BIMLA DEVI Vs. CAPT G L BAKSHI

JUDGEMENT

(1.) THE petitioner in this criminal revision preferred a complaint to the City Magistrate at Srinagar against five persons enrolled under and subject to the Indian Army Act accusing them of offences Under Sections 392, 448 and 506 of the Ranbir P. C. which is in force in this State. After recording the statement of the complainant, the Magistrate issued process to the accused persons in respect of the offences under the aforesaid Sections. This led the Officer Commanding West Station to address a letter dated 10-7-1959 to the Magistrate pointing out that the accused persons being military personnel could not be Wed by a civil court unless the army authorities agreed to it. Some further correspondence ensued between the army authorities on the one hand and the Magistrate on the other. Eventually, the Magistrate held as follows: As the army authorities have undertaken to deal with the case therefore in view of Section 125 of Indian Army Act and Section 69 of the Jammu and Kashmir Army Act I need not proceed with the case. The military authorities be informed of this order with the direction dash the accused persons will be tried for the offences Under Sections 392, 448 and 506 R. P. C. by the court-martial, A copy of this order along with a copy of the complaint be sent to the Officer Commanding W. Station C/o 56 APO. The file be consigned to records. The complainant took the matter in revision to the Sessions Judge Srinagar who confirmed the order of the Magistrate, She has, therefore, come up to this Court in further revision for redress.

(2.) THE learned Counsel for the petitioner-complainant has strenuously urged that the Magistrate misled himself by relying upon Section 69 of the Jammu ? and Kashmir Army Act which is no longer in force. This contention is clearly correct. But it is far too inadequate to enable me to hold that the order passed by the Magistrate and confirmed by the Sessions Judge is erroneous in law. The Magistrate relied upon Section 125 of the Army Act, 1950, Central Act XLVI of 1950 (hereinafter referred to as the Act) which reads: When a criminal court and a court-martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer commdanding the army, army corps, division or independent brigade in which to accused person is serving or such other officer as may be prescribed to decide :before which court the proceedings shall be instituted, and, if that officer decides that they should be instituted before a court-martial, to direct that the accused person shall be detained in military custody.

(3.) IT is this Section which apparently constituted the basis for the communication dated 10-7-1959 addressed by the Officer Commaningw. Station to the City Magistrate Srinagar. This communication claimed that military personnel could not be tried by the Magistrate unless the army authorities agreed to it. This cannot be said to be quite an accurate statement of the true scope and effect of Section 125. It is, however, not necessary to pursue this aspect of the matter in view of the important legal contention raised on either side.