(1.) MATRIMONIAL discord has become genesis for initiating the present spade of litigation between the parties. Petitioner is married to one Deepti at Dehradun on 19 -4 -2000. It seems that marriage was on rocks from the very inception. The discord led to filing of an FIR against the petitioner under section 498 -A RPC read with sections 3/5 of Dowry Restraint Act by Smt. Deepti on 14 -1 -2002. The investigation in the case led to filing of report under section 173 by the police. The case was filed before the Chief Judicial Magistrate, Jammu on 26 -11 -2002. The case was set out for framing of charge by the court below. The matter came to be finally heard by the court and decided on 19 -4 -2004. The court did not decide the plea with regard to the framing of charge but addressed itself to the jurisdictional aspect to try the case by the criminal court. The necessity to address itself to this question was the fact that the accused no. 1 was a member of the armed force and was not ordinarily subject to jurisdiction of the criminal court. The trial court taking recourse to section 126 of the Army Act read with Rules 3 ,4,6 and 9 of the Jammu and Kashmir Criminal Courts and Court Martial ( Adjustment of Jurisdiction) Rules, 1983, sent communication to Commanding Officer seeking his option as to whether the accused is required to be tried by them or ordinary criminal court . It is this order, which has been called in question by the petitioner in these proceedings.
(2.) I have heard the learned counsel for the parties and perused the record. An application came to be filed by Dr. Deepti before the Chief Judicial Magistrate, Jammu, in which she pleaded that she was married to petitioner -1 and the said marriage had taken place at Dehradun on 19 -4 -2000. Immediately after the marriage, petitioner -1 started demanding dowry from her and on her failure to meet his demand , she was harassed and abused. Police investigation ultimately resulted in filing of report under section 173 against the petitioner under section 498 -A RPC read with section 3/5 of the Dowry Restraint Act. It is not in dispute that petitioner -1 is Captain in the Army and is subject to the provisions of the Army Act and Rules. Before invoking jurisdiction of the criminal court regarding civil offence committed by a member of the armed force, certain provisions of the Army Act are required to be observed. Sections 125 and 126 of the Army Act are quoted hereinbelow: "125. Choice between criminal court and court - martial: 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 commanding the army, army corps, division or independent brigade in which the 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." "126. Power of criminal court to require delivery of offender: 1) When a criminal court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect to any alleged offences, it may, by written notice, require the officer referred to in section 125 at his option, either to deliver over the offender to the nearest Magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central Government. 2) In every such case the said officer shall either deliver over the offender in compliance with the requisition, or shall forthwith refer the question as to the court before which the proceedings are to be instituted for the determination of the Central Government, whose order upon such reference shall be final."
(3.) THE other provision which is required to be noted, is section 549 of Cr PC. In exercise of powers conferred by section 549 Cr PC, SRO 73 was promulgated by the State of Jammu and Kashmir by virtue of which rules for the trial of the persons subject to Military, Naval or Air Force were framed. These Rules are called as the Jammu and Kashmir Criminal Courts and Court Martial ( Adjustment of Jurisdiction) Rules, 1983. Rules 3 and 4 of SRO 73 are quoted hereinbelow: "3. Where a person subject to Military, Naval or Air Force law, or any other law relating to the Armed Forces of the Union for the time being in force is brought before a Magistrate and charged with an offence for which he is also liable to be tried by a Court Martial, such Magistrate shall not proceed to try such persons or to commit the case to the court of Sessions unless: a) he is moved thereto by a competent Military, Naval or Air Force Authority, or b) he is of opinion, for reasons to be recorded, that he should so proceed or to commit without being moved thereto by such authority.