The central legal point established is that when a military personnel is charged with an offence, the Magistrate must follow the procedure mandated by Section 475 Cr. P.C. and the Army Act 1950, and record reasons if exercising discretion under Rule 3(b) of the Rules.

1. This revision case is based on a letter addressed by the II Additional Assistant Sessions Judge, Kozhikode. Few facts need mentioning. 2. A case under Section 306 I.P.C. was filed against two accused and of them the second accused is a person working in the Army. The learned Magistrate committed the case to the Court of Session and the same was made over to the II Additional Assistant Sessions Judge by the Sessions Judge, Kozhikode. It is stated that the second accused, who is a military personal, committed an offence while he was on leave. When the accused was produced before the Magistrate, the Magistrate was not appraised of the fact that the second accused is a military personal and as such the learned Magistrate, thinking him to be a civilian, committed him to take his trial before the Sessions Court. On receipt of the records, the learned Additional Sessions Judge entertained a doubt as to the legality of the order of committal as one of the accused is a military personel. As the learned Sessions Judge was of the view that the committal was illegal, he has addressed a letter to the registry as stated above.

3. Section 475 Cr. P.C. recognises the rule making power of the Central Government consistent with the Criminal Procedure Code and the Army Act 1950 (Act 46 of 1950), the Navy Act, 1957 (62 of 1957), and the Air Force Act, 1950 (45 of 1950) and any other law relating to the Armed Forces of the Union, for the time being, in force, as to cases in which persons subject to military, naval or air force law, or such other law, shall be tried by a Court to which this code applies or by a Court-martial. Section 475 further contemplates that whenever a person is brought before the Magistrate and charged with an offence for which he is liable to be tried either by a Court to which the Code applies or by a court-martial, such Magistrate shall in conformity with the rules and in proper cases deliver him, together with a statement of the offence of which he is accused, to the Commanding Officer of the unit to which he belongs, or to the Commanding Officer of the nearest military, naval or air force station, as the case may be, for the purpose of being tried by a Court martial. The Central Government, in exercise of the powers under Section 475(1) of the Cr. P.C. has framed Rules in the Criminal Courts and Courts Martial (Adjustment of Jurisdiction) Rules, 1978. Rule 3 reads as follows :-

"3. Where a person subject to military, naval or air force law, or any other law relating to the Armed Forces of the Union for the time being in force is brought before the Magistrate and charged with an offence for which he is also liable to be tried by a Court-martial, such Magistrate shall not proceed to try such person or to commit the case to the Court of Session, unless -

(a) he is moved thereto by a competent military, naval or air force authority; or

(b) he is of opinion, for reasons to be recorded, that the should so proceed or to commit without being moved thereto by such authority."

A combined reading of Section 475 and Rule 3 makes it clear that when a person subject to military, naval or air force law or any other law relating to the armed force of the Union is brought before a Magistrate and charged with an offence, then such Magistrate shall not try to proceed against such person or to commit the case to the Court of Session unless the Commanding Officer is moved by the Magistrate. Section 125 of the Army Act contemplates that when there is a concurrent jurisdiction on a criminal Court and a Court martial, it shall be in the discretion of the officer commanding the army, army corps, 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. Section 126