The main legal point established in the judgment is the authority of the military, naval, or air force authorities in deciding whether the accused should be tried by a Court Martial, as well as the circumstances under which a Magistrate is required to deliver the accused to the naval authorities for trial by Court Martial.

JAGANNADHA RAO, C.J.

This Writ Appeal is preferred against the judgment of the learned single Judge dismissing the Writ Petition by judgment dated 16-7-1992 in O. P. No. 8863 of 1992-E.

2. The appellant-writ petitioner is a Regulating Petty Officer (Air Crew Diver) of INS, Venduruthy, southern Naval Command. He had 15 years of service, and opted for voluntary retirement. He was to be relived on 28-3-1992 at Bombay, and before going to Bombay he was to be relieved from his unit on 28-3-1992. But in respect of an incident which took place on 29-3-1992, he has taken into custody on 30-3-1992 by the naval authorities. Thereafter his wife filed a habeas corpus application, O.P. No. 4550 of 1992, to get him released from the custody of the Naval authorities. The said Writ Petitioner was finally heard by a Division Bench of this Court had was disposed of by judgment dated 24-4-1992. While refusing to issue a writ of habeas corpus, the learned Judges directed the naval authorities' to complete the investigation and trail and dispose of the matter in accordance with law as expeditiously as possible, at any rate within two months from the date of the judgment.'

3. Subsequently, the Commodore Franklin, Commanding Officer of the Southern Naval Command wrote a letter to the Addl. Divisonal Magistrate of First Class, Ernakulam seeking transfer of the case of the detenu to the Commanding Officer, INS Venduruthy, for trail under the Navy Act, 1957, and in accordance with the provisions of Section 78 of the navy Act, 475 of the Cr.P.C. and the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 hereinafter called 'the Rules' Pursuant to the said request of the naval authorities, the Magistrate made over the detenu to the naval authorities by endorsement dated 15-5-1992. Thereafter the naval authorities took over the trail of the case, and conduct investigation in May, 1992. The detenu was charged with three offence and was brought before the Officer-in-charge, Diving School. Later, the Officer-in-charge put up the case before the Commanding Officer as it was beyond his powers to try. The accused was brought before Commanding Officer, INS Venduruthy and the summary trail of the sailor by the Commanding Officer was commenced. The Commanding Officer examined witnesses in support of the charges, in the presence of the accused. The accused was given opportunity to cross-examine the witnesses. On completion of examination of witnesses, the Commanding Officer warned the accused in terms of Regulation 28 and the sailor was given an option to make a statement, if he so desired. This was on 22-5-1992. Thereafter on 27-5-1992, the sailor was given an option by the Commanding Officer in terms of Regulation 30 of Regulations, Navy Part II of to elect trail by Court Martial. In view of the sailor exercising the option to be tried by Court Martial, the Commanding Officer ordered investigation on 29-5-1992 of the case afresh as required by Regulation 149 of Regulations, Navy Part II. Thereafter on 30-5-1992 the sailor was released from close custody, but was required to report to Guard Room at certain specified timing. On 10-6-1992 the investigating Officer started de novo investigation of the case, as per Regulation 149, Regulation, Navy Part II, above referred to, and examined 18 witnesses. On completion of the investigation, the Investigating Officer submitted his report to the Commanding Officer on 10-6-1992. Thereafter, the Commanding Officer formulated the charge, the accused was formally brought before the Commanding Officer and charges were read out to him. He was then cautioned in terms of Regulation 151 of Regulations, Navy Part II. This was on 12-6-1992. Thereafter on 15-6-1992, the Commanding Officer put up the application for trail by Court Martial and accompanying documents to the Flag Officer Commanding-in-chief Southern Naval Command. Thereafter on 19-6-1992, the case was examined at Headquarters, Southern Na