30 November 1970
Supreme Court


Case number: Appeal (crl.) 34 of 1969






DATE OF JUDGMENT: 30/11/1970


CITATION:  1971 AIR  500            1971 SCR  (2) 851  1970 SCC  (3) 513  CITATOR INFO :  R          1971 SC1120  (20)

ACT: Army  Act,  1950, ss. 70, 125 & 126(1)--Criminal  Court  and Court-Martial  (Adjustment of Jurisdiction) Rules  1952,  r. 4-Army mancharged with rape-Concurrent jurisdiction of Court Martial and Criminal Court-Offender handed over by  military authorities  to  Civil Authorities--Tried and  convicted  by Assistant  Sessions  Judge-Trial  is  legal  and--valid-When discretion  under s. 125 to hold Court Martial is not  exer- cised by military authorities and offender is handed over to Civil  authorities provisions of s. 126(1) and r. 4 are  not attracted.

HEADNOTE: The  appellant was a Lance Naik in a military regiment.   He was  appointed  as  Granthi of a  temple  used  by  military personnel.   While  working as such he was charged  with  an offence  under s. 376 of the Indian Penal Code.  The  police officer investigating offence held an identification  parade with  the permission of the military authorities and  there- after the appellant was handed over to the civil authorities to stand his trial.  The Assistant Sessions Judge  convicted him.    The  Sessions  Judge  dismissed  his  appeal.    The appellant  then filed a criminal revision in the High  Court where it was contended on his behalf that according to noti- fication  dated November 28, 1962 issued by the Ministry  of Defence,   Government  of  India,  the  appellant  must   be considered  to have been on active service on  the  material date and consequently the appellants’ trial should have been before  a court martial.  It was further urged that  if  the Assistant  Sessions Judge decided to proceed with the  trial it  was  obligatory  on him to have  given  notices  to  the Commanding  Officer of The Army under s. 126(1) of the  Army Act read with r. 4, and since these provisions had not  been complied with the appellant’s trial and conviction were null and  void.  The High Court dismissed the revision  petition. With certificate the appellant appealed to this Court. HELD  :  Since the appellant was alleged-to  have  committed rape  in  relation  to  a person  who  was  not  subject  to military,  naval or air law, under s. 70 of the Army Act  he



would  be normally, triable by the ordinary  criminal  court but  by  virtue of notification dated November 28,  1962  he must  be  deemed  to  have been on  active  service  on  the material  date.  Therefore. this was a case where  both  the court martial and the ordinary criminal court had concurrent jurisdiction to try the appellant. [863 H] The  provisions  of the Army Act and the decisions  of  this Court  make  it clear that in respect of  an  offence  which could  be tried both by a criminal court as well as a  court martial,  ss.  125, 126 and- the rules  have  made  suitable provisions  to avoid a conflict of jurisdiction between  the ordinary criminal court and the court martial.  But it is to be  noted that in the first instance the discretion is  left to  the  officer mentioned in s 125 to decide  before  which court  the  proceedings  should be  instituted.   Hence  the officer  commanding the army, army corps, division or  inde- pendent  brigade in which the accused person is serving,  or such  other  officer  as may be  prescribed,  will  have  to exercise  his discretion and’ decide under s. 125  in  which court the proceedings shall be instituted. 858 It  is  only  when he has so exercises  his  discretion  and decides that the proceedings should be instituted before the court  martial  that the provisions of s. 126(1)  come  into operation.  If the designated officer does not exercise  his discretion  and  decide  that  the  proceedings  should   be instituted before a court martial the Army Act would not  be in  the  way  of  criminal  court  exercising  its  ordinary jurisdiction in the manner provided by law. [865 H-866 C] In  the  present  case  surrender of  the  accused by  the military  authorities to the civil authorities to  be  dealt with the latter, after being made aware of the nature of the offence  alleged against the appellant was clear  indication that  the decision of the military authorities was that  the appellant need not be tried by a court martial and that  his trial  could  take place before the criminal  court.   Under these  circumstances  there was no occasion  to  follow  the procedure  under s. 126 or r. 4 as the military  authorities had  made  abundantly clear that the appellant need  not  be tried  by  the court martial.  That being so it  would  have been  altogether  superfluous  for the  magistrate  to  give notice as required by the said provisions. [870 A-D] The High Court was therefore right in holding that there had been  substantial compliance with the provisions of the  Act and  the rules and hence the trial of the appellant and  his conviction  by the Assistant Sessions Judge we’re valid  and legal. [870 D-E] Som Datt Datta v. Union of India, [1969] 2 S.C.R. 177, Major F. G. Barsay v. State of Bombay, [1962] 2 S.C.R. 195 and Ram Sarup v. Union of India, [1964] 5 S.C.R. 931, applied. In  re Captain Hugh May Stollery Mundy & Anr.   A.I.R.  1945 Mad.  289,  In re Major F. K. Mistry, 1949 2 M.L.J.  44,  C. Ramanujan  v. State of Mysore, A.I.R. 1962 Mys.  196,  Major Gopinathan v. State of Madhva Pradesh A.I.R. 1963 M.P.  249, Awadh  Behari Singh v. State, A.I.R. 1967 Calcutta  323  and Ajit Singh v. State of Punjab, A.I.R. 1970 Punjab &  Haryana 351, referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 34  of 1969.  Appeal from the judgment and order dated July 26, 1968  and September  27’ 1968 of the Delhi High Court, Himachal  Bench



at Simla in Cr.  Revision No. 26 of 1968. R.   L. Kohli, for the appellant. V.   C. Mahajan and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Vaidialingam J. In this appeal, on certificate issued by the Delhi High Court, the appellant who is governed by the  Army Act, 1950 (hereinafter refered to as the Act) challenges the legality of his trial and conviction for an offence under s. 376 I.P.C. by the Assistant Sessions Judge, Nahan.  The  main attack levelled against the proceedings  is  that the  material  provisions  of the Army  Act  read  with  the Criminal Courts  859 and  Court-Martial (Adjustment of Jurisdiction) Rules,  1952 (hereinafter referred to as the Rules) framed by the Central Government under S. 549 (1) Cr.  P.C. have not been complied with by the Assistant Sessions Judge.  The prosecution  case is briefly as follows : The  appellant was a military personnel attached  to  Punjab Regiment No. 24, which moved to Nahen on March 3, 1967.  The appellant was a Lance Naik and was appointed as a  temporary Granthi  of  the Katcha-Johar temple used  by  the  military personnel.   One  Jiwa Nand with his wife and  children  was living close by the temple.  On March 8, 1967 at about  8.30 a.m.  Gayatri Devi aged about 10 years and daughter of  Jiwa Nand was called by the appellant and when she came near  him she was taken inside the adjoining room where the  appellant had  forcible  sexual  intercourse  with  her.   The  victim narrated  the  occurrence to her mother  and  sister.   When Gayatri Devi, her mother and certain others were  proceeding towards   the  Cantonment  to  complain  to   the   military authorities, they met 4 or 5 Sikh gentlemen and Gayatri Devi pointed  out the appellant in that group as the one who  had misbehaved  with  her.   The Sikh  gentlemen,  who  were  in military uniform declined to permit Gayatri Devi and  others to  go  inside the Cantonment area on the  ground  that  the entry into the same was prohibited to nonmilitary personnel. Later  on the father of Gayatri Devi took her to the  police station  and lodged a report Ex. 12/A.  The accused  pleaded alibi  and  denied  the offence.  He  also  let  in  defence evidence.  The learned Assistant Sessions Judge accepted the prosecution case and disbelieving the plea of the  appellant convicted  him  of  the  offence under  s.  376  I.P.C.  and sentenced  him  to three years rigorous  imprisonment.   The appeal  filed by the appellant was dismissed by the  learned Sessions Judge, who confirmed the conviction and sentence. The  appellant  filed  a criminal revision No.  26  of  1968 before the Delhi High Court, challenging his conviction  and sentence passed by the learned Assistant Sessions Judge  and as  confirmed  by the learned Sessions Judge.   The  learned Chief  Justice  before whom the criminal revision  came  for hearing  held that, the conviction of the appellant for  the offence  under S. 376 I.P.C. and the sentence imposed   on him  by the two subordinated courts on facts were  justified and  did not require any interference.  However, a plea  was taken  before  the learned Chief Justice on  behalf  of  the appellant  that  according to a notification issued  by  the Ministry of Defence, Government of India dated November  28, 1962, the appellant on the material date must be  considered to have been on active service.  Based on this  notification it  was further urged that the appellants trial should  have been  before  a  Court  Marbal and  that  if  the  Assistant Sessions Judge decided to 860 proceed  with the trial, he should have given  the  required



notice to the Commanding Officer of the Army as is mandatory under  s.  126(1)  of  the Act read  with  r.  4.  As  those provisions  have  not been complied  with,  the  appellant’s trial  and conviction were illegal and null and  void.   The learned  Chief  Justice was, however, inclined to  take  the view  that the omission by the Assistant Sessions  Judge  to follow  the  procedure indicated above does not  affect  his jurisdiction to conduct the trial. In  view of certain decisions of the High Courts wherein  an opinion  has  been expressed that  non-compliance  with  the provisions of the Act and the Rules vitiates the trial of  a military personnel by the criminal courts, the learned Chief Justice  referred  the matter, by his order dated  June  25, 1968,  to a Full Bench.  The Full Bench which  consisted  of the  learned Chief Justice Kapoor and Tatachari,  JJ.  heard the  criminal revision case.  The learned Chief Justice  and Tatachari,  J.  after  a very  elaborate  reference  to  the material  provisions of the Act and the relevant Rules  held that  the  magistrates,  before  conducting  a  trial  of  a military personnel and to normally, conform to the  relevant provisions of the, Act and the Rules.  But they held that in respect  of offences for the trial of which both  the  Court Martial  and  an  ordinary  Criminal  Court  had  concurrent jurisdiction,  the  mere omission by  a  magistrate,  before conducting the trial, to issue the necessary notice under r, 4  will  not  vitiate  the  proceedings  as  being  illegal. Kapoor,  J., on the other hand, disagreed with the  majority opinion and held that under the Act read with the Rules, the first option to try a military personnel lies with the Army authorities  and they have to decide the forum of the  trial and  that the magistrate will get jurisdiction only after  a decision in his favour by the Central Government in case  of a conflict between the army authorities and the  Magistrate. The  learned  Judge further held that  a  magistrate  cannot assume  jurisdiction straightaway without providing  an  op- portunity to the military authorities, to decide the  forum. The  learned Judge accordingly held that the  observance  of the Rules is obligatory and non-observance thereof makes the trial  illegal.  In accordance with the  majority  judgment, the  High Court by its order dated July 26, 1968  held  that nonobservance of rr. 3 and 4 of the Rules does not by itself deprive the magistrate of his inherent jurisdiction or  make the  proceedings conducted by him null and void.   The  High Court further held that the effect of the violation isto be determined  on  the  facts and circumstances  of  each  case keepingin view the nature of the violation and all  other relevant  factors.  After expressing opinion  on  the  legal aspects, the case was remitted to the Single Judge for final disposal. The matter came again before the learned Chief Justice,  who by his order dated September 27, 1968 held that the trial by the 861 Assistant   Sessions   Judge  without  conforming   to   the provisions of r. 4 has not caused any failure of justice  to the  appellant  in  this case.  The  learned  Chief  Justice further  held  that in view of certain circumstances  it  is legitimate   to  infer  that  there  has  been   substantial compliance  with,the  statutory  provisions.   Finally   the learned  Chief  Justice  hold that  the  conviction  of  the appellant was proper and dismissed the revision filed by the appellant. Mr. Kohli, learned counsel for the appellant, has reiterated the same objections taken on behalf of the appellant  before the  Delhi High Court.  According to Mr. Kohli, the  offence



in  this  case being one which could be tried, both  by  the Court  Martial and the ordinary Criminal Court, it  was  for the  competent  officer to decide, in  the  first  instance, whether the appellant is to be tried by a Court Martial.  If the criminal court was of the opinion that, the  proceedings should be instituted before itself in respect of the offence alleged,  it should have followed the, mandatory  provisions contained in s. 126 of the Act read with rr. 3 and 4. Under  s. 549(1) Cr.  P.C. the magistrate was bound to  have regard  to  the rules.  In this case inasmuch  as  the  said procedure  had not been followed and the  appellant  accused was  tried straightaway by the criminal court, the trial  is illegal  and  void.  Being a question  of  jurisdiction  the objection raised by the appellant before the High Court goes to   the  root-of  the  matter  and  vitiates   the   entire proceedings. Mr.  V.  C. Mahajan, learned counsel for the State,  on  the other hand, urged two contentions : (i) as held by the  High Court  there  has  been a substantial  compliance  with  the provisions of the Act and the Rules in this particular  case and hence the trial by the Assistant Sessions Judge is legal and  valid,  and (ii) even assuming that there  has  been  a breach of the rules, such a violation is at the most only an irregularity and not on illegality, and as no prejudice  has been  shown  to have been caused to the accused by  such  an irregular  proceeding held by the Assistant Sessions  Judge, the conviction is legal. At  the outset we may state that the question regarding  the competency  of the criminal court to try the appellant  does not appear to have been raised before the learned  Assistant Sessions  Judge.   It  is no doubt seen,  that  the  learned Assistant  Sessions  Judge, appears to have  made  enquiries from the counsel appearing for the appellant and the  State, regarding the position of the appellant who was in  military employ.   The  public prosecutor drew the attention  of  the Court  to S. 70 of the Act and appears to have  pointed  out that  as the Punjab Regiment No. 24 to which  the  appellant was  attached  was not on active  service’,  the  appellant could be tried by the ordinary criminal court. 862 On behalf of the appellant it was urged that in view of  the declaration of Emergency, the appellant must be deemed to be on active service’.  But this contention was not accepted by the Court.  Nahan station where the Punjab Regiment was then stationed being a rest station, the court proceeded with the trial reserving liberty to the counsel for both the  parties to raise any further point before the close of the trial  to establish  that  the appellant must be considered to  be  on active service.  Obviously neither party cared to place  any material  before the Court and the trial was proceeded  with resulting in the conviction of the appellant Mr. Kohli, learned counsel for the appellant, has drawn  our attention to certain decisions of the High Courts in support of his contention that a trial held by a magistrate  without conforming  to  the provisions of the Act and the  Rules  is illegal and not a mere irregularity.  Those decisions are  : In re Captain Hugh May Stollery Mundy and another(1),  Major F. K., Mistry (2)  C. Ramanujan v. State of Mysore(3), Major Gopinathan v. The State of Madhya Pradesh and another(4) and Awadh Behari Singh v. The State (5). On  the  other hand, Mr. Mahajan drew our attention  to  the Full Bench decision of the Punjab and Haryana High Court re- ported in Ajit Singh v.State of Punjab (6) wherein the  High Court has held that the trial suffers not from an illegality but  only  an irregularity.  Such an irregularity  does  not



render the trial liable to be set aside, unless it is  shown that prejudice has been caused to the accused. In view of certain decisions of this Court, to which we will presently   refer  and  having  regard  to  the   particular circumstances of this case, we do not think it necessary  to consider the question whether non-observance of the Rules by the  magistrate  trying  and  convicting  a  person  who  is governed  by  the  Act is illegal or  only  irregular.   The scheme  of  the Act and the Rules have  been  considered  in three  decisions of this Court, which are being referred  to presently  and hence we do not think it necessary to  either quote ss. 125 and 126 or S. 549 Cr.  P.C. We will,  however, refer to the relevant rules at the appropriate stage.   They have  been referred to in particular in the latest  decision of  this  Court  in Som Datt Datta v.  Union  of  India  and others(7). There.  is no controversy that the appellant is one  subject to  the  Act  as a person enrolled under the  Act  under  S. 2(1)(b), Sec- (1) A.I.R. 1945 Madras 289.(2) 1949 2 M.L.J. 44. (3)  A.I.R. 1962 Mysore 196.    (4) A.I.R. 1963 M.P. 249. (5) A.I.R. 1967 Calcutta 323 (6)  A.I.R. 1970 Punjab & Haryana 351. (7) [1969] 2 S.C.R. 177 863 tion  3,  (i) defines on active service’.  Over  and  above that  power is given to the, Central Government under s.  9, by  notification, to declare any person or class of  persons subject  to the Act and who may be deemed to be on  active service’  within the meaning of the Act.  The Government  of India,  Ministry  of  Defence,  had  issued  the   following notification on November 28, 1962               "In  exercise  of  the  powers  conferred   by               Section 9 of the Army Act, 1950 (46 of  1950),               the Central Government hereby declare that all               persons  subject to that Act, who are  not  on               active  service under clause(1) of  section  3               thereof, shall, where ever they may be serving               be deemed to be on active service within  the               meaning  of  that Act for the purpose  of  the               said  Act  and of any other law for  the  time                             being in force."               By virtue of this notification it follows that               on  the material date Punjab Regiment No.  24,               to which the appellant was attached though. it               was  at Nahan, which was a rest station,  must               be considered to have been on active service.               This notification was issued in the year 1962.               Unfortunately,  it  was  not  brought  to  the               notice  of  the  learned  Assistant   Sessions               Judge, notwithstanding the specific enquiry he               made  about  the  position  of  the   accused.               Section 70 of the Act runs as follows               "A person subject to this Act who commits  ail               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." As the appellant was alleged to have committed rape in rela- tion  to a person who was not subject to military, naval  or air  law,  under s. 70, normally he could be  tried  by  the ordinary  criminal court, but inasmuch as he was  on  active service  at  the  time of the alleged  offence,  the  court- martial   also  get  jurisdiction  to  try  the   appellant. Therefore.  this is a case where both the court-martial  and the  ordinary criminal court had concurrent jurisdiction  to try  the  appellant.   To meet  such  a  situation  suitable provisions have been made in ss. 125,’126 of the Act and the Rules framed under 864 s.549  Cr.P.C.  In  Major E. G. Barsay v.  The  State  of Bombay(1) the jurisdiction of the Special Judge to try  an officer who was subject to the, Army Act was questioned.  No doubt  the  ultimate  decision  of the  Court  rested  on  a construction  of  the  provisions  of the  Prevention   of Corruption  Act,  1947 and the jurisdiction of  the  Special Judge  to try the military officer in that case was  upheld. But in dealing with the contention- raised on behalf of  the appellant therein that the Special Judge had no jurisdiction to  take cognizance of, the offences with which the  accused was  charged  and that he should have been tried only  by  a court-martial under the Act, this Court had to consider  the scheme of the Act. After  holding  that  the Act does  not  expressly  bar  the jurisdiction of the criminal court in respect of the acts or omission  punish.able  under  the  Act  if  they  are   also punishable under any other law in force in India, this Court held that ss. 125, 126 and 127 excluded any inference  about prohibition  regarding jurisdiction of the  criminal  courts and  those sections in express terms provide not only  for resolving conflict of jurisdiction between a criminal  court and a court-martial in respect of the same offence, but also provide  for successive trials. of an accused in.respect  of the  same offence.. This Court has further laid  down  that ss. 125 and 126 provide a satisfactory machinery to  resolve the conflict of jurisdiction having regard to the exigencies of  the situation.  This decision in our opinion, lays  down that there is no exclusion of jurisdiction of the  ordinary criminal  courts in respect of. offences which  are  triable also by the court-martial. In  dealing  with the Act, this Court in Rain Sarup  v.  The Union of India and another(2) has observed that there, could be  a  variety  of circumstances  which  may  influence  the decision  as to whether the offender is to be tried by  the court-martial  or  by the ordinary criminal  court  and  the military  officers,  who  are  charged with  the  duty  of exercising discretion are to be guided by the  circumstances and the exigencies of the service, maintenance of discipline in  the army, speedier trial, nature of the offence and  the person against whom the offence is committed. In  Som  Datt Datta v. Union, of India ad  others  (3)  this Court has again elaborately considered the scheme  of  the Act  as well as the Rules.  Dealing with sections  125  and 126, at page 183 this Court observes               "Section 125 presupposes that in respect of an               offence  both  a criminal court as well  as  a               court-martial     have     each     concurrent               jurisdiction.   Such a situation can arise  in               the  case  of an act "or  omission  punishable               both               (1)  [1962]  2S.C.R.195.       (2)  [1964]   5



             S.C.R.931.               (3)   [1969] 2 S.C.R. 177.                865               under the Army Act as well as under any law in               force in India.  It may also arise in the case               of  an offence deemed to be an  offence  under               the  Army  Act.  Under the scheme of  the  two               sections, in the first instance, it is left to               the discretion of the officer mentioned in  s.               4   25  to  decide  before  which  court   the               proceedings shall be instituted, and, if  the,               officer,   decides   that   they   should   be               instituted before a court-martial, the accused               person is to be detained. in military custody;               but if a criminal court is of opinion that the               said  offence shall be tried before itself  it               may  issue the requisite notice under  S.  126               either  to deliver over the offender  to  the,               nearest   magistrate   or  to   postpone   the               proceedings   pending  a  reference  to  the               Central  Government.  On receipt of  the  said               requisition,  the officer may  either  deliver               over  the offender to the said court or  refer               the  question  of  proper court  for  the  de-               termination  of the Central  Government  whose               order  shall be final.  These two sections  of               the Army Act provide a satisfactory  machinery               to resolve the conflict of jurisdiction having               regard  to the exigencies of the situation  in               any particular case." A  reference  to the Act particularly to Chapter  VI,  which comprises  of  ss. 34 to 70, under the  heading offences’, the, position that emerges according to the above  decisions is  that  under  Chapter VI there are  three  categories  of offences, namely, (1) offences committed by a person subject to  the  Act, triable  a court-martial  in  respect  whereof specific punishments have be unassigned; (2) civil  offences committed  by  the  said person at any place  in  or  beyond India,  but deemed to be offences committed; under  the  Act and, if charged under S. 69 of the Act, triable by a  court- martial;  and (3) offences of murder and  culpable  homicide not  amounting  to  murder or rape  committed  by  a  person subject  to  the  Act against a person not  subject  to  the military  law.   Subject to a few exceptions, they  are  not triable  by court-martial, but are triable only by  ordinary criminal  courts.  The said categorisation of  offences  and tribunals   necessarily   bring   about   a   conflict    of jurisdiction.   Where  an  offence is  for  the  first  time created  by the Army Act, such as those created by  ss.  34, 35, 36, 37 etc., it would be exclusively triable by a court- martial; but where a civil offence is also an offence  under the  Act or deemed to be an offence. under the Act, both  an ordinary  criminal  court as well as a court  matrial  would have jurisdiction to try the person committing the. offence. It  is  further clear that in respect of  an  offence  which could be tried both by a criminal court as well as a  court- martial sections 125, 126 and the Rules, have made  suitable provisions to avoid a.  13-L694Sup CI/71 866 conflict  of  jurisdiction  between  the  ordinary  criminal courts and the court-martial.  But it is to be noted that in the  first  instance,  discretion is  left  to  the  officer mentioned  in  s.  125  to decide  before  which  court  the proceedings   should  be  instituted.   Hence  the   Officer



commanding  the army corps, division or independent  brigade in which the accused person is serving or such other officer as  may be prescribed will have to exercise  his  discretion and decide under s. 125 in which court the proceedings shall be  instituted.   It  is  only  when  he  so  exercises  his discretion  and  decides  that  the  proceedings  should  be instituted before a court-martial, that the provisions of s. 126(1) come into operation.  If the designated officer  does not exercise his discretion and decide that the  proceedings should  be instituted before a court-martial, the  Army  Act would  not  obviously  be in the way  of  a  criminal  court exercising  its  ordinary  ex-jurisdiction  in  the   manner provided by law. We will presently show that in the case before us the desig- nated  officer  in  s. 125 has not chosen  to  exercise  his discretion  and decided before which court  the  proceedings should  be  instituted  and in particular he  has  also  not decided that the proceedings should be instituted before,  a court-martial.   When that is so, in our opinion, there  was no occasion for the Criminal Court in this case to adopt the procedure laid down in s. 126 of the Act.  This view  finds support from the second part of s. 126(1) which requires the criminal  court to issue a notice to the officer  designated :in  S. 125 of the Act to deliver over the offender  to  the nearest magistrate or to postpone the proceedings pending  a reference  to  the  Central Government.   This  is  a  clear indication  that s. 126(1) presupposes that  the  designated officer has decided under s. 125 that the proceedings  shall be  instituted before a court-martial and has also  directed that  the  accused  person shall  be  detained  in  military custody. As  the  facts on which we are basing  our  conclusion  that there was no necessity for the criminal. court in  question to adopt the procedure laid down in s. 126 of the Act,  will have also bearing on the construction of the relevant rules, it is desirable to refer to the relevant rules relied on  by the appellant. The  rules have been framed by the Central Government  under s.  549(1) Cr.  P.C. That section provides for  the  Central Government   making  rules  consistent  with  the   Criminal Procedure Code and the Acts mentioned therein in respect  of offences which could be tried by an ordinary criminal  court or  by a court-martial.  It enjoins upon a  magistrate  when any  person  is brought before him, in respect  of  such  an offence, to have due regard to the rules and to deliver  him in proper cases to the appropriate officers mentioned 867 therein,  for being tried by a court-martial.  The  material rules that are to be referred are rr. 2, 3, 4, 5 and 8. Rule   2  defines  the  expressions  "commanding   officer", "competent military authority", "competent naval  authority" and  "competent Air Force authority".  Rules 3, 4,5,  and  8 axe as follows               Rule  3. "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  a  court-               martial, such magistrate shall not proceed  to               try  such person or to inquire with a view  to               his  commitment  for  trial by  the  Court  of               Sessions  or  the High Court for  any  offence               triable by such Court, unless               (a)he  is  of opinion, for  reasons  to  be               recorded,  be should so proceed without  being               moved thereto by competent military, naval  or



             Air Force Authority, or               (b) he is moved thereto by such authority.               Rule 4. Before proceeding under clause (a)  of               rule  3, the Magistrate shall give  a  written               notice  to  the  Commanding  Officer  of   the               accused and until the expiry of a period of-               "(i)  three  weeks, in the case  of  a  notice               given to a Commanding Officer in command of a               unit,  or  detachment located in  any  of  the               following  areas of the hill districts of  the               State of Assam, that is to say-               (1)  Mizo,               (2)   Naga Hills,               (3) Garo Hills,               (4)   Khasi and Jaintia Hills; and               (5)   North Cachar Hills.               (ii)  seven  days,  in the case  of  a  notice               given  to  any  other  Commanding  Officer  in               command  of  a  unit  or  detachment   located               elsewhere in India.               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 (Act 5 of 1898),  or               hear  him in his defence under section 244  of               the said Code; or               868               (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  Ses-               sions under section 213 of the said Code; or               (d)   transfer  the case for inquiry or  trial               under section 192 of the said Code.               Rule 5. Where within the period of seven  days               mentioned in rule 4, or at any time thereafter               before the Magistrate has done any act or made               any  order  referred  to  in  that  rule,  the               Commanding Officer of the accused or competent               military,  naval or, Air Force  authority,  as               the   case  may  be,  gives  notice   to   the               Magistrate   that  in  the  opinion  of   such               authority,  the accused should be tried  by  a               court-martial, the Magistrate shall stay  pro-               ceedings and if the accused is in his power or               under his control, shall deliver him, with the               statement  prescribed  in sub-section  (1)  of               section 549 of the said Code to the  authority               specified in the said sub-section.               Rule   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 has committed               an offence, proceedings  in respect of  which               ought  to be instituted before  him.,and  that               the reasons 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   Central   Government    for               determination  as  to the  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." The  main  contention that has been urged by Mr.  Kohli,  on behalf  of the appellant is that in this case the  Assistant Sessions Judge had no jurisdiction to proceed with the trial of the appellant as he has not complied with the  provisions of rr. 3 and 4. From a perusal of rr. 3 and 4, the scheme of these  two  rules appears to us to be  that  the  magistrate shall  not  proceed to try a military  personnel  unless  he forms an opinion for reasons to be recorded to proceed  with the trial without being moved by the competent authority  or the magistrate has-been so moved by the com- 869 petent  military authority; but before a magistrate  decides to  proceed  with  the  trial without  being  moved  by  the competent authority, he is obliged to give a written  notice to  the  Commanding Officer of the accused  and  is  further enjoined not to pass any of the orders enumerated as (a)  to (d)  in  Rule 4, till the expiry of the said period  of  the notice mentioned in clauses (1) and (2). According to Mr. Kohli the criminal court has not been moved by  the  competent military authority to conduct  the  trial before  it.  The magistrate has not also framed  an  opinion that  he should try the accused without being moved  by  the competent  military  authority.  Even assuming that  he  has formed  such  an  opinion, he has not  given  the  requisite notice and waited for the required period under r. 4.  Hence it is argued that the criminal court has acted illegally  in proceeding  with  the trial of the appellant.   We  are  not inclined to accept this contention of the learned counsel. Rule  4 is related to cl. (a) of r. 3 and will be  attracted only  when  the  magistrate proceeds to  conduct  the  trial without   having  been  moved  by  the  competent   military authority.   It  is  no doubt true that  in  this  case  the Assistant  Sessions Judge has not given a written notice  to the Commanding Officer as envisaged under r. 4. But, in  our view,  that  was unnecessary.  When the  competent  military authorities,  knowing  full well the nature of  the  offence alleged against: the appellant, had released him from  mili- tary  custody and handed him over to the civil  authorities, the magistrate was justified in proceeding on the basis that the military authorities had decided that the appellant need not be tried by the court-martial and that he could be tried by the ordinary criminal court. We  will  now  refer  in  some  detail  to  the   particular circumstances  in this case which will show that  there  has been  no violation of the Act or the Rules.  The High  Court has pointed out that the District Inspector of Police.  P.W. 12,  has stated that after recording the statements of  some of  the  witnesses he proceeded to the Cantonment  area  and contacted the officer commanding the Punjab Regiment No. 24. The said witness has also stated that with the permission of the  said officer he interrogated’ the accused and  examined his person.  The Commanding Officer was not willing to  hand over the accused till he obtained permission from the  head- quarters.   The  Commanding  Officer  assisted  P.W.  12  in carrying out the identification parade of the accused.   The High  Court  has  further  stated  that  after  having  full knowledge  of  the  charge against  the  appellant  and  the investigation  that was being conducted by the  police,  the competent  authority ultimately released the appellant  from military custody and delivered him to the civil  authorities for being tried according to law.



870 From  these circumstances, in our opinion, it is  legitimate to  hold  that the competent authority had Handed  over  the appellant to the civil authorities for being tried after the former  had considered the question of so handing  him  over after   consultations  with  the  headquarters.   In   these circumstances, it follows that the designated officer  under s.  125,  who had the discretion in the  first  instance  to decide  that the appellant should be tried before  a  court- martial  had decided to the contrary.  Surrender of the  ac- cused  to  the  civil authorities to be dealt  with  by  the latter, after being made aware of The nature of the  offence against  the  appellant,  is a  clear  indication  that  the decision of the military authorities was that the  appellant need not be tried by a. court-martial and that his trial can take   place  before  the  criminal  court.    Under   these circumstances there was no occasion to follow the  procedure under  r. 126 or r. 4 as the military authorities  had  made abundantly clear that the appellant need not be tried by the court-martial, That being so, it would have been  altogether superfluous  for  the  magistrate  to  give  the  notice  as required  by  the  said provisions, Rules 5 and  8  have  no application to the facts of this case. We agree with the High Court that there has been a  substan- tial compliance with the relevant provisions of the Act  and the  Rules  and hence the trial of the  appellant  and  his, conviction by the learned Assistant Sessions Judge are valid and legal. In the result, the. appeal fails and is dismissed.    G.C.                  Appeal dismissed. 871