The main legal point established in the judgment is that the notice under Rule 4 before the final report is premature, and the stage contemplated by Rule 3 must be reached before the issuance of a notice by the Magistrate under Rule 4 of the Rules.

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 Rule 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-I, Ernakulam to hand over the accused to the petitioner for the purpose of proceeding against them under the Navy Act.

3. 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, Kochi, to the petitioner in Crl. M.C. No. 1456 of 1996.

4. As the question that arises for consideration in both Crl. M.C. 1456 of 1996 and Crl. M.C. 1678 of 1996 is common, I propose to pass the following common order in the above two cases.

5. To decide the question raised in the above two petitions 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, Kochi, for offences under Section 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.

6. 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 up to 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 Rule 4 of the Rules asking him whether the accused persons in the crime are required 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 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 Annexure-A releasing accused 1 and 2 on bail was passed on 10-7-1996.

7. On 11-7-1996 the Commanding Officer in response to the notice issued by the magistrate under Rule 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 Rule 6 of the Rul