S R TRIPATHI Vs. STATE

JUDGEMENT

(1.) The only point for consideration in this Revision is whether the Magistrate could proceed with the trial without giving notice to the Commanding Officer as required under Section 125 of the Indian Air Force Act (to he referred hereinafter as the Act). Another point that shall require consideration is whether the summons already sent can take the place of written notice as contemplated by Section 125.

(2.) The matter was considered by me while deciding Criminal Reference No. 285 of 1962 made by Sri Mohammad Noorul Ain, Civil and Sessions Judge, Allahabad. The Reference was made on 21-7-1962. In the instant case also the applicant, Cpl. S. R. Tripathi, had moved the Sessions Judge in Revision and the Revision was dismissed by Sri R. A. Quraishi on 5-10-1962. Considering that the Criminal Revision was decided a few months after Sri Mohammad Norrul Ain made the Reference to this Court, it can be assumed that the applicant was aware of the Order of Reference and was seriously pressing the objection as to the jurisdiction of the Magistrate.

(3.) Sri R. A. Quraishi has made reference to Sections 71 and 72 of the Act but not Sections 124 and 125 of that Act. Civil offence has, by implication, been defined in Sections 71 and 72 of the Act. Section 72 lays down those civil offences which are not triable by a court-martial. In the circumstances, "civil offence" shall mean an offence punishable under the law applicable to those not subject to enactments similar to the Act. In other words, every offence of which Magistrates can take cognizance as a trial court, or while holding inquiry before commitment to the Court of Session or to the High Court, is a civil offence, and any person subject to the Act committing such an offence and charged under Section 71 shall be deemed to be guilty of an offence under the Act. Section 71, however, lays down that if that person is charged under this section, he shall be tried by a court-martial. It is, therefore, not necessary that a person subject to the Act shall be tried of all the civil offences by a court-martial. If it is decided to charge him under Section 71, he shall be tried by a court-martial; but if not so charged, the court-martial shall have no jurisdiction and the offence can be tried by a competent Magistrate. The jurisdiction of the court-martial or of the Magistrate thus depends upon whether the person is or is not charged under Section 71 of the Act.