EMPEROR Vs. JERRY DSENA

JUDGEMENT

(1.) THIS is an application by the Government of Bombay for revision of an order passed by the Presidency Magistrate, 7th Court, Bombay, discharging the opponent, Private Jerry D'Sena, No. 3024, accused of theft and praying that the order be set aside! on the ground that the accused, who,is subject to military law, has been erroneously discharged and that the provisions of rules made under Section 549 of the Criminal Procedure Code, 1898, by the Government of India have not been complied with.

(2.) THE accused was alleged to have committed the theft on February 18, 1942, and he was arrested in January, 1943. He was put up for trial and there were several adjournments " for want of time" from February 3, 1943, up to August 18, 1943. THEreafter there were more adjournments and on September 20 the case was fixed for hearing peremptorily on September 27, 1943, "' to enable the prosecution to write to the military. " THEreafter three more adjournments were given and on October 11, 1943, the Magistrate made the following order : In spite of the case being adjourned in order to enable the prosecution to write to the military for their permission, as there is no permission of the military authorities produced and the accused before the Court is in military service, this Court has no jurisdiction. Accused discharged. Bail bond cancelled. Section 549 of the Criminal Procedure Code lays down that the Central Government may make rules consistent with this Code and the Army Act, the Naval Discipline Act and that Act as modified by the Indian Navy (Discipline) Act, 1934, and the Air Force Act and any similar law for the time being in force as to the cases in which persons subject to military, naval, or air force law shall be tried by a Court to which this Code applies, or by Court-martial, and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which this Code applies, or by a Court-martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the commanding officer of the regiment, corps, ship or detachment, to which he belongs, or to the commanding officer of the nearest military, naval or air force station, as the case may be, for the purpose of being tried by Court-martial. Under Section 41 of the Indian Army Act (VIII of 1911) every person subject to the said Act who commits any civil offence is to be deemed guilty of an offence under a military law, and, if charged therewith under the section, is liable to be tried, subject to the provisions of the Act, for the same by Court-martial. " Civil offence" has been defined in Section 7(18) of the Indian Army Act as an offence which, if committed in British India, will be triable by a criminal Court. On March 12, 1935, the Government of India in the Home Department published a notification No. 4051/2 making rules as to the cases in which persons subject to military, naval or air force law are to be tried by a Court to which the Criminal Procedure Code applies or by a Court-martial, and Rules 1 and 2 of the said rules are material. Rule 1 reads thus : 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 inqure with a view to hid 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. Rule 2, so far as material, is as follows : 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, (b) frame in writing a charge against the accused," etc.