This is an application for quashing the order dated 21.11.2011 passed by the learned Sub-Divisional Judicial Magistrate, East Muzaffarpur in Complaint Case No. 09 of 2004, Trial No. 849 of 2011 rejecting the application dated 12.08.2010 filed by the petitioner under Section 475 of the Code of Criminal Procedure for delivering him to the Commanding Officer of the Unit to which the petitioner belongs, i.e. to the Commanding Office INS ANGRE, Shahid Bhagat Singh Road, Mumbai for the purpose of Court Martial.

2. The petitioner is sub-lieutenant in Indian Navy in defence service under the Commanding Officer of INS, ANGRE, Shahid Bhagat Singh, Road, Mumbai.

3. The prosecution case as alleged in the Complaint Case No. 09 of 2004 is that the complainant had purchased 0.07 acre of land from Smt. Shobha Devi through a sale deed dated 29.11.2003 and came in possession of the same since the date of purchase and he had sown wheat crop in the field. The accused persons started destroying the wheat crop by digging the earth and when the informant went there and protested, the accused persons abused him and asked as to how did he dare to get sale deed executed from his Mausi and started assaulting him with slaps and fists. They kept the complainant in confinement for about half an hour. They destroyed the wheat crop and ridged the field causing loss of about Rs.2,000/- and snatched a Titan wrist watch worth Rs.900/- from the complainant and also snatched cash Rs.450/- from the complainant.

4. On the complaint, the case proceeded after taking cognizance, process issued and even evidence before charge has been recorded and at the stage of framing of charge a petition under Section 475 Cr.P.C. was filed.

5. However, the petition was filed under 475 Cr.P.C. on 12.08.2010 before the S.D.J.M. East Muzaffarpur by the petitioner that the notice be sent to the Commanding Officer of the Unit in Indian Navy in which the petitioner is in service in INS, ANGERA, Shahid Bhagat Singh Road, Mumbai 40023.

6. The Magistrate after hearing the parties rejected the petition filed under Section 475 Cr.P.C., on the ground that the evidence before framing the charge has been recorded. The case has been fixed for framing of the charge. Since the place of occurrence of the present case is under Drai Police Station in the District of Muzaffarpur under jurisdiction of this Court so this case does not come under Section 475 Cr.P.C. and the Court of learned S.D.J.M., East Muzaffarpur is quite competent to try the case, hence, the petition filed by the petitioner under Section 475 Cr.P.C. was rejected.

7. The petitioner has challenged the order rejecting his petition under Section 475 Cr.P.C. before this Court by filing the present petition under Section 482 Cr.P.C.

8. Learned counsel for the petitioner submits that Section 475 of the Code of Criminal Procedure as well as the Rules 3 and 4 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 provides that the Magistrate taking cognizance shall not proceed with the case unless the appropriate Commanding Officer in Indian Navy in which the petitioner is in service is noticed for his option to try the case by Court-martial or not.

9. Learned counsel for the informant, however, contended that the Magistrate has also jurisdiction to try the case if the trial of the petitioner before the Magistrate shall not prejudice the case of the petitioner.

10. Hence, the question for consideration whether the Magistrate can proceed with the case without notice to the Commanding Officer of Indian Navy in which the petitioner is in service.

11. Now I proceed to consider the Scheme of the Navy Act, 1957 for person in Indian Navy.–

Section 2 of the Navy Act, 1957 defines persons subject to naval law as a person belonging to Indian Navy during the time he is liable for service or on active service Section 3(1) defines “active service” means service or duty. Section 3(3) defines “civil offence” means an offence triable b