L.S. Mehta, J.
1. This is a revision-application filed by Lt. Col., U. G. Menon, and Lt. Col., S. K. Kashyan, against the order of learned Additional Special judge for Rajas-than, Jaipur, dated April 5, 1968.
2. A charge-sheet, it appears, was put up by Special Police Establishment, Jaipur Branch, on January 27, 1966, in the Court of Additional Special Judge, Jaipur, against 8 persons, accusing them of offences under Sections 120B, 161, 165 and 409, I. P. C., as also under Section 5(2), read with Section 5(1)(a) and 5(1)(d), Prevention of Corruption Act, 1947. One of the accused persons, namely, U. S. Oberoi has turned an approver. Of the remaining seven accused, 3 are civilians and 4 are officers of the Indian army. The 4 army officers moved a joint application on 13th September, 1966, in the court of Additional Special Judge, Rajasthan, to the effect that in view of Criminal Law Amendment (Amending) Act, 1966, they, being commissioned officers of the Indian army, were entitled to be dealt with in accordance with the provisions of Section 549, Cr. P. C. The said Judge rejected their application on October 10, 1966. A revision-application was moved in the High Court against that order. Beri J. allowed the revision-application and set aside the above order of learned Special Judge and directed the trial Court to proceed in accordance with the provisions of Rules 3 and 4 of the Criminal Courts and Court-martial (Adjustment of Jurisdiction) Rules, 1952. In compliance with the said order the trial court issued a notice to the Commanding Officer of the 4 accused-applicants, on January 12, 1967. On receipt of the notice the Officer Commanding, 123, Infantry Battalion (?. ?.), Jaipur, requested the Additional Special Judge to stay the proceedings against the 4 army officers and to deliver them to the military authorities.
As the 4 army officers were temporarily attached to 123, Infantry Battalion (?. ?.), Jaipur, during the period of their suspension to enable them to stand their trial in the court situate at Jaipur, and as these officers were working in the A. S. C., Centre at Alwar, under the Officer Commanding of that Unit during December, 1962, and the year 1963, when the criminal conspiracy was alleged to have been hatched and the offences were alleged to have been committed by them, it was objected by the Public Prosecutor that the Officer Commanding, 123, Infantry Battalion, Jaipur, had no jurisdiction to take a decision in the matter for the trial of the accused by Court-martial. Learned Public Prosecutor further submitted in his application that the Officer Commanding, who could take such a decision, was the officer commanding of the A. S, C., Centre, Alwar. It was also pointed out by the Public Prosecutor that under Section 122 of the Army Act, 1950, the Limitation of three years prescribed for the trial by court-martial had expired with the close of the year 1966. It was also asserted by the Public Prosecutor that as the Central Government had already accorded sanction for the trial of the accused by the Special Judge, the Officer Commanding, 123, Infantry Battalion, Jaipur, could not have passed the order for the trial of the 4 military personnel by court-martial. Learned Public Prosecutor then urged that the criminal case involved not only the military officers but also civilians and that the latter could not be tried by court-martial and that the case of criminal conspiracy could not have been splitted up. In the end, it was prayed that the matter should be referred to the Central Government with a view to obtain final decision on the point in issue.
Learned Additional Special Judge, by his communication, dated January 7, 1967, directed the Commanding Officer that he should make a reference to the Central Government or the Chief of the Army Staff in terms of the difficulties pointed out by the learned Public Prosecutor. He in the meantime stayed the proceedings. On receipt of the above message, the Officer Commanding, 123, Infantry Battalion (T. A.) Jaipur, desired the court that the notice under Rule 5 of the Criminal Courts and Court-martial (Adjustment of Jurisdiction) Rules, 1952, previously served, should be treated as cancelled. Thereupon the application of the accused for handing them over to the court-martial was rejected. Learned Judge further held that the case would be tried by his court and that the military personnel, who are accused in the case, should not be delivered to the military authorities for trial by the court-martial.
3. Aggrieved against the above order, the present revision-petition has been preferred on behalf of Lt. Col., U. S. Menon, and Lt. Col S. K. Kashyap. Learned counsel for the petitioners has argued that the Commanding Officer, 123, Infantry Battalion, Jaipur, could not have cancelled his previous order, dated January 16, 1967, (annexure 1), by his subsequent order dated January 28, 1967. Once an order was passed by the Commanding Officer for the delivery of the military personnel to the army authorities for trial by court-martial, no option was left to the Special Judge, but to hand over the accused to the military authorities for the purpose. The order once passed by the Commanding Officer, Infantry Battalion, Jaipur, could not have been reviewed subsequently. Leanied counsel further pressed that the Special Judge is acting as Magistrate as has been held by Beri J., in his order dated December 20, 1966. All proceedings, according to learned counsel, after the order of the High Court, are null and void as there was no other alternative for the Additional Special Judge but to surrender the accused to the military authorities. Learned counsel also argued that Rule 8 of the Criminal Courts and Court-martial (Adjustment of Jurisdiction) Rules, 1952, and Section 126 of the Army Act are not applicable to the present case. Learned Deputy Government Advocate supported the order of Additional Special Judge, dated April 5, 1968.
4. The only point to be considered for the disposal of this revision-application is: whether Additional Special Judge has got jurisdiction to try this case.
5. The Central Government framed rules vide S. R. Order 709, dated April 17, 1952, as amended by the Home Ministry's S. R. O. No. 1740, dated March 22, 1953. These Rules are called Criminal Courts and Court-martial (Adjustment of Jurisdiction) Rules, 1952. They have been framed under Section 549, Cr. P. C. Rule 2 of the said Rules provides that the Commanding Officer, in relation to a person subject to military law, means the Officer Commanding the Unit or detachment to which such person belongs or is attached. Under the same rule competent military authority means the Officer Commanding the army, army corps, division, area, corps or independent brigade or sub-area in which the accused person is serving. Rule 3 lays down that where a person subject to military, nava 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 enquire with a view to his commitment for trial by the court of Session or the High Court for any offences 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, navy or air-force authority; or (b) he is moved thereto by such authority.
Rule 4 provides that 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 convict or acquit the accused or frame in writing a charge against the accused or make an order committing the accused for trial by the High Court or the Court of Session. Rule 4 is followed by Rule 5, which reads that where within the period of seven days mentioned in Rule 4 above, or at any time thereafter before the Magistrate has done any act or made any order referred in that rule, the Commanding Officer of the accused or competent military, naval or air force authority, as the case may be, give notice to the Magistrate that in the opinion of such authority, the accused should be tried by a Court-martial, the Magistrate shall stay proceedings and if the accused is in his power or under his control, shall deliver him to such authority. Rule 6 enables military authority to give notice to the Magistrate that, in the opinion of such authority, the accused should be tried by the Court-martial. The Magistrate then has to stay the proceedings and deliver the accused to the military authority. Where an accused person has beendelivered by the Magistrate under Rules 5and 6, the Commanding Officer shall, as soon as may be inform the Magistrate thatthe accused has been tried by Court-martial or effectual proceedings have been taken |or ordered to be taken against him. Whenthe Magistrate is informed under Sub-rule (1)of Rule 7 that the accused has not beeqtried or effectual proceedings have notbeen taken or ordered to be taken againsthim, the Magistrate shall report the circumstances to the State Government, whichmay, in consultation with the Central Government, take proper steps to ensure thatthe accused person is dealt with in accordance with law.
Then we come to Rule 8. This rule enables a Magistrate to require the Commanding Officer of the military personnel either to deliver such person to him 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 the determination as to the court before which the proceedings should be instituted. Rule 9 lays down that where the competent military authority or the Central Government has, on a reference made under Rule 8, decided that proceedings against such person should be instituted before a Magistrate, the Commanding Officer of such person shall, after giving a written notice to the Magistrate concerned, deliver such person to that Magistrate.
Rule 8 practically corresponds to Section 126 of the Army Act, and Rule 9 provides for the military authority to deliver the ac- cused to the ordinary court, when in its opinion or under the orders of the Government, the proceedings against the accused are to be conducted in the court of a Magistrate. According to Section 549, Cr. P. C., and the rules framed thereunder the final choice about the forum of the trial of a military personnel rests with the Central Government. Whenever there is difference of opinion between the criminal court and the military authorities in regard to the ferum of the court, the decision of the Central Government shall prevail. In this connection, a reference is made to Ram Sarup v. Union of India, AIR 1965 SC 247 in which it was observed by their Lordships of the Supreme Court that the determination of the forum ultimately depends upon the decision of the Central Government, in case there is difference of opinion between the criminal court and the military authorities.
6. Here, the Central Government had already accorded sanction under Section 197, Cr. P. C., and Section 6(1)(a), Prevention of Corruption Act, 1947, for the prosecution of Lt. Col. Khazan Singh, Lt. Col., U. G. Menon, Lt. Col., S. K. Kashyap, and Major Jaspal Singh for the various offences committed by them, and for taking cognizance of the said offences by the court of competent jurisdiction. In the face of such an order the military authority could not haveisisted that the Additional Special Judge was to deliver the accused to such authority for their trial by Court-martial.
7. Section 125 of the Army Act, 1950, is in the terms following :--
'When a criminal court and a court-martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer commanding the army, army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which court the proceedings shall be instituted, and, if that officer decides that they should be instituted before a court-martial, to direct that the accused person shall be detained in military custody.
Section 126, reads :--
'(1) When a criminal court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged offence, it may, by written notice, require the officer referred to in Section 125 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.
(2) In every such case the said officer shall either deliver over the offender in compliance with the requisition, or shall forthwith refer the question as to the court before which the proceedings are to be instituted for the determination of the Central Government, whose order upon such reference shall be final.
From a perusal of the above sections, it is manifest that the decision of the military officer does not decide the matter finally. Section 126 empowers a criminal court concerned to require the military officer to deliver the offender to it or to postpone proceeding pending reference to the Central Government, if the criminal court is of the view that the accused should be tried by it. When such a request is made, the military officer has either to comply with it or has to submit a reference to the Central Government whose decision in the matter shall be final for the purpose of determining the venue of the trial. The discretion exercised by the military authorities is always subject to the final orders of the Central Government. Here the Central Government had already accorded sanction for the prosecution of the accused by a criminal court. That sanction cannot be subsequently interfered with by the military authority. Such sanction cannot be deemed to have been superseded by a notice of the military authoriry. dated January 16, 1967, asking the Additional Special judge to deliver the accused to them for their trial by court-martial; vide para 23 of AIR 1965 SC 247 (supra).
8. There is another aspect of the matter, which cannot be lost sight of. The Additional Special Judge, Rajasthan, Jaipur, disagreed with the discretion of the Commanding Officer communicated by letter, dated January 16, 1967, whereby it expressed the. opinion that the proceedings should continue before itself in respect of the offences, and he did not consider it proper to hand over the accused to the military authority for being tried by court-martial and requested the Commanding Officer to get the matter decided by the Central Government. On receipt of this letter, the Commanding Officer reviewed its previous discretion and communicated to the court that his prior notice, under Rule 5 of the Criminal Courts and Court-martial (Adjustment of Jurisdiction) Rules, 952, stood cancelled. It is obvious that the Commanding Officer did so when certain circumstances were brought to his notice. The result, therefore, is that the Commanding Officer ultimately decided that the accused should be tried by ordinary criminal court and not by the court-martial. Learned counsel for the petitioners, while citing various authorities, which need not be referred to here, as they do not deal with the matter in controversy, has argued that when once an order was made for the trial of the accused by the court-martial, that could not have been reviewed subsequently. This argument has no force. There appears to be no legal hindrance for the Commanding Officer in differing from the earlier discretion in this regard. When the Commanding Officer withdrew his prior order the conflict stood resolved and there was hardly any necessity to make any reference to the Central Government. The mere intimation of the Commanding Officer to the Additional Special Judge, Rajasthun, Jaipur, that the accused would be tried by court-martial does not divest the jurisdiction of the ordinary criminal court if in spite of such an order, the criminal court! holds the view that the case should be tried by it, and if, the military authority agrees to these views, there remains no dispute as to whether the criminal court or the court-martial is to try the accused. In this case the Commanding Officer while simply intimating to the criminal court that the accused would be tried by court-martial, has not divested such court of its jurisdiction to try the case, and the criminal court continues to have control over the matter. The discretion exercised by the military authority on January 16, 1967, cannot be said to be final and the criminal court is within, its right to question it. With (he cancellation of the previous order for the trial of the accused by the military authority, there remains no difference of opinion between the view of the court and the army authority on the venue of the trial.
9. It may also be pointed out that according to Section 122 of the Army Act, 1950, no trial by court-martial of any military personnel subject to the Act, for any offence shall be commenced after the expiration of a period of three years from the date of such otience, except under the circumstances mentioned therein. In this case it is given in the challan that the offences were committed during December, 1962 --January, 1964, at A. S. C. Centre, Alwar. The 3 years' period expired by the end of January, 1967. The limitation period prescribed in Section 122, having expired, the court-martial will ordinarily nave no jurisdiction to try the case now. The accused persons might have made an application that they should be delivered to the military authority prior to the expiry of the period of limitation. But that is not likely to confer jurisdiction on the court-martial to try the case even after the expiry of the period of limitation. Ostensibly after the expiration of 3 years' period of limitation, the persons charged with offences cease to be liable to arrest or trial by court-martial.
10. It may also be mentioned here, inter alia, that in this case, as has been pointed out above, 7 persons are to be tried jointly. Ot these 4 are military personnel and 3 are civilians. The nature of the case is such that it cannot be split ted up. If the military personnel are handed over to the military authority for trial by court-martial, the natural consequence would be thai the civilians would have to be tried separately on the basis of the same facts and evidence. That position would create insuperable difficulties and the possibility of pronouncement of divergent judgments by two different courts on the same facts, cannot be ruled out. With a view to avoid this contingency, or uncertain situation, the proper thing would be that all the accused persons are tried by the court of Additional Special Judge, Rajasthan, Jaipur.
11. In the result, this revision petitionfails and is dismissed. The AdditionalSpecial Judge, Rafasthan, Jaipur, is directedto conduct the tria! of this case expeditiou-ly as sufficient time has already elapsedsince the submission of the charge-sheet bythe Special Police Establishment Branch,Jaipur.