Union of India vs State of Rajasthan

Sajjan Singh Kothari, J.

S. 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 Army Act, 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 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.

Choice between criminal Court and Court-martial-When 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 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, 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.

Power of criminal Court to require delivery of offender:-

When criminal Court having jurisdiction is of opinion that proceeding shall be instituted before itself in respect of any alleged offence, it may, by written notice, require the officer referred to in Sec. 125 at his opinion, 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.

In every such case the said officer shall either deliver over the offender in compliance with the requisition, or shall forthwith 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.

Where a person subject to Military, Naval or Air Force law, or other law relating the Armed Forces of the Union for the time being in force is brought before a Magistrate and charged with an offence for which he is also liable to be tried by a Court martial, such Magistrate shall not proceed 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 clauses (b) of rule 3, the Magistrate shall give a written notice of the Commanding Officer or the competent military, naval or air force authority, as the case may be, of the accused and until expiry of a period of fifteen days from that of service of the notice he shall not-

(a) convict or acquit the accused u/s 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 u/s 254 of the said Code; or

(b) frame in writing a charge against the accused u/s 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 u/s 209 of the said Code; or

(d) make over the case for inquiry or trial u/s 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 Court martial, 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 that notice shall stay the proceedings, 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.

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 the proceedings, and if the accused is in his power or under his control, shall deliver him together with the statement referred to in sub-section (1) of section 475 of the said Code to such officer specified in the said sub-section.

A perusal of the above rules would show that in cases where a person subject to Military, Naval or Air Force Law is brought before a Magistrate and charged with an offence for which he is liable to be tried by Court-martial, such Magistrate should not proceed (sic) proceedings should be instituted. Ordinarily in a case where the accused person is subject to military. Naval or Air Force law and charged with an offence for which he is liable to be tried by a Court-martial, such magistrate is not competent to proceed to try such person and if he hold a different opinion then he has to record reasons for so proceeding and in that case before proceeding he has to give a written notice to the Commanding Officer of the accused. A perusal of the order of the learned Magistrate clearly shows that he did not record any opinion for reasons that he wanted to so proceed himself and take cognizance in the case without being moved by competent authority. Actually he never intended to do so. Thus, as already observed by me above, the provisions of R. 6 came into operation as soon as he was moved by an officer commanding of the command for delivering the accused for being tried under the Court martial and there was no option left with him except to stay the proceedings and to deliver the accused for trial by the Court-martial. I find support in my aforesaid view of the decisions already cited above i.e. C. Ramanujan''s case (1962 Cri.L.J. 389) (Mys) (supra) and Gopinath''s case (1963 Cri.L.J. 161) (Madh. Pra) (supra).