Union of India vs State of Punjab

R.L. Anand, J.

Petitioners in this case are Union of India and Commander Headquarters Punjab, Haryana and Himachal Pradesh and they have filed the present petition under section 482 of the Code of Criminal Procedure for setting aside the order dated 13.3.1999 passed by learned Additional Chief Judicial Magistrate, Patiala in case F.I.R. No. 250 dated 9.8.1997 under sections 279/304A/427 of the Indian Penal Code vide which the learned Magistrate declined the application of the Military Authorities for bifurcation of the challan submitted by the police of Police Station Sadar, Patiala against the above said F.I.R. and transfer of relevant documents in original to Army Authorities for progress of the case as per Army Act. Some facts can noticed in the following manner :

A criminal case F.I.R. No. 250 dated 9.8.1997 under sections 279/304A/427 I.P.C. was registered in Police Station Sadar, Patiala. In the F.I.R. Nk/MT S.V. Ghode was not named as an accused but during the course of investigation police came to the conclusion that the offence has been allegedly committed by Mr. S.V. Ghode and one civilian. Mr. Ghode was taken into custody also during investigation and on completion of the investigation of the case, challan was submitted in the ordinary court against Mr. Ghode and civilian gentleman. It may be mentioned here that in this case charge has not been framed against the accused by the Trial Court so far. However, an application has been made by the Military Authorities that the local police may be directed to bifurcate the challan as Military Authorities are interested to try Mr. Ghode in the Military Court and that the relevant documents in original may also be handed over to the Army Authorities so that Mr. Ghode who is an active armed personnel may be tried according to Military laws. This request of the Government of India was opposed by Shri H.R. Verma who is father of the deceased and husband of the complainant. It was submitted by Mr. Verma in his application that the Commanding Officer of the accused Mr. Ghode was attempting to shield and protect him. The offence which has been allegedly committed by Mr. Ghode is coaccused of Mr. Man Singh is not in any way connected with the Military Force. These are purely civil offences and as such cognizance of such offence can be taken by the ordinary courts. It was also the stand of Dr. Verma that the accident had taken place in the civil area and not the cantonment limits. It was also apprehended by Mr. Verma that in the Court Martial proceedings there may not be fair trial. Learned Additional Chief Judicial Magistrate after hearing the counsel for the parties, declined the application as per para 4 of the impugned order dated 13.3.1999 and it will be useful for me to incorporate the order in verbatim in this portion of the judgment :

"4. Learned counsel for accused S.V. Ghode has vehemently contended before me that Section 475 of Cr.P.C. clearly commands the transfer of a case to the Army Authorities if a request is made by them in the court, where a jawan of the Army is facing trial. Learned counsel also contended that otherwise also Army Authorities are within their competence to ask for the transfer and custody of an accused army jawan under provisions of Sections 70, 125 and 126 of the Army Act. I am not inclined to countenance the contentions of learned counsel for accused S.V. Ghode, Section 473 of Cr.P.C. when viewed in correct perspective, clearly specify that custody of an Army Jawan can be transferred by the Court "in proper case" for being tried by a Court Martial. In may considered opinion, the present case does not fall under that category. In this case, two accused persons namely accused S.V. Ghode and accused Maan Singh have been challenged jointly under sections 279/427/217/304A of the Indian Penal Code. The evidence in this case has to be produced by the prosecution against both the accused to establish their involvement in the commission of the offences under which they have been challaned. The bifurcation of the case, in my considered opinion, will be counterproductive to a fair trial to both the accused persons and such a trial against the accused will be against cannons of justice. I am further of the view that absolutely no prejudice of any kind is going to be caused to accused S.V. Ghode, if he undergoes trial in this Court. Plea taken by the counsel of this accused that he is to come from a distant place is not tenable as there are many Army Units at Patiala where this accused can be attached during the pendency of the trial. Moreover, offence under Section 304A I.P.C. alleged to have been committed by accused S.V. Ghode is an offence of a grave nature, where the evidence to be brought on record by the prosecution is required to be appraised minutely and such an appraisal of evidence may not be possible during the proceedings conducted in a Court Martial. I am, therefore, of the firm view that the present is not a proper case, which should be transferred to the Army Authorities for transferring the case to them is hereby declined and it is ordained that the proceedings in this case would continue in this Court."

Thus it would be seen that the learned Additional Chief Judicial Magistrate, Patiala declined the application of the Military Authorities mainly on the ground that it will be counterproductive to fair trial to both the accused persons i.e. Mr. Ghode and Mr. Mann Singh. Aggrieved by the said order, the present petition under section 482 Cr.P.C. The Union of India relied upon the provisions of Section 475 of the Code of Criminal Procedure by stating that Mr. Ghode is admittedly serving in the Army and as per Section 70 of the Army Act, he was in active service when the alleged offence has been committed by him and as per judgment of the Hon''ble Supreme Court in Balbir Singh v. State of Punjab, 1995(1) RCR 170 , Army Authorities have the first right to try the accused, then Central Government under section 125 of the Army Act has the jurisdiction to decide the issue and not the court concerned and as such the order dated 13.3.1999 is liable to be set aside. The Union of India has also taken the assistance of Court Martial (Adjustment of Jurisdiction) Rules, 1952, rules 3, 4, 5 and 6 has tried to make out a case that the offence under section 304A of the Indian Penal Code committed by Mr. Ghode is offence of grievance nature and submitted that when there are concurrent jurisdiction of the ordinary courts and the Court Martial to try the same offence, conflict of opinion whether the accused should be tried by ordinary criminal courts or by Court Martial has to be resolved by the Central Government and in these circumstances, the Trial Court has committed a patent illegality by holding that it wanted to try the offender on the plea that the offence is grievous. The Union of India has also placed reliance on West Bengal v. Usha Ranjan Roy Choudhry and another, 1986(2) AIR Criminal 339 and also upon Sukhvinder Singh v. State of Punjab, 1995(3) RCR 517 besides Kulwant @ Kala v. State of Punjab, 1999(1) RCR(Criminal) 618. In short stand of Union of India is that since it has exercised its jurisdiction and power to try the offender for the offence allegedly committed by him, therefore, the Magistrate had no other option but to bifurcate the challan and to hand over the documents to the Military Authorities so that Mr. Ghode may be tried according to law as per Military proceedings. Also it is stand of Union of India that the learned Magistrate has committed an patent illegality in deciding the matter at his own level. At the most he could refer the matter to the Central Government for resolving of the controversy as to whether the accused should be tried by the Military Authorities or by the ordinary Criminal Courts.

Notice of the petition was given to the State of Punjab which has not filed the reply but the reply has been filed on behalf of the complainant Baljit Kaur wife of Professor H.R. Verma who vehemently opposed the prayer of the petitioner and the stand which has been taken by the complainant is that ordinary criminal courts have jurisdiction to try the offender even if he is in active Military service. The jurisdiction of ordinary Criminal courts has not been taken away either by Section 126 or by the Adjustment of Jurisdiction Rules referred to above. Also it was the stand of the complainant that from the correspondence which has been exchanged between the police authorities and the Military authorities would indicate that the Military Authorities had full knowledge that the ordinary courts are taking cognizance into the matter and that Military Authorities had abdicated its jurisdiction in favour of the ordinary criminal courts and in these circumstances, request made by the Military Authorities for the bifurcation of the challan and transfer of the documents is illegal. The respondent has also relied upon certain correspondence and I will also dilate and discuss the material correspondence and the orders of the learned Magistrate before passing the impugned order.

I am disposing of the main petition with the assistance of Mr. Anil Rathee, learned Advocate appearing on behalf of Union of India, Shri U.S. Sahni who appeared on behalf of complaint Baljit Kaur and Shri S.S. Randhwa, DAG, Punjab who simply gave appearance on behalf of State of Punjab and with their assistance have gone through the record of this case.

Section 475 of the Code of Criminal Procedure lays down as follows :

"Delivery to commanding officers of persons liable to the tried by Court martial. (1) The Central Government may make rules consistent with this Code and the Army Act, 1950, the Navy Act, and the Air Force Act, 1950 and any other law, relating to the Armed Forces of the Union, for the time being in force, as to cases in which persons subject to military, naval or air force law, or such other law, shall be tried by a Court to whom this Code applied or by a Courtmartial 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 applied or by a CourtMartial, 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 Courtmartial.

(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 endeavour to apprehend and secure any person accused of such offence.

(3) A High Court may, if it thinks fit, direct that a prisoner detained in any jail situate within the State be brought before a Courtmartial for trial or to be examined touching any matter pending before the Courtmartial".

Thus reading of Section 475(1) would show that the Central Government has been authorised to frame rules consistent with the Code of Criminal Procedure and to the Army Act, the Navy Act and the Air Force Act with regard to the fact whether those persons may be tried by the ordinary courts or by the Court Martial. This subsection further provides that when a person is brought before a Magistrate and charged with an offence, such Magistrate shall have regard to the rules framed by the Central Government and shall in proper cases deliver him to the commanding officer alongwith the statement of offence of which the accused is charged for the purpose of being tried by CourtMartial, meaning thereby that it is obligatory on the part of the Magistrate to inform the Military Authorities that he was going to try a particular person who is subject to Army, Navy or Air Force Unit. The object of the law is irrespective of the fact that challan is pending in the ordinary course or that the charge has been framed against military personnel, still the military authorities have prior right to claim custody of such military personnel or to try that person in the CourtMartial proceedings. So far as subsection (2) is concerned a written request can be made to the Commanding Officer to the Magistrate to apprehend and secure any person who is accused of an offence. Now I will like to deal with the relevant provisions appearing in the Army Act, 1956. Section 125 of the Act lays down as under :

"When a criminal court and a courtmartial 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."

Section 126 of the Army Act further lays down as follows :

"126(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 office shall either deliver over the offender in compliance with the requisition, or shall forthwith defer 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."

Thus combined reading sections 125 and 126 would show that the first choice is of the Military Authorities to decide whether offender is to be tried by the Court Martial or by the ordinary criminal courts and if the choice is exercised by the Military Authorities he has the power to order that the accused should be detained in the military custody. As per provisions of Section 126 there is power vested in the criminal court to require delivery of an offender. When a criminal court decides that proceedings should be instituted before it with respect to an alleged offence, it can give a written notice to the Military Authorities either to deliver the offender to the nearest Magistrate or to postpone the proceedings till the reference is decided by the Central Government. As per subsection (2) of Section 126 the commanding officer of the military authorities had two options either to deliver the accused as requisitioned by the Magistrate under section 126(1) or refer the question for determination to the Central Government which will decide whether the offender who is in the active Army service should be tried by the ordinary criminal courts or by the Court Martial authorities.

The Government of India has also framed the rules known as the Criminal Courts and Courtmartial (Adjustment of Jurisdiction) Rules, 1978. Rules 3, 4, 5, 6, 7, 8, and 9 are relevant of our purpose and I would like to reproduce these rules as follows :

"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 also liable to be tried by a Courtmartial, such Magistrate shall not proceed to try such person or to commit the case to the Court of Sessions unless :

(a) he is moved thereto by a competent military, naval or air force authority; or

(b) he is of opinion, for reasons to be recorded, that he should so proceed or to commit without being moved thereto by such authority.

Before proceeding under clause (b) of Rule 3, the Magistrate shall give a written notice to the Commanding Officer or the competent military, naval or air force authority, as the case may be, of the accused and until the expiry of a period of fifteen days from the date of service of the notice he shall not

(a) convict or acquit the accused under section 252, subsections (1) and (2) of Section 255, subsection (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; or

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

Where a Magistrate has been moved by the 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 officer or authority, the accused should be tried by a Courtmartial, such Magistrate if he has not taken any action or made any order referred to in clauses (a), (b), (c) or (d) of Rule 4 before receiving the notice shall stay the proceedings and if the accused is in his power or under his control, shall deliver him together with the statement referred to in subsection (1) of section 475 of the said Code to the officer specified in the said subsection.

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 Courtmartial, the Magistrate shall stay the proceedings and if the accused is in his power or under his control, shall deliver him together with the statement referred to in subsection (1) of Section 475 of the said Code to the Officer specified in the said subsection.

(i) 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 Courtmartial or other effectual proceedings have been taken or ordered to be taken against him.

(2) When the Magistrate has been informed under subrule (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.

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 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 Courtmartial if since instituted and to make a reference to the Central Government for determination as to the Court before which proceedings should be instituted.

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 in force has committed an offence which in the opinion of 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."

A combined reading of the above rules would show that when an Army personnel is brought before a Magistrate and is charged with an offence who is also liable to be tried by the court martial such magistrate shall not proceed to try such person or commit the case to the court of Sessions unless he is moved thereto by a competent authority or he is of the opinion that he should proceed or commit without being moved thereto by such authority. Even rule 4 may make mandatory upon a Magistrate to give written notice to the commanding officer about the proceedings which he wanted to take under Rule 3. Rule 5 further lays down that when Magistrate has been moved by the competent Military Authorities under Rule 3 expressing the intention that the offender is to be tried by the Court martial authorities such Magistrate is bound to stay the proceedings and he will deliver the accused alongwith the statement of offence to the Military authorities. As per rule 8 the Magistrate has the power to call upon the Military Authorities to deliver a person against whom he would like to proceed in the ordinary criminal courts. Further he has the power to call upon the military authorities to make a reference to the Central Government. Thus the reading of the above substantive provisions and rules would show that powers of ordinary criminal courts and court martial authorities are concurrent. There is no dispute with the proposition of law propounded by Mr. Sahni that ordinarily the offences should be tried by the criminal courts. But here is the question when parallel authorities are in conflict. Military Authorities as well as ordinary criminal courts have concurrent jurisdiction. One of the offenders is active member of the force. He too is amenable to the jurisdiction of the Military Authorities who want to try the offender in the court martial proceedings. In these circumstances the powers of the ordinary criminal courts occupy the second seat until and unless the powers which are vested in the Court martial have been abdicated or forgiven or surrendered in the ordinary courts either expressly or by implication. These provisions have been interpreted from time to time by the Hon''ble Supreme Court in Balbir Singh v. State of Punjab, 1995(1) Recent Criminal Reports 170. The Hon''ble Supreme Court laid down the following principle of law after making reference of Section 125 of the Air Force Act, Section 475 Cr.P.C. and Rules 3, 4, 5 and 6 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 :

The first principle which was laid down by the Hon''ble Supreme Court was that when both ordinary Criminal Courts and Court Martial having concurrent jurisdiction to try the offence, the conflict of opinion whether accused be tried by ordinary criminal court or Court martial, is to be resolved by the Central Government under section 125(2).

The second principle which was laid down by the Hon''ble Supreme Court was that the inherent jurisdiction under which the Criminal Courts have to take cognizance of civil offences is not taken away by any of the provisions of Air Force Act or Section 475 Cr.P.C. and the rules framed thereunder.

The third principle laid down was that when an offence has been allegedly committed by a person in active service of the military and both the Ordinary Criminal Courts and Court Martial have the concurrent jurisdiction, the first option lies with the Military Authorities to try the accused but if the Military Authorities had surrendered the accused to the Ordinary Criminal Courts, it will be deemed that Military Authorities had exercised its option not to try the accused and if the accused is tried and convicted by the ordinary courts, such a trial will not be vitiated.

Another principle of law laid down was that option to try a person lies with the Military Authorities itself and to the accused. Yet another principle of laws laid down was that if inspite of the fact that both the courts have concurrent jurisdiction to try the offender and still the offender has been tried by the ordinary Criminal Courts without any objection by the Military Authorities such trial is not vitiated. Thus Hon''ble Supreme Court was pleased to conclude that the first right is of the Military Authorities to try the offender once they express their intention to do so. If they abdicate their rights in favour of the Ordinary Criminal Courts it is not open to them to try and if the accused has been tried by the Ordinary Criminal Courts without any objection from the Military Authorities such a trial will not be vitiated. My attention has been invited to Joginder Singh v. The State of Himachal Pradesh, AIR 1971 SC 500 in which it was laid down that prosecution of military personel takes place before Ordinary Criminal Courts and what is the charge and investigation made by the police is also known to the competent Military Authorities who have surrendered the accused to civil authorities, this will amount to only indication on the part of the Military Authorities that they never wanted to try the accused to the Court Martial proceedings and in these circumstances, the Magistrate may not adopt the procedure as envisaged under Section 126 Cr.P.C. The matter has been recently considered by the Single Judge of this High Court in Kulwant Singh v. State of Punjab, 1999(1) Recent Criminal Reports 618 wherein the Hon''ble Lordship after considering the ratio of the Hon''ble Supreme Court has come to this conclusion that if a criminal trial of Military personnel has been conducted by the Ordinary Courts without the consent of the commanding officer of the accused, such a trial will be illegal and contrary to the mandatory provisions of Rule 3 and directing were given to the Trial Court to refer the matter to the Commanding Officer of the accused for exercising option regarding forum of the trial of the accused. Now in the present case we have to see how the proceedings went on in order to find out whether Military Authorities ever abdicated or surrendered its powers in favour of Ordinary Criminal Courts. I may say here that Mr. Ghode army personnel was not named in the F.I.R. As per the complainant he made strenuous efforts in order to trace out the offender and the army vehicle and finally on 14.5.1998 the Superintendent of Police wrote a letter to the Commanding Officer Ambala requesting that the accused should be handed over to S.H.O. Police Station Sadar so that investigation may be completed. On 23.5.1998, the Station House Officer also wrote a letter to the Commanding Officer for handing over the army vehicle. On 25.6.1998 reminder was sent from the S.S.P. Patiala to the Commanding Officer for handing over the accused for the purpose of completion of the investigation and also a letter was written to the Secretary, Ministry of Defence, seeking its permission to arrest the accused. Thereafter, the police approached the Additional Chief Judicial Magistrate Patiala for the issuance of the bailable warrants on 25.9.1998. On 9.10.1998, the Government of India through its standing counsel made request to the Chief Judicial Magistrate, Patiala for withdrawal of the warrants and for issuing directions to the local police to hold an identification parade of the accused from the eye witnesses. On 10.11.1998 accused was formally arrested. On 21.11.1998 the challan was presented against Mr. Ghode under sections 279, 217, 427, 304A of the Indian Penal Code and against Mann Singh under section 216 I.P.C. and the court passed the order for appearance of the accused on 19.1.1999. On 12.2.1999 an application was moved by Col. Sachdeva in the court of Additional Chief Judicial Magistrate, Patiala for bifurcation of the challan. Similar request was made by Brig. Satnam Singh on 26.2.1999. Finally the application dated 26.2.1999 was declined on 13.3.1999.

Now with the background of these facts, we have to see whether the Military Authorities exercised their right, if so to what effect ? When the commanding officer was asking for the bifurcation of the challan which was presented only on 20.11.1998, he had only one object and intention that the Military Authorities wanted to try Mr. Ghode at its own level and the Commanding Officer never abdicated right of the Military Authorities in favour of the ordinary courts. Two times request was made by the court for bifurcation of the challan and for handing over necessary papers. In this case, it was obligatory on the part of the Magistrate, the moment the accused was brought before him, to intimate to the Military Authorities whether they wanted to exercise the jurisdiction over the accused and the offence or that the Ordinary Criminal Court should try the offence of its own level. This has not been done. The correspondence which took place between S.S.P., S.H.O. and the Military Authorities does not indicate at all that the Military Authority had surrendered its jurisdiction rather it had decided to exercise its jurisdiction with clear intent and object to exclude jurisdiction of the Ordinary Criminal Courts.

A very serious effort was made by Mr. Sahni to convince this Court that the Military Authority had surrendered its powers and jurisdiction in favour of the Ordinary Criminal Courts when the custody of the accused was entrusted to the police authorities. I do not subscribe to the argument of Mr. Sahni. That act on the part of the Military authority was only to allow civil authorities to complete investigation aspect. The moment accused was brought before the Court after completion of the investigation, the Military Authority came with an application for bifurcation of the challan. Even if the accused is chargesheeted by the ordinary criminal courts as per relevant provision quoted above, it was obligatory on the part of the Magistrate to inform the commanding officer that he has decided to proceed with the challan and the trial. He has not done so because that stage has not reached so far and charge in this case has not been framed so far.

Counsel for the respondent then submitted that the reasons advanced by the learned Magistrate when he remarked that to bifurcate the challan of Mr. Ghode will be counterproductive should not be disturbed and the impugned order may be upheld. I am not in a position to subscribe to the argument. When procedure of law has not been adopted by the Magistrate and that he has committed patent illegality in interpreting the provisions of law, the High Court will certainly invoke powers in order to prevent abuse of the process of law. The order of the learned Magistrate is against the provisions of Section 475 Cr.P.C. and against the Army Act and against the Criminal Courts and Courtmartial (Adjustment of Jurisdiction) Rules, 1952. There is no conflict so far as powers of Ordinary Criminal Court and Court Martial are concerned. At the cost of repetition I am saying that all the offences invariably are supposed to be tried by the Criminal Courts but with regard to the offences committed by Army personnel the jurisdiction is concurrent. Both the jurisdiction are not in conflict with each other but once the Military Authorities had decided to exercise its own jurisdiction then the Ordinary Criminal Courts will stay back and would hand over the custody and documents to the Military Authorities so that such an offender should be tried at their level. In the present case, it was incumbent on the part of the Additional Chief Judicial Magistrate to give directions to the police to segregate the challan of Mr. Ghode. It was obligatory to hand over the documents to the Army Authority. He was further required to inform the commanding officer that the Military Authorities may take Mr. Ghode into custody and decide according to law as to whether he is responsible for the commission of any offence or not. By exercising the jurisdiction which has been legally taken from the Ordinary Criminal Courts, a patent illegality has been committed by the learned Additional Chief Judicial Magistrate. Thus the impugned order is not sustainable in the eyes of law and is liable to be set aside and quashed. I order accordingly.

The net result is that the present petition succeeds and the impugned order is hereby set aside and quashed. The application of the Military Authorities is hereby allowed and directions are given to the Additional Chief Magistrate, Patiala to give directions to the police to bifurcate the challan of Mr. Ghode. Learned Additional Chief Judicial shall also hand over all the documents in original by retaining the attested copies thereof on his file, to the Military Authorities. He shall also submit all the relevant documents to the Military Authorities besides custody of the accused if he is in custody. There is no order as to costs. Petition stands allowed.