Judgment

VAIDIALINGAM, J.:- In this appeal on certificate issued by the Delhi High Court, the appellant who is governed by the Army Act, 1950 (hereinafter referred to as the Act) challenges the legality of his trial and conviction for an offence under S. 376 I.P.C. by the Assistant Sessions Judge, Nahan.

2. The main attack levelled against the proceedings is that the material provisions of the Army Act read with the Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1952 (hereinafter referred to as the Rules) framed by the Central Government under S. 549 (1), Cr. P.C. have not been complied with by the Assistant Sessions Judge. The prosecution case is briefly as follows:

3. The appellant was a military personnel attached to Punjab Regiment No. 24, which moved to Nahan on March 3, 1967. The appellant was a Lance Naik and was appointed as a temporary Granthi of the Katcha- Johar temple used by the military personnel. One Jiwa Nand with his wife and children was living close by the temple. On March 8, 1967 at about 8.30 a.m. Gayatri " Devi aged about 10 years and daughter of Jiwa Nand was called by the appellant and when she came near him she was taken inside the adjoining room where the appellant had forcible sexual intercourse with her. The victim narrated the occurrence to her mother and sister. When Gayatri Devi, her mother and certain others were proceeding towards the Cantonment to complain to the military authorities, they met 4 or 5 Sikh gentlemen and Gayatri Devi pointed out the appellant in that group as the one who had misbehaved with her. The Sikh gentlemen, who were in military uniform declined to permit Gayatri Devi and others to go inside the Cantonment area on the ground that the entry into the same was prohibited to non-military personnel. Later on the father of Gayatri Devi took her to the police station and lodged a report Ex. 12/A. The accused pleaded alibi and denied the offence. He also let in defence evidence. The learned Assistant Sessions Judge accepted the prosecution case and disbelieving the plea of the appellant convicted him of the offence under S. 376 I. P. C. and sentenced him to three years rigorous imprisonment. The appeal filed by the appellant was dismissed by the learned Sessions Judge, who confirmed the conviction and sentence.

4. The appellant filed a criminal revision No. 26 of 1968 before the Delhi High Court, challenging his conviction and sentence passed by the learned Assistant Sessions Judge and as confirmed by the learned Sessions Judge. The learned Chief Justice before whom the criminal revision came for hearing held that the conviction of the appellant for the offence under S. 376 I.P.C. and the sentence imposed on him by the two subordinate courts on facts were justified and did not require any interference. However, a plea was taken before the learned Chief Justice on behalf of the appellant that according to a notification issued by the Ministry of Defence, Government of India dated November 28, 1962, the appellant on the material date must be considered to have been on active service. Based on this notification it was further urged that the appellant s trial should have been before a Court Martial and that if the Assistant Sessions Judge decided to proceed with the trial, he should have given the required notice to the Commanding Officer of the Army as is mandatory under S. 126 (1) of the Act read with R. 4. As those provisions have not been complied with, the appellant s trial and conviction were illegal and null and void. The learned Chief Justice was, however, inclined to take the view that the omission by the Assistant Sessions Judge to follow the procedure indicated above does not affect his jurisdiction to conduct the trial.

5. In view of certain decisions of the High Courts wherein an opinion has been expressed that non-compliance with the provisions of the Act and the Rules vitiates the trial of a military personnel by the criminal courts, the learned C