G.D. MUKHARJI Vs. STATE

JUDGEMENT

(1.) This Criminal Misc. Application No. 4094 of 1978 under Sec. 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 Sec. 307, I.P.C. pending enquiry in the court of the Judicial Magistrate, City (I), 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 Applicant has claimed that since he was a Naval Officer he was governed under the Navy Act, 1957 and could only be tried for the civil offence by a Court-martial. The Judicial Magistrate City, Allahabad by a notice enquired from the naval authorities if they proposed to try the applicant before a Court-martial. The Magistrate was informed that the naval authorities did not intend to try the applicant by a Court-martial since the applicant had been placed on the retired list with effect from 20th Aug. 1978. Thereafter the Magistrate proceeded with the case. The applicant then filed this application under Sec. 482, Crimial P.C. for quashing the proceedings, and by order of this Court dated 13-6-78 notice was issued and further proceedings were stayed. Shyam Lal Tewari has filed his counter-affidavit contesting the claim of the applicant to be tried by a Court-martial, The application of Shyam Lal Tewari for being impleaded as a party in this application was allowed on 30-10-78. Rejoinder affidavit has also been filed.