1. Petitioner, who is an Army Personnel, was put to trial for his involvement in a case under Section 320/120-B, 121/122/123 RPC and Section 26/27 of the Arms Act. The challan was presented by the police on 16.4.2002 in the court of Munsiff Judicial Magistrate 1st Class, Mendhar. On presentation of challan, the same was committed to the Court of Principal Sessions Judge, Poonch, which was competent court to try the case. The trial seems to have remained pending for a period of five years and during the course of trial, statements of 13 witnesses have been recorded.

2. By order dated 13.09.2007, the learned Sessions Judge, Poonch set aside the committal order dated 16.4.2002 by holding that it was contrary to the provisions of Section 549 of the Code of Criminal Procedure and Rules 3 & 4 of the J&K Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1983. After setting aside the said-order, the Magistrate was directed to proceed under Section 549 Cr. P.C and rules made thereunder.

3. On receipt of the file, learned Judicial Magistrate, vide his order dated 21.09.2007, directed the Commanding Officer of 7th JAK RIF, Mirah Sahib, to exercise the option in terms of Section 549 Cr. P.C by or before 4.10.2007. It seems that no response was given by the Commanding Officer. The proceedings, as such are struck before the Magistrate.

4. The petitioner has applied for bail under Section 498 Cr. P.C. before this court. He claims that due to the failure on the part of Magistrate to take note of the provisions of Section 549 Cr. P.C. and Rules 3 & 4 of the J&K Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1983, the proceedings are continued in violation of aforementioned statute. Resultant effect of the same was that trial conducted by the Principal Sessions Judge Poonch was nullity. In nutshell, contention of the petitioner is that he cannot be made to suffer for the wrong committed by the Judicial Magistrate and his prolonged incarceration, without any trial being conducted, entitles him to grant of bail.

5. The petitioner has also contended that he is not involved in the aforementioned case. The FIR did not mention his name. He was introduced only after two days of the registration of FIR. His specific case is that on 10th of May, 2001, he was in Jabalpur and had taken over the charge of the Provision shop of Jai Jawan Institute from L/Nk Madan Lal on 10th of May 2001. He could not have reached Mendhar on 12th May, 2001, which is said to be the date of occurrence. His further contention is that reliance has been placed on the statements of four children of the deceased, which have been recorded one month after the occurrence. It is also stated that none of the prosecution witnesses, who were examined between 12th and 14th of May, 2001, have mentioned the name of the petitioner.

6. I have heard learned counsel for the petitioner and perused the record.

7. Failure of the Magistrate to take notice of the rules (supra) has resulted in the delay of the proceedings. Even though, act of the court prejudiced none, but at the same time, the prolonged detention of the petitioner without concluding the trial is a ground which would weigh in the mind of the court in rejecting or granting the bail.

8. There is no dispute that trial has to be commenced afresh in respect of the FIR registered in May, 2001 and petitioner continues to remain in detention. The direction of the Principal Sessions Judge, Poonch to Judicial Magistrate, Mendhar to proceed in accordance with rules mentioned herein above has been set in motion by the said Magistrate. He has to issue notice to the Commanding Officer interms of aforementioned Rules.

9. The Magistrate has again committed an error in sending the notice to the Commanding Officer of unit. In terms of Section 125 of the Army Act read with Rules 3 & 4 of the Jammu and Kashmir Criminal Courts Martial (Adjustment of Jurisdiction Rules) 1983 the Commanding Officer would mean an officer co

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