Govinda Menon, J.
1. The petitioner Major F.K. Mistry who was an Ordinance Officer in charge of the Returned Stores Depot, Almadi, Avadi Sub-Area, along with two others was prosecuted firstly for having conspired to remove and continually misappropriate, tentage from the Returned Stores Depot; and secondly in pursuance to that conspiracy for having with his two associates managed, in their capacity as officers belonging to the Ordinance Department in the Indian Army, to remove quantities of tentage from the Returned Stores Depot; and in compensation for which act, the petitioner was paid Rs. 800 out of the sale proceeds of these articles on or about the 31st August, 1946. The charge-sheet was filed on the 24th July, 1947, alleging that the offences were committed on 28th August, 1946, and the petitioner received his share of the proceeds of misappropriation on the 31st August, 1946. Fourteen witnesses were examined for the prosecution and thereafter charges were framed on the 1st of November, 1947, the charge against the petitioner being one under Section 409 of the Indian Penal Code which is in the following terms:
That you on or about the 28th day of August, 1946, at Avadi being a Government servant as Ordinance Officer-in-charge of the Returned Stores Depot, Almadi, Avadi Sub-Area, and an such capacity entrusted with the dominion over certain property to wit, 2 tons, 10 cwts. of tentage in weight, committed breach bf trust with respect to the said property and disposed of ' the said property for Rs. 800 and misappropriated the sale proceeds for yourself, and thereby committed an offence punishable under Section 409 of the Indian Penal Code and within my cognizance, and I hereby direct that you be tried by the said Court on the said charge.
Subsequently, the prosecution witnesses were recalled and further cross-examined; and on the 5th December, 1947, Exhibit P-23, was filed on behalf of the prosecution. Thereafter, on the 18th December, 1947, the petitioner filed the above application for quashing the charge framed against him by the additional First Class Magistrate of Chingleput.
2. It is unnecessary to dwell at any length on the facts and circumstances which have led up to the prosecution or the details of the evidence adduced, for in an application to quash a charge under Section 561-A of the Criminal Procedure Code, all that this Court is concerned with, is whether the Court which has framed the charge had jurisdiction on the materials placed before it to act as it did. The specific provision of the Criminal Procedure Code dealing with the quashing of the charge is that contained in Section 215 which empowers the High Court to quash a commitment made by a competent Magistrate, or a civil, or revenue Court, under Section 478, only on a point of law. Therefore, every instance of quashing a charge framed, must be brought within the ambit of the residuary powers not specifically dealt with under the Code. In the interests of the speedy administration of justice, the High Court ought to exercise its inherent powers if it finds that the lower Court has acted without jurisdiction in framing a charge and not for any other reason. It is not the function of this Court to examine the evidence on which the charge has been framed in any detail to find out how far the charge is justifiable. The proper time for doing that is in an appeal against the conviction if the proceedings result in a conviction. Such being the case, in the present application under Section 561-A of the Criminal Procedure Code, I am only concerned with the circumstance whether the lower Court had jurisdiction .to entertain the complaint or proceed with the enquiry.
3. I may also say that any application for quashing the proceedings on the ground' of want of jurisdiction ought to be moved at the earliest possible opportunity. In this case, the petitioner has waited till the charge was framed against him before moving this Court. The points raised by him which go to the very root of the jurisdiction of the Court holding the enquiry are such as should have been raised before that Court at the commencement of the proceedings. But I do not want to dispose of this application on that technical point especially since the matter has been argued at a very great length both by the learned Advocate-General who appeared on behalf of the Crown and by Mr. K.S. Jayarama Aiyar appearing for the petitioner. Both of them have expressed the wish that the points raised should be considered and decided in view of the importance of the questions involved,
4. It is undisputed that the petitioner who holds the rank of a Major in the Indian Army is governed by the provisions of the Indian Army Act (Act VIII of 1911), which consolidated and amended the law relating to the Government of His Majesty's Indian forces, such as Indian Commissioned Officers, Viceroy's Commissioned Officers, soldiers and other persons in His Majesty's Indian forces. This Act came into force on the 1st of January, 1912. Section 31 of this Act is contained in Chapter V and it comes under a separate heading designated ' Disgraceful Conduct.' It states that any person subject to the Indian Army Act who commits any one of the following offences, that is to say : (a) dishonestly misappropriates or converts to his own use any money, provisions, forage, arms, clothing, ammunition, tools, instruments, equipments, or military stores of any kind, the property of the Crown, entrusted to him, shall, on conviction by court-martial, be punished with imprisonment, or with such less punishment, as is in this Act mentioned. It is admitted that if the prosecution story is accepted, the offence mentioned above has been committed. Section 41 is also contained in the same Chapter V and is under the heading 'Civil Offences.' It lays down that every person subject to this Act who, either Within British India or at any place beyond British India commits any civil offence shall be deemed to be guilty of an offence against military law, and, if charged therewith under this section, shall, subject to the provisions of this Act, be liable to be tried for the same by court-martial, and on conviction to be punished as prescribed thereunder. The term 'civil offence' is defined in Section 7, Sub-section (18) as meaning an offence which, if committed in British India, would be triable by a criminal Court, and this is followed by the definition of the word ' offence ' as meaning any Act or omission punishable under this Act, and includes a ' civil offence ' as hereinbefore defined. It is contended on behalf of the petitioner that the Acts complained against him constitute an offence under Section 31 of the Indian Army Act, and such an offence is triable only by, a court-martial. Any offence other than that contemplated by Section 31 will come within the residuary Section 41 and may be tried either by a court-martial or by the ordinary criminal Court; but if the offence is one which comes directly within Section 31, the ordinary criminal Courts of the land have no jurisdiction. Therefore, Mr. Jayarama Aiyar argues that the offence of having committed breach of trust in relation to the materials of tentage can, when the person accused is one to whom the Indian Army Act applies, only be tried by a court-martial, and for this purpose, he has devoted much time and energy on an intensive study of the history and development of the various Army Regulations which existed in India during the time of the East India Company subsequent to the thirties of the last century. According to him, criminal breach of trust by a person in the employ of the Army of the East India Company, was made an offence punishable by a court-martial even prior to the enactment of the Indian Penal Code in 1861, previous to which year there existed no codified penal law in India, so that an Army Officer committing the offence of criminal breach of trust was liable to be dealt with only by a court-martial before the enactment of the Indian Penal Code. The present Section 31 had its predecessors in the various Army Acts and Regulations from 1845 onwards; and a study of those Acts will reveal that from the early times to the enactment of Act VIII of 1911 by which many offences committed by Army personnel were made triable by the ordinary criminal Courts, such offences as criminal breach of trust were triable by a court-martial.
5. It is necessary for a proper understanding and disposal of this argument to go back and find out what exactly was the state of the law both relating to offences committed by Army personnel as well as by civilians about a hundred years ago. During the reign of the Moghul Emperors in India, the. Mohammadan law was used in the administration of criminal justice even to persons governed by the Hindu law and Koran was the source from which the principles of Criminal law were obtained. But after the conquest of portions of India by the East India Company and prior to 1860, the English Criminal Law as modified by various statutory enactments was administered in the Presidency Towns of Calcutta, Bombay and Madras. In the mofussil, the administration of criminal justice was meany based on the rules of Mohammadan Criminal Law, though some of the patent incompatibilities and unsuitabilities of the provisions of that law when applied to people not governed by the tenets of the holy. Koran were removed by regulations of the local governments. But, mainly, prior to 1861, the Mohammadan Criminal Law with such amendments and alterations as were deemed necessary to suit the conditions of the people and the country, was administered in the mofussil of the Madras Presidency. The Indian Penal Code came into force on the 1st of January, 1862,' and from that day onwards there can be no doubt or dispute as to what the prevalent penal law of the country was. Section 409 as we see at present was in the Penal code from its very inception. We have therefore to see whether the introduction of Section 409 in the Penal Code altered or abrogated the provisions in the Army Regulation regarding kindred offences mentioned there.
6. The earliest legislative enactment relating to the Army with which we are concerned is Act No. XXIX of 1861 'Articles of War for Native Army' (see the Legislative Acts of the Governor-General in Council, edited by W. Theobald, Volume III, page 938) which received the assent of the Governor-General on the 7th September, 1861 and therefore became law prior to the enactment of the Indian, Penal Code. This Act repealed various prior Acts. Article 22 of this enactment deals with embezzlement, etc., of money entrusted for public account, or of provisions, or of Military stores, the property of Government, or of conniving at any such offence, and on conviction for any of these offences by a General court-martial, the delinquent was to be punished with dismissal from service, fine to the extent of the arrears of pay and allowances, and imprisonment for a period not exceeding three years. So far as non-military personnel were concerned whether 'criminal breach of trust' came within the offences for which a punishment has been definitely fixed in what is called,'Hadd' according to the Islamic law is not a profitable subject for discussion at present. But it can be taken as settled that there was no statute law which made such an offence punishable when Act XXIX of 1861 came into force. Articles 124 and 125 of the same Act provide that where any officer or soldier in any place within the jurisdiction of any Criminal Court established by Her Majesty or the Government of India or any Local Government is accused of any offence triable by such Court, he shall be delivered over to a Magistrate to be proceeded against according to law. The combined effect of these articles is that where offences such as those mentioned in Article 22 are committed, they will be tried by a general court-martial and for other offences, the accused person will be delivered over to an ordinary Magistrate. This Act which underwent amendments by Act V of 1863 and Act XXVI of 1865, in certain other matters, was repealed by the enactment of Act V of 1869 called 'The Indian Articles of War ' which came into operation on the 1st day of June, 1869. Article 54 contained in Chapter III these Articles should be delivered over to the nearest Magistrate to be proceeded with according to law. The New Articles 174 and 175 for the first time inserted in the year 1894 corresponded to the presentSections 69 and 70 of the Indian Army Act which give a discretion to the Military Authorities to decide whether the ordinary criminal Court or a Military Court should try an offender subject to the Army regulations. In my opinion the retention of the first part of Article 170 after the second and third parts were deleted makes it clear that the offences contemplated by Article 174 are such offences under the Indian Penal Code as were not otherwise specifically mentioned in the Regulations, so that the pre-existing state of the distinction between Military and non-Military offences is retained and for non-Military offences alone a discretion is given to the authorities to decide whether an ordinary criminal Court or a court-martial should try the offender. It cannot be said that by the amendments in 1894, the scope and import of the trial by the ordinary criminal Courts are in any way widened. On the other hand such non-Military offences which prior to 1894 could be only tried by the ordinary criminal Courts were made triable by a Military Court also if the authorities in their discretion decided to act in that manner under Article 174 so that if the offence of criminal breach of trust of Military or Government property was committed by an Army Officer, during the time when Act V of 1869 as amended by Act XII of 1894 was in force, it is only a general court-martial that could try the offence.
7. Now we come to the Indian Army Act in force at the present day, i.e., Act VIII of 1911. This Act in very many essentials resembles the English Act which is cited for, all purposes as the Army Act, 44 and 45 Victoria, Chapter 58. A comparison of the various provisions of the Army Act hereinafter known as the English Act with the Indian Army Act is instructive and interesting. The scope of the two Acts, the arrangement of sections the manner of the enforcement of discipline, the infliction of punishment and the method of conducting courts-martial, are very similar in both the Acts and most of the sections dealing with these subjects in the respective Acts are to a large extent in pari materia though not exactly ad idem. Section 31 of the Indian Army Act has its counter-part in the sister Act in Sections 17 and 18 and in particular reference may be made to Sub-section (4) of Section 18 which is in the following items :-(Page 444, Manual of Military Law, 1929).
18. Every person subject to Military law who commits any of the following offences; that is to say .... (4) steals, embezzles, or fraudulently misapplies or receives, knowing them to be stolen or embezzled any money or goods the property of a person subject to Military law, or any money or goods belonging to any regimental mess or band, or to any regimental institution or to the Navy, Army and Air Force Institutes, or any public money or goods.
This sub-section deals with the Military offences of stealing, embezzlement and fraudulent misapplication of Army properties. Corresponding to Section 41 of the Indian Act, we have Section 41 of the English Act dealing with offences punishable under the ordinary law which is as follows:
Subject to such regulations for the purpose of preventing interference with the jurisdiction of the civil c ourts as are in this Act after mentioned, every person who, whilst he is subject to military law, shall commit any of the offences in this section mentioned shall be deemed to be guilty of an offence against military law, and if charged under this section with any such offence (in this Act referred to as a civil offence) shall be liable to be tried by court-martial, and on conviction to be punished as follows;-that is to say.
8. We have next to consider the second part of the petitioner's contention based upon Sections 69 and 70 of the Indian Army Act, which run as follows:
(i) If he is convicted of treason, be liable to suffer death, or such less punishment as is in this Act mentioned,...
Provided as follows:
(a) A person subject to military law shall not be tried by court-martial for treason, murder, manslaughter, treason-felony, or rape committed in the United Kingdom, and shall not be tried by court-martial for treason, murder, manslaughter, treason-felony, or rape committed in any place within His Majesty's dominions, other than the United Kingdom and Gibralter, unless such person at the time he committed the offence was on active service or such place is more than one hundred miles as measured in a straight line from, any city or town in which the offender can be tried for such offence by a competent civil Court;
(b) A- person subject to military law when in His Majesty's dominions may be tried by any competent Civil Court for any offence for which he would be triable if he were not subject to military law. (Vide pages 459-460, Manual of Military Law issued by the Army Council, 1929, 7th edition).
It is seen that subject to proviso (A) this section in effect gives jurisdiction to a court-martial to try a person subject to military law for any offence. In this respect a reference may be made to Chapter III of the Manual of Military Law above mentioned which at page 21 contains the following passage:
Ordinary thefts from civilians may be dealt with by the civil Courts or they may be tried by court-martial under Section 41 as civil offences; but to steal, embezzle or fraudulently misapply public or regimental money or goods or property belonging to a person subject to military law or to various military institutions has, in accordance with' long established practice, been singled out for punishment as a military offence.
It is therefore clear that in England under the corresponding Act the trial of an offence of criminal breach 'of trust of property belonging to the Army or to the . Government was by Military institutions not because of any prohibition imposed upon the ordinary criminal Courts but only in accordance with long established practice. Section 162 of the English Act to a certain extent corresponds to Sections 69 and 70 of the Indian Act whereas Section 157 of the English Act has also its counter-part in the Indian Act in Sections 66, etc. The English law on the subject is summarised in Halsbury's Laws of England, Hailsham Edition, Volume VIII, page 642, in paragraph 1398, which is as follows:
Nothing is to affect any jurisdiction of any civil Court to try a person subject to military law for any offence. If he has been previously tried for the same offence by a court-martial, the civil Court must, in awarding punishment, have regard to the military punishment he may, already have undergone. Where a person subject to military law has been acquitted or convicted of an offence by a competent civil Court, he is not liable to be tried for that offence by court-martial. And he is not so liable if he has been previously acquitted or convicted of the same offence by a court-martial. Similarly a person is not liable to be dealt with summarily for any offence of which he has been acquitted or convicted by a civil Court or court-martial
Therefore it is clear that in England it is only by means of long established practice that the offence of criminal breach of trust of Army property was tried by court-martial instead of by ordinary criminal Courts.
9. After the enactment of the Indian Army Act of 1911, the position here is practically the same. As stated already, though the first paragraph of Article 170 was retained in the Amending Act XII of 1894, the same was repealed when the Act of in was passed by which the words ' civil offence ' and' offence ' were defined. There can be no doubt that if the prosecution story is true, what the petitioner has committed is a ' civil offence ' as well as ' an offence 'and in the absence of the re-enactment of Article 170 in the Act of 191 i and also in view of the disappearance of the classification of offences as military and non-military offences, I am inclined to* hold that after 1911, an offence like the one, with which we are now concerned, is triable both by an ordinary criminal Court as well as by a court-martial. I may once again refer to Section 71 of the Indian Army Act which lays down that a person acquitted or convicted by a court-martial may afterwards be tried by a criminal Court for the same offence or on the same facts and Section 70 provides that if a criminal Court having jurisdiction is of opinion that proceedings ought to be instituted before itself in respect of any alleged offence it may require the prescribed, military authority, at its 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 fasciculus of sections beginning with Section 66 and ending with Section 71 gives ample justification for holding that the rights and powers of the ordinary criminal Courts have been well established by the Act of 1911 to be the same as those obtaining in England. If one may hazard a reason for this, it can be found in the circumstances that in the beginning, and in the middle of the last century, the ordinary criminal Courts in India were not so advanced or were manned by efficient professional judges that the trial of persons subject to the Army Regulations could be entrusted to such Courts with confidence. But by the time the Amending Act of 1894. was passed and certainly by 1911, the Indian Courts had attained such a degree of development and progress that it could be said with justification that t would compare very favourably with any of the ordinary criminal Courts in England, though most of the Magistracy and some of the Judges in India were not professional lawyers. I can find no justification for holding that in the absence of a section like Article 170 of the 1869 Act-in the present day Army Act, the ordinary criminal Courts have no jurisdiction to try an offender for committing breach of trust of Army property.
10. Relying upon the maxim generalia specialibus nonderogant, Mr. Jayarama Aiyar, contends that a special Act like the Army Regulations having provided for the trial of the offence of breach of trust of Army property by a court-martial as early as 1861, and having continued it in the subsequent Acts, unless a special provision is made for its trial by the ordinary criminal Courts it should be presumed that the special jurisdiction is retained. In other words, his contention is that in a case where a special Act deals with a subject, a subsequent general Act cannot be deemed to have dealt with it without a special mention of the matter. He also refers to Section 5 of the Indian Penal Code which says that 'Nothing in this Act is intended to repeal, vary, suspend or affect any of the provisions .... or of any special or Local Law.' He relied upon a passage at page 156 of Maxwell on the Interpretation of Statutes, eighth edition, by Sir Gilbert H.B. Jackson, which is in the following terms:
Having already given its attention to the particular subject and provided for it, the Legislature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that intention be manifested in explicit language.
In Barker v. Edger (1898) A.C. 748 (754) Lord Hobhouse in delivering the judgment of the Judicial Committee observed as follows:
When the Legislature has given-its attention to a separate subject, and made provision for it, the presumption is that a sabsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own- terms.
In Seward v. Vera Cruz (1884) 1.0 A.C. 59, the Earl of Selborne, L.C., in his speech observed as follows:
Now, if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to-hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.
and his Lordship relies upon the case of Hawkins v. Gathercole (1855) 6 De. G.M. & G. 1 : 43 E.R. 1129 where it was held that
all those general words about tithes and rectories, and so on, were capable of a reasonable application to subjects not affected by any particular legislation, etc.
To the same effect is a quotation from a case of the Exchequer Division reported in Dryden v. Overseers of Putney I.R. (1875) 1 Ex. Div. 223. Quain, J., observed as follows:
It may be laid down as a, rule for the construction of statutes, that where a special provision and a general provision are inserted which cover the same subject-matter, a case falling within the words of the special provision must be governed thereby, and not by the terms of the general provision.
In addition to relying on the above passages, Mr. Jayarama Ayyar has got a further contention to the effect that the repealing of the earlier Army Regulations and the consolidation in the one Act of 1911 does not necessarily deface all the provisions of the repealed enactments, unless stated in positive terms and therefore the spirit of the old Article 170 still remains even if not specifically re-enacted in 1911. For this purpose, my attention is invited to passages in Craies, on Statute Law, Fourth Edition. The passage at page. 114 to the effect that
to alter any clearly established principle of law a distinct and positive legislative enactment is necessary.
is brought to my notice. He also relied upon various passages at pages 132, 135, 305 and 306. In effect, what is contended for is that in construing a consolidated statute the provisions must be traced to what they were at the very inception and effect should be given to those provisions even if they had not been continued throughout. The short answer to this argument is found in the observations of Lord Watson in Administrator-General of Bengal v. Prem Lal Mullick where his Lordship repeals an argument in the following words:
The respondent maintained this singular proposition, that, in dealing with a consolidating statute each enactment must be traced to its original source, and, when that is discovered, must be construed according to the state of circumstances which existed when it first became law. The proposition has neither reason nor authority to recommend it. The very object of consolidation is to collect the statutory law bearing upon a particular subject, and to bring it down to date, in order that it may form a useful code aplicable to the circumstances existing at the time when the consolidating Act was passed.
Following as I am bound to do, the above dictum of the learned Law Lord, Mr. Jayarama Ayyar's contention that the enactment of Section 5 of the Indian Penal Code taking away from the operation of that statute all the special and local laws would make the offence of criminal breach of trust of Army property triable only by a court-martial in 1861 and the subsequent consolidation of the various Army Regulations into one Act would continue to keep such an offence triable only by Military Courts, cannot be accepted.
11. If the very object of consolidation is the collection and co-ordination of the various local enactments till then scattered about over different periods of time, it is a futile attempt in construing such a consolidated statute to probe into the origin of the legislation and delve deep into the times of antiquity to find out the exact causes. The Act of 1911 being the provision of law now in force, I do not think I will be justified in interpreting it with reference to the previous state of the law, though in construing a consolidation Act prior statutes which even if repealed are reproduced, in substance are regarded as in pari materia and judicial decisions on the repealed statutes are regarded as applicable to substantially identical provisions of the repealing Act, it would be an extremely hazardous proceeding to refer to provisions which have been absolutely repealed in order to ascertain what the Legislature intended to enact in their room and stead. 'For, it is almost impossible in the process of consolidation to avoid some dislocation and change in the effect of the consolidated enactments. (Per Lord Watson in Bradlaugh v. Clarke (1883) L.R. 8 A.C. 354. The effect of consolidation is stated at length in pages 305 and 306 of Craies on Statute Law, Fourth Edition, and I need not repeat the observations of the learned author supported by a large body of authority on which he relies. But one thing is clear that by the deletion of Article 170 in the Consolidation Act, the Legislature did not intend to keep the distinction between military and non-military offences and the necessity of handing over a person governed by the Army Act, to the ordinary criminal Courts even in cases of offences not mentioned specifically in Section 41.
12. Though ' The Regulations for the Army in India ' issued under the authority of the Government of India are not to be considered as of any binding authority to be followed in the ordinary Courts, still they may afford some guide to a correct appreciation and understanding of the position which the Army authorities adopt in dealing with such matters. Regulation No. 385 of the Army Regulations, Reprint 1942, states that all civil offences except those specified in the proviso to Section 41 of the Army Act can be tried either by a court-martial or by a civil Court. Offences under Sections 27(d), 35(a) and (b), and 39(b) and (d) as well as most offences under Section 31 can also be tried by a court-martial or a civil Court. It is further stated that the procedure to be followed in a case where there is dual jurisdiction is laid down in Sections 69 and 70 of the Indian Army Act, the prescribed military authority being the General Officer, Commander-in-Chief, of the Command, the district, brigade or station commander. Further light is thrown by the instructions contained therein that if the offender is in military or civil custody, the Officer Commanding the unit or the Magistrate will take steps to request the prescribed military authority to decide the Court before which proceedings shall be instituted. But in cases falling under Section 41 of the Army Act, not being cases covered by the proviso to that section in which death has resulted, the decision shall rest with the District Commander or the General Officer, Commander-in-Chief of the Command. As I have already stated, by the Act of 1911, the position in India has been brought up to the same state as that which was obtaining in England. But in England it was by a course of long established practice alone and not by any statutory authority that the offence of embezzlement of military property was usually tried by a court-martial. Such a well established and long practice has not obtained in India and in view of the various provisions of the Army Act discussed by me above, it seems to me that the offence with which the petitioner is charged can be enquired into and tried both by the ordinary criminal Courts in the land as well as by a court-martial. Before leaving this part of the case, I shall advert to the two points raised by the learned Advocate-General for the Crown, viz, that under Section 26 of the General Clauses Act, where an act or omission constitutes an offence under two or more 'enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence. He contends that even though embezzlement of Army property is made a specific offence triable by a court-martial under Section 31 of the Indian Army Act, nonetheless it is an offence punishable under the Indian Penal Code because Section 2 of the Penal Code enacts that every person shall be liable to punishment under the Penal Code and not otherwise for every act or omission contrary to the provisions thereof of which he shall be guilty within the territories mentioned in the previous section, viz., those which are, or may become vested in the Crown by Statute 21 and 22, Victoria, Chapter 106, entitled 'An Act for the better Government of India'. According to Section 5 of the Indian Penal Code, this Act is not intended to repeal, vary or suspend any special or local law. Moreover, Section 5 of the Criminal Procedure Code, enacts that all offences under the Indian Penal Code shall be investigated, enquired into, tried and otherwise dealt with according to the provisions of the Criminal Procedure Code, and as regards offences under any other law, the Criminal Procedure Code applies subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Therefore the learned Advocate-General contends that unless by express exclusion the offence of embezzlement of Army property is taken away from the jurisdiction of the ordinary criminal Courts, the criminal Courts in the land have jurisdiction to enquire into and try this offence. The definition of the words 'offence' and 'civil offence' has already been considered and as the Army Act now stands, it Cannot be said that there is any express provision of law which takes away from the ordinary criminal Courts, the right and power to enquire into and try an offence of criminal breach of trust whether committed with regard to Army property or other properties; or whether the delinquent is an Army personnel or an ordinary citizen. Therefore the first argument of the learned advocate for the petitioner that an offence of criminal breach of trust of military property by an officer subject to the Indian Army Act is exclusively triable by a court-martial is unsupported by the provisions of the Indian Army Act.
69. When a criminal Court and a court-martial have each jurisdiction in respect of as offence, it shall be in the discretion of the prescribed military authority to decide before which Court the proceedings shall be instituted, and, if the authority decides that they shall be instituted, before a court-martial to direct that the accused person shall be detained in military custody.
70. (1) When a criminal Court having jurisdiction is of opinion that proceedings ought to be instituted before itself in respect of any alleged offence, it may, by written notice, require the prescribed military authority at its 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 authority 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.
Rule 167 of the Indian Army Act Rules describes what is meant by a ' prescribed authority ' under Sections 69 and 70 of the Act. It says that the prescribed military authority for the purpose of Sections 69 and 70 of the Act shall be the officer commanding the army, army corps, division, brigade or station in which the accused person is serving; provided that, in cases falling under Section 41 of the Act, in which death has resulted, the prescribed military authority shall be the officer commanding the army, army corps, division or independent brigade in which the accused person is serving and no lower authority. My conclusion in the earlier part of the judgment that the offence said to have been committed by the petitioner is triable both by a court-martial and by the ordinary criminal Court, necessarily involves that Section 69 of the Act is applicable to the present case. Therefore the prescribed military authority may, first of all, decide before which Court the proceeding shall be instituted. How far the evidence produced both before the lower Court and this Court tends to show that the prescribed military authority has exercised his discretion has next to be considered. The quantum of evidence on this part of the case is meagre and consists in certain affidavits of responsible officials in the Central Government as well as an affidavit by the then investigation Inspector of the Special Police Establishment, Government of India, Madras. I accept the statements in them completely. The question is whether the facts mentioned in them are sufficient to lead one to the conclusion that the provisions of Section 69 of the Indian Army Act, have been complied with. Mr. Subbiah, the Special Police Inspector, states that after he completed the investigation conducted under the ordinary provisions of the Criminal Procedure Code, he interviewed Brigadier Stevens of the I.A. O. C. Head Quarters, Southern Command, Poona,. in charge of Ordinance Depots on 21st February, 1947, because the said Brigadier was in charge of the Returned Stores Depot, Alamadi, under Avadi Sub-Area, and the petitioner was an officer under that Brigadier during the relevant period. Brigadier Stevens was informed of the details and the result of investigation and was told that there was enough evidence for initiating a prosecution against the petitioner under Section 409, Indian Penal Code. According to the deponent of the said affidavit the Brigadier, after going through the records and hearing the representations of the Inspector, agreed to the prosecution of the petitioner in a criminal Court. No doubt what the Brigadier told the Inspector will be hearsay evidence, but certainly .the Inspector is competent to depose about the. result of the discussions with the Brigadier and to state the latter's concurrence in the view suggested by him. Thereafter the. procedure of sending the final reports to the General Head Quarters, New Delhi, through the Inspector-General and the War Department followed. At this point, reference has to be made to another affidavit filed here, viz, from Mr. R.N. Vasudeya, Under-Secretary, Ministry of Defence, Government of India, which, is in the following terms:
The undersigned R.N. Vasudeva, Under-Secretary, Ministry of Defence, Governm'ent of India, New Delhi, solemnly affirms as follows .
1. The final report of the Investigating Officer, dated the 29th of March, 1947, and the comments of the Legal Adviser (Mr. Jain), Delhi Special Police Establishment, New Delhi, dated the 11th of April, 1947, and a letter from the Personal Assistant to the Inspector-General of Police Special Police Establishment, dated the 17th of April, 1947, were received by the Ministry of Defence through the Ministry of Home Affairs, who had been moved for grant of sanction under Section 197 Criminal Procedure Code, on the 28th of April, 1947.
2. Sanction was requested for the prosecution of Major F. K. Mistry in one case on three counts under Section 409, Indian Penal Code and his prosecution, along with Jamadar Koshi Mathai in another case under Section 120-B read with Sections 409, 409 and 409/109, Indian Penal Code.
3. The file as such with the documents mentioned above was forwarded by the Ministry of Defence, to the Adjutant-General's Branch for their concurrence.
4. The concurrence of the Military authorities in the following words was received by my office on the 13th of May, 1947, signed by A.A.G./P.S.I.:
This Branch has no objection to the prosecution in civil Court of Major F.K. Mistry and Jamadar Koshi Mathai. These officers will not be claimed for trial by Court-Martial. 5. The undersigned returned the file to the Ministry of Home Affairs on 14th May, I947; with the following endorsement:
This branch has no objection to the prosecution of the officers in question in a civil Court. 6. The undersigned solemnly affirms that the statements contained in paras. Nos. 1 to 5 above are correct statements of facts and nothing has been kept back.
What transpired at the General Head Quarters, New Delhi, is contained in another affidavit sworn to fey Captain Sarup Singh, Staff Captain in the Adjutant-General's Branch Personal Services, 1, New Delhi, which is as follows:
The undersigned Captain Sarup Singh, solemnly affirms that he was holding the post of staff Captain P. Section 1(a) General Headquarters, New Delhi, in April and May, 1947.
2. The undersigned solemnly affirms that in the first week of May, 1947 our office received from the Home Department, Government of India, copies of the final report of the Investigating Officer of the Delhi Special Police Establishment, and comments of their Legal Adviser for the concurrence of the Department for the prosecution of two cases in civil Court.
Major F.K. Mistry was the accused in one case and was recommended for prosecution under Section 409, Indian Penal Code on three counts.
Major F.K. Mistry and Jamadar Koshi Mathai were accused under Section 120-B read with Sections 409, 409 and 409/109, Indian Penal Code in the other case.
3. That the undersigned solemnly affirms that the two cases were dealt with by me in the Office of the General Headquarters.
4. That the undersigned solemnly affirms that on 5th May, 1947, a signal was sent by the undersigned to the Avadi Sub-Area, with copies to Madras Area and Southern Command in the following terms ' 1382392/PSI (a) Confidential (.) Misappropriation Stores (.) State if You have objection to trial by civil Court, Major F. K. Mistry and Jamadar Koshi Mathai of Return Stores Depot Almadi.
(Sd.) Sarup Singh,
For Lt. Col.
5 May, 47.
5. That the undersigned solemnly affirms that Avadi Sub-Area was then under the command of a Brigadier.
6. That the undersigned solemnly affirms that on 8th May, 1947, the following reply was received from the Avadi Sub-Area:
Misappropriation Stores. Your 1382392/PSI (A) of 5 May. No objection trial by civil Court both individuals. Case handled throughout by Delhi Special Police Establishment. 7. That the undersigned solemnly affirms that from the reply received, it is apparent that copies of the reply were also sent by Avadi Sub-Area to Madras Area as also to Southern Command.
8. That the undersigned solemnly affirms that it was thereafter that the A.G.'s Branch gave their concurrence to the prosecution of Major F.K. Mistry and Jamadar Koshi Mathai in the following terms:
This Branch has no objection to the prosecution in civil Court of Major F. K. Mistry and Jem. Koshi Mathai. These officers will not be claimed for trial by court-martial. (Sd.)
for Lt. Col. AAG/PSI,
10 May, 47. (D. Brysen).
9. That the undersigned solemnly affirms that copies of the two signals mentioned in paras Nos. 4 to 6 attached to the affidavit are correct copies prepared from the record maintained in the office of A.-G.'s Branch, P.S. I, Army Headquarters, New Delhi, and which can be produced in Court, if desired.
10. That the undersigned. solemnly affirms that the above statement of facts is correct to my knowledge and nothing has been withheld or concealed therefrom.
It will thus be seen that on the 10th of May, 1947, the Assistant Adjutant-General, P.S.I., after contacting the Avadi Sub-Area replied to the Ministry of Defence that the Adjutant-General has no objection to the prosecution of the petitioner in an ordinary criminal Court. Thereafter the Ministry of Defence sent back the file to the Ministry of Home Affairs on 14th May, 1947, with the endorsement that that Branch had no objection to the prosecution of the petitioner and another in a criminal Court. What transpired between the Home Ministry and the Inspector-General of Police is not before the Court but according to the affidavit of Mr. Subbiah, the Deputy Superintendent of Police received a reply from the Inspector-General of Police and he directed Mr. Subbiah to file the charge sheet which was done on 24th August, 1947, before the District Magistrate, Chingleput, by the Deputy Superintendent of Police, Special Branch, Madras. The District Magistrate forwarded the two charge-sheets to the Additional First Class Magistrate, Chingleput, for disposal according to law. Mr. Jayarama Ayyar strongly contends that the affidavits of the officers filed before this Court ought not to be taken into consideration and that as there is no evidence before the Court that the authorities have taken any action under Section 69 of the Indian Army Act, the whole proceedings are void and without jurisdiction. I am not prepared to hold that it is open to the petitioner to object to the reception of these affidavits at this-stage, for, the petitioner should have raised the objection to the jurisdiction of the criminal Court at the earliest possible opportunity, i.e., before the enquiry began. Not only did he not do so, but the objection was taken for the first time only after the charges were framed and the prosecution had closed its case. I do not intend to lay down as a general proposition that an accused person is not entitled to take objections which go to the very root of the proceedings at any stage later than the commencement of the enquiry. But if an objection is not taken at the proper time but is raised at a much later stage, the prosecution is also entitled to have the answers to that objection put forward by such form of evidence as would be available at that stage.
13. The procedure in- cases of civil offences committed by persons subject to the Indian Army Act is contained in Rule 385 of the Regulations for the Army in India, explaining the applicability of Sections 69 and 70 and such procedure is amplified a little more in Ghapter VI of the Manual of Indian Military Law, 1937, paragraphs 1 to 3 at pages 91 and 92. It is laid down there that in British India and at places outside British India, where a competent civil Court has been established, it is, as a general rule, desirable to try by a civil Court a civil offence committed by a person subject to the Indian Army Act if the offence is one which relates to the property or person of a civilian or is committed in conjunction with a civilian, or if the civil authorities intimate a desire to bring the case before a civil Court. The words 'Civil Court ' are only used in contradistinction with a Military Court in the context. It is also stated that the general rule is subject to exceptions and qualifications. The line dividing the Military from the civil offence may be narrow. The offence may have been committed within the Military lines. The offender may be one of a body of troops about to proceed on active service. There may be reasons making the prompt infliction of punishment expedient. In any such case, it may be desirable to try the offence by a court-martial. There are further indications that certain civil offences, for example complicated frauds, are not suitable for trial by court-martial and it would be better to relegate them to the ordinary civil courts, as also cases where intricate questions of law are likely to arise. A perusal of these provisions show that even though an offence of breach of trust relating to Army property can be enquired into and tried by an ordinary civil court, meaning thereby the courts governed by the Criminal Procedure Code, there is no indication whatever that ordinarily they should not be tried by any court other than a court-martial. I have been not referred to any provision of a statute, rule or regulation which gives unrestricted and unhampered jurisdiction to a court-martial to try an offence of criminal breach of trust of Army, property by a person subject to the Indian Army Act in a case where no attention has been paid to the application of Section 69. Therefore what has now to be considered is whether the facts and circumstances mentioned in the affidavits constitute a sufficient compliance with the mandatory provisions of Section 69 of the Indian Army Act? Has the ' prescribed military authority' decided before which Court the proceedings shall be instituted? Can it be said that the officer commanding the Army, Army Corps, Division, Brigade or Station in which the accused person was serving before the filing of the- charge-sheet considered the matter and come to a conclusion? I am prepared to accept the affidavit of Mr. Subbiah that during the relevant period Brigadier Stevens was in Charge of the Returned Stores Depot Almadi under the Avadi Sub-Area.
14. A careful perusal of the affidavits set forth above shows that the Ministry of Home Affairs whom the Special Police Establishment, New Delhi, approached for sanction under Section 197 of the Criminal Procedure Code, forwarded the entire records to the Ministry of Defence which department is the superior authority for the Army General Headquarters in India. In its turn, the Ministry of Defence being ordinarily a civil department wanted to ascertain the decision of the Adjutant-General's branch, General-Headquarters, which department I am informed is the one which deals with matters like court-martial, etc., under the Commander-in-chief. It is seen from the affidavit of Captain Sarup Singh that the Adjutant-General's office ascertained what the decision of the Southern Command was in the matter. For that purpose a signal was sent to the Avadi Sub-Area which is controlled by the Madras Area as its immediate superior authority and by the Southern Command above the Commander in the area. The Brigadier in charge of the Avadi Sub-Area in his reply dated 8th May, 1947, has stated that he had no objection to the trial by a civil Court of the petitioner and others since the case had been handled throughout by the Delhi Special Police Establishment. The Affidavit also shows that the Madras Area as well as the Southern Command should be deemed to have concurred in that decision.
15. If the facts stated in the complaint before the District Magistrate are true, an offence under Section 31(a) of the Indian Army Act has been committed. That the same set of facts, though they constitute an offence under Section 31, will also constitute an offence under Section 41 as well, is clear from Sub-clause (2) of Section 41, which is in the following terms:
The powers of a court-martial to try and to punish any person under this section shall not be affected by reason of the fact that the civil offence with which such person is charged is also a military offence.
Sub-clause (1) of this section refers commission of a civil offence either within British India or at any place beyond British India by an Army personnel and it is stated that such an offender shall be deemed to be guilty of an offence against military law as well; so that it necessarily follows that even if the offence of criminal breach of trust is provided for in Section 31, it is also an offence under Section 41 with the result that for such an offence the provisions of Section 69 are applicable. According to the terms of Section 69,
It shall be in the discretion of the prescribed military authority to decide.
16. From this it is abundantly clear that a discretion is given to the prescribed military 'authority. It may decide before which Court the proceedings shall be instituted. It may not as well decide anything. There is no compulsory duty cast upon the prescribed military authority in all cases where a criminal Court and a court-martial have concurrent jurisdiction in respect of an offence, to direct in which Court a prosecution should be instituted. The words are not 'the prescribed military authority shall decide,' If the section had been worded ' when a criminal Court and a court-martial have each jurisdiction in, respect of an offence, the prescribed military authority shall decide before which Court, etc.' then there is a duty cast upon the authority; but as it stands now it is only a matter of discretion which may or may not be exercised. Therefore, even if I were to conclude, that the various acts and proceedings of the military authorities referred to in the affidavits mentioned above, do not constitute a decision by a prescribed military authority, still I would have held that since the initiation of proceedings need not necessarily be as a result of any such decision, the filing of a complaint before the District Magistrate, Chingleput, was not illegal.
17. But having considered the various aspects put before me by Mr. Jayarama Ayyar, and the explanation of the actions of the officers of the Adjutant-General's office and the Ministry of Defence along with the decision of Brigadier Stevens, it seems to me that there has been a decision by the prescribed military authority before the proceedings were instituted. It is seen from Army, Department Notification No. 2163 dated 29th October, 1920, that General Officers commanding in chief commands and Officers commanding districts and. areas are granted the powers of an officer commanding an Army, Corps, Division and Brigade respectively (vide page 142, of the Manual of Indian Military Law, 1937, corrected up to 1942). One may therefore take it that the officer commanding the Madras Area will have the powers of.a Brigadier, though the sub-area itself in the present case is under the command of a Brigadier. The General' Officer commanding the Southern Command will have the powers of an officer commanding an Army corps. It is a fact well known that an Army consists of a number of corps, a corps consists of a number of divisions and a division consists of a number of brigades. The actual numerical strength of a corps division or brigade varies with different countries in the world. From the affidavits it can be safely inferred that the officers responsible for the Avadi sub-a rea the Madras Area and the Southern Command have considered the matter and decided that the petitioner should be proceeded against in an ordinary civil Court. This is also clear from the decision arrived at by Brigadier Stevens as deposed to by Mr. Subbiah. I have not been shown any authority by Mr. Jayarama Ayyar for holding that the decision arrived at by the Adjutant-General in the General Headquarters at New Delhi is not the decision of the officer Commanding the Army. If we consider the whole of the Indian Army as one unit commanded by a Commander-in-Chief with the various commands like the South, East, Central, etc., under him equivalent to army corps, in view of the opinions expressed by the authorities in the hierarchy beginning with the Brigadier in charge of the Avadi Sub-Area, I do not feel any difficulty in coming to the conclusion that if a decision under Section 69 is a necessary pre-requisite to the institution of proceedings in an ordinary criminal Court-though I am doubtful whether it is essential-there has been such a decision by the prescribed military authority. In the foregoing paragraphs the use of the term ' civil Court ' is intended to apply to an ordinary criminal Court.
18. We have next to turn to the third argument advanced on behalf of the petitioner and that is that granting that the offence complained against is not one exclusively triable by a court-martial and therefore the ordinary criminal Courts and the court-martial have concurrent jurisdiction and even if the prescribed military atuhority has decided that the proceedings against the petitioner should be instituted in an ordinary criminal Court, still the prosecution has not complied with the imperative provisions of Section 549 of the Criminal Procedure Code and the statutory rules made, by the Central Government under the provisions of that section. These statutory rules are contained in Rule 105 of the Criminal Rules of Practice and Orders which have been modified and amended from time to time, the latest of such, amendment being by G. O. M. S. No. 1648, Home, dated 28th May, 1945, and the G.O.M.S. No. 2099, Home, dated 2nd July, 1945. The scope and applicability of Section 549, Criminal Procedure Code, have recently been considered by this Court (L&ach;, C.J. and Lakshmana Rao, J.) in In re Capt. Hugh May Stollery Mundy : AIR1945Mad289 . In that case an engine room mechanic of the Royal Naval Air station, Tambaram, was tried by one of the Presidency Magistrates, Madras, and sentenced to a term of rigorous imprisonment for an offence under Section 304-A, of the Indian Penal Code. The attention of the Magistrate was not drawn to Section 549, of the Criminal Procedure Code or the rules framed thereunder. But objection was taken in the High Court regarding the procedure followed by the Magistrate in that he did not conform to the provisions of the rules made under section. 549, Criminal Procedure Code. The learned Judges held that even though his attention was not drawn to it, the Magistrate was bound to have followed the procedure laid down in the rules framed under Section 549, and therefore set aside the conviction. The rules as amended by the G. Os. above mentioned run as follows:
1. These rules may be called the Criminal Procedure (Military Offenders) Rules.
2. Where a person subject to military, naval or airforce law is brought before a Magistrate and charged with an offence for which he is liable under the Army Act, the Naval Discipline Act, the Naval Discipline Act as modified by the Indian Navy (Discipline) Act, 1934 or the Air Force Act, to be tried by a court-martial, such magistrate unless he is moved by the competent military, naval or air force authority to proceed against the accused under the Code of Criminal Procedure, 1898, shall before so proceeding give notice, to the Commanding Officer of the accused, and until the expiry of a period of five days from the date of service of such notice, shall not:
(a) convict the accused under Section 243, acquit him under Section 247 or Section 248, or hear him in his defence under Section 244 of the said Code or
(b) frame 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 Session under Section 213, or Sub-section (r) of Section 446 of the said Code, or
(d) transfer the case for inquiry or trial under Section 192 of the said Code, or
(e) issue an order under Sub-section (1) of Section 445 of the said Code for the case to be referred to a Bench.
Sub-clause (6) of the rule lays down that the ' competent military authority ' in Clause (2) means the 'Brigadier Commander.' The question therefore is whether the District Magistrate of Chingleput before whom the charge sheet was filed on 24th August, 1947, or the Additional First Class Magistrate, Chingleput, to whom the case was transferred presumably under Section 192, Criminal Procedure Code by the District Magistrate, was bound to follow strictly the procedure laid down in Sub-rule (2) of Rule 105 of the Criminal Rules of Practice. I may straightaway say that when the charge sheet was filed before the District Magistrate, the petitioner who is a person subject to military law was not brought before the Magistrate charged with the offence. If along with the filing of the charge sheet the petitioner had been produced by the police before the District Magistrate, the District Magistrate, should, before transferring the case for enquiry or trial under Section 192 of the Criminal Procedure Code, follow the procedure in Rule 105 (2); i.e., unless the District Magistrate is moved by a competent military authority to proceed against the accused under the Criminal Procedure Code, he should give notice to the Commanding Officer of the accused and allow a period of five days to expire from the date of service before further action is taken. Since the petitioner was not produced before the District Magistrate, I do not think that he was bound to follow the procedure contemplated by the aforesaid rule. But when once the case has been transferred to the Additional First Class Magistrate and the accused person was brought before him charged with an offence like the one in question for which he is liable under the Army Act, then the Additional First Class Magistrate should have strictly followed such a procedure. It is conceded that in this case no competent military authority has moved the Magistrate for proceeding with the case in his Court. Therefore the Magistrate ought to have issued notice to the Commanding Officer of the accused and waited for a period of five days from the date of service of such notice. In my opinion, the action of the 'Additional First Class Magistrate in not doing so is illegal and the proceedings before him are void and vitiated by this illegality. In the affidavit of Mr., Subbiah it is stated that he met the Additional First Class Magistrate on 1st August, 1947, and apprised him of the fact that the charge-sheets were filed by the members of the Special Police Establishment after obtaining the due consent from the Military Headquarters at Delhi and as such the Magistrate was not bound fo send a notice to the Commanding Officer of the accused as contemplated by the rules. The members of the Special Police Establishment, New Delhi, can under no stretch of language be termed either the competent military authority or the Commanding Officer of the accused person. Even if the prescribed military authority under Section 69 of the Army Act had come to the decision that the proceeding should be instituted in an ordinary criminal Court, still, in my judgment, according to the true and correct interpretation of Section 549 of the Code and Rule 105 of the Criminal Rules of Practice, it is incumbent upon the Magistrate to give notice to the commanding officer of the accused person. The learned Advocate-General contended that when once the prescribed military authority has come to this decision under Section 69 of the Army Act, the observance of the rule by the Magistrate, viz., the issuing of a notice, is not necessary, and the insistence upon the following of that procedure will lead only to multiplicity of proceedings and dilatoriness in their termination. I do not agree. The language of Section 549, Criminal Procedure Code and of Rule 105 of the Criminal Rules of Practice is clear and mandatory. When a person subject to the military law is brought before a Magistrate charged with an offence for which he is triable under the Army Act, the Magistrate is bound to follow this procedure. The decision of the prescribed military authority under Section 69 of the Army Act need not. be communicated to the Magistrate and even if it is so communicated, he is bound to follow strictly the provisions of Section 549, Criminal Procedure Code and the rules.' The learned Advocate-General invited my attention to various Ordinances and Act XXV of 1946 by which the Special Police Establishment at New Delhi was created, maintained and continued for the investigation and prosecution of offences relating to the Central Government Departments of which the Army Department is one. He also drew my attention to the circulars and proceedings issued by the Adjutant-General's Branch regarding the co-operation and help which the military officers and authorities have to give to the Police Establishment in their investigation. I do not think that a detailed discussion or examination of these Ordinances and the Act is necessary, for it is not disputed that the Special Police Establishment at New Delhi has the right to enquire into these offences. I am not prepared to hold that since the Special Police, Establishment at New Delhi has investigated and filed a charge-sheet against an officer subject to the Indian Army Act with the concurrence or the approval of the military authorities, the magistrate before whom such a person is brought is absolved from the statutory duty of acting according to the rules framed under Section 549 of the Criminal Procedure Code. If the argument of the learned Advocate-General is correct, I cannot find any reason why the Central Government in its rule making power did not make a special exemption in such a case. Rule 105 applies to every case where a parson subject to military law is produced before a magistrate governed by the Criminal Procedure Code charged' with an offence for which there exists concurrent jurisdiction both in the magistrate as well as in the Army authorities. The reason for not providing a special exemption from the operation of the rule in case of a prosecution launched by the special Police Establishment is clear and not far to seek; for a magistrate before whom an accused person is produced should not have the duty cast upon him of finding out how the investigation was started and who the investigators were. As a court administering the law, its duty is merely to see that the accused person brought before it is given a fair and proper trial, and relevant and admissible evidence alone is admitted. But the duty is enjoined upon the Magistrate that in the case of a person subject to military law he must first of all give the officer Commanding a notice intimating him that such a person has been produced. According to Sub-rule (4), if the Commanding Officer of the accused person gives notice to the magistrate that the accused person should be tried by a court-martial, then the magistrate is bound to stay the proceedings and deliver' the accused with the statement prescribed in Section 549 of the Code to the authority specified in this section. It may be that in cases where there has already been a decision that the person should be tried by a criminal Court, a subsequent notice is a surplusage and a formality; but as the section stands this 'court has to interpret it on its. plain terms. Another point suggested during the course of the arguments is that it is not open to the accused to raise the point at this late stage. The competent military authority has not moved in the matter. Nor has the accused raised the point at an early stage. I do not think that because the accused person for some reason or other did not object at the earliest opportunity, there can be any question of waiver. If the provisions of Section 549 and the rules are mandatory, acquiescence on the part of the accused in an irregular or illegal proceeding will not regularise or legalise the proceedings. In Nusserwanjee Pestonjee v. Meer Mynoodeen Khan Wallud Meer Sudroodeen Khan Bhadur(1855) 6 M.I.A. 134 the Judicial Committee has held that where under Bombay Regulation No. VII of 1827, among other things it was enacted that a deed of reference to arbitration must contain the time within which the award is to be given and a particular deed of submission to arbitration contained 'no such provision, it was held that the award could not be enforced even if there was parol consent given by the parties to the deed of submission before the arbitrator to waive the omission regarding the time at which the award is to be given. Therefore the principle deducible is that where in a statute there are certain necessary requirements to be complied with before proceedings become legal, they should be done according to the statutory provisions and not otherwise. At page 155, Sir John Patteson observed asfollows:
The present question turns upon this principle, that wherever jurisdiction is given to a Court by an Act of Parliament, or by a Regulation in India (which has the same effect as an Act of Parliament) and such jurisdiction is only given upon certain specified terms contained in the Regulations itself, it is a universal principle that these terms must be complied with, in order to create and raise the jurisdiction, for if they be not complied with the jurisdiction does not arise.
Following that principle, it seems to me that the jurisdiction is given to the Additional First Class Magistrate only after the expiry of five days after giving notice to the Commanding Officer of the person produced before him. In this connection it is instructive to compare the rules framed on the 12th of March, 1935 and published as G. O. No. 1338, Law (General), dated 16th April, 1935 with the rules as they are now. The repealed rules run as follows:
105. (1) 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 issue orders for his case to be referred to a Bench, or to inquire with a view to his commitment for trial by the Court of Session 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.
(2) Before proceeding under Clause (a) of Rule 1 the Magistrate shall give notice to the Commanding Officer of the accused and, until the expiry of a period of five days from the date of the service of such notice, he shall not-
(a) acquit or convict the accused under Sections 243, 245, 247 or 248 of the Code of Criminal Procedure, 1898 (Act V of 1898), or hear him in his defence under Section 244 of the said Code, or
(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 Session under Section 213 or Sub-section (1) of Section 446 of the said Code, or
(d) issue orders under Sub-section (1) of Section 445 of the said Code for the case to be referred to a Bench.
The repealed rule gives a discretion to the magistrate for reasons to be recorded, to proceed without being moved by the competent military authority. But even there, before proceeding under Clause (a) of Sub-rule (1855) 6 M.I.A. 134) he has to give notice to the Commanding Officer of the accused and wait for a period of five days from the date of service of such notice... In Emperor v. Jerry D'Sena A.I.R. 1944 Bom. 271 Wadia and Sen JJ. had to interpret the rules as they stood prior to the amendment mentioned in 1945. The learned Judges held th where the magistrate was not of opinion that he should proceed to try the accused without being moved thereto by the competent military authority, Rule 2 framed by the Government of India will not apply to the case. The only alternative is for the military authorities to move him to proceed to try the accused. If the magistrate having given an opportunity to the prosecution to obtain the authority or permission of the military authorities receives no communication from the military authorities asking him to proceed with the trial he is right in holding that there is no sufficient ground for proceeding with the trial. In that case, because there was no such motion by the military authorities, the magistrate discharged the accused. If according to the rules as they stood before 1945, the magistrate could have discharged the accused because he was not moved by the military authorities, a fortiori it follows that as the rule now stands the magistrate could not have proceeded to try the accused without;giving the requisite notice.
19. As I am of opinion that when the petitioner was brought before the magistrate charged with this offence it was the duty of the court to give notice to the commanding officer of the accused, the proceedings before the magistrate relating to the recording of evidence, etc., were illegal and without jurisdiction. I would therefore quash the charge as having been framed without jurisdiction and in excess of authority. The entire proceedings before the learned Additional First Class Magistrate subsequent to the appearance of the accused person before him are therefore set aside. The parties are therefore relegated to the position in which they were when the petitioner appeared before the magistrate. The magistrate is therefore directed to give notice to the commanding officer of the accused and wait for five days to find out what steps the competent military authority is taking and then proceed according to law. The charge as framed is quashed.