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Ramesh Kumar Choudhary vs The State Of Bihar & Ors on 2 May, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.23712 of 2017
Arising Out of PS. Case No.-372 Year-2016 Thana- GOVERNMENT OFFICIAL COMP.
District- Nawada

Ramesh Kumar Choudhary, son of Sri Bhupendra Choudhary, resident of
Village- Chandrayan, P.S.- Nauhatta, District- Saharsa, posted as Lance
Nayak No. 15569488F (House Keeper) under Mr. Atul Bhardwaj, Colonel,
Commanding Officer, 104, Engr. Regt. (PVC), Dippa Toli Cant Pin- 914104.

… … Petitioner/s
Versus

1. The State of Bihar.

2. The Union of India through Mr. Atul Bhardwaj, Colonel, Commanding
Officer, 104 Engineering Regiment (PVC), Ranchi, Pin- 914104, C/o- 56
APO.

3. Sri Ravindra Kumar Singh, S.I., Excise, at Samekit Janch Chowki, Rajouli,
Nawada.

… … Opposite Party/s

Appearance :

For the Petitioner/s : Mr. N.K.Agrawal, Sr. Advocate.

Dr. Bidhu Ranjan, Advocate.

Mr. Ashok Kumar Jha, Advocate.

For the UOI : Mr. S.D.Sanjay, Addl. Solicitor General
Mr. Rajesh Kumar Verma, Advocate.

For the State : Mr. Nityanand Tiwary, APP.

CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR
CAV JUDGMENT
Date : 02-05-2018

Heard learned counsel for the petitioner, learned counsel

appearing on behalf of Union of India and learned counsel

appearing on behalf of the State.

2. The petitioner sole accused of G.O.Case No. 372 of

2016 registered for the offence under Section 47(a) of the Bihar

Excise (Amendment) Act, 2016 (hereinafter referred to as the
Patna High Court Cr.Misc. No.23712 of 2017 dt.02-05-2018
2/18

‘Excise Act’) has filed the instant application for transfer of the

said case from the court of the learned Chief Judicial Magistrate,

Nawada where presently pending to the military court i.e., Court

Martial at Ranchi.

3. Before moving this Court, the petitioner filed a

petition for transfer the said case to the Court-Martial at Ranchi on

the ground that petitioner is a military personnel governed by the

Army Act, 1950 (hereinafter referred to as the ‘Act’) to be tried by

Court-Martial for committing civil offence, but the learned Chief

Judicial Magistrate, Nawada rejected the prayer on the ground that

petitioner being an accused under the Excise Act and the offence

under Section 47(a) of the Excise Act is considered only in the

State of Bihar and not in other Sates; moreover, it is also not an

offence in defence service and exclusively triable by a Special

Court.

4. The brief fact giving rise to the case is that petitioner,

Ramesh Kumar Choudhary, Lance Nayak bearing No. 15569488F

(House Keeper), serving in the Indian Army, presently posted at

104 Engr. Regt. (PVC) Deepa Toli Cant. Ranchi under

Commanding Officer, Mr. Atul Bhardwaj, Colonel of the said

Regiment, while travelling on 13.01.2016 in a private bus, the

said bus was checked by the Sub Inspector of Excise Department
Patna High Court Cr.Misc. No.23712 of 2017 dt.02-05-2018
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in the territorial jurisdiction of Rajauli in the Nawada District of

State of Bihar and during checking, the petitioner was found

carrying 18 bottles of foreign liquor of “While Hall” brand each

containing 750 ml and also 09 bottles of “Vodka Magic Moment”

each containing 750 ml of foreign liquor, so in total 20.250 litres

of foreign liquor was recovered from the possession of the

petitioner, as the same was being carried in suit case by the

petitioner. As per allegation, the petitioner was apprehended and

forwarded to the learned Chief Judicial Magistrate, Nawada on

14.08.2016 and remanded to judicial custody.

5. Mr. N.K.Agrawal, learned senior counsel appearing

on behalf of the petitioner submits that petitioner is posted as

Lance Nayak in Indian Army under Mr. Atul Bhardwaj, Colonel

Commanding Officer in the 104 Engr. Regt. (PVC) Deepa Toli

Cant., Ranchi. Being military personnel, he is subject to the Army

Act as he is still serving in the Indian Army, so his criminal case is

required to be tried by the Court-Martial for committing an offence

defined in the Act which also includes. It is further submitted that

alleged offence of carrying foreign liquor, which is an offence

under the Excise Act, comes under the purview of civil offence

defined under the Act and referring to Section 69 of the Act,

submits that subject to provision of Section 70 of the Act, any
Patna High Court Cr.Misc. No.23712 of 2017 dt.02-05-2018
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army personnel, who has committed any civil offence at any place

in India or beyond, is deemed to be guilty of an offence against

this Act and shall be liable to be tried by a Court Martial. Learned

counsel further draws attention to Sections 125 and 126 of the Act

and submits that in view of Section 125 of the Act, in case a

person subject to Army Act commits any civil offence in that

eventuality criminal court as well as Court-Martial, both have

jurisdiction for enquiry and trial in respect of the said offence, in

such situation the Forum of trial of the army personnel is to be

decided by the officer commanding the army wherein accused is

serving and it is the discretion of the Commanding Officer for

taking decision whether such army personnel requires to be tried

by the Court-Martial, if it is decided to hold the trial by Court-

Martial, in such situation the accused as well as concerned case

should be transferred to the concerned Court-Martial of the

specific jurisdiction.

6. Learned counsel also submits that in view of Section

125 of the Act, on 26.08.2016, Mr. Ajay Kapoor, Captain,

Adjutant, on behalf of the Commanding Officer of the petitioner,

vide letter no. 15569488/RKC/FRI/A, intimated his decision that

the concerned authority requires to conduct the trial of the

petitioner, a military personnel, in military court i.e., Court-
Patna High Court Cr.Misc. No.23712 of 2017 dt.02-05-2018
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Martial. He further submits that again on 17.11.206, Mr. Rahul

A.Pawar, Lieutenant Colonel, Company Commander, of 104 Eng.

Regiment (PVC), Deepa Toli Cant. Ranchi, reiterated similar

request before the District Magistrate, Nawada by sending a letter

bearing No. 0066/324/18/A. Subsequently, Mr. Atul Bhardweaj

made a prayer before the Hon’ble the Chief Justice Patna High

Court for transfer of G.O.Case No. 372 of 2016 to the military

authority for conducting trial. Learned counsel submits that on

18.11.2016, the petitioner filed petition for transferring the case to

the military court at Ranchi but the same was rejected by the

learned Chief Judicial Magistrate, Nawada by the impugned order

without properly appreciating the provisions of law enumerated in

the Army Act for conducting trial in case of a military personnel

subject to the Act for committing any civil offence.

7. Learned counsel further refers to Section 475 of the

Code of Criminal Procedure, 1973 (hereinafter referred to as the

‘Code’) and submits that in exercise of powers conferred by the

court, the Central Government has made rules i.e., The Criminal

Courts and Court-Martial (Adjustment of Jurisdiction) Rules,

1978, wherever any dispute arises regarding the forum of trial in

case of a person subject to the Army Act with regard to trial by

Court-Martial or a criminal court, said rule is applicable and in a
Patna High Court Cr.Misc. No.23712 of 2017 dt.02-05-2018
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such situation the Magistrate is required to follow that rule in

proper cases to deliver the accused to the Commanding Officer of

the Unit for the purpose of trial by the Court-Martial and also

referring Rule 1636, learned counsel submits that after taking

cognizance by the court, the Magistrate requires to transfer the

case to Court-Martial.

8. Mr. S.D.Sajnay, learned Addl. Solicitor General,

representing O.P. No. 2, the Union of India, through Mr. Atul

Bhardwaj, Colonel Commanding Officer, 104 Engineering

Regiment (PVC), Ranchi, submits that the petitioner, being

military personnel in service, requires to be tried by Court-Martial

for committing alleged civil offence. A counter affidavit also has

been filed on behalf of the O.P. No. 2. The learned counsel further

submits that despite request made by the Commanding Officer to

the learned Chief Judicial Magistrate, Nawada for transferring the

case of the petitioner for putting him on trial before Court-Martial,

same was rejected erroneously without appreciating the facts on

record as well as ignoring the law applicable in the case of the

petitioner. He further submits that Excise Act does not oust the

jurisdiction of the Court-Martial as there is concurrent jurisdiction

of the Court-Martial as well as criminal court and the discretion in

the matter of selection of forum of trial lies to the Commanding
Patna High Court Cr.Misc. No.23712 of 2017 dt.02-05-2018
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Officer and it becomes mandatory to transfer the case to the Court-

Martial after decision taken by the competent authority i.e., the

Commanding Officer of the army personnel in this regard;

however, in the present case the Commanding Officer has taken

decision to put the petitioner on trial before the Court-Martial.

9. Learned counsel appearing on behalf of the State/O.P.

No., submits that trial may proceed also in the Special Court at

Nawada and placed reliance to a decision passed by order dated

21.06.2011 in Cr. Misc. No. 8540 of 2007 (Retd. Subedar Major

Anand Lal Sahani Ors. vs. The State of Bihar Ors.).

10. Having considered the rival submission and on

perusal of case record, the Court finds that the ratio decided in the

case of Retd. Subedar Major Anand Lal Sahani (supra) does not

apply in the present one. In that case, the military authority did not

choose to exercise its discretion opting for Court-Martial; whereas

in the case at hand such discretion has been exercised under

Section 125 of the Army Act, 1950. In the present case factual

aspect of the case is that petitioner being serving in the Indian

Army to the post of Lance Nayak in 104 Engineer

Regiment (PVC), Deepa Toli Cant. at Ranchi, his Commanding

Officer is the Colonel of the said regiment and accusation against

the petitioner is under Section 47(a) of the Bihar Excise
Patna High Court Cr.Misc. No.23712 of 2017 dt.02-05-2018
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(Amendment) Act, 2016 of carrying in total 20.250 liters of

foreign liquor in the State of Bihar, which constitutes an offence

under the aforesaid Excise Act. The petitioner, being a military

personnel, is subject to Army Act, 1950. The offence enumerated

under Chapter VI of the Act committed by a military personnel

subject to the Act is triable by the criminal court as well as by the

Court-Martial, so each court has got jurisdiction for enquiry and

trial in respect of offence committed by a military personnel. In the

present case, civil offence has been committed by the petitioner,

which includes the present offence under Section 47A of the

Excise Act. For the reason civil offence is defined in Section 3(c)

(ii) of the Act; according to which “civil offence” means an

offence which is triable by a Criminal Court. Section 69 of the Act

further elaborates the definition of the civil offence, which reads as

such:

“69. Civil offences.- Subject to the provisions of section 70, any
person subject to this Act who at any place in or beyond India
commits any civil offence, shall be deemed to be guilty of an
offence against this Act and, if charged therewith under this
section, shall be liable to be tried by a Court-Martial and, on
conviction, be punishable as follows, that is to say,-

(a) if the offence is one which wou8ld be punishable under any
law in force in India with death or with transportation, he shall
be liable to suffer any punishment, other than whipping,
assigned for the offence, by the aforesaid law and such less
punishment as is in this Act mentioned; and
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(b) in any other case, he shall be liable to suffer any punishment,
other than whipping, assigned for the offence by the law in force
in India, or imprisonment for a term which may extend to seven
years, or such less punishment as is in this Act mentioned.”

11. In view of definition of civil offence, if any person

subject to the Army Act commits any civil offence at any place in

India or beyond India is deemed to be guilty of an offence against

the Army Act and shall be liable to be tried by a Court-Martial and

on conviction also likely to be punished accordingly. The only

exception is the offence mentioned under Section 70 of the Army

Act, which reads as follows:

“70. Civil offences not triable by Court-Martial.- A person
subject to this Act who commits an offence of murder against a
person not subject to military, naval or air force law, or of
culpable homicide not amounting to murder against such a
person or of rape in relation to such a person, shall not be
deemed to be guilty of an offence against this Act and shall not
be tried by a Court-Martial, unless he commits any of the said
offences-

(a) while on active service, or

(b) at any place outside India, or

(c) at a frontier post specified by a Central Government by
notification in this behalf.”

12. According to this provision, a person subject to the

Army Act if commits an offence of murder or of culpable

homicide not amounting to murder or rape to a person not subject

to any military, naval or air force law, in such situation then the
Patna High Court Cr.Misc. No.23712 of 2017 dt.02-05-2018
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offence committed by the concerned military personnel is not

deemed to be guilty of an offence against this Act and shall not be

tried by a Court-Martial rather by criminal court, however, there

are three exceptions, if a military personnel commits aforesaid

three offence (i) while on active service, (ii) at any place outside

India, or (iii) at a frontier post specified by the Central

Government by notification in this behalf, in such a situation, he

shall be tried by Court-Martial.

13. In the case in hand, Sections 125 and 126 of the Act

are most relevant provisions, which read as such:

“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
proceeding 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 of any
alleged offence, 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
Patna High Court Cr.Misc. No.23712 of 2017 dt.02-05-2018
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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”.

14. In view of Section 125 of the Act, if any occasion

arises for considering the choice of the forum of trial i.e., Criminal

Court or Court-Martial in context of an offence committed by a

military personnel subject to the Army Act, in such situation, each

court has got jurisdiction, in other words the Criminal Court as

well the Court-Martial has got jurisdiction of inquiry and trial.

Further this section gives discretion to the officer commanding the

army where accused person is serving, to decide the forum for

initiating proceeding either before the criminal court or the Court-

Martial. If the Commanding Officer decides that proceeding be

initiated before a Court-Martial it becomes mandatory to initiate

the proceeding for trial before the Court-Martial.

15. Another relevant provision to be applied in the

present context is Section 475 of the Code, which reads as follows:

“475. Delivery to commanding officers of persons liable to be
tried by Court-martial.-(1) The Central Government may make
rules consistent with this Code and the Army Act, 1950 (46 of
1950), the Navy Act, 1957 (62 of 1957), and Air Force Act,
1950 (45 of 1950) and any other law, relating to the Armed
Forces of the Union, for the time being in force, as to cases in
which persons subject to military, naval or air force law, or such
other law, shall be tried by a Court to which this Code applies or
Patna High Court Cr.Misc. No.23712 of 2017 dt.02-05-2018
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by a 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 unit 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 a Court-martial”.

16. The Central Government is empowered to frame

rules under the said provision for determination of forum of trial

by a Court-Martial or criminal court for putting a military

personnel on trial for alleged offence defined under the Army Act.

17. In exercise of powers conferred by the Code, the

Central government has framed Criminal Courts and Court-

Martial (Adjustment of Jurisdiction) Rules, 1978 (hereinafter

referred to ‘Rules, 1978’). The rules provide the procedure to

resolve any dispute concerning the trial of the person subject to the

Army Act, whether such person is to be tried by Court-Martial or

a criminal court. If the forum of trial is not resolved and the

Magistrate seeks delivery of such person for trial before criminal

court or seeks stay of the proceedings against such person before

the Court-Martial, if proceeding already instituted there in such

situation requires to make a reference to the Central Government
Patna High Court Cr.Misc. No.23712 of 2017 dt.02-05-2018
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for determination as to the court before which the proceeding

should be instituted. Rule 1636 of the Rules, 1978 reads as such:

“[1636] Cognizance by Magistrate- Where a person subject to
military, naval, air force or coast guard law, is brought before a
magistrate and charged with an offence for which he is also
liable to be tried by a court martial or coast guard court, such
magistrate shall not proceed to try such person or to commit the
case to the court of session, unless:(i) he is moved thereto by a
competent military, naval, air force or coast guard authority; or

(ii) he is of opinion, for reasons to be recorded, that he should so
proceed or to commit without being moved thereto by such
authority.”

18. In view of this rule, there is no bar for taking

cognizance against by a Magistrate and to proceed to issue

summons to the accused after following the provisions contained

under Sections 200 to 204 in the Code. In similar manner, the

Magistrate may take cognizance on a police report under the Code

in respect of civil offence committed by a military personnel

subject to the Army Act. In other words, there is no bar in taking

cognizance by the Magistrate. However, after taking cognizance,

the Magistrate is required to follow the procedure contained in

Rules, 1978. The option as to whether the accused be tried before

the Criminal Courts or by a Court-Martial could be exercised only

after the police had completed the investigation and submitted

charge sheet. This provision cannot be invoked in a case where the
Patna High Court Cr.Misc. No.23712 of 2017 dt.02-05-2018
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investigation just started by the police against a police personnel

subject to the Army Act.

19. Rule 1637 of the Rules 1978 mandatorily requires a

Magistrate to give a written notice to the Commanding Officer or

the competent military, naval or air force authority, as the case may

be and until the expiry of a period of 15 days from the date of

service of notice, the Magistrate shall not either frame charges or

make over the case for inquiry, or commit the case for trial. In the

case at hand, letter dated 26.08.2016 was issued on behalf of the

Commanding Officer of the petitioner to the learned Chief Judicial

Magistrate, Nawada for instituting a proceeding before the Court-

Martial and followed by another letter issued by the Leutinent

Colonel, Company Commander addressed to the District

Magistrate, Nawada regarding decision of conducting the trial of

the Lance Nayak Ramesh Kumar Choudhary, petitioner, at military

court. The Commanding Officer also sent letter to Hon’ble the

Chief Justice, Patna High Court for transferring the case of the

petitioner to military court for trial.

20. In the backdrop of the fact, it is quite clear that in

view of Section 125 of the Act, the Commanding Officer of the

petitioner has already taken decision to put him on trial before a

court-martial, accordingly, intimated the decision to the learned
Patna High Court Cr.Misc. No.23712 of 2017 dt.02-05-2018
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Chief Judicial Magistrate, Nawada and other authorities. Section

125 of the Act gives discretion to the Commanding Officer in the

matter of choosing the forum of trial for selecting court martial or

not making such option then in such situation the proceeding will

continue before the criminal court. But in the present case,

discretion was exercised by the Commanding Officer to opt forum

of court-martial for putting the petitioner on trial. The law laid

down under Section 125 of the Act explicitly gives discretion to

the Commanding Officer for choosing the forum of trial in order to

exercise the choice of putting a military personnel for committing

civil offence between criminal court and Court-Martial. The

grounds mentioned by the learned Chief Judicial Magistrate in its

order dated 31.01.2017 is not proper. He refused to transfer the

case to Court-Martial on two grounds (1) that the offence relates to

Excise Act which is a special Act of the State of Bihar, and (2)

offence committed by the petitioner is offence only within the

territorial jurisdiction of the State of Bihar, which does not

constitute an offence in defence service. The order of the learned

Chief Judicial Magistrate is misconceived. A civil offence is

defined in the Army Act and according to Section 3(c)(ii), civil

offence means an offence which is triable by a criminal court.

Further, section 69 of the Army Act also deals with civil offence,
Patna High Court Cr.Misc. No.23712 of 2017 dt.02-05-2018
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already discussed in details in the preceeding paragraph. The

offence committed under the Excise Act is also triable by a

criminal court, so the said offence also comes within the purview

of civil offence which is also triable by the Court-Martial.

21. In the case of Major E.G.Barsay vs. State of

Bombay reported in AIR 1961 SC 1762, the Supreme Court has

analysed the provisions of the Army Act in the context of resolving

the issue relating to matter of choice for putting the army

personnel subject to the Army Act for trial either in criminal court

or before Court-Martial. The relevant paragraph of the decision are

as follows:

“18. To the scheme of the Act therefore is self-evident. It applies
to offences committed by army personnel described in S. 2 of
the Act; it creates new offences with specified punishments,
imposes higher punishments to pre-existing offences, and
enables civil offences by a fiction to be treated as offences under
the Act;n it provides a satisfactory machinery for resolving the
conflict of jurisdiction. Further it enables, subject to certain
conditions, an accused to be tried successively both by court-
martial and by a criminal court. It does not expressly bar the
jurisdiction of criminal courts in respect of acts or omissions
punishable under the Act, if they are also punishable under any
other law in force in India; nor is it possible to infer any
prohibition by necessary implication. Sections 125, 126 and 127
exclude any such inference, for they in express terms provide
not only for resolving conflict of jurisdiction between a criminal
court and a court-martial in respect of a same offence, but also
provide for successive trials of an accused in respect of the same
offence.

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19. Now let us apply this legal position to the facts of the case.
Under S. 52 of the Act, any person subject to the Act who
commits theft of any property belonging to Government or to
any military, naval or air force mess, band or institution or to
any person subject to military, naval or air force law, or
dishonestly misappropriates or converts to his own use any such
property, or commits criminal breach of trust in respect of any
such property, or does any other thing with intent to defraud or
to cause wrongful gain to one person or wrongful loss to another
person shall, on conviction by court-martial, be liable to suffer
imprisonment for a term which may extend to ten years or such
less punishment as is in the Act mentioned. Section 2(xxv) says
that all words and expression used but not defined in the Army
Act and defined in the Indian Penal Code shall be deemed to
have the meanings assigned to them in that Code. The section
does not create new offences, but prescribes higher punishments
if the said offences are tried by a court-martial. The appellant
and the other accused were charged in the present case, among
others, for having been parties to a criminal conspiracy to
dishonestly or fraudulently misappropriate or otherwise convert
to their own use the military stores and also for dishonestly or
fraudulently misappropriating the same. The said acts constitute
offences under the Indian Penal Code and under the Prevention
of Corruption Act. They are also offences under S. 52 of the
Army Act. Though the offence of conspiracy does not fall under
S. 52 of the Act, it, being a civil offence, shall be deemed to be
an offence against the Act by the force of S.69 of the Act. With
the result that the offences are triable both by an ordinary
criminal court having jurisdiction to try the said offences and a
court-martial. To such a situation Ss. 125 and 126 are clearly
intended to apply. But the designated officer in S.125 has not
chosen to exercise his discretion to decide before which court
the proceedings shall be instituted. As he has not exercised the
discretion, there is no occasion for the criminal court to invoke
the provisions of S. 126 of the Act, for the second part of S.
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126(1), which enables the criminal court to issue a notice to the
officer designated in S.125 of the Act to deliver over the
offender to the nearest magistrate or to postpone the proceedings
pending a reference to the Central Government, indicates that
the said sub-section presupposes that the designated officer has
decided that the proceedings shall be instituted before a court-
martial and directed in military custody. If no such decision was
arrived at, the Army Act could not obviously be in the way of a
criminal court exercising its ordinary jurisdiction in the manner
provided by law.”

22. In view of the discussions made hereinabove, as the

Commanding Officer of the petitioner has already exercised the

discretion of selecting the forum of putting the petitioner on trial

before the Court-Martial as per Section 125 of the Act and the

alleged offence committed by the petitioner is also triable by the

Court-Martial, accordingly hereby it is directed that the case

record of the petitioner be transferred to the Commanding Officer

of the petitioner for putting him on trial before the Court-Martial at

Ranchi.

23. The transfer application stands allowed.

(Arun Kumar, J)
sujit/-

AFR/NAFR AFR
CAV DATE 01.12.2017
Uploading Date 03.05.2018
Transmission Date 03.05.2018

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