Hon'ble Pankaj Naqvi,J.

Heard Sri Anurag Singh, learned counsel for the applicants and the learned A.G.A.

This application under Section 482 Cr.P.C has been filed for quashing the proceedings of Charge-sheet dated 18.8.2014, in Criminal Case No.5063/2014 (State vs. Rohit Sharma and others) under Sections 323, 354, 504, 506 IPC, P.S. Outpost G.R.P. Anwargang, Kanpur Nagar.

Background facts are as under:-

1. An FIR came to be registered on an application under Section 156 (3) Cr.P.C as Case Crime No.6/2014 by O.P. No.2 against the applicants, namely, Rohit Sharma, Mohit Sharma and Mohil Sharma, (all brothers, of whom, applicant no.3/Mohil Sharma claims to be a Combatant Member, posted at No.23, Squadron, Air Force, Suratgarh), alleging misbehaviour and act of obscenity with the wife of O.P. No.2/the informant, who hurled abuses and robbed her of cash, while travelling in a train. After investigation, a charge-sheet against the applicants under Sections 323/354/504/506 IPC was submitted, on which the Magistrate on 6.9.2014 took cognizance of the offences.

2. Learned counsel for the applicants submitted that as applicant no. 3 / Mohil Sharma was subject to the provisions of The Air Force Act, 1950 (short "the Act") and the Rules framed thereunder, the cognizance stands vitiated qua him as it was not preceded by any notice/intimation to his superior authority in terms of Section 124/125 of the Act, Section 475 Cr.P.C and in particular Rule 3 framed thereunder. He relied on the decisions of the Apex Court in the cases of Union of India vs. Major S.K. Sharma, AIR 1987 SC 1878, Som Datt v. Union of India, AIR 1969 SC 414, General Officer Commanding Rashtriya Rifles vs. Central Bureau of Investigation and another, (2012) 6 SCC 228 & Delhi Special Police Establishment, New Delhi vs. Lt. Col. S.K. Loraiya, AIR 1972 SC 2548.

3. Sri Vimlendu Tripathi, learned A.G.A after placing reliance on Major S.K. Sharma (supra) contended that the stage set forth in Section 475 Cr.P.C r/w Rules 3, 4, 5 of 1978 Rules along with Sections 124/125 of the Act would arise only at a stage when the accused is brought before the Magistrate for the purposes of framing charges/committal for being tried and not prior thereto. He thus submits that no illegality could be attributed to the cognizance.

4. The seminal issue which falls for consideration is, in the event of conflict of jurisdiction between a court-martial and an ordinary criminal court, at what stage the power of Section 475 of the Code r/w Rule 3 of 1978 Rules is to be exercised by the Magistrate.

5. Before examining the issue, it would be appropriate to have a resume of the relevant provisions of the Air Force Act, the Code and the Rules framed thereunder.

6. The applicant is subject to the Air Force Act and the Rules framed thereunder. Section 4 (XII) defines "Civil Offence" to mean an offence triable by a criminal court. The term "offence" is defined under Section 4 (XXII) to mean any act or omission under this Act and includes a civil offence as hereinbefore defined. Thus, the definition of the term "offence" is comprehensive enough to include not only an act or omission, punishable under the Act but also includes a "civil offence". Chapter VI of the Act relates to offences, in which Sections 34 and 35 relate to offences in relation to the enemies and punishable with death. Section 36 relates to offence of active service than at other time. Sections 37 to 65 relate to various categories of offences not relevant to the present case. Section 71 provides that "civil offence", subject to the provisions of Section 72 committed by a person subject to the Act in India or outside, shall be deemed to be guilty of an offence against the Act and if party shall be liable to be tried by court-martial and on conviction, be punishable with the sentences specified thereunder. Section 72 relates to civil offences not triable by a court-martial. Section 72 manifests that when a subject of the Act commits