Judgment

DWIVEDI, J.:- The respondent, Lt. Col. S. K. Loraiya, is in the Army Service. In November-December, 1962, he was posted as Commander, 625, air Field Engineers, Tejpur. He was charged under S. 120B, Indian Panal Code read with S. 5 (1) (c) and (d) and S. 5(2) of the Prevention of Corruption Act and under Ss. 467 and 471, I.P.C. by the Special Judge, Gauhati, appointed under the Prevention of Corruption Act, in respect of the offence alleged to have been committed by him in November-December, 1962, as Commander, 625, Airi Field Engineers, Tejpur.

2. The trial started on June 7, 1966, but the charges were framed against him by the Special Judge on January 7, 1967. The respondent filed a revision against the framing of the charges in the High Court of Assam and Nagaland. The High Court allowed the revision and quashed the charges. Hence this appeal by the Delhi Special Police Establishment, New Delhi, by special leave under Art. 136 of the Constitution.

3. The High Court quashed the charges for two reasons : (1) The charges were framed by the Special Judge without following the procedure specified in the Rules made under S. 549 Cr. P. C., and (2) the trial was held in the absence of a sanction by the appropriate authority under S. 196 A (2) of the Code of Criminal Procedure in respect of the offences under S. 5 of the Prevention of Corruption Act. The High Court took the view that such sanction was essential as the offence under S. 5 of the Prevention of Corruption Act is a non-cognizable offence.

4. Counsel for the appellant has submitted that both the reasons given by the High Court are erroneous. Taking up the first reason first, S. 5 (1) (b) of the Criminal Law Amendment Act, 1966 could not give exclusive jurisdiction to the Special Judge, Gauhati to try the respondent. It is true that the trial started against him on June 7, 1966. but the charges were framed on January 7, 1967, i.e. long after June 7, 1966. Section 5 (1) (b) does not apply where charges are framed after June 7, 1966. So, prima facie both the ordinary criminal court and court-martial have concurrent jurisdiction to try the respondent for the aforesaid offences. And S. 549 (1), Cr. P. C. applies to such a situation. The material part of S. 549 (1) reads :

"The Central Government may make rules consistent with this Code and the Army Act....as to the cases in which persons subject to military law....shall be tried by a court to which this Code applies or by a courtmartial : 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 appropriate cases deliver him, together with a statement of the offence of which he is accused, to the commanding officer of the regiment, corps....or detachment to which he belongs or to the commanding officer of the nearest military.....station for the purpose of being tried by Court-martial."

5. The Central Government has framed under S. 549 (1), Cr. P. C. rules which are known as the Criminal Courts and Courts Martial (Adjustment of Jurisdiction) Rules, 1952. The relevant rule for our purpose is rule 3. It requires that when a person subject to military, naval or air force law is brought before a Magistrate on accusation of an offence for which he is liable to be tried by a court-martial also, the Magistrate shall not proceed with the cases unless he is requested to do so by the appropriate military authority. He may, however, proceed with the case if he is of opinion that he should so proceed with the case without being requested by the said authority. Even in such a case, the Magistrate has to give notice to the Commanding Officer and is not to make any order of conviction or acquittal or frame charges or commit the accused until the expiry of 7 days from the service of notice. The Commanding Officer may inform the Magistrate that in his opinion