The provisions of Section 549 of the Code of Criminal Procedure and the Criminal Courts and Court-martial (Adjustment of Jurisdiction) Rules, 1952, are mandatory and must be strictly complied with in order for a Magistrate to have jurisdiction to try a member of the Indian Army for an offence.

( 1 ) THIS Rule was issued upon a revisional application made on behalf of the petitioner, Awadh Behari Singh, who has been convicted by a Magistrate, 1st Class at Siliguri for an alleged offence under Section 9 (a) of the Opium Act and sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs. 1,000 in default, to undergo rigorous imprisonment for six months. That order of conviction and sentence was affirmed on appeal by the learned Sessions Judge of Jalpaiguri-Darjeeling.

( 2 ) THE petitioner Awadh Behari Singh, a member of the Indian Army being a Company Commander of the rank of a Naik in the 9th Grenadiers (Mewar ). He was arrested in a military compartment while he was travelling by the railways and was produced before the Magistrate at Siliguri on 29th of March, 1962. Allegations against him were that on search of his beddings in the military compartment, a packet containing about eleven seers of contraband opium was found for which he had no licence. On being produced before the Magistrate, the accused was granted bail of rupees 25,000 with two sureties of Rs. 12,500 each. By order dated the 12th of April, 1962, the learned Magistrate reduced the amount of bail to Rs. 15,000 with two sureties of Rs. 7500 each. The bail bond on the record shows that he availed of the bail and was enlarged on 12-4-1962. On the 3rd of May, 1962, however, the learned Magistrate on seeing a report of Major Maurice, C. O. 9th Grenadiers (Mewar) directed the sureties to produce the accused on the next date and on the 7th of May, 1962, when he was produced, the Magistrate took him into custody and made an order for handing up the accused to the nearest military battalion. The accused was, in fact, made over to the military authorities on their request only on the 4th of September, 1962. In the meantime, on 4th of July, 1962, investigation was completed and a charge sheet had been submitted before the Magistrate alleging offence under Section 9 (a) of the Opium Act and on the 3rd August, 1962, the case was transferred for disposal, obviously, under Section 192 of the Code of Criminal Procedure to a learned Magistrate Shri Bose. The Magistrate after examining two witnesses for the prosecution framed charge against the accused under Section 9 (a) of the Opium Act, 1878, as amended by Act III of 1957. The case was tried by taking evidence and he was convicted by the trial Magistrate on 23rd of August, 1963, and sentences were passed as have been mentioned already.

( 3 ) AGAINST that order of conviction and sentence, an appeal was taken to the court of session. At the hearing of that appeal, a point was taken by the lawyer representing the accused based on Section 549 of the Code of Criminal Procedure. The learned Sessions Judge by his order dated the 23rd July, 1964, kept the appeal pending in his court and directed the Magistrate to take additional evidence for proving certain documents which, we will mention later. In compliance with that order, the Magistrate took additional evidence and forwarded those to the court of session. Thereafter, the appeal was heard by learned Sessions Judge other than the learned Sessions Judge who had made the order for taking additional evidence.

( 4 ) THE point based on Section 549 of the Code of Criminal Procedure in connection with which the additional evidence was directed to be taken in the court of appeal was that the Magistrate had no jurisdiction to try the case as he had failed to comply with the provisions of Section 549 of the Code of Criminal Procedure. To meet that point, the prosecution proved as additional evidence two letters, one exhibit 5 and another exhibit 12, the former being a letter written by the Deputy Commissioner of Excise, (Excise Intelligence Bureau, West Bengal.), to the Officer Commanding, 9th Grenadiers Unit. By that letter dated 31st March, 1962, exhibit 5, the Deputy Commissioner of Excise made enquiries about the rank etc. of the accu