D. D. SINHA, J. :- Heard Shri S.A. Jaiswal, learned counsel for the petitioner and Shri S.B. Ahirkar, learned counsel for the respondents.

2. Rule. Heard forthwith by consent of the learned counsel for the parties.

3. The question which arises for our consideration in the present writ petition is, "When the offence alleged to have been Committed by the Army Officer/ Personnel and cognizance thereof has already been taken by the competent Criminal Court, whether the Officer Commanding in view of section 125 of the Army Act is legally entitled to make a request to the Criminal Court to hand over the custody of the accused to the Army Authority as well as record of the criminal trial for conducting Court martial proceedings as per the procedures prescribed in this regard."

4. Mr. Jaiswal, the learned counsel for the petitioner has contended that in the instant case the petitioner is a military personnel. At the relevant time, the petitioner was attached to 333 Missile Brigade Military Cantonment, Kamptee, District Nagpur. It is submitted that on 8-12-2005 the Petitioner alleged to have committed the offence of murder and, therefore, after the First Information Report was lodged in the Police Station, Kamptee, the petitioner came to be arrested by the police. It is further contended that the cognizance was taken by the competent Criminal Court. It is further contended that the charge-sheet was also filed against the petitioner in the competent Criminal Court on 23-12-2005. Mr. Jaiswal, learned counsel for the petitioner, therefore, contended that once the cognizance is taken by the Criminal Court, it is not open for the Officer Commanding in view of section 125 of the Army Act or under any Rules applicable in this regard, to make a request to the Criminal Court for transfer of record of the case as well as handing over of the custody of the accused to the Military Authority for holding Court martial proceedings.

5. It is contended that in the instant case the request is made by the Officer Commanding after the cognizance is taken by the Criminal Court of the offence charged against the appellant and, therefore, at such a belated stage the Criminal Court should not have allowed the said request by passing the impugned order and, therefore, the same is unsustainable in law. In order to substantiate the contentions reliance is placed on the decision of the Supreme Court in the case of Union of India vs. Major S. K. Sharma, reported in 1987 Cri 1.1. 1912 as well as in the case of 10ginder Singh vs. The State of Himachal Pradesh, reported in AIR 1971 SC 500.

6. The learned counsel for the Union of India supported the impugned order passed by the Criminal Court. It is contended that in view of section 125 of the Army Act read with Scheme of section 475 of the Code of Criminal Procedure, the Officer Commanding has made a request to the Criminal Court to transfer the record of the criminal trial as well to hand over the custody of the petitioner who is an army personnel for conducting the Court martial proceedings. It is contended that in view of the said provision the Officer Commanding is entitled to make such request and, therefore, the order impugned is sustainable in law. In order to substantiate his contention, reliance is placed on the decision of the Rajasthan High Court in the case of Murari Lal vs. K. C. Aneja, reported in 1982 Cri. 1.1. 2082.

7. We have given conscious thought to the various contentions canvassed by the respective counsel. In the instant case, it is more or less not in dispute that the petitioner is alleged to have been involved in a criminal case and cognizance is taken by the Criminal Court.

8. The question involved needs to be considered in the light of the provisions of section 475 of the Code of Criminal Procedure, section 125 of the Army Act as well as in view of the Rules i.e. Criminal Code and Court Martial (Adjustment of Jurisdiction) Rules, 1952 for trial' of personnel subject to Military