Chandra Mohan Shukla vs State Of Assam And Anr. on 17 July, 2007

ORDER

I.A. Ansari, J.

1. Can an Army authority, in exercise of its powers under Section 125 of the Army Act, 1950, seek, for the purpose of investigation or trial, the custody of a person, who is subject to the Army Act, but in the custody of a criminal Court on accusation of having committed an offence, which is triable under the Army Act too, if the case, in connection with which the person is in custody, is under investigation by police or under an inquiry as contemplated by Section 202 of the Code of Criminal Procedure? When a case lodged against a person, who is subject to the Army Act, 1950. is still pending for investigation by the police, whether it is permissible for a Court of ordinary criminal justice to hand over to the Army authorities, mentioned in Section 125 of the Army Act, the custody of the person, who is subject to the Army Act, but is in custody of the ordinary criminal Court on accusation of having committed an offence, which is also punishable under the Army Act, 1950, for the purpose of enabling the Army authorities to investigate the case or try the accused by a Court-martial in terms of the provisions of the Army Act, 1950, and the Army Rules, 1954, and if so, what are the limitations on such power? Does the fact that investigation by police is in progress into the allegation of commission of an offence by a person, subject to the Army Act, create a bar for the appropriate authorities under the Army Act to investigate, in terms of the relevant provisions of law, the accusations, which are the subject-matter of investigation by police, and also to seek, if necessary, for such a purpose, the custody of such a person from the Court of ordinary criminal justice until investigation by police is completed and the charge-sheet is filed against the accused? Does Section 475 of the Cr, P.C. bar a Court of ordinary criminal justice from handing over to the Army authority, for the purpose of investigation or trial in terms of the provisions of the Army Act, 1950. and the Army Rules, 1954. the custody of a person, who is subject to the Army Act, but in the custody of the criminal Court on allegation of having committed an offence, which is triable by both the criminal Court as well as the Court-martial? These are some of the important questions, which the present petition has raised.

2. By making this application under Section 482, Cr. P.C, the petitioner, who is an officer subject to the Army Act, 1950, has prayed for, inter alia, setting aside the Judgment and order, dated 2-4-2007, passed, in Criminal Revision No. 18/2007, by the learned Sessions Judge, Cachar, Silchar, whereby the revision was dismissed and the order, dated 5-4-2007, passed, in GR Case No. 889/2005 (corresponding to Lakhipur Police Station Case No. 73/2005), transferring the said case to the Army authorities for the purpose of trial of the accused-petitioner under the Army Act, was upheld.

3. The material facts and various stages, which have given rise to the present petition, may be set out as follows:

On 22-3-2005, one Satish Gupta, Superintending Manager, Binnakandi Tea Estate, lodged an Ejahar at Lakhipur Police Station, the informant’s case being, briefly stated, thus : The informant had received a telephone call from one Robert in January, 2004, and also in the first week of February, 2004, demanding money from the informant claiming that the caller was Commandant of an extremist group operating in the area, where the informant was serving. On 9-2-2004, the present petitioner, who was not known to the informant, but was, at the relevant point of time, serving as a Lieutenant Colonel, visited the informant’s bungalow, expressed his anxiety on the threat to the petitioner’s life posed by the extremists and suggested to the informant that he should make: the payment to the extremist group or else, the informant might be killed by the extremists. The informant also claimed, in his Ejahar, that the present petitioner had given the informant the petitioner’s address at Meerut (U.P.) and also his telephone number. After the visit of the present petitioner, the informant had been receiving regularly threatening calls from the said Robert demanding money and, on 9-10-2004, when the said Robert telephoned,. the petitioner could detect from the caller identity screen of his telephone mat the call had been made from the very telephone number, which the petitioner had given to the informant. The informant was perplexed to notice that the call made by Robert was from the very same telephone, which the present petitioner had given to the informant. However, when, on 16-10-2004, at about 6.45 a.m., there was a call from the said Robert to the informant giving similar threat raising demand for money, the informant realized that it was really the petitioner, who had made the calls, in the name of Robert, by changing his voice. Treating this Ejahar as FIR, Lakhipur Police Station Case No. 73/2005 was registered under Sections 120-B/385, IPC. This case came to be, subsequently registered as GR Case No. 889/2005 in the office of the Chief Judicial Magistrate, Cachar, Silchar. On 5-3-2007, when the investigation into the said ease by police was still in progress, the Station Command, Masimpur Military Station, requesting transfer of Lakhipur Police Station Case No. 73/2005 aforementioned to the Army authorities for trial of the accused-petitioner under the Army Act. By order, dated 5-3-2007, aforementioned, learned Chief Judicial Magistrate, Cachar, Silchar, allowed the said application and directed that the case record be handed over to the Army authority concerned. Aggrieved by the order, so passed, the petitioner challenged the same by way of Criminal, Revision No. 18/2007. By order, dated 2-4-2007, aforementioned, learned Sessions Judge dismissed the revision by holding, inter alia, that the Army authorities were competent under the law to seek transfer of the said case for trial of the accused-petitioner under the provisions of the Army Act inasmuch as the Army authorities were competent to take over a case pending against an Army personnel even when the cast’ is at the stage of investigation by police. Aggrieved by the dismissal of his revision, the accused-petitioner has, now, approached this Court with the help of the present application made under Section 482, Cr. P.C.

4. The respondents have resisted this application by contending, inter alia, thus : Though the FIR was lodged with the police alleging, inter alia, that the accused had committed offence of attempt to commit extortion, the Army authority has decided, in terms of its powers under Section 125 Army Act, to take over the case and institute a Court-martial and it was in exercise of this option under Section 125 that the Army had sought for, and was allowed, to take over the case, for trial by a Court-martial, by order of the learned Chief Judicial Magistrate, Cachar, Silchar. The petitioner had already invoked revisional jurisdiction of the learned Sessions Judge, Silchar, and having failed to get the order of the learned Chief Judicial Magistrate set aside, the petitioner cannot, now, invoke inherent jurisdiction of this Court under Section 482, Cr. P.C. In fact, though the complaint lodged with the police by Satish Chandra Gupta relates only to attempt to extort money from the informant, the Army has, in the meanwhile, investigated all the allegations, which have surfaced against the petitioner, and, after due investigation, in terms of Rule 22 of the Army Rules, as many as six charges have been found necessary to be proceeded against the petitioner and the FIR, in question, lodged against the petitioner,, relates to only the first charge, which has already been investigated by the Army. It is not only in exercise of its jurisdiction that the Army has taken over the case, but it is also in the interest of the accused petitioner that he be charged with, and tried for, all the offences, which the investigation, conducted by the Army, have revealed.

5. I have heard Mr. A. K. Goswami, learned Senior Counsel, for the accused-petitioner, and Mr. T. Prasad, learned Government counsel, appearing on behalf of the Union of India. I have also heard Mr. K. Munir, learned Addl. Public Prosecutor, Assam.

6. Presenting the case on behalf of the petitioner, Mr. Goswami has taken this Court through the provisions of Section 475, Cr. P. C, Sections 125 and 126 of the Army Act, 1950, and also the provisions of the Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules. 1978 (in short, ‘Adjustment of Jurisdiction Rules’) and contended that a Magistrate or a Court, which functions under the provisions of the Code of Criminal Procedure, is not permitted to either transfer a case or hand over custody of a person, who is subject to the Army Act, accused of an offence, to any authority under the Army Act until the time a formal charge has been framed by the Magistrate or the Criminal Court concerned. This submission of Mr. Goswami rests, primarily, on the words, “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 this Code applies or by a Court-martial”, which occur in Section 475, Cr. P.C. Support for his submission is sought to be derived by Mr. Goswami from the case of Som Dalt Datta v. Union of India and Ors. .

7. Referring to Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1978, Mr. Goswami has submitted that even these Rules come into play only when an accused is brought before a Criminal Court and “changed with an offence”. This clearly shows, contends Mr. Goswami, that a charge ought to have been framed against an accused before the said rules are applied. At any rate, further contends Mr. Goswami, the said Rules come into play only when an accused, who is subject to the Army Act, is brought before a Magistrate with accusation of having commuted an offence. In the present case, since the accused has not been brought before the Criminal Court and charged with any offence, the question of handing over the case to the: Army did not arise at all.

8. Controverting the submissions made on behalf of the: petitioner, Mr. Prasad, learned Counsel, appearing on behalf of the Union of India, has submitted to the effect that Section 125 gives primacy of jurisdiction to the Army authorities to try a person, who is subject to the Army Act, and accused of an offence, which is triable by a Court-martial and also by a Criminal Court, and in the face of such provisions, when the Army authorities, in the present case, have opted to try the accused-petitioner by a Court Martial, the learned Magistrate had acted within the ambit of law in transferring the case to the Army authorities concerned and the learned Sessions Judge committed no error of law in upholding the direction’s so given by the learned Chief Judicial Magistrate transferring, or handing over, the case, in question, to the Army authorities concerned. Interestingly enough, in support of his submissions too, Mr. Prasad places substantial reliance on Som Datt Datta 1969 Cri LJ 663 (supra). Mr. Prasad has also placed reliance on Delhi Special Police Establishment, New Delhi v. Lt. Col. S.K. Loraiya ; Union of India through Major General HC Pathak v. Major SK Sharma , Balbir Singh and Anr. v. State of Punjab , Superintendent and Remembrancer of Legal Affairs, West Bengal v. Usha Ranjan Roy Choudhury and Anr. ; Lt. Col. S.K. Kashyap and Anr. v. State of Rajasthan ; Major E. G. Barsay v. State of Bombay and, lastly, on Murari Lal v. K.K. Aneja reported in 1982 Cri LJ 2082 (Raj).

9. Before coming to the merit of this revision and also the correctness of the rival submissions made before me on behalf of the parties, the provisions of the Army Act, 1950 (in short, “the Army Act”) and the Army Rules, 1954 (in short, ‘the Army Rules’) vis-a-vis the provisions contained in the Code of Criminal Procedure (in short, ‘the Code’) relating to investigation and enquiry leading up to the stage of putting an accused, on trial, need to be carefully noted. The Code perceives two distinct, but closely inter-related streams bringing a person for trial before a Criminal Court. Investigation by police is envisaged under Section 154(1) of the Code, when information relating to commission of a cognizable offence is given, either orally or in writing, to the Officer-in-Charge of a Police Station. A police investigation is also possible, when a Magistrate, who is empowered to take, on the basis of a complaint, cognizance of an offence under Section 190 of the Code, directs the police to investigate a case. Section 173(2) of the Code perceives of submitting a report by the police to the Magistrate on completion of investigation. It may be pointed out that the report, so submitted, may be, as commonly called a charge-sheet or a final report. Sub-section (8) of Section 178 empowers the Magistrate to direct further investigation after a report, as envisaged under Section 173(2), is received by the Magistrate. Section 190 also empowers a Magistrate to take cognizance of an offence on the basis of the report, which the police may submit, in terms of Section 173, to the Magistrate on investigation or further investigation. In fact, under Section 190, there are three modes of taking cognizance of an offence by a Magistrate.

10. For better appreciation of the question as to how and when a Magistrate can take cognizance of an offence, it is appropriate to take note of the provisions of Section 190 of the Code, which run as follows:

190. Cognizance of offences by Magistrates.- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class especially empowered in this behalf under Sub-section (2) may take cognizance of any offence-

(a) upon receipt of a complaint of facts, which constitute such offence,

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed.

11. A bare reading of Sub-section (1) of Section 190 of the Code clearly shows that a Magistrate can take cognizance of an offence in three different modes, namely, (a) upon receipt of a complaint of facts, which constitute such offence, (b) upon a police report of such facts, and (c) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. When a Magistrate, however, takes cognizance of an offence under Clause (c) aforementioned, it is, in the light of the provisions of Section 191 of the Code, a duty cast upon the Magistrate to inform the accused, who is to be proceeded against, that he (accused) is entitled to have the case enquired into and tried by another Magistrate and if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate, who takes cognizance, the case shall be transferred to another Magistrate as may be specified by the Chief Judicial Magistrate in this behalf.

12. Let me, now, turn to Section 200 of the Code, which, I notice, reads as follows:

200. Examination of complainant.- A Magistrate, taking cognizance of an offence on a complaint, shall examine, upon oath, the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

(a) if a public servant acting or purporting to act in the discharge of his official duties 01 a Court has made the complain, or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192:

Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

13. A careful reading of Section 200 of the Code makes it clear that a Magistrate, taking cognizance of an offence on a complaint, shall examine, upon oath, the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate. Such examination can be dispensed with under two contingencies, namely, (a) if a public servant, acting or purporting to act in the discharge of his. official duties, has made the complaint or a Court has made the complaint, or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192.1 will deal with Section 192, which is of utmost importance in the present case, a little later. What is, however, necessary to point out is that what Section 200 lays down is the procedure, which a Magistrate shall follow, when he takes cognizance of an offence on receiving a complaint of the facts, which constitute such offence. This, in turn, clearly reveals that taking of cognizance must precede examination of the complainant under Section 200 of the Code.

14. Whether a Magistrate has or has not taken cognizance of an offence will depend on the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate. The Supreme Court, in R.R. Chari v. The State of Uttar Pradesh reported in (1951) SCR 312 : 1951 (52) Cri LJ 775. quoted with approval the observations made by Kulada Charan Das Gupta, J., in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerji , with regard to the question as to when a Magistrate can be said to have taken cognizance. The relevant observations read thus : “What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter – proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e. g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.”

15. Broadly speaking, when, on receiving a complaint, the Magistrate applies his mind for the purpose of proceeding under Section 200 and the succeeding Sections contained in Chapter XV of the Code, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion, taken action of some other kind, such as, ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence. (See Devarapalli Lakshminarayana Reddy and Ors. v. Narayana Reddy and Ors. ).

16. What may also be pointed out is that. when a complaint is presented before a Magistrate and even if the same discloses commission of an offence, cognizable or non-cognizable, the Magistrate still has the option, under Clause (a) of Section 190(1) of the Code, to either cognizance of the offence or, if the complaint discloses commission of a cognizable offence, direct investigation to be conducted by police in terms of Section 156(3) of the Code. In other words, what is of paramount importance to note is that when a Magistrate receives a complaint, he is not bound to take cognizance even if the complaint discloses commission of an offence. This is, as held in Devarapalli Lakshminarayana Reddy and Ors. v. Narayana Reddy and Ors. , made clear from the use of words “may take cognizance”, which cannot be equated with the expression “must take cognizance”. Clarified the Supreme Court, in Devarapalli Lakshminaryana Reddy (supra), the position of law, in this regard, as follows
…If on a reading of the complaint he finds that the allegation therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the magistrate from being wasted in inquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself.

17. What may, thus, be summarized is that when a Magistrate applies his mind to the contents of the complaint and decides to proceed in the manner as indicated in the subsequent provisions of the Code, namely, Chapter XV and, particularly, Section 200 of the Code, he can be said to have taken cognizance. In other words, it is only upon taking cognizance of an offence that it is, under Sub-section (1) of Section 200, open to Magistrate to examine the complainant on oath and also complainant’s witnesses present, if any. The proviso to Section 200 makes it abundantly clear that the examination of the complainant and his witnesses is not necessary, when the complaint is made, in writing, by a public servant or the Magistrate makes over the case for inquiry and trial by another Magistrate under Section 192 of the Code. If a Magistrate takes cognizance of an offence, he must (i) examine, on oath, the complainant, though the complaint may be in writing, and the witnesses present, if any, and (ii) reduce the substance of such examination to writing. By examining the complainant and the witnesses present, if any, what the Magistrate essentially does is to determine as to whether there are sufficient grounds for proceeding against the accused. If the Magistrate is of the opinion, on examining the complainant and his witnesses under Section 200, that there are sufficient grounds for proceeding against the accused, he can issue process in terms of Section 204 of the Code. If, on examining the complainant and his witnesses under Section 200, the Magistrate finds that there are some materials against the accused, but not sufficient to warrants issuance of process, the Magistrate may, in terms of Section 202, either hold an enquiry or direct an investigation to be made by the police. This inquiry or investigation is really for the purpose of determining as to whether there are sufficient grounds for proceeding. If the Magistrate chooses to hold the inquiry himself under Section 202 of the Code, this inquiry may result either, as already mentioned above, issuance of processes against the accused under Section 204 or dismissal thereof under Section 203, for, Section 203 makes it clear that if, upon considering the statements on oath, if any, of the complainant and his witnesses and the result of the inquiry or investigation, if any, under Section 202, the Magistrate is of the opinion that sufficient grounds do not exist for proceeding further, it is obligatory on him to dismiss the complaint, though while dismissing the complaint, the Magistrate is duty bound to record reason for so doing.

18. Let me, now, revert to and take note of Section 192, which reads as under:

192. Making over of cases to Magistrates.- (1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him.

(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial.

19. From a careful reading of Section 192, what becomes clear is that when a Chief Judicial Magistrate or any Magistrate, empowered in this regard by the Chief Judicial Magistrate, takes cognizance of an offence, he may make over the case for enquiry or trial to a Magistrate and, thereafter, the Magistrate, who may so receive the complaint, hold enquiry or trial. This enquiry is really under Section 202. As already indicated hereinabove. Section 202 empowers the Magistrate not only to hold enquiry, but also direct investigation. What, thus, the scheme of the Code discloses is that when a Magistrate receives a complaint under Section 192, he may either hold enquiry under Section 202 or he may direct an investigation by the police. Thus, Section 192 may come into play even before an investigation by police has been launched on an order having been made under Section 202 of the Code.

20. What is now, necessary to note is that when an accused is served with summons issued under Section 204, it becomes his duty to appear in the Court of the Magistrate, who, if the case is exclusively triable by a Court of Session, shall commit the case to the Court of Session under Section 209 and if, upon consideration of the record of the case and the document submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Sessions Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record reasons for his so doing. If, however, upon such consideration and hearing as aforesaid, the Sessions Judge is of the opinion that there is ground for presuming that the accused has committed an offence, which is not exclusively triable by the Court of Session, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate and, thereupon, the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report. If, however, the Sessions Judge finds that there are grounds for presuming that the accused has committed an offence, which is exclusively triable by Sessions Court, Sessions Judge shall frame, in writing, a charge against the accused. Where the Judge frames any charge, the charge shall be read over and explained to the accused, and the accused shall be asked whether he pleads guilty to the offence charged or claims to be tried. While a charge in a case exclusively triable by a Court of Session is framed as indicated hereinbefore, the trial of warrant procedure case by the Magistrate stands divided, under Chapter XIX of the Code, into two* distinct parts. While one part governs trial of an accused of a case by a warrant procedure instituted on a police report, the other part of warrant triable cases relates to those, which are instituted otherwise than on the police report. While, in a case triable by a procedure meant for trial of warrant cases, Magistrate shall frame charge if he has ground to presume that the accused has committed an offence triable under Chapter XIX, the framing of charge, in the cases instituted otherwise than on police report, requires that in order to enable a Magistrate to frame charge, he must be satisfied that if the evidence, recorded before he charge remains conviction of the accused. As far as trial of summons cases are concerned, there is no formal framing of charge, but only substance of accusations has to be stated to the accused, when the accused appears or is brought before a Magistrate.

21. Let me, now, turn to the scheme of the Army Act and the Army Rules with regard to investigation and trial. In this regard, what needs to be noted is that it is Chapter V of the Army Rules, which makes provisions for investigation of charges and trial by a Court-martial. For better appreciation of the scheme of investigation and trial, relevant provisions of Chapter-V are reproduced hereinbelow:

INVESTIGATION OF CHARGES AND TRIAL BY COURT-MARTIAL

SECTION I-INVESTIGATION OF CHARGES AND REMAND FOR TRIAL

Power of Commanding Officers

1/22. Hearing of Charge.-(1) Every charge against a person subject to the Act shall be heard by the commanding officer in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call such witness and make such statement as may be necessary for his defence:

Provided that where the charge against the accused arises as a result of investigation by a Court of inquiry, wherein the provisions of Rule 180 have been complied with in respect of that accused, the commanding officer may dispense with the procedure in Sub-rule (1).

(2) The commanding officer shall dismiss a charge brought before him if, in his opinion the evidence does not show that an offence under the Act has been committed, and may do so if, he is satisfied that the charge ought not to be proceeded with:

Provided that the commanding officer shall not dismiss a charge which he is debarred to try under Sub-section (2) of Section 120 without reference to superior authority as specified therein.

(3) After compliance of Sub-rule (1), if the commanding officer is of opinion that the charge ought to be proceeded with, he shall within a reasonable time-

(a) dispose of the case under Section 80 in accordance with the manner and form in Appendix III of

(b) refer the case to the proper superior military authority; or

(c) adjourn the case for the purpose of having the evidence reduced to wilting; or

(d) if the accused is below the rank of warrant officer, order his trial by a summary Court-martial:

Provided that the commanding officer shall not order trial by a summary Court-martial without a reference to the officer empowered to convene a district Court-martial or on active service a summary general Court-martial for the trial of the alleged offender unless-

(a) the offence is one which he can try by a summary Court-martial without any reference to that officer; or

(b) he considers that there is grave reason for immediate action and such reference cannot be made without detriment to discipline.

(4) Where the evidence taken in accordance with Sub-rule (3) of this rule discloses an offence other than the offence which was the subject of the investigation, the commanding officer may frame suitable charge (s) on the basis of the evidence so taken as well as the investigation of the original charge.

23. Procedure for taking down the summary of evidence.- (1) Where the case is adjourned for the purpose of having the evidence reduced to waiting, at the adjourned hearing evidence of the witnesses who were present and gave evidence before the commanding officer, whether against or for the accused, and of any other person whose evidence appears to be relevant, shall be taken down in writing in the presence and hearing of the accused before the commanding officer or such officer as he directs.

(2) The accused may “put in cross-examination such questions as he thinks fit to any witness, and the questions together with the answers thereto shall be added to the evidence recorded.

(3) The evidence of each witness after it has been recorded as provided in the rule when taken down, shall be read over to him, and shall be signed by him, or if he cannot write his name shall be attested by his mark and witnessed as a token of the correctness of the evidence recorded. After all the evidence against the accused has been recorded the accused will be asked: “Do you wish to make any statement? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence.” Any statement thereupon made by the accused shall be taken down and read to him, but he will not be cross-examined upon it. The accused may then call his witnesses, if he so desires, any witnesses as to character.

(4) The evidence of the witnesses and the statement (if any) of the accused shall be recorded in the English language. If the witness of accused, as the case may be, does not understand the English language, the evidence or statement, as recorded, shall be interpreted to him in a language which he understands.

(5) If a person cannot be compelled to attend as a witness, or if owing to the exigencies of service or any other grounds (including the expense and loss of time involved), the attendance of any witness cannot in the opinion of the officer taking the summary (to be certified by him in writing), be readily procured, a written statement of his evidence purporting to be signed by him may be read to the accused and included in the summary of evidence.

(6) Any witness who is not subject to military law may be summoned to attend by order under the hand of the commanding officer of the accused. The summons shall be in the form provided in Appendix III.

24. Remand of accused.- (1) The evidence and statement (if any) taken down in writing in pursuance of Rule 23 (hereinafter referred to as the “summary of evidence”), shall be considered by the commanding officer, who thereupon shall either-

(a) remand the accused for trial by a Court-martial; or (b) refer the case to the proper superior military authority; or (c) if he thinks it desirable, re-hear the case and either dismiss the charge or dispose of it summarily. (2) If the accused is remanded for trial by a Court-martial, the commanding officer shall without unnecessary delay either assemble a summary Court-martial (after referring to the officer empowered to convene a district Court-martial when such reference is necessary) or apply to the proper military authority to convene a Court-martial, as the case may require.

26. Summary disposal of charges against officer, Junior Commissioned Officer or Warrant Officer-(1) Where an officer, a junior commissioned officer or a warrant officer is remanded for tile disposal of a charge against him by an authority empowered under Section 83, 84 or 85 to deal summarily with that charge, the summary of evidence 2(***) shall be delivered to him, free of charge, with a copy of the charge as soon as practicable after its preparation and in any case not less than twenty four hours before the disposal.

(2) Where the authority empowered under Section 83, 84 or 85, decides to deal summarily with a charge against an officer, junior commissioned officer or warrant officer, he shall unless he dismisses the charge, or unless the accused has consented in writing to dispense with the attendance of the witnesses, hear the evidence in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him. and to call any witness and make a statement in his defence.

(3) The proceedings shall be recorded as far as practicable in accordance with the form in Appendix-IV and in every case in which punishment is awarded, the proceedings together with the conduct sheet, summary 2(***) of evidence and written consent to dispense with the attendance of witnesses (if any) of the accused, shall be forwarded through the proper channel to the superior military authority as defined in Section 88.

31. Signature on charge-sheet.- The charge-sheet shall be signed by the commanding officer of the accused and shall contain the place and date of such signature.

34. Warning of accused for trial.- (1) The accused before he is arraigned shall be informed by an officer of every charge for which he is to be tried and also that, on his giving the names of witnesses or whom he desires to call in his defence, reasonable steps will be taken for procuring their attendance, and those steps shall be taken accordingly.

The interval between his being so informed and his arraignment shall not be less than ninety-six hours or where the accused person is on active service less than twenty-four hours.

(2) The officer at the time of so informing the accused shall give him a copy of the charge-sheet and shall if necessary, read and explain to him the charges brought against him. If the accused desires to have it in a language which he understands, a translation thereof shall also be given to him.

(3) The officer shall also deliver to the accused a list of the names, rank and corps (if any), of the officers who are to form the Court, and where officers in waiting are named, also of those officers in Courts-martial other than summary Courts-martial.

(4) If it appears to the Court that the accused is liable to be prejudiced at his trial by any non-compliance with this rule, the Court shall take steps and, if necessary, adjourn to avoid the accused being so prejudiced.

35. Joint trial of several accused persons.- (1) Any number of accused persons may be charged jointly and tried together for an offence averred to have been committed by them collectively.

(2) Any number of accused persons, although not. charged jointly, may be tried together for an offence averred to have been committed by one or more of them and to have abetted by the other or others.

(3) Where the accused are so charged under sub-rules (1) and (2), anyone or more of them may at the same time be charged with and tried for any other offence averred to have been committed individually or collectively, provided that all the said offences are based on the same facts, or form or are part of a series of offences of the same or similar character.

(4) In the cases mentioned above, notice of the intention to try the accused persons together shall be given to each of the accused at the time of his being informed of the charges, and any accused person may claim, either by notice to the authority convening the Court or, when arraigned before the Court, by notice to the Court, that he or some other accused be tried separately on one or more of the charges included in the charge sheet, on the ground that the evidence of one or more of the other accused persons proposed to be tried together with him. will be material to his defence, or that otherwise he would be prejudiced or embarrassed in his defence. The convening authority or Court, if satisfied that the evidence will be material or that the accused may be prejudiced or embarrassed in his defence as aforesaid, and if the nature of the charge admits of this, shall allow the claim, and such accused person, or, as the case may be, the other accused person or persons whose separate trial has been claimed, shall be tried separately. Where any such claim has been made and disallowed by the authority convening the Court, or by the Court, the disallowance of such claim will not be a ground for refusing confirmation of the finding or sentence unless, in the opinion of the confirming authority, substantial miscarriage of justice has occurred by reason of the disallowance of such claim.

22. While considering Chapter-V, what is of great significance to note is that Chapter-V relates to investigation of charges and remand for trial. The word ‘Charges’, appearing in Chapter-V, means tentative charges, which mean accusations and not ‘charges’, which are formally framed by the Criminal Courts of ordinary jurisdiction. These tentative charges are, thus, accusations and it is the Commanding Officer, who has to decide whether or not the accusations, so made, are to be proceeded with or not.

23. What is of utmost importance to note, while considering the provisions contained in Chapter-V of the Army Rules, is that Sub-rule (1) of Rule 22 empowers, and, at the same time, makes it a duty of the Commanding Officer to hear every ‘Charge’ against a person subject to the Army Act in the presence of the accused with liberty given to the accused to cross-examine the witnesses produced against him and also to call such witnesses as he may require and he may make such statement as may be necessary for his defence. The proviso to Sub-rule (1) of Rule 22 has come to be added by SRO 17E, dated 6th December, 1993. This proviso dispenses with the requirement of hearing of’ charges’ under Sub-rule (1) of Rule, 22 if the ‘charges’ have arisen against the accused as a result of enquiry conducted by a Court of Inquiry, which is held in terms of Rule 177 of the Army Rules, provided that the provisions of Rule 180 have been complied with. The Court of Inquiry is nothing, but an assembly of officers, which is directed to collect ‘evidence’ and, if so required, to report with regard to any matter, which may even have been referred to them.

24. If, upon hearing of the ‘charges’ under Sub-rule (1) of Rule 22, the Commanding Officer is of the opinion that the ‘evidence’ does not show that an offence under the Act has been committed, he must dismiss the ‘charges’. The Commanding Officer may also dismiss the charge if he is satisfied that the ‘charges’ ought not to be proceeded with. If, however, the Commanding Officer is of the opinion that the ‘charges’ ought to be proceeded with, he shall, within a reasonable time, (i) dispose of the case summarily or he may refer the case to the superior military authority, or (ii) adjourn the case for the purpose of having the evidence reduced to writing or (iii) order, if the accused is below the rank of warrant officer, his trial by a Court-martial though the order for trial by the summary Court-martial shall not be passed without a reference to the officer empowered to convene district Court-martial. When the Commanding Officer adjourns the case in terms of Clause (c) of Sub-rule (3) of Rule 22 for the purpose of having the ‘evidence’ reduced to writing, a Summary of Evidence, is recorded in terms of Rule 23. At the stage of Summary of Evidence, as Rule 23 conceives, ‘evidence’ given by the witnesses is recorded with liberty given to the accused to cross examine the witnesses. The accused also has the right to make a statement in his defence and may even examine-witnesses in defence of his case. The ‘evidence’, so collected, and the statements, so recorded, under Rule 23, is called Summary of Evidence. Rule 24 requires that the Commanding Officer shall consider the Summary of Evidence and remand the accused for trial by a Court-martial or refer the case to the appropriate superior military authority or, if he thinks it desirable, re-hear the case and either dismiss the ‘charge’ or dispose it of summarily. When the accused is remanded for trial, he is served with a charge-sheet, which has to be signed by the Commanding Officer in terms of Rule 31, and it is Rule 37, which empowers the convening authority to convene a Court-martial. Where the Commanding Officer is not the officer competent to convene a Court-martial, the competent military authority can convene Court-martial if he is satisfied that the ‘charges’ to be tried by the Court-martial are offences within the meaning of the Army Act and that the ‘evidence’ justifies a trial on those ‘charges’ and if he is not so satisfied, he may order release of the accused or may even refer the case to the superior authority.

25. What is, now, imperative to note is that until the time a convening order is made by a competent military authority, the accused is not put to trial by a Court-martial. More importantly, though Rules 22, 23 and 24 use the expression ‘evidence’, the word ‘evidence’ is not really evidence as is understood under Section 3 of the Evidence Act and the expression ‘charge’, which appears in Rules 22, 23 and 24, is not really a formal ‘charge’, which a Criminal Court frames. The expression ‘charge’, as already indicated, means an accusation, which may be under enquiry or investigation. Though called as Summary of Evidence, none of the materials collected under Rule 23 is ‘evidence’ stricto sensu and Summary of Evidence stands on the same footing as do the previous statements of the witnesses and can be used for the purpose of contradicting a witness or impeaching the credibility of a witness in terms of Section 145 of the Evidence Act.

26. Thus, the scheme of the Army Act and the Army Rules, if carefully read, clearly that when an accusation made against a person, subject to the Army Act, is investigated in terms of Rule 22 or 23, the accusation is called ‘charge’ and Summary of Evidence is merely a collection of the statements of the witnesses recorded during investigation with, however, liberty given to the accused to examine the witnesses and, hence, Summary of Evidence is not, legally speaking, ‘evidence’ as conceived under Section 3 of the Evidence Act.

27. In the case of Courts of ordinary criminal jurisdiction, a person may appear or may be brought before the Court on accusations of his having committed an offence either on completion of investigation or on completion of enquiry. When an accused is brought before a Criminal Court with an accusation, there is no formal charge. Where, however, an accused is brought before a Court-martial, charge(s), on which the accused is to be tried, are charge(s) already framed by the Commanding Officer. In a Court-martial, unlike an ordinary Criminal Court, it is not the Court, which frames charges. Though in both the cases, i.e., in a trial by a Court-martial as also in a trial by an ordinary Criminal Court, the accused is asked if he pleads guilty to the charges or not. If a Commanding Officer has, upon hearing under Rule 22 and upon considering the Summary of Evidence, dismissed a ‘Charge’, it bars the trial of the accused as reflected by Rule 53. That is to say, an accused will not be triable by a Court-martial if the Commanding Officer has, under Rule 22 or 24, dismissed the ‘charge’ (i.e., the accusations) brought against the accused. In short, dismissal of even a tentative charge against an accused under Rule 22 bars, by virtue of Rule 53, subsequent trial of the accused by Court-martial.

28. In the backdrop of the various stages, which lead to the trial of an accused in the Court of ordinary criminal jurisdiction or by a Court-martial, one has to, now, ascertain as to when, if any, possibility of conflict of jurisdiction may arise between the two Courts, namely, the Court-martial and the ordinary Court of Criminal Jurisdiction.

29. In order to appreciate as to when such a conflict of jurisdiction may arise and what mechanism or provisions of law have been made for resolving such conflicts, one has to take note of the relevant provisions of the Army Act, the Army Rules, the Indian Penal Code and the Code of Criminal Procedure. Section 2 of the Army Act, describes different categories of army personnel, who are subject to the Army Act; Section 3(ii) defines civil offence to mean an offence, which is triable by a Criminal Court; Section 3(vii) defines Court-martial to mean a Court-martial held under the Army Act; Section 3(viii) defines Criminal Court to mean a Court of Ordinary Criminal Jurisdiction in any part of India; Section 33(xviii) defines offence to mean any act or omission punishable under the Army Act and obviously includes a civil offence as defined hereinbefore.

30. Chapter V of the Army Act defines offence and also prescribes punishments therefor. No wonder, therefore, that the heading of this Chapter reads “offence”. This Chapter comprises of Sections 34 to 70. Sections 34 to 68 define offence under the Army Act triable by a Court-martial and also prescribe punishment for such offence. Sections 69 and 70 deal with civil offences.

31. I have already indicated above that a ‘civil offence’ means an offence, which is triable by a Criminal Court, and an offence, under the Army Act, means not only any act or omission punishable under the Army Act but also includes a civil offence. Thus, when a ‘civil offence’ is also an offence under the Army Act, it is triable not only by a Court of Ordinary Criminal Jurisdiction, but also by a Court-martial. Almost all civil offences are triable by Court-martial and it is Section 69, which specify such offences. But Section 69 is subject to Section 70 and Section 70 specifies those offences, which are not triable by Court-martial except in three specified cases. Section 69 reads as follows:

69. 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 offence, by the aforesaid law and such less punishment as is 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 extend to seven years, or such less punishment as is in this Act mentioned.

Section 70 provides:

A person subject to this Act who commits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be tried by a Court-martial, unless he commits any of the said offences-

(a) while on active service, or

(b) at any place outside India, or

(c) at a frontier post specified by the Central Government by notification in this behalf.

Explanation.- In this section and in Section 69, “India” does not include the Stale of Jammu and Kashmir.

32. A careful reading of Section 69 shows that any person, subject to the Act, who, at any place in or beyond India, commits a civil offence shall be deemed to be guilty of an offence against the Army Act and, if charged therewith under this Section, such a person shall be liable to be tried by a Court-martial and, on conviction, be punishable as provided for the offence under any law in force in India or such less punishment as is in the Act mentioned. Similarly, Section 70, as quoted above, shows that a person subject to the Army, who commits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against the Army Act and shall not be tried by a Court-martial. There are three exceptions to Section 70. These exceptions, as quoted hereinabove, indicate that though, ordinarily, Court-martial would not be held in respect of the offences covered by Section 70, a Court-martial would have the jurisdiction to try a case if a person, subject to the Army Act, is alleged to have committed offence, while on active service, or at any place outside the India or a frontier post specified by the Central Government by notification issued in this regard.

33. A careful survey of Sections 34 to 68, on the one hand, and Sections 69 to 70 on the other clearly reveals that there are three categories of offences, which the Army Act deal with, namely, (i) offences committed by a person subject to the Army Act triable by a Court-martial- in respect whereof specific punishments have been assigned; (ii) Civil offences committed by such a person at any place in or beyond India, but deemed to be offences committed under the Army Act and, if charged under Section 69 of the Act, triable by a Court-martial; and (iii) Offences of murder and culpable homicide not amounting to murder or rape committed by a person subject to the Army Act against a person not subject to the military law. Subject to the three exceptions as indicated hereinbefore, these offences are not triable by Court-martial, but are triable only by ordinary Criminal Courts.

34. In short, when a civil offence becomes triable by both ordinary Criminal Court as well as Court-martial, possibility of conflict of jurisdiction arises. Having visualized such a situation, the legislature has enacted a scheme for resolution of such a conflict by making provisions under Sections 125 and 126 of the Army Act and Section 475 of the Code of Criminal Procedure.

35. Let me, now, take note of what Sections 125 and 126 provide. Section 125 reads as under:

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.

34. Section 126 reads as follows:

(1) 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.

(2) In every such case the said officer shall either deliver over the offender in compliance with the requisition, or shall forth-‘ with refer the question as to the Court before which the proceedings are to be instituted for the determination of the Central Government, whose order upon such reference shall be final.

36. From a bare reading of Section 125, it becomes evident that Section 125 conceives of a situation, wherein both a Criminal Court as well as a Court-martial would have jurisdiction in respect of an offence. Such a situation can obviously arise, when an act or omission is an offence not only under the Army Act, but also under the Indian Penal Code or any other law, in force, in India and triable by an ordinary Criminal Court. As Section 125 reflects, the scheme of the Army Act is that it is left to the discretion of the officers, mentioned in Section 125, to decide before which Court the proceedings shall be instituted and if the officer concerned decides that the proceedings shall be instituted before a Court-martial, the accused person shall be detained in military custody; but if a Criminal Court is of the opinion that the offence shall be tried before the Criminal Court, it may issue requisite notice under Section 126 either to deliver over the offender to the nearest Magistrate or to postpone the proceedings and refer the matter to the Central Government for its decision as to who shall try the accused. Sub-section (2) of Section 126 makes it clear that when such a notice is given by the ordinary Criminal Court, the officer, mentioned in Section 125, shall either deliver over the offender in compliance with the requisition of the Criminal Court or shall forthwith refer to the Central Government the question as to before which Court the proceeding shall be instituted and the answer given by the Central Government on the question so referred shall be final.

37. A careful and dispassionate reading of the provisions of Sections 125 and 126 leaves no room for doubt that when a Criminal Court intends to proceed against an accused, who is subject to the Army Act, any alleged commission of any offence in respect whereof the Army Act empowers the officers, mentioned in Section 125, to institute a Court-martial, the Criminal Court would have no jurisdiction to proceed except after giving a notice to the officers, referred to in Section 125, to either deliver over the offender to the nearest Magistrate or to postpone the proceedings pending a reference to be made to the Central Government. There can also be no room for doubt that the order of the Central Government, given in such a case, shall be final. Thus, Sections 125 and 126 provide a cool and satisfactory mechanism to resolve the conflict of jurisdiction having regard to exigency of situation in a given case. (See Som Datt Datta v. Union of India and Ors. ; Major E.G. Barsay v. State of Bombay and Lt. Col. S.K. Kashyap and Anr. v. State of Rajasthan .

38. There appears to be, as observed by the Apex Court, in Balbir Singh and Anr. v. State of Punjab , some logic in giving first option to the Army authorities to decide as to whether the accused should be tried by a Court-martial or by Criminal Court. The defence of the country being of paramount importance, authorities under the Army Act would know best as to whether the accused should be tried by Court-martial or by ordinary Criminal Court, for, trial by an ordinary Criminal Court would necessarily involve a member of the armed force concerned. The Apex Court has also made it clear, in Balbir Singh (supra), that when a Criminal Court is of the opinion, for reasons to be recorded, that instead of giving option to the authorities under the Army Act, it is the Criminal Court, which should proceed with the trial of the accused, the Criminal Court shall give notice to the authorities under the Army Act, as indicated in Section 126(2), requiring the Army to either deliver the accused for trial by the Criminal Court or to keep the proceeding pending until a reference, to be made in this regard, to the Central Government, is decided by the Government.

39. Section 125 of the Army Act shows that in exercise of his power under Section 125, when an officer decides that the proceedings against an accused person be instituted before the Court-martial, the officer shall direct that the accused person be detained in military custody. The direction to detain an accused person is possible if the accused person is not already in the custody of the police or of the Criminal Court. Even if the accused person is in the custody of the police, it would still amount to custody in the Criminal Court. The question, now, is as to what will happen if, upon an information of commission of an offence given to the police, the police takes the accused into custody during the course of investigation or accused is placed in the custody of the Criminal Court during the period of investigation. In such a case, the officer authorized under Section 125 of the Army Act, has to obtain custody of such an accused person If the officer is of the view that the accused person needs to be tried by a Court-martial. It is, in these circumstances, that Section 475, Cr. P. C, gets attracted. For better appreciation, Section 475 Cr. P.C. is reproduced hereinbelow:

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 (46 of 1950), the Navy Act. 1957 (62 of 1957). and the Air Force Act, 1950 (45 of 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.

Explanation.- In this section-

(a) ‘unit’ includes a regiment, corps, ship, detachment, group, battalion or company,

(b) ‘Court-martial’ includes any tribunal with the powers similar to those of a Court-martial constituted under the relevant law applicable to the Armed Forces of the Union.

(2) Every Magistrate shall, on receiving a written application for that purpose by the Commanding Officer of 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.

40. It is also worth noticing that the word “jurisdiction”, in Section 125, really signifies, as indicated in Delhi Special Police Establishment, New Delhi, v. Lt. Col. SK Loraiya , the initial jurisdiction to take cognizance. In other words, the word jurisdiction, appearing in Sections 125 and 126, refers to the stage at which the proceedings are instituted of the Court-martial or in a Criminal Court and not to the jurisdiction of the Court-martial and /or the Criminal Court to decide the case on merit and it is, in this light, that Section 475, Cr. P.C. shall be construed. In fact, the Apex Court has clearly pointed out, in Lt. Col. S, K. Loraiya (supra), that since the provisions of Sections 125 and 126, on the one hand, and Section 475, on the other, aim at avoiding conflict of jurisdiction between the Criminal Court and the Court-martial, both the said provisions shall receive similar construction,

41. If the provisions of Section 475. Cr. P.C. are kept in mind, there can be no difficulty in reaching the conclusion that when an offence is under investigation by police and the accused person, who is subject to the Army Act, Is in the custody of the police or of the Magistrate and if he has to be proceeded against under the Army Act, the authorized officer, under Section 125, has to obtain custody of such an accused by placing, in this regard, a requisition, under Section 475, Cr. P.C., to the Magistrate within whose territorial jurisdiction the accused person is in custody.

42. What is also of immense importance to note is that in exercise of its powers conferred by Section 475, Cr. P. C, the Central Government had made rules, which were called Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1952, Keeping in tune the changes, which were introduced by the Code of Criminal Procedure, 1973, these Rules too underwent amendment and the amended Rules are called the Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1978, (in short, ‘Adjustment of Jurisdiction Rules’). For the sake of better understanding, the Adjustment of Jurisdiction Rules is reproduced hereinbelow:

3. 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 liable to be tried by a Court-martial, such Magistrate shall not proceed to try such person or to 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 proceed or commit without being moved thereto by such authority.

4. Before proceedings under Clause (b) of Rule 3 the magistrate shall give a written notice to the commending 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 the service of the notice he shall not-

(a) convict or acquit the accused under Sections 252, Sub-sections (1) and (2) of Section 255, Sub-section (1) of Section 256 or Section 257 of the Code of Criminal Procedure, 1973 (2 of 1974), or hear him in his defence under Section 254 of the said Code, or

(b) frame in writing a charge against the accused under Section 240 or Sub-section (1) of Section 246 of the said Code, or

(c) make an order committing the accused, for trial to the Court of Session under Section 209 of the said Code.

(d) make over the case for inquiry or trial under Section 192 of the said Code.

5. Where a Magistrate has been moved by competent military, naval or air force authority, as the case may be, under Clause (a) of Rule 3, and the Commanding Officer of the accused or competent military, naval or air force authority, as the case may be, subsequently gives notice to such Magistrate that in the opinion of such authority, the accused should be tried by a Court-martial, such Magistrate if he has not taken any action or made any order referred to in Clause (a), (b), (c) or (d) of Rule 4, before receiving the notice shall stay 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 said Code to the officer specified in the said sub-section.

6. Where within the period of fifteen days mentioned in Rule 4, or at any time 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 case 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 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 said Code to the officer specified in the said subsection.

7. (1) When an accused has been delivered by the Magistrate under Rule 5 or 6, the Commanding Officer of the accused or the competent military, naval or air force authority, as the case may be, shall, as soon as may be, inform the Magistrate whether the accused has been tried by a court-martial or other effectual proceedings have been taken or ordered to be taken against him.

(2) When the Magistrate has been informed under Sub-rule (1) that the accused has not been tried or other effectual proceedings have not been taken or ordered to be taken against him, the Magistrate shall report the circumstances to the State Government which may, in consultation with the Central Government, take appropriate steps to ensure that the accused person is dealt with in accordance with law.

8. Notwithstanding anything in the foregoing rules, where it comes to the notice of a Magistrate that 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 has committed an offence, proceedings in respect of which ought to be instituted before him and that the presence of such person cannot be procured except through military, naval or air force authorities, the Magistrate may by a written notice require the Commanding Officer of such person either to deliver such person to a Magistrate to be named in the said notice for being proceeded against according to law, or to stay the proceedings against such person before the Court-martial if since instituted, and to make a reference to the Central Government for determination as to the Court before which proceedings should be instituted.

9. 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 has committed an offence which in the opinion of the competent military, naval or air force authority, as the case may be, ought to be tried by a Magistrate in accordance with the civil law in-force or where the Central Government has, on a reference mentioned in Rule 8, decided that proceedings against such person should be instituted before a Magistrate, the Commanding Officer of such person shall after giving a written notice to the Magistrate concerned, deliver such person under proper escort to that Magistrate.

43. Broadly speaking, the scheme of the Adjustment of Jurisdiction Rules is as under:

Under Rule 3, 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 liable to be tried by a Court-martial, such Magistrate shall not proceed to try such person or to 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) the Magistrate is of the opinion, for reasons to be recorded, that he should proceed or commit without being moved thereto by such authority. However, when the Magistrate without being moved by the competent military, naval or air force authority decides to proceed or commit the case to the Court of Session, he shall give written notice to the Commanding Officer of the accused or the competent military, naval or air force authority, as the case may be, and until expiry of a period of 15 days from the date of service of notice, he shall not (a) convict or acquit the accused under Sections 252, Sub-sections (1) and (2) of Section 255, sub-section 256 or Section 257 of the Code of Criminal Procedure, 1973, or hear him in his defence under Section 254 of the Code, or (b) frame, in writing, a charge against the accused under Section 240 or Sub-section (1) of Section 246 of the said Code or (c) make an order committing the accused for trial to the Court of Session under Section 209 of the Code, or (d) make over the case for inquiry or trial under Section 192 of the said Code.

44. Rule 5 provides that where a Magistrate has been moved by competent military, naval or air force authority, as the case may be, under Clause (a) of Rule 3, and 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 authority, the accused should be tried by a Court-martial, such Magistrate, if he has not, before receiving the notice, taken any action or made any order referred to in Clause (a), (b), (c) or (d) of Rule 4, shall stay 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 sub-section.

45. Rule 6 makes it clear that where within the period of fifteen days mentioned in rule 4, or at any time thereafter but before the Magistrate takes any action or makes any order referred to in that rule, i.e. (a) convict or acquit the accused, or (b) hear him in his defence, or (c) frame charge against him, or (d) commit him to the Court of Session for trial, or (e) make over the case for enquiry or trial under Section 192, the Commanding Officer of the accused or the competent military, naval or air force authority, as the case 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 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 sub-section.

46. Sub-rule (1) of Rule 7 provides that when an accused has been delivered by the Magistrate under Rule 5 or 6, the Commanding Officer of the accused or the competent military, naval or air force authority, as the case may be, shall, as soon as may be, inform the Magistrate whether the accused has been tried by a Court-martial or other effectual proceedings have been taken or ordered to be taken against him.

47. Sub-rule (2) of Rule 7 makes it clear that when the Magistrate has been informed under Sub-rule (l) of Rule 7 that the accused has not been tried or other effectual proceedings have not been taken or ordered to be taken against him, the Magistrate shall report the circumstances to the State Government, which may, in consultation with the Central Government, take appropriate steps to ensure that the accused person is dealt with in accordance with law.

48. Rule 8 states that notwithstanding anything in the foregoing rules, where it comes to the notice of a Magistrate that 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, has committed an offence, proceedings in respect of which ought to be instituted before him and that the presence of such person cannot be procured except through military, naval or air force authorities, the Magistrate may, by a written notice, require the Commanding Officer of such person either to deliver such person to a Magistrate to be named in the said notice for being proceeded against according to law or to stay the proceedings against such person before the Court-martial if since instituted and to make a reference to the Central Government for determination as to the Court before which proceedings should be instituted.

49. Rule 9 makes it clear 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, has committed an offence, which, in the opinion of the competent military, naval or air force authority, as the case may be, ought to be tried by a Magistrate in accordance with the civil law in force or where the Central Government has, on a reference mentioned in Rule 8, decided that proceedings against such person should be instituted before a Magistrate, the Commanding Officer of such person shall, after giving a written notice to the Magistrate concerned, deliver such person under proper escort to that Magistrate.

50. A conjoint reading of the provisions contained in Sections 125 and 126 of the Army Act, Section 475, Cr. P.C. and the Adjustment of Jurisdiction Rules, 1978, clearly shows that when a Criminal Court and Court-martial both have jurisdiction in respect of an offence, it shall be in the discretion of the officer, specified in Section 125, to decide, in the first instance, as to the Court in which the proceedings shall be instituted and if such officer decides that the proceedings shall be instituted before a Court-martial, he shall direct that the accused be detained in military custody. But, when such an accused is brought before a Magistrate, he shall not proceed to try such an accused or commit him to the Court of Session without having been moved thereto by the competent authority under the Army Act. However, if the Magistrate is of the opinion, for reasons to be recorded, that he should, without having been moved to that effect by the competent military authority, proceed with the case or commit the case to the Court of Session for trial he shall give a notice, in writing, to the Commanding Officer or the competent military authority and await their decision until expiry of a period of fifteen days from the date of service of the notice on the authority concerned and shall not, during such period of fifteen days, explain to the accused the substance of accusations and ask him, in the light of Section 252, as to whether he (accused) pleads guilty to the offence for the alleged commission whereof, he has been brought before the Magistrate. Though in the case of petty offence, where summons has been issued to the accused and the accused desires to plead guilty without appearing before the Magistrate, the accused has, under Section 253, the freedom to transmit to the Magistrate, by post or by messenger, a letter containing his plea and also the amount of fine specified in the summons, the Magistrate shall not, however, convict the accused or acquit the accused on such plea within the said period of fifteen days if the accused is subject to the Army Act. In the light of the provisions of the Adjustment of Jurisdiction Rules, it also becomes abundantly clear that if, in a summons case, summons have already been issued on the complaint and on the appointed day for appearance of the accused or at any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, Magistrate shall not, in exercise of his powers under Section 256, acquit such an accused or hear the accused in his defence in exercise of powers under Section 254. During such a period of fifteen days, the Magistrate cannot also frame, in writing, a charge under Section 240 against the accused in a warrant procedure case instituted on a police report or under Section 246, when such a warrant procedure case has been instituted otherwise than on police report. The Magistrate is also prohibited from committing, within the said period of fifteen days, the case to the Court of Session under Section 209 nor can he make over the case for inquiry or trial, under Section 192, to another Magistrate.

51. A minute and cautious reading of the provisions, contained in Rule 3, clearly reveals that Rule 3 comes into play not necessarily when the charges have been framed as contended by Mr. A. K. Goswami, for, Rule 3 itself shows that even when the Magistrate decides to commit the case to the Court of Session, Rule 3 comes into play, A Magistrate is not empowered to frame charge against an accused if the offence alleged to have been committed by the accused is exclusively triable by a Court of Session. Viewed thus, it is clear that Rule 3 warrants that in either case, that is, when the Magistrate finds that there is a case to frame a charge against the accused or decides to commit the case to the Court of Session, it is his duty to give a written notice to the officer specified in rule 4 and shall not, until expiry of a period of 15 days from the date of service of notice, frame, (as Rule 4(b) reflects), charge against the accused or commit the case for trial.

52. From the discussion held above, what clearly emerges is that the Adjustment of Jurisdiction Rules come into play before charge is framed by a Criminal Court. The question, now, is as to whether a competent military authority is empowered to proceed against a person, subject to the Army Act, who is alleged to have committed an offence, which is triable by the Criminal Court and also by Court-martial, if the case is pending for investigation. Will the fact that the accused is in the custody of the Criminal Court or in the custody of the police, on the orders of the Criminal Court, make any difference in such a case?

53. While considering the question posed above, what needs to be noted is that if the accused is not in the custody of the Criminal Court or in the custody of the police, Section 125 of the Army Act empowers the competent military authority to detain the accused in military custody if such an authority decides to proceed against such an accused within the scheme of the Army Act and institute a Court-martial for trial of such an accused. However, when the accused is in the custody of the Criminal Court or in the custody of the police, is it possible for the competent military authority to obtain custody of such an accused? Does Section 475 of the Code come into play, always and invariably, only when an accused is brought before a Magistrate on the accusation of having committed an offence? Is it correct to suggest that if an accused is not brought before a Magistrate on accusations of having committed an offence, the question of taking resort to Section 475 does not arise?

54. Answers to the questions noticed above are not very far to seek. Since the Adjustment of Jurisdiction Rules have been framed in exercise of powers under Section 475, the Adjustment of Jurisdiction Rules do not create a bar for the competent military authority to proceed against the accused and take him into military custody if the accused is not already in the custody of the Criminal Court or under the control of the Criminal Court. Where, however, such an accused is in the custody of the Criminal Court or in the custody of the police and the competent military authority decides to proceed against such an accused, Section 475 and the Adjustment of Jurisdiction Rules do get attracted. In this regard, it needs to be noted that in Som Datt Datta 1969 Cri LJ 663 (supra), the Apex Court held that Rule 3 of the Adjustment of Jurisdiction Rules applies to such a case, where the police have, on complaint, laid charge-sheet and the accused has been brought before the Magistrate after the charge-sheet has already been submitted against him. The Constitution Bench, in Som Datt Datta (supra), had further held that Rule 3 cannot be invoked in a case, where the police had merely started investigation against a person subject to the Army Act and had not submitted charge-sheet against him and when the accused had not been brought before the Magistrate upon submission of such a charge-sheet. The relevant observations, made in this regard, in Som Datt Datta (supra), read. “….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 provisions of this rule cannot be invoked in a case where the police had merely started investigation against a person subject to military, naval or air force law.”

55. If the above observations made in Som Datt Datta (supra) are taken to logical conclusion, there remains no room for doubt that as the law stood on the day the Constitution Bench decided Som Datt Datta (supra), Rule 3 of the Adjustment of Jurisdiction Rules could not have been invoked by the competent military authority to ask for the custody of an accused if the investigation was pending against such an accused or if the accused had not been brought before the Magistrate during the course of investigation.

58. What is, now, of utmost importance to note is that when the decision in Som Datt Datta (supra) was delivered, Rule 4 read as under:

4. Before proceeding under Clause (a) of rule 3 the Magistrate shall give written notice to the Commanding Officer of the accused and until the expiry of a period of seven days from the date of the service of such notice he shall not–

(a) convict or acquit the accused under Section 243, 245, 247 or 248 of the Code of Criminal Procedure, 1898 (V of 1898), or hear him in his de-fence 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 Session under Section 213 of the said Code.

57. Subsequent to the decision in Som Datt Datta 1969 Cri LJ 663 (supra), Clause (d) has been added to Rule 4 by the Adjustment of Jurisdiction Rules, 1978. Clause (d) reads, “make over the case for inquiry or trial under Section 192 of the Said Code.”

58. As already indicated above, Section 190 comes into play, when a Chief Judicial Magistrate or a Magistrate, empowered in this regard, by the Chief Judicial Magistrate, makes over, upon taking cognizance of an offence, the case for enquiry or trial to some other competent Magistrate. It has already been pointed out above that when a Magistrate receives a case, in terms of Section 192, he may hold an enquiry or trial. The enquiry, spoken of in Section 192, relates to enquiry under Section 202. This enquiry under Section 202 may, in a case, which is not exclusively triable by a Court of Session, lead to investigation by police on the orders of the Magistrate, for, it is only with regard to those offences, which are exclusively triable by a Court of Session, that the Magistrate is prohibited by the proviso to Section 202(1) from directing investigation by police if, upon holding enquiry under Section 202, he finds that the offence complained of is exclusively triable by a Court of Session. Section 202 also makes it clear that a Magistrate may receive a case under Section 192 after the Chief Judicial Magistrate or any Magistrate empowered, in this regard, by the Chief Judicial Magistrate, has merely taken cognizance of an offence, but has not recorded statement of the complainant and his witnesses in terms of Section 200. At the stage of recording of statement under Section 200 or at the stage of holding of inquiry under Section 202, the accused is not brought before the Magistrate. In fact, at the stage of recording of statement, under Section 200 or enquiry under Section 202, the accused has no right of appearance in the proceedings.

59. What follows from the above discussion is that when Rule 4 requires giving of notice by a Magistrate before he makes over a case for enquiry or trial under Section 192 of the Code, it logically follows that Rule 4 comes into play and a notice to the competent military authority is required to be given by the Magistrate in terms of rule 4 even before a Magistrate records statement of the complainant under Section 200 or holds an enquiry under Section 202 or directs investigation by police under Section 202.

60. Thus, Section 192 read with Section 202 make it abundantly clear that even before investigation, in an appropriate case, is ordered by a Magistrate under Section 202. Rule 4 of the Adjustment of Jurisdiction Rules comes into play. These provisions leave no room for doubt that even at the stage of investigation, when a person, subject to the Army Act, is brought before a Magistrate with the accusation of having committed an offence for which the accused is liable to be tried by a Criminal Court and also by a Court-martial, the military authority concerned can, in exercise of its powers under Section 125, not only take over the case, but also obtain the custody of the accused from the Criminal Court if it so becomes necessary and the fact that the case is still pending for investigation by police will not create a bar for the military authority to obtain custody of the accused from the Magistrate nor will the pending investigation of the case with the police create any bar for the Magistrate to deliver custody of the offender to the military authority. However, what has, eventually, been done, in the matter, by the military authority must, in the light of the decisive pronouncement in Major S.K. Sharma 1987 Cri LJ 1912 (supra), be communicated to the Magistrate, who may, then, take such steps as required and permissible in law.

61. What logically follows from the above discussion is that when the decision in Som Datt Datta 1969 Cri LJ 663 (supra) was rendered, the Adjustment of Jurisdiction Rules, 1978, had not existed and it was in the absence of Clause (d) that the Constitution Bench had held that Rule 3 applies, where the police, on completion of investigation, has submitted charge-sheet and the accused is brought before the Magistrate and that the provisions of Rule 3 cannot be invoked in a case, where police had merely started investigation against a person subject to military, naval or air force law. With the insertion of Clause (d) into rule 4, the scope of Rule 3 has expanded and what Rule 4, now, reflects is that even when a Chief Judicial Magistrate receives a complaint, or any other Magistrate empowered in this regard, by the Chief Judicial Magistrate, receives a complaint, and decides, at that stage, not to send the complaint to the police for investigation in exercise of his powers under Section 156(3). of the Code, but decides to proceed further with the complaint as a complaint case, takes cognizance and makes over the case for enquiry or trial under Section 192 of the Code, Rule 4 gets attracted.

62. The effect of what has been discussed above is that if a Magistrate, on receiving a complaint, does not take cognizance but merely sends the complaint to the police for investigation in exercise of powers under Section 156(3), the Magistrate need not give any notice to the competent military authority before sending the complaint for investigation to the police. When, however, the Magistrate takes cognizance under Section 190, he cannot examine, in exercise of powers under Section 200, the complaint and/or his witnesses present without giving a notice, in terms of Rule 4, to the competent military authority and, on receiving notice, the competent military authority may take over the case for the purpose of instituting a Court-martial. Such institution of the Court-martial will be in exercise of powers under Section 125. The fact that the accused has not been brought before the Magistrate will not cause any impediment to the investigation, which is required to be done by the military authority in terms of Chapter V of the Army Rules, which I have already discussed above.

63. In Som Datt Datta 1969 Cri LJ 663 (supra), while the investigation was still pending with the police, the Army authority had held Court-martial and the Court-martial, having found the accused guilty, had convicted him accordingly and his conviction had been confirmed by the competent military authority. As the investigation had merely started and had not been completed and no charge-sheet had been laid before the Magistrate against the accused, the Apex Court had held, (in the absence of Clause (d) of Rule 4, that Rule 3 comes into play only when the police, on completion of investigation, submits charge-sheet. In the face of Clause (d) of rule 4, there can be no escape from the conclusion that even when an investigation is pending and the Army authority decides to institute a proceeding before a Court-martial, they can seek the custody of the accused if the accused is in the judicial custody or in the police custody on the orders of the Magistrate.

64. I may also point out that the case of Major S.K. Sharma 1987 Cri LJ 1912 (supra) was decided on 29-6-1987, when Section 127 existed in the Army Act. Section 127. at the relevant point of time, read as under:

127; Successive trials by a Criminal Court and Court-martial- (1)’A person convicted or acquitted by a Court-martial may, with the previous sanction of the. Central Government be tried again by a Criminal Court for the same facts.

(2) If a person sentenced by a Court-martial under this Act or punished under any of the Section 80, 83, 84 or 85 is afterwards tried and convicted by a Criminal Court for the same offence or on the same facts, that Court shall, in awarding punishment, have regard to the punishment he may already have undergone for the said offence.

65. Section 127 made it clear that even where a person, on being tried by a Court-martial, is acquitted or convicted, it was possible to try him with the sanction of the Central Government by a Court of ordinary criminal jurisdiction.

66. Though Section 127 was a departure from the Constitutional guarantee against double jeopardy as envisaged in Article 20 of the Constitution, which provides that no person shall be prosecuted and punished for the same offence more than once, provisions for another trial under Section 127 had been made possible by reason of Article 33 of the Constitution, which confers on Parliament the power to restrict or abrogate any fundamental right (including Article 20) in its application to the members of the Armed Forces. Taking note of the pro-, visions of Section 127 and on reading Rule 7 of the Adjustment of Jurisdiction Rules, 1978, the Apex Court, in Major S.K. Sharma (supra), observed, “Reference may also be made to Section 127 of the Army Act. It is an important provision. It provides that a person convicted or acquitted by a Court martial, may, with the previous sanction of the Central Government, be tried again by a criminal Court for the same offence or on the same facts. This provision is an exception to Article 20 of the Constitution which provides that no person shall be prosecuted and punished for the same offence more than once. The provision has been made possible by reason of Article 33 of the Constitution which confers power on Parliament to modify any Fundamental Right in its application to the members of the Armed Forces, It is to enable the operation and application of Section 127 of the Act that Rule 7(1) of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 requires the Commanding Officer or the competent military, naval and air force authority to inform the Magistrate whether the accused has been tried by a court-martial or other effectual proceedings have been taken against him.”

67. Coupled with the above, it is also worth noticing that in Major S.K. Sharma 1987 Cri LJ 1912 (supra), the military authority concerned came into picture only after the Criminal Court had, on taking of cognizance of offences under Sections 323, 355, and Section 127, IPC, recorded statement of the complainant and directed issuance of’ process to two Army officers’ fixing 7th March, 1986, as their date of appearance. When the Criminal Court had already found a prima facie case against the accused aforementioned and had accordingly issued summons to them, the Army authority convened Court of Enquiry and this was objected to by the complainant, Major S.K. Sharma. It is in these circumstances that the Apex Court held, “The policy of the law is clear. 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. To ensure that proceedings are taken against the accused the Rules require the Commanding Officer or the competent authority to inform the Magistrate of what has been done. Rule 7(2) appears to envisage the possibility that the Commanding Officer or the competent military, naval or air force authority may not try the accused or take effectual proceedings against him even where the Magistrate has found a case for trial. To cover that exigency it provides that the State Government in consultation with the Central Government, on a report from the Magistrate to that effect, may take appropriate steps to ensure that the accused does not escape the attention of the law. The policy of our constitutional polity is that no person should be regarded as being above the law. Military, naval or air force personnel are as much subject to the law as members of the civil population. It is significant that Rule 8 empowers the Magistrate, on coming to know that a person subject to the military, naval or air force law or any other law relating to the Armed Forces has committed an offence and proceedings in respect of which ought to be instituted before him and that the presence of such person cannot be procured except through military, naval or air force authorities, to require the Commanding Officer of such person either to deliver such person to a Magistrate for being proceeded against according to law or to stay the proceedings against such person before the Court-martial if since instituted, and to make a reference to the Central Government for determination as to the Court before which the proceedings should be instituted.”

68. It is in the setting of the facts and circumstances of the case in Major S.K. Sharma (supra) that the Apex Court had observed and held, “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”. When he is so delivered, a statement of the offence of which he is accused will also be delivered to the Commanding Officer. The relevance of delivering such statement can be easily understood, for, it is to enable the Army authority to appreciate the circumstances in which a Court-martial is required by the law,”

69. The decision in Major S.K. Sharma (supra) cannot be extended to a case, where investigation is still pending or an enquiry under Section 202 is still in progress. On the other hand, when an accused is in the custody of the Magistrate and the Army authority, competent to try him by Court-martial, seek custody of the accused, the delivery of the offender to the Army authority will not be “for the purpose of being tried by a Court-martial” only; rather, delivery of the offender would, in such a case, be for holding enquiry and investigation by competent military authority in terms of the Army Act and the Army Rules, which may or may not lead to his trial by Court-martial, If the Commanding Officer, in such” a case, dismisses the charge, Rule 3 of the Army Rules will bar subsequent trial of the accused by Court Martial. Whether this dismissal of the charge will create (in the light of the deletion of Section 127) a bar for the trial by Criminal Court too is a question, which I am not called upon to decide in this case. This aspect of the case becomes more transparent if the language used in Section 475 is taken into consideration, for, Section 475 reads, inter alia, “…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”. The emphasized portions of the provisions contained in Section 475 clearly lay down that it is only “in proper cases” and having regard to the Rules, which may be framed under Section 475, that an offender can be delivered to the competent military authority for the purpose of being tried by a Court-martial. The expression “in proper cases” would, obviously, mean only such cases, where a Magistrate, upon recording of statements under Section 200 or upon holding enquiry under Section 202, finds a prima facie case against the accused and directs (as had happened in the case of Major S.K. Sharma (supra), issuance of process against the accused. In a case, where the complainant’s statement has not been recorded or the Magistrate has still not completed his enquiry under Section 202, delivery of the offender to a competent military authority, (if the same is made pursuant to the requisition given by the military authority), would not be for the purpose of trial only, for, before bringing the accused to trial, the competent military authority would be required to comply with the requirements of Rule 22 and the other Rules connected therewith.

70. What crystallizes from the above discussion is that even when an investigation by police into an offence alleged to have been committed by a person subject to the Army Act is in progress, there is no impediment, on the part of the competent military authority, to either investigate the case in terms of Chapter V of the Army Rules or in holding. Court-martial if the accused is not in the custody of the Criminal Court or in the custody of the police on the orders of the Criminal Court. The decision in Som Datt Datta 1969 Cri LJ 663 (supra) is a case of this nature, where the Army Officer was put to trial even when the investigation by police was pending. If, however, the accused is arrested during investigation and brought before a Magistrate, Rule 4 gets, attracted and a notice to the competent military authority to exercise their option to try the accused has to be given.

71. In the backdrop of the position of law as discussed above, when we revert to the factual matrix of the present case, it becomes abundantly clear that in the case at hand, when the accused is not in the custody of the Criminal Court, there is no impediment, on the part of the military authority, to proceed against him and try him by a Court-martial. Such a course is, in fact, approved by the Constitution Bench decision in Som Datt Datta (supra). There is, therefore, no legal impediment, on the part of the military authority, to obtain from the Chief Judicial Magistrate, Cachar, Silchar, the records of the case from the Criminal Court to enable them to try the accused-petitioner by a Court Martial.

72. The fall out of the above discussion is that the learned Chief Judicial Magistrate committed no illegality in directing that the relevant records be handed overdo the Army authority concerned and the learned Sessions Judge has rightly refused to interfere with the directions so given by the learned Chief Judicial-magistrate.

73. Because of what have been discussed and pointed out above, I do not find that the impugned Judgment and orders suffer from any infirmity, factual or legal. This revision is, therefore, wholly without merit and the same shall accordingly stand dismissed.