K SHANKAR Vs. FLT LT SAJI THOMAS

JUDGEMENT

(1.) Heard the learned Counsel for the petitioner and the learned Senior Standing Counsel for Central Government. The matter was admitted and interim stay granted. A vacate stay application has also been filed. Since pleadings are complete the matter is finally decided.

(2.) It appears that the petitioner had filed a private complaint againstrespondents 1 and2 which was pending before the IV Metropolitan Magistrate, Hyderabad. This complaint had been registered as C.C. No.91 of 1998. Admittedly the respondents 1 and 2 who were arrayed as accused in the complaint are Officers subject to Air Force Act, 1950. A Memo came to be filed on behalf of the Commanding Officer of the accused officers on 15-7-1998. This Memo is reproduced:-

(3.) It was agitated before this Court that the Commanding Officer who had moved the Memo had no jurisdiction to file the application before the Magistrate concerned because at the relevant point of time he was not the Commanding Officer of accused 1 and 2 who are respondents 1 and 2 in this petition and those persons had been transferred on that day i.e., 15-7-1998 to New Delhi. But, in the first para of the Memo which was filed before the learned Magistrate it was stated that the applicant was the Commanding Officer of the concerned accused persons. During hearing the learned Senior Standing Counsel appearing for the Union of India submitted that, though it was a fact that the respondents 1 and 2 had been transferred to Delhi but off an on they had to appear before the Criminal Court and while their stay at Hyderabad during the hearing in the cases they were being attached to the unit. He relies on the definition of Commanding Officer in Section 4(xv) of the Air Force Act which reads as under:-