D.S. Mathur, J.
1. The only point for consideration in this Revision is whether the Magistrate could proceed with the trial without giving notice to the Commanding Officer as required under Section 125 of the Indian Air Force Act (to he referred hereinafter as the Act). Another point that shall require consideration is whether the summons already sent can take the place of written notice as contemplated by Section 125.
2. The matter was considered by me while deciding Criminal Reference No. 285 of 1962 made by Sri Mohammad Noorul Ain, Civil and Sessions Judge, Allahabad. The Reference was made on 21-7-1962. In the instant case also the applicant, Cpl. S. R. Tripathi, had moved the Sessions Judge in Revision and the Revision was dismissed by Sri R. A. Quraishi on 5-10-1962. Considering that the Criminal Revision was decided a few months after Sri Mohammad Norrul Ain made the Reference to this Court, it can be assumed that the applicant was aware of the Order of Reference and was seriously pressing the objection as to the jurisdiction of the Magistrate.
3. Sri R. A. Quraishi has made reference to Sections 71 and 72 of the Act but not Sections 124 and 125 of that Act. Civil offence has, by implication, been defined in Sections 71 and 72 of the Act. Section 72 lays down those civil offences which are not triable by a court-martial. In the circumstances, 'civil offence' shall mean an offence punishable under the law applicable to those not subject to enactments similar to the Act. In other words, every offence of which Magistrates can take cognizance as a trial court, or while holding inquiry before commitment to the Court of Session or to the High Court, is a civil offence, and any person subject to the Act committing such an offence and charged under Section 71 shall be deemed to be guilty of an offence under the Act. Section 71, however, lays down that if that person is charged under this section, he shall be tried by a court-martial. It is, therefore, not necessary that a person subject to the Act shall be tried of all the civil offences by a court-martial. If it is decided to charge him under Section 71, he shall be tried by a court-martial; but if not so charged, the court-martial shall have no jurisdiction and the offence can be tried by a competent Magistrate. The jurisdiction of the court-martial or of the Magistrate thus depends upon whether the person is or is not charged under Section 71 of the Act.
4. The procedure to be followed by the Magistrate could not be determined by Section 71 of the Act. The Magistrate would have had no jurisdiction if the offender was charged under Section 71 of the Act. In other words, he could take cognizance of the present complaint, but had to follow the procedure laid down in the Act and the rules framed thereunder. The clause governing the procedure of trial by the Magistrate is contained in Section 125 of the Act. Sub-section (1) thereof makes it clear that in cases where a criminal court having jurisdiction is of opinion that proceedings be instituted before itself in respect of an alleged offence, it shall by written notice require the officer referred to in Section 124 at his option, either to deliver over the offender to the nearest Magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central Government. The 'written notice' contemplated by Section 125 is different to a summons ordinarily issued for the appearance of an accused person. Summons issued is meant for service on and has to be served on the person concerned. The written notice, on the other hand, contemplates the exercise of discretion by the Commanding Officer, though the discretion can be exercised in only two ways, either to deliver over the offender to the nearest Magistrate to be proceeded against according to law or to postpone the proceeding pending a reference to the Central Government. It is possible that summons may not be laid before the Commanding Officer and the routine work is done by a junior officer; but the written notice contemplated by Section 125 shall invariably be laid before the Commanding Officer who shall have to take a decision one way or the other.
5. In the instant case no written notice was given to the Commanding Officer and only a summons was sent. There was, therefore, non-compliance of the provisions of Section 125 of the Act. The summons already issued and the Magistrate's order to proceed with the trial, therefore, deserve to be quashed though it shall be open for the Magistrate to take further action in accordance with the law.
6. The Revision is hereby allowed and the summons already issued and also the order of the Magistrate dated 6-4-1962 directing that the trial shall proceed are set aside, it shall be open for the Magistrate to take further action in accordance with the law.