A A PAUL Vs. STATE

JUDGEMENT

(1.) THE revision is against the order of the Special Judge, Madras, dismissing a petition purporting to be one under Section 251-A of the Criminal Procedure Code and Section 126 of the Army Act. The revision petitioner is the accused in C. G. No. 15 of 1972 on the file of the Special Judge, Madras. He was formerly an army personnel in that he was the Recruiting Officer in the Army. He retired from service on 3-9-1972. A charge sheet was filed against him on 19-10-1972 for an alleged offence under Section 5 (2) read with Section 5 (1) (d) of Act II of 1947 and Section 161 of the Indian Penal Code on the ground that he had accepted illegal gratification on 3-6-1972. On that date namely, the date on which the offence is said to have been committed, the accused was in Army service. But. as I said, he retired on 3-9-1972 and the charge sheet itself was filed subsequent to the retirement. The case was taken up for trial and six witnesses have already been examined by the learned Special Judge. At that stage. the accused filed the petition, out of which this revision has arisen, contending that the Special Judge having not followed the rules framed by the Central Government by virtue of Section 549 of the Criminal Procedure Code, the entire trial was vitiated and that the same should be stayed and the accused should be discharged. This contention was overruled by the learned Special Judge. Hence this revision.

(2.) THE learned Counsel for the accused (revision petitioner) contends that in spite of the accused having retired from Army service, he must be deemed to be subject to the Army Act by virtue of Section 123 of the Army Act and so much so. the rules made by the Central Government under Section 549 of the Code of Criminal Procedure would be attracted.

(3.) THERE can be no doubt that if the accused is a person subject to Military law on the date on which the case was taken up by the learned Special Judge, who constitutes an ordinary Criminal Court, the relevant rules made ' by the Central Government by virtue of Section 549 of the Criminal Procedure Code have necessarily to be followed. Rules 3. 4 and 5 of the said rules are relevant and they contemplate the ordinary criminal Court before proceeding with the trial of the accused to give notice to the Commanding Officer of the accused concerned and take further steps as provided in the rules. In the present case, admittedly, the procedure laid down in the said rules have not been followed by the Special Judge, But the question is whether those rules apply to the case or not. I am quite clear that the accused in the case is not a person subject to Military. Naval or Air Force law on the relevant date and, therefore. Rules 3, 4 and 5 of the Central Government Rules made by virtue of Section 549 Cr. R C. have no application. Rule 3 starts with the following words: 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. . . . Therefore, it is clear that only if a person is subject to Military, Naval or Air Force law, the abovesaid rules would be attracted. Section 2 of the Army Act mentions persons who are subject to the said Act. Subsection (2) of that Section says that every person subject to the said Act shall remain so subject until duly retired, discharged, released, removed, dismissed or cashiered from the service. That means the accused in the present case, who was retired from service on 3-91972. is not a person subject to the Army Act. If that much is clear, then, undoubtedly the rules framed by the Central Government by virtue of Section 549 Crl. P. C. have no application to this case.