MAJOR GOPINATHAN Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THE order in this revision shall also dispose of criminal revision No. 199 of 1961.

(2.) THESE are applications for revising the order of the Magistrate First Class, jabalpur, dated 30-8-1960, whereby he held that the proceedings initiated before him on a complaint by Shri Mahabir Prasad, for offence under Sections 342, 352 and 500 read with Section 34 of the Indian Penal Code against the applicant Major gopinathan, an officer of the Armed Forces and as such subject to the Army Act, shall proceed, notwithstanding the fact that the Commanding Officer of the equivalent Citation: accused (Major Gopinathan) had given notice to the Magistrate that in his opinion he (the accused) should be tried by a court-martial.

(3.) FACTS, which are necessary for understanding the controversy, are as follows: shri Mahabir Prasad filed a complaint against Major Gopinathan, the applicant, and ten others for offences under Sections 341, 342, 352, 500 and 504 read with sections 34 and 147 of the Indian Penal Code in the Court of the Magistrate first class, Jabalpur. After examination of the complainant, the learned Magistrate registered the complaint for offence under Sections 342, 352 and 500 read with section 34 of the Indian Penal Code and issued summonses to the accused for their appearance on 18-7-1960. On 30-7-1960, the applicant major Gopinathan filed an application before the Magistrate claiming that he was triable by a court-martial alone and not by an ordinary criminal court. The aforesaid objection was overruled by the Magistrate by his order dated 18-8-1960. He, however, issued a written notice to the Commanding Officer of the accused Major Gopinathan as required by Rule 4 of the Rules framed by the Union Government under Section 549 of the Code of Criminal Procedure (hereinafter called 'the Rules' ). In answer to the notice, the Commanding Officer intimated the Magistrate as required by Rule 5 of the Rules that in his opinion the accused Major Gopinathan should be tried by a court-martial. The learned Magistrate on receipt of the said reply held that unless charges were framed against the accused by appropriate authority under the Army act, his (the accused's) liability to be tried by a court-martial did not arise and consequently the provisions of Section 549 of the Code of Criminal Procedure were not attracted to bar his jurisdiction to try the accused. The First Additional sessions Judge, Jabalpur, was moved to refer the case to this Court under Section 438 of the Code of Criminal Procedure; but he, having declined to do so, the applicant (accused Major Gopinathan) has himself moved this Court for revising the order of the Magistrate dated 30-8-1960. The Commanding Officer, who had moved the Magistrate under Rule 5 of the Rules, has also come up in revision against the same order. Both these revisions are being dealt with by this order.