Yogeshwar Dayal, J.

( 1 ) THIS is a petition by Sepoy Sulakhan Singh of 20 Punjab Regiment, Fazilka for quashing orders filed as Annexures d e and f to the writ petition. Annexure d is the Charge-sheet as well as orders of the Officiating General Officer Commanding directing the trial of the petitioner by General Court Martial for an offence under Section 302 Indian Penal Code.

( 2 ) THE petitioner was charged along with three others for committing murder of Hav. Lekh Ram on the night of 2/4/1983 and 3/4/1983 by causing his death. Annexure e is the finding of the Court Martial finding the petitioner, Sulakhan Singh as guilty of the charge. The finding was announced subject to confirmation, and was awarded the sentence of imprisonment for life and also to be dismissed from the service. Annexure f is the order of confirmation dated 19/5/1984 confirming the finding and sentence dated 4/2/1984. The appeal against the confirmation of conviction and sentence was dismissed by the Authority on 6/3/1986.

( 3 ) THE aforesaid findings and sentence have been challenged on the following three gounds :-

(1) That the Magistrate who took the cognizance of the case initially acted illegally in handing over the petitioner to the Army Authority for trial by order dated 23/7/1983. It is submitted that this order of the Magistrate handing over the accused to the Army Authorities was illegal in as much as the Magistrate did not exercise his mind and is bound by the Rules framed under Section 475 of the Code of Criminal Procedure, 1973. In the alternative all the Rules framed by the Central Government are ultra-vires Section 475 of the Code of Criminal Predure, 1973.

(2) The trial by the Court Martial was against the principle of natural justice in as much as Army Authorities were assisted by legally trained person whereas the petitioner was not provided assistance of a legally trained person well versed in the law of crimes and the Military law.

(3) That the finding and the sentence by the General Court Martial vitiated in view of the possible illegality in the address of Judge Advocate General while making submissions before the Court Martial.

( 4 ) COMING to the first point, it will noticed that Sections 125 and 126 of the Army Act, 1950 provide as under :-

"125. Choice between Criminal Court and Court-Martial :-When a criminal court and a court martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer commanding the army, army corpos, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which court the proceedings shall be instituted, and, if that officer decides that they should be instituted before a court martial, to direct that the accused person shall be detained in military custody.

126. Power of criminal court to require delivery of offender- (1) When a criminal court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged offence, it may. by written notice, require the officer referred to in Section 125 at his option, either to deliver over the offender to the nearest Magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central Government. (2) In every such case the said officer shall either deliver over offender in compliance with the requisition, or shall forthwith refer the question as to the court before which the proceedings are to be instituted for the determination of the Central Government, whose order upon such reference shall be final. "

( 5 ) SECTION 475 of the Code of Criminal Procedure, 1973 provides as under:-

"475. (1) The Central Government may make rules consistent with this Code and the Army Act, 1950, the Navy Act, 1957, and the Air Force Act, 1950, and any other law, relating to the Armed Forces of the Union, for the timebeinginforce,astocasesin which persons subject to military, nav

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