Ashutosh Kumar, J.

The present petition under section 407 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) has been filed at the instance of the Commanding Officer, Headquarters, Recruiting Zone, Danapur Cantt., Patna, challenging the order dated 22.04.2017, passed by the learned Additional Chief Judicial Magistrate, Danapur (Patna) in connection with Shahpur P.S. Case No. 19 of 2017, dated 28.01.2017, instituted for the offences under Sections 420, 467, 468, 471/34 of the Indian Penal Code, whereby the prayer made on behalf of the petitioner for transferring the case of the newly added opposite party Nos. 3 and 4 (serving Army personnel) from the Ordinary Criminal Court to the Military Court, to be tried under the Army Act, 1950 (hereinafter referred to as the Army Act), has been refused.

2. A written report was submitted by opposite party No. 2, Sub-Inspector of Police, Shahpur Police Station on 28.01.2007, alleging that five named accused persons along with others were attempting to sabotage the appointment process in the Indian Army by arranging for fake documents and certificates for the purposes of such appointment, at the instance of the applicants. On the basis of the aforesaid written report, a case vide Shahpur P.S. Case No. 19 of 2017, as referred to above, was registered for investigation.

3. A petition was filed by opposite party No. 2 on 30/31.01.2017 before the learned court below seeking issuance of warrant of arrest against opposite party Nos. 3 and 4, as it was urged that sufficient materials had been collected against the aforesaid two opposite parties. One Munna Singh had disclosed the names of opposite party Nos. 3 and 4 in his confessional statement regarding their involvement in the occurrence.

4. It was in this context that on 27.03.2017, an application was preferred by the petitioner under section 475 of the Cr.P.C., 1973 read with section 125 of Army Act, before the learned Additional Chief Judicial Magistrate, Danapur (Patna), seeking transfer of the case of opposite party Nos. 3 and 4, both of whom being serving Army personnel, and committing them to the Commanding Officer for them to be tried by the Military Court in accordance with the Army Act.

5. The aforesaid prayer has been rejected by the order impugned on following two grounds, viz. (i) the offences do not pertain to the Army Act and (ii) no Rules in that regard have been framed by the Central Government as contemplated under section 475 of the Cr.P.C., 1973 and section 125 of the Army Act.

6. Mr. Kumar Priya Ranjan, learned Advocate appearing for the petitioner has submitted that both the aforesaid grounds are erroneous as the learned court below was not correct in saying that such a prayer could be made only with respect to offences relating to the Army Act and not civil offences and that Rules with regard to transfer of the case of the Army personnel from the Ordinary Criminal Court to Military Court has already been framed which is known as the Criminal Courts and Court-martial (Adjustment of Jurisdiction) Rules, 1978 (hereinafter referred to as the Rules).

7. As opposed to the aforesaid contention raised on behalf of the petitioner, Md. Aslam Ansari, learned Additional Public Prosecutor has submitted that such a prayer could have been made by the petitioner only after charge-sheet in the case had been submitted by the investigating agency and the provisions of section 125 of the Army Act and section 475 of the Cr.P.C., 1973 do not get attracted when the investigation is continuing/pending.

8. section 2 of the Army Act describes different categories of Army personnel, who are subject to the Army Act. A civil offence has been defined under Section 3 (ii) of the Army Act as an offence which is triable by Criminal Court and the Criminal Court, in turn, has been defined under Section 3 (viii) of the Army Act as a Court of Ordinary Criminal Jurisdiction in any part of India.

9. An offence under the Army Act means