The main legal point established in the judgment is that the discretion to try a person subject to the Navy Act, who commits an offence while on active services, lies with the Naval Authorities, and the Criminal Court should not proceed to try such a person without giving notice to the Commanding Officer of the accused.

JUDGMENT :

1. Rule. Rule made returnable forthwith with the consent of the learned Standing Counsel for the applicant.

2. Heard Mr. Mahesh Amonkar, the learned Standing Counsel for the applicant.

3. Inspite of service, respondent nos. 2 and 3, chose to remain absent and therefore, the matter is being proceeded.

4. The present revision application is filed by Commanding Officer, INS Hansa, Dabolim being aggrieved by the order dated 14.11.2019, passed by the Judicial Magistrate First Class, 'B' Court (JMFC) at Vasco da Gama in Criminal Case No. 71/S/2018/B. By this order, the application of the applicant was rejected, thereby the Court refused to transfer the criminal case referred above to the Navy Court for trial under the Navy Act, 1957 in terms of Section 78 of the Navy Act read with Section 475 of the Criminal Procedure Code, 1973 (Cr.P.C., for short) and Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978.

5. It is submitted that respondent nos. 2 and 3 are serving Indian Navy and are subject to Navy Act. It appears that there is one complaint against respondent nos. 2 and 3 registered at Vasco Police Station for having committed offence punishable under Section 279, 504, 506(ii) read with Section 34 of IPC and Section 134(b) and 186 of the Motor Vehicles Act. After investigation, charge sheet was filed.

6. The applicant on 30.08.2019 made a confidential application for transfer of the said criminal case for trial under the Navy Act. The learned JMFC instead of independently deciding the application, sought reply from the prosecution. The application was opposed by the prosecution on the ground that respondent nos. 2 and 3 would require to prove that they are in active service of Navy.

7. The learned JMFC rejected the prayer of the applicant for transfer of Criminal Case No. 71/S/2018/B on the ground that the offence for which the respondent nos. 2 and 3 have been charged does not fall into the category of the type of offence for transferring of the case to the Naval Court. It is submitted that the impugned order is erroneous, bad in law and is liable to be quashed and set aside.

8. It is submitted that the learned JMFC failed to appreciate the legal provisions under the Cr.P.C., Naval Law and Rules under the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978. The learned Standing Counsel also relied on judgment dated 28.10.2013 in Criminal Revision Application No. 328/2013 passed by Bombay High Court in the case of Union of India Vs. State of Maharashtra.

9. For proper consideration of facts, it would be necessary to see the relevant provisions of Rule 3,4,5 and 6 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978, which read as under:

“3. Where a person subject to military, naval or air force law, or any other law relating to the Armed Forces of the Union for the time being in force is brought before a Magistrate and charged with an offence for which he is also liable to be tried by a Courtmartial, such Magistrate shall not proceed to try such person or to commit the case to the Court of Session, unless—

(a) he is moved thereto by a competent military, naval or air force authority; or

(b) he is of opinion, for reasons to be recorded, that he should so proceed or to commit without being moved thereto by such authority.

4. Before proceeding under clause (b) of rule 3, the Magistrate shall give a written notice to the Commanding Officer or the competent military, naval or air force authority, as the case may be, of the accused and until the expiry of a period of fifteen days from the date of service of the notice he shall not-

(a) convict or acquit the accused under section 252, sub-sections (1) and (2) of section 255 sub-section (1) of section 256 or section 257 of the Code of Criminal Procedure, 1973 (2 of 1974), or hear him in his defence under section 254 of the said Code; or

(b) frame in writing a charge against the accused under section 240 or sub-sectio