JUDGMENT - KHANDEPARKAR R.M.S., J.:---Heard the learned Advocates for the parties.

2. Rule. By consent, the rule is made returnable forthwith.

3. The petitioner by the present petition seeks to quash the judgment and Order dated 16th September, 2003 passed by the Additional Sessions Judge, Baramati, whereby the petitioner has been held quality of having committed rape and has been punished under section 376 r/w 506 of Indian Penal Code. The challenge is on the ground that the Court below did not comply with the mandatory provisions of section 475 of the Criminal Procedure Code, 1973, here-in-after called as "the said Code".

4. It is the contention of the petitioner that he was wrongly shown as agriculturist inspite of the fact that the petitioner was in active military service as army personnel being Non-Commissioned Officer and thereby the proceedings were held in the Sessions Court in accordance with the provisions of the said Code even though in accordance with the provisions of Army Act, 1950 (hereinafter called as "the said Act") read with section 475 of the said Code the petitioner was required to be prosecuted by the Court Martial and therefore, the Court below ought to have handed over the petitioner to the Commanding Officer of Army rather than trying the petitioner itself. Having failed to hand over the petitioner to the Commanding Officer, the Court below has acted in breach of the statutory provisions contained in section 475 of the said Code and the provisions of the said Act, thereby rendering its judgment to be a nullity.

5. Section 475(1) of the said Code reads thus:-

"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 the 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 person subject to military, naval or air force, law, or such other law, shall be tried by a Court to which this Code applies or 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.

Explanation.-In this section

(a) "Unit" includes a regiment, corps, ship, detachment, group, battalion or company,

(b) "Court martial" includes any Tribunal with the powers similar to those of a Court martial constituted under the relevant law applicable to the Armed Forces of the Union.

6. Plain reading of the above quoted provision discloses that section 475 of the said Code has two parts. The first part deals with the rule making power of the Central Government relating to military personal for their trial either by the Court to which the Court applies or by the Court martial under the said Act. The second part deals with the powers of the Court to which the said Code applies to try the army personnel, except in those cases where they are required to be tried by Court martial under the said Act. Accordingly whenever an army personnel who is subject to the army law in force is accused of commission of a criminal offence, is brought before the Court to which the said Code applies and there are rules framed by the Central Government in relation to the trial of such personnel, then the Court shall have regard to such rules and in proper cases, wherein the jurisdiction to try such personnel vests exclusively with Court martial under the said Act shall deliver such personnel to the commanding officer of

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