LT COMMISSIONER SRI G D MUKHARJI Vs. STATE

JUDGEMENT

(1.) THIS Criminal Misc. Application No. 4094 of 1978 under Section 482 of the Code of Criminal Procedure, has been filed by Sri G. D. Mukharji for quashing the proceedings of the Criminal Case No. 33 of 1978 under Section 307 IPC pending enquiry in the court of the Judicial Magistrate, City (1), Allahabad on the ground that the applicant was a Lt. Commander in the Indian Navy and is not subject to the jurisdiction of the Magistrate and the case against him should be tried by a court-Martial in accordance with the provisions of the Navy Act, 1957 and the rules called the Criminal Courts and Court-martial (Adjustment of Jurisdiction) Rules, 1952.

(2.) THE facts giving rise to this petition are that the applicant was residing in House No. 91, Jawahar Lal Nehru Road, Sohbatia Bagh, within Police Station Daraganj, in the city of Allahabad, which belongs to his father. A portion of the house was occupied by some tenants in respect of which some proceedings under the Rent Control and Eviction Act took place which gave rise to strained relations between the applicant and the other occupants of the house. It is alleged that an ugly situation developed on 1-10-1977 when G. D. Mukharji fired shots from his revolver, according to him in self-defence and according to the .complainant Shyam Lal Tewari in an attempt to kill Shyam Lal Tewari, resulting in injuries to two persons. Counter-reports in respect to the incident were lodged with the police by the applicant and complainant Shyam Lal Tewari. On the basis of the report lodged by Shyam Lal Tewari after investigation the police submitted a charge-sheet against the applicant on the basis of which the Magistrate took cognizance and Criminal Case No. 33 of 1978 was registered and was pending enquiry.

(3.) THE immunity claimed by the applicant to be tried by the Magistrate on the ground that he belongs to the Navy and was entitled to be tried by a Court-Martial is not open to the applicant for two reasons : (1) that after retirement the applicant cannot be deemed to be in the naval service ; and (2) that the naval authorities have declined to try the applicant by Court-Martial because the applicant has retired. Section 2 (1) of the Navy Act, 1957 provides :-