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1996 (4) Crimes 276
KERALA HIGH COURT
N. Dhinakar. J.
Flag Officer -Petitioner
versus
Tiju Varghese -Respondent
Crl. M.C. Nos. 1456, 1678 & 1481 of 1996
Decided on 21-8-1996
Counsel for the parties:
For the Petitioner:Mr. C.C. Thomas. Advocate.
For the Respondent: M/s. T.V. Prabhakaran. S. Rajeev & M.M. Mathew. Addl. D.G.P.
IMPORTANT POINT
Unless & until the Criminal Court determines that there was a case for trial, issuance of notice by Magistrate u/s 475 Cr. P.C. will not arise, hence notice by Magistrate before charge-sheet is filed would be bad & premature.
Headnote:Criminal Procedure Code, 1973 - Section 475 r/w Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1978 - Rule 4 - Person charged with offence for which he was liable to be tried either by a Court under Cr. P.C. or by a Court-Martial- Magistrate to deliver accused to the Commanding Officer of military, naval or air force as the case might be - Stage at which Magistrate has to give a written notice to the Commanding Officer Notice before the final report is filed would be bad & premature.
Held: The language used in Section 475 Cr. P.C. is significant and refers to a person who "is brought before a Magistrate and charged with an offence" which means that he must be a person respecting whom the Magistrate had taken the proceedings and in respect of whom the Magistrate has found that there is a case for trial. It is only for that purpose Section 475. Crl. P.C. says that when such person is delivered to the Commanding Officer of the unit to which he belongs it will be "for the purpose of being tried by a Court martial. In my view, the notice under Rule 4 before the final report is filed is had and premature. (Para 8)
Further held: It is not in dispute that in the present case the stage has not been reached where the Court could determine that there is a case for trial which will automatically attract the relevant rules under the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978. The crime is still pending investigation and the possibility of the investigating agency referring the cases as mistake of fact cannot be ruled out. Even if it is assumed that the investigating agency will file a final report against the accused the Court on perusal of the materials collected during investigation may take the view that the materials so collected do not make out an offence against the accused. In my view, unless and until the Criminal Court determines that there is a case for trial issuance of a notice by the Magistrate as contemplated under R. 4 of the Rules does not arise. Section 475, Crl. P.C. says that when such person is delivered to the Commanding Officer of the unit to which he belongs it will be "for the purpose of being tried by a Court martial", and if he is so delivered a statement of the offence of which he is accused will also be delivered to the Commanding Officer. As the Supreme Court observed that the relevance of delivering such statement can easily be understood for it is to enable the authority to appreciate the circumstances in which a Court-martial is required by the law. At the risk of repetition it is to be stated that the investigation in the above crime is still pending and no report under Section 173. Crl. P.C. is filed for the Magistrate to determine that there is a case for trial. The case has not even reached the stage contemplated by R. 3 and in my view unless that stage is reached issuance of a notice by the Magistrate under R. 4 of the Rules is premature. (Para 10)
Result: Petition No. 1456 dismissed. No. 1678 allowed & No. 1481 disposed of accordingly.
ORDER
N. Dhhrakar, J.- The question that arises for consideration is the stage at which the Magistrate should give a written notice to the Commanding Officer or the competent military, naval or air force authority as contemplated under R. 4 of the Criminal Courts and Court' Martial (Adjustment of Jurisdiction) Rules, 1978. for short 'the Rules'.
2. Crl. M.C. 1456 of 1996 is filed by the Flag Officer Commanding in Chief Southern Naval Command. Kochi with a prayer to cancel the bail granted by this Court by Annexure-A order to respondents 1 and 2 (who will hereinafter in this order be referred to as accused 1 and 2) or in the alternative for a direction to the learned Judicial First Class Magistrate-1. Ernakulam to hand over the accused to the petitioner for the purpose of proceeding against them under the Navy Act. Crl. M.C. 1678 of 1996 is filed with a prayer to quash the order dated 11-7-1996 passed by the Judicial First Class Magistrate-I. Ernakulam, whereby he handed over the records and the 3rd accused in Crime No. 46 of 1996 registered at Harbour Police Station, Kochy to the petitioner in Crl. M.C. No. 1456 of 1996.
As the question that arises for consideration in both Crl. M.C. 1456 of 1996 and Crl. M.C. 1678 of 1996 is common propose to pass the following common order in the above two cases.
3. To decide the question raised in the above two petitions a few facts shorn off unnecessary details have to be summarised and they are as follows: Respondents 1 and 2 in Crl. M.C. 1456 of 1996 and one G.V. Koshy are accused in Crime No. 46 of 1996 which was registered at Harbour Police Station. Kochy for offences under Sections 457 and 380 read with Section 34. I.P.C. The above crime came to be registered on the basis of a first information statement laid by the Regulating Officer. I.N.S. Garuda. Southern Naval Command Kochi on 1-5-1996. The allegation in the said first information statement was to the effect that some computer components valued at about Rs. 1,55,000/- were stolen. Accused 1 to 3 were at the relevant point of time working as Artificer Apprentice in Naval Aeronautical Technical School. Naval Base Kochi.
4. Investigation in the above crime was taken up and accused 1 and 2 were arrested on 22-6-1996 at Mysore. On the basis of their statements admissible under Section 27 of the Evidence Act some of the stolen articles were recovered from Mysore under Mahazar and they were brought to Ernakulam and produced before the Judicial First Class Magistrate-I. Ernakulam. On 24-6-1996 the 3rd accused. Koshy was arrested from the Naval Base. Police custody was sought from the Court and obtained. All the three accused were later remanded to judicial custody upto 15-7-1996. On a statement made by the Assistant Public Prosecutor that the accused are likely to be tried by Court Martial the Judicial First Class Magistrate-I. Ernakulam issued notice to the petitioner in Crl. M.C. 1456 of 1996 as contemplated under R. 4 of the Rules asking him whether the accused person in the crime are req1;1ired for trial by a Court martial or not and adjourned the case to 12-7 -1996 awaiting reply from the petitioner for the said notice so issued by him. In the meanwhile on a petition filed by the accused 1 and 2 for bail this Court by Annexure-A order released accused 1 and 2 on bail as the prosecution had no objection in releasing them. This order under Annexure-A releasing accused 1 and 2 on bail was passed on 10-7-1996.
5. On 11-7-1996 the Commanding Officer in response to the notice issued by the Magistrate under R. 4 of the Rules informed the Magistrate by way of a letter expressing the willingness to try the accused by Court-martial. Thereafter, the Magistrate passed an order dated 11-7-1996 ordering the custody of the 3rd accused and the records in the crime number to the officer deputed by the petitioner in Crl. M.C. 1456 of 1996 with a further direction that the proceedings in the said crime will stand stayed in terms of R. 6 of the Rules.
