1. This is a reference made by the Sessions Judge, Poona, recommending that the order of commitment made by the Judicial Magistrate, First Class, 8th Court, Poona, committing the accused Dattatraya Tulshiram Bhujbal to stand his trial for an offence under Section 366, Indian Penal Code, be quashed and that the Magistrate be directed to deal with the case in accordance with the provisions of Section 549 of the Code of Criminal Procedure and the Rules framed thereunder.
2. The accused Dattatraya Tulshiram Bhujbal was charge-sheeted before the Judicial Magistrate, First Class, 8th Court, Poona, with having committed an offence punishable under Section 366, Indian Penal Code. The prosccution examined one Shakuntala, who was alleged to be below the age of 18 years, in support of the case that the accused had committed the offence, The learned Magistrate on a consideration of the evidence of Shakuntala and other prosecution witnesses held that there was prima facie evidence against the accused and directed that the accused be committed to the Court of Session at Poona to stand his trial on a charge under Section 366 of the Indian Penal Code,
3. The accused is a naval rating. From his identity card, which was produced before the Sessions Court, it appears that he was serving in the Indian Navy (till August 19, 1955, if not later). It was the case of the prosecution that the offence was committed on February 24, 1955, when the accused while on leave of absence had gone to Khed in the Poona District, According to the learned Sessions Judge the committing Magistrate in passing an order of committal ignored the provisions of Section 549 of the Code of Criminal Procedure and the Rules framed thereunder. He was of the view that the Magistrate before committing the accused to the Court of Session should have informed the Commanding Officer about the proceedings against the accused, and having failed to do so, the committing Magistrate had passed an order which he had no jurisdiction to pass. In coming to that conclusion the learned Sessions Judge relied upon cls. 3 and 4 of the Rules framed in exercise of the powers conferred by Section 549 of the Criminal Procedure Code. Clause 3 of the Rules provides :
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, that he should so proceed without being moved thereto by competent military, naval or air force authority, or
(b) he is moved thereto by such authority.
Clause 4 provides:
Before proceeding under Clause (a) of rule 3 the Magistrate shall give written notice to the Commanding Officer of the accused and until the expiry of a period of seven days from the date of the service of such notice he shall not-
(a) convict or acquit the accused under Sections 243, 245, 247 or 248 of the Code of Criminal Procedure, 1898 (V of 1898), or hear him in his defence under Section 244 of the said Code; or
(b) frame in writting 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 Sessions under Section 213 of the said Code; or
(d) transfer the case for inquiry or trial under Section 192 of the said Code.
4. It appears from cls. 3 and 4 that the jurisdiction of a Magistrate to convict, acquit, to frame a charge or to commit an accused person subject to Military, Naval, or Air Force law, when the accused is charged with an offence for which he is liable to be tried by Court-Martial, is severely restricted. The Magistrate has no jurisdiction to try or enquire into an offence for which the accused is liable to be tried by Court Martial, unless the Magistrate is of opinion that he should proceed without being moved by a competent Military, Naval or Air Force authority. Before he proceeds to try or enquire into the case against the accused without being moved by a competent Military, Naval or Air Force authority the Magistrate must give intimation to the competent authority in the manner prescribed by cl. 4.
5. In this case it appears that the committing Magistrate did not record an opinion that he should commit the accused for trial without being moved by a competent authority and he did not give the requisite notice to the Commanding Officer and there is no evidence that he was moved in that behalf by any competent naval authority. An enquiry or trial held by a Magistrate contrary to the provisions of cls. 3 and 4 of the Rules which expressly put restrictions upon a Magistrate in exercising powers of convicting, acquitting or committing an accused person to the Court of Session or even framing a charge must be regarded as illegal.
6. If, therefore, the accused is a person subject to naval law and is charged with an offence for which he is liable to be tried by Court Martial, the committing Magistrate had no jurisdiction to commit him to the Court of Session for his trial. That the accused is subject to the naval law cannot be disputed in view, of the finding recorded by the learned Sessions Judge that on the date of the commission of the alleged offence the accused was a naval rating serving in the Indian Navy. But the question whether he is liable to be tried for the offence under Section 366, Indian Penal Code, alleged to have been committed by him when on leave, by Court Martial presents some difficulty. The Rules framed under Section 549 of the Code of Criminal Procedure do not set out the offences for which a person subject to naval law is liable to be tried by Court Martial. For ascertaining whether the accused is liable to be tried by Court Martial, we must refer to the provision of the Indian Navy (Discipline) Act XXXIV of 1934. In the first part of that Act there are described various misdemeanours and misconducts which are regarded as offences and made punishable. Sections 2 to 5 deal with misconduct in the presence of the enemy. Sections 6 and 7 deal with communications with the enemy. Section 8 deals with improper communication with the enemy. Section 9 deals with neglect of duty. Sections 10 to 16 deal with mutiny. Sections 17 and 18 deal with insubordination. Sections 19 to 26 deal with desertion and absence without leave and Sections 27 to 43 deal with miscellaneous offences. A majority of these sections also provide penalties which may be inflicted upon offenders for misconduct, misdemeanour or infractions described therein. Section 45 provides penalties for various offences under the Act as well as under other provisions. The first paragraph of Section 45 provides penalties for offences punishable under Sections 302, 304, 304A, 377, 377A read with Sections 511, 379, 380, 381, 382, and 392 of the Indian Penal Code. In the Second paragraph penalty is provided for other criminal offences. That paragraph states inter alia :
If any such person shall be guilty of any other criminal offence which if committed in India would be punishable by the law of India, ho shall, whether the offence be or be not committed in India, be punished either in pursuance of the first part of this Act as for an act to the prejudice of good order and naval discipline not otherwise) specified, or the offender shall be subject to the same punishment as might for the time being be awarded by any ordinary criminal tribunal competent to try the offender if the offence had been committed in India.
7. It is evident that it is open to the trying authority to punish the offender when the offence is not one which falls within the first paragraph of Section 45, as if it is an act to the prejudice of good order and naval discipline not otherwise specified, or to punish the offender in the same manner in which an ordinary criminal tribunal would punish him.
8. Section 46 prescribes punishment for certain offences. That section consists of two parts. The second part deals with the trial of offences described as 'misconduct in the presence of the enemy,' 'communications with the enemy', 'neglect of duty', 'mutiny', 'insubordination', 'desertion and absence without leave' or 'miscellaneous offences', if committed by any person subject to the Act at any place on shore, whether in or out of India. The first part deals with.offences [which are] specified or referred to in this Act, if committed by any person who is subject there to in anyharbor, haven, or creek, or on any lake or river, whether in or out of India, or anywhere within the jurisdiction of the Admiralty, or at any place on shore out of India or in any of the dockyards victualling yards, steam factory yardsbelonging to the Government or on any gun wharf, or in any arsenal, barrack, or hospital belonging to the Government or in any other premises held by or on behalf of theGovernment for naval or military purposes, or in any canteen or sailors' home or any place of recreation placed at the disposal of orused by officers or men of the Indian Navy....
9. It is clear from the terms of Section 46 that offences which are described in Sections 2 to 44 may be tried under the Act even if committed at any place on shore whether in or out of India. But the other offences must be offences committed in any of the places specified in the first part of Section 46 before they can be tried by the authority specified in the Act viz. the Court Martial.
10. Section 366 of the Indian Penal Code is not one of the sections referred to in the first paragraph of Section 45. It is true that it is within the meaning of the second paragraph of Section 45 'any other criminal offence.' It is, however, not an offence of the nature described in Sections 2 to 44 of the Indian Navy (Discipline) Act XXXIV of 1934, and in order that the Court Martial may have jurisdiction to try the accused the offence must have been committed within the jurisdiction of the Admiralty or in any harbour, haven or creek or any of the places specified in the first part of Section 46. It is clear from the charge-sheet and the judgment of the committing Magistrate that the offence is not one which is alleged to have been committed in any of the places specified in the first part of Section 46 and the Court Martial has, in our judgment, no jurisdiction to try the accused for the offence alleged to have been committed by him, the offence not having been committed in a place specified in the first part of Section 46.
11. Mr. Gumaste, who appears on behalf of the accused, contended that the offence committed by the accused falls within the terms of Section 43 of the Act. Alternatively he contended that the conduct of the accused in abducting the prosecution witness Shakuntala may be regarded by the Naval Authorities as prejudicial to good order and naval discipline and, it would be open to the naval authorities to charge the accused for an offence under Section 43 of the Indian Navy (Discipline) Act XXXIV of 1934, and if they so regard the conduct of the accused, the ordinary tribunals of the State can have no jurisdiction to try the accused for the offence alleged to have been committed by him. In our view, there is no substance in that contention. Section 43 of the Act provides penalty for any act, disorder or neglect to the prejudice of good order and naval discipline which is not specified in Sections 2 to 42. In order that an act, disorder or neglect may be regarded as prejudicial to good order and discipline, it must have some direct relation to the duty which is required to be performed by a person subject to Naval duty. In the present case the accused was on leave and he was not discharging any duty at the time of the commission of the offence. Every immoral act may in a larger sense be regarded as an act to the prejudice of good order or naval discipline, but we do not think that the Legislature intended by enacting Section 43 which penalises 'miscellaneous offences' to render every act done by a person subject to Naval law, which may be regarded as an offence under the ordinary law of the land, or which may be regarded as contrary to good morals, punishable under Section 43. Section 43, in our judgment, is intended to punish acts, disorders or neglects which tend to prejudice good order and naval discipline, and it is necessary that at the time of doing the act or being guilty of disorder or neglect the offender was on active duty.
12. As the accused was at the time of the commission of the alleged offence not on active duty, we are unable to hold that the conduct of the accused falls within the terms of Section 43 of the Indian Navy (Discipline) Act XXXIV of 1934. It is un-necessary for us to consider whether the naval authorities may, notwithstanding the fact that the accused was not on duty, proceed against him for misdemeanour and inflict any penalty upon him other than the penalty which is prescribed by the Indiana Penal Code for offences under Section 366. In our view, the offence not having been committed at a place specified in the first part of Section 46, and the offence not falling expressly within the terms of Sections 2 to 42 of the Act, the ordinary criminal tribunals have jurisdiction without reference to the competent naval authorities to try the accused for the offence alleged to have been committed by him. The committing Magistrate, in our judgment, did not err in failing to give intimation of the proceedings before him to the Commanding Officer of the accused. We are, therefore, unable to accept the reference made by the learned Sessions Judge and make no order on the reference.