JUDGMENT
1. Heard the learned Counsel for the petitioner, and the learned senior Standing Counsel for Central Government. The matter was admitted and interim stay granted. A vacate stay application has also been filed. Since pleadings are complete the matter is finally decided.
2. It appears that the petitioner had filed a private complaint against respondents 1 and 2 which was pending before the IV Metropolitan Magistrate, Hyderabad. This complaint had been registered as CC No. 91 of 1998. Admittedly the respondents 1 and 2 who were arrayed as accused in the complaint are officers subject to Air Forced Act, 1950. A memo came to be filed on behalf of the Commanding Officer of the accused Officers on 15-7-1998. This memo is reproduced :
“Beg/C 2109/1/23/P1 15 Jul 98
The Hon’ble Metropolitan Magistrate
IV Metropolitan Magistrate
Nampally, Hyderabad
In the case of FLT LT Saju Thomas and SON LDR S. Bhatnagar
Calender Case No.91/98
Notice under Rule 5 of Criminal Court and Court Martial (Adjustment of Jurisdiction) Rules, 1978. (SO 488/78)
Reference is made to Calander Case No.91 of 1998.
Whereas the above named accused persons attached to Air Force Station Begumpet, who have been brought before you and charged with offences under Sections 323, 352, 355 and 109 of IPC, are the persons subject to the Air Force Act, 1950.
And whereas I am the Commanding Officer in respect of the above accused persons, the competent authority as defined in Rule 2(a)(ii) of above Rules.
Now, therefore, I give you notice that in my opinion the accused persons named above should be tried by Court Martial. You are accordingly requested to stay proceedings, and to deliver the above accused persons, if they are in your power or under your control, together with the statement prescribed in subsection (1) of Section 475 of Cr.PC to Flt. Lt. R.K. Dubey (21686) Adm, who is being instructed to report to you with a copy of this letter, and whose two specimen signatures are appended below:
Specimen signatures     Â
Sd/-Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â
Sd/-”             Â
After this memo was filed before the trial Court the trial Court gave an opportunity to the present petitioner who was the complainant to oppose the prayer made in the memo. After hearing both sides he passed an order transferring the matter to the Air Force authorities and delivering the accused to the Commanding Officer, Air Force, Station Begumpet for being tried in a Court Martial. This order has been challenged by way of this revision petition on the following grounds.
3. It was agitated before this Court that the Commanding Officer who had moved the memo had no jurisdiction to file the application before the Magistrate concerned because at the relevant point of time he was not the Commanding Officer of accused I and 2 who are respondents 1 and 2 in this petition and those persons had been transferred on that day i.e., 15-7-1998 to New Delhi. But, in the first para of the memo which was filed before the learned Magistrate it was stated that the applicant was the Commanding
Officer of the concerned accused persons. During hearing the learned Senior Standing Counsel appearing for the Union of India submitted that, though it was a fact (hat the respondents 1 and 2 had been transferred to Delhi but of and on they had to appear before (he Criminal Court and while their stay at Hyderabad during the hearing in the cases they were being attached to the unit. Me relies on the definition of Commanding Officer in Section 4(xv) of the Air Force Act which reads as under:
“(xv) ‘Commanding Officer’ used in relation to a person subjccl to this Act, means the officer for the lime being in command of the unit or detachment to which such person belongs or is attached;”
From bare perusal of the definition of the ‘Commanding Officer it becomes abundantly clear that it is not necessary that person should permanently be attached to a unit. This could be permanent, semi-permanent or even a temporary arrangement. If an officer is attached to a particular unit even for a brief period, for that brief period his commanding officer would be the Commanding Officer of the unit to which such officer was attached for such a brief period. Therefore, I do not think that the petitioner can succeed on this count.
4. Secondly, it was argued that the Magistrate concerned was wrong in allowing the memo because the memo was not in the form of an application as contemplated by Section 475(2) Cr.PC. No doubt Section 475(2) of Cr.PC lays down that if a Commanding Officer of any unit wants the custody of any person from a Magistrate’s Court he shall make a written application for this purpose, the application is nowhere defined in the Cr.PC. The memo which was moved before the Magistrate by the Commanding Officer has already been reproduced hereinabove. If one reads it in between the lines, it is in fact an application requesting the Magistrate to hand over the custody of accused 1 and 2 in terms of Section 124 of the Air Force Act. Therefore, in my view by filing the memo to which reference has already been made the requirement of sub-section (2) of Section 475 has been substantially complied with, The emphasis could not be placed on a particular form of application but the emphasis would be on a written application so that nothing is done by the Magistrate concerned on the basis of any oral submissions.
5. Besides, the learned senior Standing Counsel has also drawn my attention to Rules which arc known as ‘The Criminal Courts an Court Martial (Adjustment of Jurisdiction) Rules, 1978’. These rules have been made by the Union of India on the strength of rule making power under Section 475(1) of the Cr.PC, Me has also placed on record a proforma which has been prescribed by the competent authority for making application under Section 124 of the Air Force Act. The memo to which a reference has been made is in accordance with the proforma prescribed by the competent authority. Therefore, this ground also fails.
6. The last argument which was made was that, on the basis of the material which was amply disclosing mala fides of respondent No.3 who had failed to take action in the matter for number of years although he was in know of (he occurrence, the Magistrate should have not passed the impugned order. Bare reading of Section 124 of the Air Force Act shows that, it is not possible for any Magistrate to decline a request made by a Commanding Officer or a Chief. The discretion does not lie with the Magistrate but it lies with the authorities like the Chief of the Air Staff or the Commanding Officer. Section 124 does not give any room for exercise of discretion by Magistrates not to hand over the accused who are subject to Air Force Act. Therefore, in my view
the Magistrate was right in not addressing himself towards the mala fides. The present proceeding is not an appropriate proceeding for considering whether the exercise of power by the Commanding Officer was mala fide or not. It may however be observed that if any bias is shown by the Court Martial authorities and the accused is acquitted the complainant would not be without any remedy. Section 126 of the Act itself gives a remedy. Under Section 126 if a person is acquitted by a Court Martial he can again be tried by a Criminal Court after obtaining permission from the Central Government.
7. For all these reasons, I do not find any merit in this revision which is accordingly dismissed.