- (1.) Heard Mr. Raj Kumar Singh, learned Counsel for the Petitioner as well as Sri Rajendra Kumar Dwivedi, learned Additional Government Advocate for the State.
(2.) The Petitioners have challenged the order impugned dated 23.2.2011, passed by the Additional Chief Judicial Magistrate-Vth, Court No. 29, Lucknow, whereby the Petitioners' application for transfer of case for trial to the Armed Forces Tribunal has been rejected on the ground that in the matter the charge-sheet has already been filed and the Court has taken cognizance of the offences, therefore, now it cannot be transferred to the Tribunal.
(3.) Learned Counsel for the Petitioners invites the attention of the Court towards the provisions of Section 475 of the Code of Criminal Procedure, which speaks for delivery of the case to commanding officers of persons liable to be tried by Court-martial. Section 475 of the Code of Criminal Procedure is extracted here below: 475. Delivery to commanding officers of persons liable to be tried by Court- martial.--(1) The Central Government may make rules consistent with this Code and the Army Act, 1950 (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; and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which this Code applies or by a Court- martial, such Magistrate shall have regard to such rules, and shall 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. Explanation.--In this section-- (a) unit" includes a regiment, corps, ship, detachment, group, battalion or company, (b)" Court- martial" includes any tribunal with the powers similar to those of a Court- martial constituted under the relevant law applicable to the Armed Forces of the Union. (2) Every Magistrate shall, on receiving a written application for that purpose by the commanding officer of any unit or body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavours to apprehend and secure any person accused of such offence. (3) A High Court may, if it thinks fit, direct that a prisoner detained in any jail situate within the State be brought before a Court- martial for trial or to be examined touching any matter pending before the Court- martial.;