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PETITIONER: UNION OF INDIA THROUGH MAJOR GENERALH.C. PATHAK

       Vs.

RESPONDENT: MAJOR S.K. SHARMA

DATE OF JUDGMENT29/06/1987

BENCH: PATHAK, R.S. (CJ) BENCH: PATHAK, R.S. (CJ) KHALID, V. (J)

CITATION:  1987 AIR 1878            1987 SCR  (3) 456  1987 SCC  (3) 490        JT 1987 (3)    12  1987 SCALE  (2)12

ACT:     Criminal Procedure Code, 1973--S. 475--Read with ss. 200 to 204 of the Code, and the provisions of the Army Act, 1950 and  the Army Rules--When a Magistrate has taken  cognizance of an offence committed by a member of the Armed Forces  and thereafter transferred the case for trial under the Army Act and the Rules, it is not open to the Competent Authority  to hold  an inquiry for determining whether there is  any  case for  trying the accused--It must proceed to hold  the  Court Martial  or  take such other ’effectual proceedings’  as  is contemplated  by  r. 7(1) of the Criminal Courts  and  Court Martial (Adjustment of Jurisdiction) Rules, 1978.

HEADNOTE:     An officer in the Army filed a complaint before a Magis- trate alleging that another officer has assaulted him,  that the Commanding Officer to whom he had complained earlier had failed to take satisfactory action and thus both of them had committed  offences under the Indian Penal Code. The  Magis- trate  examined the complainant under s. 200 Cr. P.C.,  took cognizance  of  the offences under s. 190(A) and,  on  being satisfied  of  the existence of a prima facie  case,  issued summons  under s. 204(A) for the appearance of the  accused. Upon  applications being made by the appellants urging  that the  case  be handed over to the  Military  Authorities  for disposal,  the Magistrate made an order directing  that  the case be transferred to the Army Authorities for disposal  in accordance  with the provisions of the Army Act, 1950  after trial  by a Court Martial at any place within the  jurisdic- tion  of  his  Court and that the progress of  the  case  be reported to him at intervals of two months. Upon the  appel- lants making further applications praying for review of  the said  order  on the ground that under the Army Act  and  the Army Rules, it was not mandatory that all disciplinary cases against  military personnel should culminate in a  trial  by Court  Martial and submitting that the  disciplinary  action against  the officers concerned would be initiated after  an investigation  of  the  alleged  offences,  the  Magistrate, pointing out that the judicial process for ascertaining  the prima facie existence of a case had already been  completed, held  that  the trial of the accused by  Court  Martial  was

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mandatory under s. 475 Cr. P.C. and,                 457 therefore,  it was not permissible for the Army  Authorities to hold a preliminary investigation. However, having  regard to s. 127 of the Army Act, the Magistrate directed that  the progress  of  the  case be intimated at  intervals  of  four months.  in the Revision filed by the appellants,  the  High Court  interfered with the order of the  Magistrate  insofar only  that it deleted the direction requiring the  Army  Au- thorities  to inform the Magistrate of the progress  of  the case ’at intervals of four months and directed instead  that the  result of the Court Martial proceeding be  communicated to the Magistrate, as soon as may be, in accordance with  r. 7  of the Criminal Courts and Court Martial  (Adjustment  of Jurisdiction) Rules, 1978. Dismissing the appeal by Special Leave,     HELD:  The Army Authority is not entitled to ignore  the proceeding taken by the Magistrate and to invoke the  provi- sions  of  r. 22 and related rules of the  Army  Rules.  The Magistrate  having held that there is a case for trying  the two  accused officers and having directed their  appearance, the Army Authority must proceed to hold a Court Martial  for their trial or take other effectual proceedings against them as contemplated by the law. [468G-H]     (i)  It is open to a Magistrate under ss.  200-203,  Cr. P.C.  to inquire into a complaint of an offence  alleged  to have  been  committed by a military person, where  it  falls within his jurisdiction and to take proceedings for trial of the accused. Likewise, a duly constituted Army Authority has power  under  the provisions of r. 22 onwards  of  the  Army Rules to investigate into a charge against a military person accused of an offence triable under the Army Act, and  after such hearing to decide whether his trial by a Court  Martial should  be  ordered. The provisions of the  Army  Rules  run parallel to the provisions in the Cr. P.C. Inasmuch as there is  always a possibility of the same offence  being  triable either  by a Criminal Court or by a Court Martial,  s.  475, Cr. P.C. empowers the Central Government to make rules as to cases  in which persons shall be tried by a Court  to  which the  Code  applies or by a Court Martial,  and  the  section provides  that whenever a person is brought before a  Magis- trate and charged with an offence for which he is liable  to be tried either by a Court to which the Code applies or by a Court  Martial,  such Magistrate must have  regard  to  such rules and must, in proper cases, deliver the person together with  a statement of the offence of which he is accused,  to the  Commanding Officer of the unit to which he belongs  for the purpose of being tried by a Court Martial. The  language used in s. 475 is significant. It refers to a person 458 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 ss.  200 to 204 of the Cede. 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 s. 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 deliv- ering 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.  [464C-D; 465E-H]

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   (ii) It is clear from r. 7(1) of the Criminal Courts and Court  Martial  (Adjustment  of  Jurisdiction)  Rules,  1978 framed under s. 475 of the Cr. P.C. that when the accused is made  over by the Magistrate under s. 5 or 6 thereof to  the competent military or other authority, it is for the purpose of trial by a Court Martial or other "effectual proceedings" to  be taken or ordered to be taken against him inasmuch  as the competent authority must, 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 and the  communication  of such  information is mandatory. When the Magistrate  is  in- formed that the accused has not been tried or other effectu- al  proceedings have not been taken or ordered to  be  taken against  him, he is obliged to report the  circumstances  to the State Government and the State Government, in  consulta- tion with the Central Government, may take appropriate steps to  ensure that the accused person is dealt with in  accord- ance  with  law. 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  competent military or other 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. [467B-E]     (iii) The policy of our Constitutional Polity is that no person should be regarded as being above the law.  Military, navel or air force personnel are as much subject to the  law as  members of the civil population. It is significant  that r. 8 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 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                 459 before  him and that the presence of such person  cannot  be procured except through military, navel or air force author- ities,  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  proceed- ings  against such person before the Court Martial if  since instituted,  and to make a reference to the Central  Govern- ment  for  determination as to the Court  before  which  the proceedings should be instituted. [467G-H; 468A-B]     (iv) Section 127 of the Army Act provides that a  person convicted  or  acquitted by a Court Martial, may,  with  the previous  sanction  of  the  Central  Government,  be  tried against  by a Criminal Court for the same offence or on  the same  facts which is an exception to the rule  contained  in Art.  20 of the Constitution that no person shall be  prose- cuted  and punished for the same offence more than once.  It is to enable the operation and application of s. 127 of  the Act  that r. 7(1) of the Criminal Courts and  Court  Martial (Adjustment of Jurisdiction) Rules, 1978 requires the compe- tent  military or other authority to inform  the  Magistrate whether  the  accused has been tried by a Court  Martial  or other  effectual  proceedings have been taken  against  him. [468B-D]     (v)  Section  125 of the Army Act, which  provides  that when  a Criminal Court and a Court Martial have each  juris- diction in respect of an offence, it will he in the  discre- tion  of  the Commanding Officer of the  accused  to  decide before  which Court the proceedings shall he instituted,  is of no assistance in deciding whether it is open to the  Army

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Authority  to take proceedings for determining  prima  facie whether  there is substance in the allegations made  against the  accused  and decline to try him by a Court  Martial  or take  other effectual proceedings against him even  where  a Magistrate  has  taken cognizance of the offence  and  finds that there is a case for trying the accused. [468E-F]     (vi)  There  is nothing in the provisions  of  the  Army Rules  relating to Courts of Inquiry which can  support  the contention that notwithstanding the proceeding taken by  the Magistrate it is open to the Army Authority to hold a  Court of  Inquiry  and  determine whether there is  any  case  for trying the accused by a Court Martial. If, it is not open to the  Army  Authority to have recourse to r. 22 of  the  Army Rules  and investigate the charge directed against  the  ac- cused  officer in this case, for the same reason, it is  not open  to  it to hold a Court of Inquiry  and  supersede  the proceeding already taken by the Magistrate. [469B-D] 460

JUDGMENT:     CRIMINAL  APPELLATE   ORIGINAL   JURISDICTION:  Criminal Appeal No. 271 of 1987.     From  the  Judgment  and Order dated 3.7.  1986  of  the Gauhati High Court in Crl. Revn. No. 229 of 1986.     A.K. Ganguli, R.P. Srivastava, P. Purameswarn and  Ashok K.  Srivastava for the Appellant in Crl. A. No. 271 of  1987 and Respondent in W.P. (Crl.) No. 664 of 1986.     R.K. Jain, Gaurav Jain, Abha Jain and R.P. Singh for the Respondent in Crl. A. No. 271 of 1987 and Petitioner in W.P. (Crl.) No. 664 of 1986. The Judgment of the Court was delivered by PATHAK, CJ. Special Leave is granted.     The  respondent  Major S.K. Sharma  addressed  a  letter dated 21 December 1985 to Brigadier S.S. Randhawa,  Command- er, HQ 41 Sub Area alleging that on 15 December, 1985 he was manhandled  by  Col.  Mir Usman Ali in the HQ  41  Sub  Area Officers  Mess  at Jorhat. It was stated that  the  incident took  place  in the presence of Major M.M.  Subbaiah.  Major Sharma  was attached to B Camp. Signal Regiment  while  Col. Ali belonged to HQ 41 Sub Area. Brigadier Randhawa wrote  to the  Officer  Commanding,  B. Comp. Signal  Regiment  on  14 January 1986 seeking clarification from Major Sharma on some of  the  allegations.  It appears  that  correspondence  was exchanged in the matter but apparently Major Sharma,  having met  with  no satisfactory response, filed  a  complaint  21 January  1986 in the Court of the Additional Chief  Judicial Magistrate,  Jorhat  alleging that Col. Ali  had  criminally assaulted  him and further that Brigadier Randhawa  did  not report the matter to the higher authorities and was attempt- ing  to  protect Col. Ali. It was alleged in  the  complaint that Col. Ali had committed the offences under sections 323, 352 and 355 of the Indian Penal Code and Brigadier  Randhawa had  committed the offence under section 2 17 of the  Indian Penal  Code. The Additional Chief Judicial Magistrate  exam- ined  the complaint, and taking cognizance of  the  offences alleged  to  have been committed by Col. Ali  and  Brigadier Randhawa  it  directed that summons be issued  to  them  for their appearance before him on 7 March, 1986. On two applications moved by Major Sharma before him the  461 Chief  Judicial Magistrate made an order dated  25  January. 1986  directing that the venue of a Court of Inquiry  insti- tuted  in respect of certain complaints made  against  Major

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Sharma by his Commanding Officer be shifted from  Mohanbari, where it was convened, to a place within the jurisdiction of his  Court  and it was directed further  that  Major  Sharma should  not  be moved out of the jurisdiction of  the  Court during the pendency of the case. Major Sharma had complained that  the  Court of Inquiry had been  ordered  by  Brigadier Randhawa at Mohanbari as a measure of retaliation because of the institution of the criminal case by Major Sharma  before the Additional Chief Judicial Magistrate.     On 7 February 1986 the Union of India moved an  applica- tion  before  the Chief Judicial Magistrate  along  with  an application dated 3 February 1986 addressed to the Court  by Major  General  T.S. Chaudhri informing the  Chief  Judicial Magistrate that the General Officer Commanding was of  opin- ion  that Col. Ali should be dealt with in  accordance  with the  procedure  laid down under the Army Act  and  the  Army Rules and the Criminal Courts and Court-martial  (Adjustment of  Jurisdiction) Rules, 1978, and that therefore, the  case may  be  handed  over to the Military  Authorities.  It  was pointed  out by Major Chaudhri in his letter that  the  com- plaint  before  the  Additional  Chief  Judicial  Magistrate against  Col.  Ali should, in his opinion,  be  disposed  of under the procedure laid down in Army Rule 22 of Army Rules, 1954  and that under s. 125 of the Army Act 1950  read  with Army Rule 197A of the Army Rules and the Criminal Court  and Court Martial (Adjustment of Jurisdiction) Rules 1978, Major General  Chaudhri  was the competent Military  authority  to claim the case. He requested that the case should be  handed over  to  the  Military authorities  for  further  necessary action. On 12 February 1986 the Union of India moved another application before the Chief Judicial Magistrate along  with an application dated 3 February 1986 addressed to the  Chief Judicial Magistrate by Major General T.S. Chaudhri as Gener- al  Officer  Commanding  requesting that  the  case  against Brigadier  Randhawa should similarly be handed over  to  the Military  authorities for necessary action. On  17  February 1986  the  Chief Judicial Magistrate, Jothat made  an  order disposing  of  the two requisitions made  by  Major  General Chaudhri.  He noted that the cognizance of the offences  had been  taken by the Additional Chief Judicial Magistrate  and necessary  process had been issued against both  accused  to compel  their presence, and that in the light of Rule  3  of the  Criminal Court and Court Martial (Adjustment of  Juris- diction) Rules 1978 the prayer for trial by a Court  martial by the competent authority was. allowed. In this  connection he made reference to Delhi Special Police Establish- 462 ment v. Lt. Col. S.K. Loraiya, AIR 1972 SC 2548. He directed that the case be transferred to the Army authorities  pursu- ant to the requisitions, and for disposal in accordance with the  provisions  of  the Army Act, 1950  after  trial  by  a court-martial  at any place within the jurisdiction  of  his Court,  He  directed further that the progress of  the  case should  be reported to his Court at intervals of two  months and  ultimately intimating the result thereof, for the  pur- pose of determining whether a successive trial was necessary as provided for in the Army Act. While making the order  the Chief  Judicial Magistrate noted that the  Army  authorities had not shifted the venue of the Court of Inquiry  mentioned earlier to any place within the jurisdiction of his court as required by his order dated 25 January, 1986, and this prima facie  amounted to contempt for which it was open  to  Major Sharma  to apply to the High Court for necessary action.  He also  directed  that  Major Sharma should  be  permitted  to proceed on leave to enable him to apply to the Gauhati  High

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Court  for  filing  a writ petition or  taking  other  legal proceedings.     On 21, March 1986 the Union of India through the General Officer  Commanding  filed an application before  the  Chief Judicial  Magistrate for modification of the order dated  17 February  1986.  In that application it was  contended  that under  the Army Act and the Army Rules it was not  mandatory that  all  disciplinary  cases  against  military  personnel should  culminate in a trial by the Court Martial  and  that the  directions made by the Chief Judicial  Magistrate  with regard  to the trial of Brigadier Randhawa and Col.  Ali  by Court Martial were in contravention of the Army Act and  the Army Rules and the Criminal Court and Court Martial (Adjust- ment  of Jurisdiction) Rules 1978. It was asserted that  the proposed  disciplinary  action  would be  initiated  by  the General  Commanding  Officer after an investigation  of  the alleged  offences  in accordance with Army Rule 22.  It  was prayed that the order dated 17 February 1986 be reviewed  by deleting  the  direction for a trial by Court Martial  at  a place  within  the jurisdiction of the Court  of  the  Chief Judicial  Magistrate and of the direction further  that  the progress of the case should be intimated to the Chief  Judi- cial Magistrate at intervals of two months. On 7 April  1986 the  Union  of India filed another application  making  more detailed submissions for modification or the other dated  17 February 1986. A third application was moved by the Union of India  on  30 April 1986 to the  Chief  Judicial  Magistrate requesting  that the records of the case be handed  over  to the  Army authorities. These applications were  disposed  of the Chief Judicial Magistrate by his order dated 8 May 1986. In  that order he noted that the Additional  Chief  Judicial Magistrate had, on receipt of  463 the  complaint  examined the complainant Major  S.K.  Sharma under s. 200 of the Cr. P.C. and had taken cognizance of the offence  under s. 190(A) of the Code and on being  satisfied of  the  existence of a prima facie case  process  had  been issued by him under s. 204(A) of the Code. He noted that the judicial process for ascertaining the prima facie  existence of  a case had thereby been completed. He held that  in  the circumstances  the trial of the accused officers by a  court martial appeared to be mandatory under the provisions of  s. 475 of the Code. He observed that the preliminary investiga- tions  by a departmental court of inquiry did not seem  per- missible  in the case. However, having regard to s.  124  of the  Army  Act which conferred absolute power  on  the  Army authorities to choose the venue of trial and keeping in view the  administrative convenience of the Army  authorities  he decided  to accept the request of the General  Officer  Com- manding  for deleting the direction in respect of the  venue of  the trial. The Chief Judicial Magistrate  also  directed that instead of intervals of two months the Army authorities should, having regard to the provision of s. 127 of the Army Act,  inform  his Court as to the progress of  the  case  at intervals of four months.     On  14 June 1986 the Union of India through the  General Officer Commanding filed a revision petition before the High Court at Gauhati, which was disposed of by the High Court by its order dated 3 July 1986. The High Court interfered  with the  order of the Chief Judicial Magistrate in so  far  only that it deleted the direction requiring the Army authorities inform the Chief Judicial Magistrate of the progress of  the case  at intervals of four months, and it  directed  instead that  the result of the Court Martial proceedings should  be communicated to the Chief Judicial Magistrate as soon as may

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be  in  accordance with Rule 7 of the  Criminal  Courts  and Court-martial (Adjustment of Jurisdiction) Rules, 1978.     It  may be mentioned that according to the order of  the High  Court  the  only submission raised on  behalf  of  the appellant  in the revision petition was that the  Magistrate had  no jurisdiction to direct the Court Martial  to  submit reports relating to the progress of the case, including  the result  thereof, at intervals of four months.  Thereafter  a special Leave Petition was filed by the Union of India,  out of which the present appal arises.     Although  it appears that the only point  raised  before the  High  Court  on the revision petition  related  to  the direction  that the Army authorities should report  periodi- cally to the Chief Judicial Magistrate 464 in  regard to the progress of the case, learned counsel  for the appellants has raised a more fundamental question before us. That question is whether it is open to the Army authori- ties to constitute a Court of Inquiry, enter upon an  inves- tigation of the charges under Rule 22 of the Army Rules  and determine  whether  there  is a case for trial  by  a  Court Martial.  Learned  Counsel  contends  that  the  proceedings already  taken by the Additional Chief  Judicial  Magistrate must be ignored for the purpose and the Army authorities are not  bound to try the accused by a Court  Martial.  Although the  point was not taken before the High Court we have  per- mitted  it to be raised before us and it has been argued  by learned counsel at length.     It is apparent from the provisions of the Code of Crimi- nal  Procedure  that it is open to a Magistrate  to  inquire into a complaint of an offence alleged to have been  commit- ted  by a military person, where it fails within its  juris- diction, and to take proceedings either for his trial or for committing  the  case to the Court of  Sessions  for  trial. Likewise,  there is power under the Army Act in a duly  con- stituted  Army  authorities  to investigate  into  a  charge against  a  military person accused of  an  offence  triable under the Army Act, and after such hearing to decide whether his  trial  by  a Court Martial should be  ordered.  In  the former  case, ss. 200 to 203 of the Code of Criminal  Proce- dure  provide  the procedure to be followed  by  Magistrates taking  cognizance of an offence on a complaint. The  Magis- trate  is required to examine on oath the complaint and  the witnesses present and reduce the substance of such  examina- tion to writing to be subsequently signed by the complainant and the witnesses and by the Magistrate. That is the  proce- dure  except  when  the complaint is made in  writing  by  a public  servant  or the Magistrate makes over the  case  for trial  or inquiry to another Magistrate. The Magistrate  may either inquire into the case himself or direct an investiga- tion to be made by a police officer or by such other  person as he thinks fit for the purpose of deciding whether or  not there  is sufficient ground for proceeding. Where,  however, it appears to the Magistrate that the offence complained  of its  triable  exclusively by the Court of  Session  no  such direction  for  investigation can be made by  him.  For  the purpose  of  inquiry be may take evidence  of  witnesses  on oath.  If  the  Magistrate is of opinion  that  the  offence complained of is triable exclusively by the Court of Session he  must call upon the complainant to produce all  his  wit- nesses  and examine them on oath. If after  considering  the statement  on oath of the complainant and of  the  witnesses and  the result of the inquiry or investigation directed  by him the Magistrate is of opinion that there is no sufficient ground for proceeding he must dismiss the complaint. Where

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465 the Magistrate is of opinion that there is sufficient ground for  proceeding  he  must adopt the  procedure  setforth  in sections 204 onwards. He must issue process for the  attend- ance  of the accused. In certain cases he may dispense  with the  personal  attendence of the accused and permit  him  to appear  by  his pleader. Where, however, the  proceeding  is taken by an Army authority under the Army Act reference must be  made  to the provisions of Rule 22 onwards of  the  Army Rules.  The  Rules provide for the hearing of a  charge,  in which  the accused has liberty to cross examine any  witness against him and to call any witnesses and make any statement in his defence. If the Commanding Officer investigating  the charge  finds no offence has been committed he must  dismiss the  charge. He may also do so if, in his discretion, he  is satisfied  that the charge has not to be proceeded with.  If the  charge is to be proceeded with he may pass any  of  the orders detailed in Rule 22(3). They include proceedings  for trial by a Court Martial. It is clear that these  provisions of the Army Rules run parallel to the provisions of the Code of Criminal Procedure adverted to earlier.     Now  inasmuch  as there is always a possibility  of  the same offence being triable either by a Criminal Court or  by a Court Martial the law has attempted to resolve the compet- ings claims of the civil authority and the military authori- ty in such cases. Section 475 of the Code of Criminal Proce- dure  empowers  the Central Government to make rules  as  to cases  in which persons shall be tried by a Court  to  which the  Code  applies or by a Court Martial,  and  the  section provides  that whenever a person is brought before a  Magis- trate and charged with an offence for which he is liable  to be tried either by a Court to which the Code applies or by a Court Martial such Magistrate must have regard to such rules and must, in proper cases, deliver the person together  with a  statement  of the offence of which he is accused  to  the Commanding  Officer of the unit to which he belongs for  the purpose of being tried by a Court Martial. The language used in  s.  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  Magis- trate has taken the proceedings envisaged by ss. 200 to  204 of  the  Code. He will be a person in respect  of  when  the Magistrate  has found that there is a case for trial. It  is for  that reason that s. 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 466 circumstances  in which a Court Martial is required  by  the law.     We  now  turn to the Criminal Courts  and  Court-martial (Adjustment  of Jurisdiction) Rules, 1978. These Rules  have been framed under s. 475 of the Code of Criminal  Procedure. When a person subject to military, naval or air force law or any other law relating to the Armed Forces is brought before a  Magistrate  and charged with an offence for which  he  is also  liable to be tried by a Court Martial, the  Magistrate will not proceed to try such person or to commit the case to the  Court of Session unless (a) he is moved to that  effect by a competent military, naval or air force authority or (b) he is of opinion for reasons to be recorded, that he  should

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so proceed or to commit without being moved thereto by  such authority.  Rule 3, in our opinion, comes into play  at  the point where the person has been brought before a  Magistrate and  charged with an offence. That is the stage adverted  to earlier  where the accused is directed to appear before  the Magistrate  and is charged with an offence after the  Magis- trate has determined that there is a case for trial.  Before proceeding  further with the case and either  proceeding  to try  the accused or to commit the case to the Court of  Ses- sion the Magistrate must, under Rule 4, give written  notice to  the Commanding Officer of the accused and refrain for  a period  of 15 days from doing any of the acts or making  any of the orders in relation to the trial of the accused speci- fied in Rule 4. In the event of the Magistrate entering upon the trial of the accused or committing the case to the Court of  Session  at the instance of the military, naval  or  air force authority it is open to such authority or the Command- ing Officer of the accused to give notice subsequently under Rule  5  to  such Magistrate that, in the  opinion  of  such officer or authority the accused should be tried by a  Court Martial.  Upon  such notice, the Magistrate, if he  has  not taken any action or made any order referred to  specifically in  Rule 4 before receiving such notice, must stay the  pro- ceedings and deliver the accused together with the statement referred  to in s. 475(1) of the Code to the Officer  speci- fied  in that subsection. In the other kind of  case,  where the  Magistrate intends to proceed to try the accused or  to commit the case to a Court of Session without being moved in that  behalf by the military, naval or air force  authority, and  he  has  given notice under Rule 4  to  the  Commanding Officer or the military, naval or air force authority of his intention  to do so, Rule 6 empowers the Commanding  Officer or the competent authority to give notice to the  Magistrate within  the  aforesaid  period of 15 days or  in  any  event before  the Magistrate takes any action or makes  any  order referred to in that Rule, that in the opinion of such  offi- cer  or  authority the accused should be tried  by  a  Court Martial.  467 Upon  such notice the Magistrate must stay  the  proceedings and deliver the accused together with the statement referred to in s. 475(1) of the Code to the officer specified in that sub-section. It is clear that when the accused is made  over by the Magistrate to the Commanding Officer or the competent military, naval or air force authority it is for the purpose of trial by a court martial or other "effectual proceedings" to  be  taken or ordered to be taken against him.  For  Rule 7(1)  provides that when an accused has been delivered by  a Magistrate  under Rule 5 or 6 the Commanding Officer or  the competent  military, naval or air force authority  must,  as soon  as may be, inform the Magistrate whether  the  accused has  been tried by a Court Martial or other  effectual  pro- ceedings have been taken or ordered to be taken against him. The communication of such information is mandatory. When the Magistrate  is informed that the accused has not been  tried or  other effectual proceedings have not been taken  or  or- dered  to be taken against him, he is obliged to report  the circumstance  to the State Government and the State  Govern- ment,  in consultation with the Central Government may  take appropriate steps to ensure that the accused person is dealt with in accordance with law. 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

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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  au- thority 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  au- thority  may not try the accused or take effectual  proceed- ings 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  appro- priate 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. navel  or air force authorities. to require  the  Commanding Officer of 468 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. Reference may also  be made  to s. 127 of the Army Act. It is an  important  provi- sion. It provides that a person convicted or acquitted by  a Court  Martial, may, with the previous sanction of the  Cen- tral 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 s. 127 of  the  Act that  Rule  7(1) of the Criminal courts  and  Court  Martial (Adjustment  of Jurisdiction) Rules, 1978 requires the  Com- manding  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  pro- ceedings have been taken against him.     Our attention has been drawn by learned counsel for  the appellants  to s. 125 of the Army Act. Section 125  provides that  when  a Criminal Court and a Court Martial  have  each jurisdiction  in  respect of an offence it will  be  in  the discretion  of  the  Commanding Officer of  the  accused  to decide before which Court the proceedings shall be institut- ed.  This provision is of no assistance in deciding  whether it  is  open to the Army authority to take  proceedings  for determining  prima facie whether there is substance  in  the allegations made against the accused and decline to try  him by  a  Court  Martial or take  other  effectual  proceedings against him even where a Magistrate has taken cognizance  of the  offence and finds that there is a case for  trying  the accused.     On  the  aforesaid analysis we are of opinion  that  the

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Army  authority  is not entitled to  ignore  the  proceeding taken  by  the Additional Chief Judicial Magistrate  and  to invoke  the provisions of Rule 22 and related rules  of  the Army Rules. The Additional Chief Judicial Magistrate  having hold  that there is a case for trying the two accused  offi- cers and having directed their appearance, the Army authori- ty  must proceed to held a court martial for their trial  or take other effectual proceedings against them as contemplat- ed by the law. The  469 contention advanced by learned counsel for the appellants to the contrary must be rejected.     We have also been referred to the provisions of the Army Rules relating to Courts of Inquiry, and learned counsel for the  appellants  urges that notwithstanding  the  proceeding taken by the Additional Chief Judicial Magistrate it is open to the Army authority to hold a Court of Inquiry and  deter- mine  whether there is any case for trying the accused by  a Court  Martial. We have been taken through Rule 177 and  the connected Rules which deal with the institution and  conduct of Courts of Inquiry, but we see nothing in those provisions which  can support the contention now raised before us.  If, on the analysis detailed earlier, it is not open to the Army authority  to have recourse to Rule 22 and  investigate  the charge  directed against the accused officer in  this  case. for the same reason it is not open to it to hold a Court  of Inquiry  and supersede the proceedings already taken by  the Additional Chief Judicial Magistrate.     We  may  mention that learned counsel  for  the  parties placed  a  number of cases before us, but  having  carefully perused  the  judgments in those cases we do  not  find  any declaration  of law therein which is inconsistent  with  the view taken by us. Accordingly, the appeal is dismissed.     In  the Criminal Writ Petition Major S.K.  Sharma  prays for  a  number of reliefs. The material reliefs are  that  a direction be issued to the Army authorities to postpone  the return  of the petitioner to the Unit to which he  has  been posted and direct the Army authorities to stay all  parallel proceedings  against  the petitioner until the  hearing  and disposal of their Special Leave Petition.     So far as the first submission as concerned it refers to the  mental and physical stress suffered by the  petitioner, apparently  necessitating his treatment at a  hospital  with sychiatric facilities. We do not think it necessary to issue any direction because, we think, it is a matter which can be adequately and humanely dealt with by the Army  authorities. If indeed the petitioner should be given a posting where the requisite medical facilities are available we have no reason to doubt that the Army authorities will afford such  posting to  the petitioner. In doing so it will be open to the  Army authorities  to obtain the latest medical report  respecting the condition of the petitioner. 470     As  regards the second relief, we have already  disposed of the special leave petition today and, therefore, no order need be passed in respect of that relief.        In the result the writ petition is dismissed. H.L.C.                                              Petition dismissed. 471