1. Petitioners are facing trial under sections 376/458/342 RPC before the 2nd Additional District and Sessions Judge, Jammu. An FIR No. 47/1998 came to registered with the Police Station, Mandi, Poonch against the petitioners who are the members of the armed force. At the time of registration of the case, petitioners were working under the Brigade Command, Poonch. After registration of the case, report under section 173 was presented before the Chief Judicial Magistrate, Poonch on 19-4-1999. A notice was issued on 2-6-1999 by the Chief Judicial Magistrate, Poonch to the Commanding Officer under whose unit the petitioners were working, seeking option from him, whether the accused are required to be tried by the court martial or by the civil court. Another notice by Way of reminder was sent on 5-6-99 to the Commanding Officer for exercising his option.

2. On 28-6-1999, a communication is stated to have been sent by the Commanding Officer, Satish Dua to the court whereby he communicated that the accused be tried by the criminal court. After having received the communication from the Commanding Officer, the trial commenced before the Chief Judicial Magistrate, Poonch.

3. The case was committed by the Chief Judicial Magistrate, Poonch to the Court of Sessions. The Principal District and Sessions Judge, Poonch commenced the trial after committal order was made by Chief Judicial Magistrate, Poonch. A transfer application was filed by the petitioners before the court seeking transfer of the file from Poonch to any court of competent jurisdiction at Jammu. The case stood transferred to 2nd Additional District and Sessions Judge, Jammu. Application was filed by the petitioners before the 2nd Additional District and Sessions Judge, Jammu seeking dropping of proceedings against the petitioners on the ground that the present trial was being conducted in violation of section 125 of the Army Act. The court after hearing the petitioners, has dismissed the aforesaid application vide its order dated 8-1-2005. It is under these circumstances that the present revision has been preferred by the petitioners.

4. I have heard the learned counsel for the parties.

5. It is not in dispute that the petitioners belong to armed force and were working in Poonch Brigade at the time of occurrence. The Brigade is headed by the Brigadier. The petitioners are governed by the Army Act and the rules made thereunder. On the basis of FIR registered with the Police Station, Mandi, accused could be tried either by the criminal court or by the court martial. In order to invoke the jurisdiction of the criminal court, certain provisions of the Army Act are required to be observed. Relevant provision is section 125 of the Army Act. For facility of reference, section 125 of the Army Act is quoted herein below:

"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 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."

6. The import of the aforesaid section reveals that where there is concurrent jurisdiction of the criminal court and the court martial in respect of offence, discretion has to be exercised by the officer commanding the army, army corps, division or independent brigade in which the accused persons are serving or such other officer as may be prescribed. The Act contemplates that such discretion has to be exercised only by the persons who are indicated hereinabove. Section 126 of the Army Act is other provision, which is required to be observed for determining the present controversy. The act relates to a situation where th

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