JUDGMENT

THAKKAR, J. :— The validity of the trial of three Army Officers is in question.

2. The High Court has taken the view that the learned Judge presiding over the Special Court had acted without jurisdiction in taking cognizance of the case and proceeding with the trial of three Army Officers resulting in the conviction of one of them, and the acquittal of the remaining two and has quashed the proceedings. The question which calls for determination in these two allied appeals by special leave preferred by the State of West Bengal is whether the High Court was right in doing so.

3. The following facts are not in dispute :

(1) Three accused persons who were tried by the Judge presiding over the Fourth Addl. Special Court, Calcutta (hereinafter referred to as the learned Trial Judge for the sake of brevity) were Army Officers. They were charged with offences in respect of which the ordinary Criminal Court and the Court-martial both had concurrent jurisdiction.

(2) The learned Trial Judge had failed to follow the procedure prescribed by the Criminal Courts, and Court-martial (Adjustment of Jurisdiction) Rules, 1952 (referred to as Rules hereinafter) framed under S. 549(1) of the Code of Criminal Procedure 1898 (Cr. P.C.)

4. The following contentions were urged before the High Court on behalf of the State with a view to substantiate the contention that the learned Trial Judge had jurisdiction to take cognizance of the case and that the trial was not null and void notwithstanding the fact that the procedure prescribed by the Rules had not been followed.

(1) The rules framed under S. 549(1) of Cr. P.C. were not attracted inasmuch as the rules applied to Magistrates and not to a Judge presiding over a Special Court.

(2) Having regard to the provision contained in S. 122 of the Army Act, 1950, which prescribes a period of limitation of three years, which period had already elapsed during the pendency of the proceedings in the High Court, the Court-martial would have no jurisdiction to try the accused and that the trial held by the learned Trial Judge could not be said to have been vitiated in view of this circumstance.

(3) In view of a letter addressed by the Brigadier of the Division concerned to the Police Officer for investigating the offences, it can be said by necessary implication that the Army authorities had opted for the trial of the case by the ordinary Civil Court.

5. The High Court repelled all the three contentions, allowed the appeal of the officer who was convicted, and dismissed the appeal of the State calling into question the acquittal of the remaining two.

6. Besides reiterating the same three contentions before this Court, learned counsel for the appellant has raised a new point which was not urged before the High Court. We propose to deal with the submissions which were urged in the High Court before coming to grips with the new point sought to be raised by the learned counsel for the appellant State.

7. For a proper appreciation of the first point, a quick look at the statutory provisions and the position emerging therefrom is called for. In regard to the offences which fall within the purview of S. 70 of the Army Act of 1950 an offender can be tried only by Court-martial whereas in regard to offences falling within the purview of S. 52 of the said Act, the offences can be tried both by the ordinary criminal Court as also by the Court-martial both of which have concurrent jurisdiction. The offences with which the concerned accused were charged before the learned Trial Judge were offences which fell within the scope of S. 52 of the Army Act of 1950 and accordingly the ordinary criminal Court as also the Court-martial had concurrent jurisdiction. In order to avoid any conflict of jurisdiction between the criminal Court and the Court-martial in regard to offenders who are charged with having committed offences which fall under the purview of S. 52 of the Army Act, 1950, S. 549(1)*1 of Cr. P.C. provides that Central Governm