenant Commander, Ranbir Singh appeared with a letter of authority as well as with an application from the Commanding Officer, with a prayer of getting charge of the petitioner and/or getting transfer of the case in terms of Section 475 of the Code of Criminal Procedure read with Section 78 of the Indian Navy Act, 1957 before the learned Chief Judicial Magistrate First Class (II) at Port Blair, which was, however, rejected by the learned Magistrate. The Commanding Officer, INS Jarawa, Port Blair then filed an application on 15-9-1998 for stay or the proceeding of the complaint case being C.R. No. 34 of 1995, inter alia, on the ground that the accused-respondent No. 1 was a Navy personnel and, therefore, liable to be tried under the Navy Act, 1957 and also prayed for transfer of the case as per the provisions of Section 475 of the Code of Criminal Procedure, which was however, allowed by the learned Judicial Magistrate Ist Class (II) who was also pleased to stay the proceeding being C.R. No. 34/1995 as referred to above, and was further pleased to pass an order that the record of the evidence of P.W. 1 be delivered to the Commanding Officer as prayed for and the accused-respondent No. 1 was also handed over to the authorised officer. The petitioner thereafter filed a Criminal Revision under Section 397 of the Code of Criminal Procedure before the learned Sessions Judge at Port Blair against the said order dated 15-9-1998 passed by the learned Judicial Magistrate Ist Class (II) at Port Blair as referred to above. And the said Criminal Revision was numbered as Criminal Revision No. 11 of 1998. The learned Sessions Judge, however, after hearing the parties and discussing the matter on merit, by his order dated 22-9-1998 was pleased to dismiss the said criminal revision application filed by the petitioner. The said order of the learned Sessions Judge is the subject matter of challenge in the present Criminal Revisional application filed by the petitioner under Article 227 of the Constitution of India.
4. It is submitted by Mr. B.K. Das, learned Advocate appearing on behalf of the petitioner that both the learned Judicial Magistrate Ist Clause (II) at Port Blair as well as the learned Sessions Judge, Port Blair had acted in excess of their respective jurisdiction in allowing transferring of the case to be tried by a Court Martial as per the provisions of Indian Navy Act, 1957, inasmuch as, according to Mr. Das, the provisions of Section 475 of the Code of Criminal Procedure would not apply in the present case since no charge sheet had yet been framed. In support of his contentions Mr. Das refers the relevant provisions of Section 475 of the Code of Criminal Procedure which is reproduced below :-
475. Delivery to Commanding Officers of persons liable to be tried by Court-martial :-(1) The Central Government may make rules, consistent with this Code and the Army Act, 1950, the Navy Act, 1957, and the Air Force 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 person subject to military, naval of air force law, or such other law, shall be tried by a Court to which this Code applies or by a Court-marital; 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 eases deliver him, together with the 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.
5. Mr. Das, accordingly submits that since it is stated in the said section that when a person is brought before a Magistrate and Charged with an offence, which means that Section 475 would apply only when charges have been framed and/ or charge sheet has been issued in a criminal proceeding and as no charges have been yet framed and/or no charge sheet has been issued in the criminal proceeding pending before the learned Judicial Magistrate Ist Class (II) at Port Blair being C.R. No. 34/95 the learned Magistrate had acted in excess of his jurisdiction in allowing the case to be transferred to a Court-martial as per the provisions of Section 475 and the learned Sessions Judge also had acted in material irregularity in upholding the order of the learned Judicial Magistrate Ist Class (II) at Port Blair.
6. Mr. R. Shiv Saroop, the learned Government Pleader/Public Prosecutor appearing on behalf of the respondents, however, contended that Section 475 of the Code of Criminal Procedure would attract, the moment, the learned Magistrate takes cognizance of an offence and finds that there is a triable case before him and in this case as the learned Magistrate after examining the complainant had directed to issue summons upon the respondents, it must be held that the learned Magistrate had taken cognizance of the complaint lodged by the petitioner before him and was satisfied that there was a triable case before him.
7. Having heard Mr. Das for the petitioner and Mr. R.S. Saroop for the respondents, I find there was .much substance in the contentions of Mr. R. Shiv Saroop, Section 475 of the Code of Criminal Procedure speaks of delivery to the Commanding Officer of a person liable to be tried by the Court--martial. From the language of the said Section 475 it is quite clear that when any person is brought before the Magistrate and charged with an offence, for which, he is liable to be tried either by a Court to which the Code of Criminal Procedure applies, or by a Court-martial, the Magistrate shall in proper case deliver him together with a statement of the offence, for which he is accused, to the commanding officer of the unit to which he belongs for the purpose of feeing tried by a Court-martial. The wordings charged with an offence as mentioned in the said Section of 475 does not mean at all that the said section thereafter attracts only when the charge-sheet has been issued or that the charges have been framed by the learned Magistrate, and not during any prior stage. The Hon'ble Supreme Court in the case of Union of India v. S.K. Sharma 1987 (Cri) 584 : 1987 Cri LJ 1992, it has dealt with elaborately with the scope of Section 475, 190, 200 to 204 of the Code of Criminal Procedure and has observed inter alia, in paragraph 10 of the said decision as follows :-
The language used in Section 475 is significant. It refers to a person who 'is brought before a Magistrate and charged with an offence'. In other words, he must be a person respecting whom the Magistrate has taken the proceedings envisaged by Sections 200 to 204 of the Code. He will be a person in respect of whom the Magistrate has found that there is a case for trial. It is for that reason that Section 475 goes on to say 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.
8. From the above decision it is thus quite clear that the moment, a Magistrate takes cognizance of the offence and issues summons or warrant as the case may be Section 475 of the Code of Criminal Procedure is at once attracted if, however, the offence is alleged against him is liable to be tried either by a Court to which the Code of Criminal Procedure applies or by a Court-martial.
9. The Apex Court of the country in its decision in the case of Rajendra Nath v. Deputy Superintendent of Police, Purulia : 1972CriLJ268 , has also observed, inter alia, that the issue of process is a matter of judicial determination. Before issuing the process the Magistrate has to examine the complainant and hence the issue of process has to be by the Magistrate who has taken cognizance or by one to whom the case has been transferred.
10. In the present case, the learned Magistrate has examined the complainant-petitioner and thereafter ordered for issuance of process. That shows that he look cognizance of the offence and was satisfied that there was a triable case before him and this is sufficient in my view to attract Section 475 of the Code of Criminal Procedure.
11. Accordingly, I find no reason to interfere with the impugned order of the learned Sessions Judge under Article 227 of the Constitution of India and the Criminal Revisional application thus stands rejected.
12. I, however, make it clear that the Court-martial proceedings should be proceeded with as per law after giving the complainant-petitioner sufficient opportunity to place his case and he should also be permitted to appear through lawyer if he so desires.