Mohd. Hamid Hnsain, J. - (1.) THIS Criminal Misc. Application No. 4094 of 1978 under Section 482 of the Code of Criminal Procedure, has been filed by Sri G. D. Mukharji for quashing the proceedings of the Criminal Case No. 33 of 1978 under Section 307 IPC pending enquiry in the court of the Judicial Magistrate, City (1), Allahabad on the ground that the applicant was a Lt. Commander in the Indian Navy and is not subject to the jurisdiction of the Magistrate and the case against him should be tried by a court-Martial in accordance with the provisions of the Navy Act, 1957 and the rules called the Criminal Courts and Court-martial (Adjustment of Jurisdiction) Rules, 1952.
(2.) THE facts giving rise to this petition are that the applicant was residing in House No. 91, Jawahar Lal Nehru Road, Sohbatia Bagh, within Police Station Daraganj, in the city of Allahabad, which belongs to his father. A portion of the house was occupied by some tenants in respect of which some proceedings under the Rent Control and Eviction Act took place which gave rise to strained relations between the applicant and the other occupants of the house. It is alleged that an ugly situation developed on 1-10-1977 when G. D. Mukharji fired shots from his revolver, according to him in self-defence and according to the .complainant Shyam Lal Tewari in an attempt to kill Shyam Lal Tewari, resulting in injuries to two persons. Counter-reports in respect to the incident were lodged with the police by the applicant and complainant Shyam Lal Tewari. On the basis of the report lodged by Shyam Lal Tewari after investigation the police submitted a charge-sheet against the applicant on the basis of which the Magistrate took cognizance and Criminal Case No. 33 of 1978 was registered and was pending enquiry. The applicant has claimed that since he was a Naval Officer he was governed under the Navy Act, 1957 and could only be tried for the civil offence by a Court- Martial. The Judicial Magistrate City, Allahabad by a notice enquired from the Naval authorities if they proposed to try the applicant before a Court-Martial. The Magistrate was informed that the Naval authorities did not intend to try the applicant by a Court- Martial since the applicant had been placed on the retired list with effect from 20th August, 1978. Thereafter the Magistrate proceeded with the case. The applicant then filed this application under Section 482 CrPC for quashing the proceedings, and by order of this Court dated 13-6-78 notice was issued and further proceedings were stayed. Shyam Lal Tewari has filed his counter- affidavit contesting the claim of the applicant to be tried by a Court- Martial. The application of Shyam Lal Tewari for being impleaded as a party in his application was allowed on 30-10-78. Rejoinder affidavit has also been filed. The applicant G. D. Mukharji has been heard in person. On behalf of complainant Shyam Lal Tewari, Sri H. M. Srivastava and Sri G. P. Dikshit, learned counsel, have been heard. The affidavit, counter-affidavit and rejoinder affidavit of the parties have been perused.
(3.) THE immunity claimed by the applicant to be tried by the Magistrate on the ground that he belongs to the Navy and was entitled to be tried by a Court-Martial is not open to the applicant for two reasons : (1) that after retirement the applicant cannot be deemed to be in the naval service ; and (2) that the naval authorities have declined to try the applicant by Court-Martial because the applicant has retired. Section 2 (1) of the Navy Act, 1957 provides :- "(1) THE following persons shall be subject to Naval law wherever they may be, namely :- (a) every person belonging to the Indian Navy during the time that he is liable for service under this Act.'' Section 3 of the said Act provides : - "In this Act, unless the context otherwise requires,- (1) 'active service' means service or duty- (3) 'civil offence' means an offence triable by a Court of ordinary criminal jurisdiction in India. (6) 'Court-Martial' means a Court- Martial constituted under ,this Act." Section 77 of the Navy Act, 1957 provides :- "(1) Every person subject to Naval law who commits a civil offence punishable with death or with imprisonment for life shall be punished with the punishment assigned for that offence. (2) Every person subject to Naval law who commits any other civil offence shall be punished either with the punishment assigned for the offence or with imprisonment for a term which may extend to three years or such other punishment as is hereinafter mentioned. " Section 80 of the Navy Act, 1957 provides as under ; "When any offence mentioned in this Chapter has been committed by any person while subject to Naval law and such person has since the commission of the offence ceased to be subject to Naval law, he may be taken into and kept in custody, tried and punished under this Act for such offence in like manner as he may have been taken Into and kept in custody, tried and punished if he had continued subject to Naval law : Provided that he shall not be tried for such offence except in the case of an mutiny or desertion, unless the trial against him commences within six months after he has ceased to be so subject." In this background of the provisions of the Navy Act, 1957 it is to be seen whether the applicant can claim to be tried under the Naval Regulations by a Court-martial. In the instant case the Judicial Magistrate City, Allahabad sent by Registered Post, AD a notice dated 4-4-1978 under Section 4 of the Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1952 addressed to Lt. Col. S. S. Yadav, N. C. C. Headquarter, Chatham Lines, Allahabad, to enquire if the Naval authorities desired to proceed with the case under Section 307 IPC against the applicant pending in his Court. Lt. Col. S. S. Yadav by letter No. CONF/98/GDM/ HQ-86 dated 10-4-78 informed the Judicial Magistrate that the Naval Headquarters did not intend to take over the case for trial under the Navy Act 1957, and the proceedings in the case may be carried on by the Magistrate according to Civil Law. An intimation No. Dl/1753/27 dated 13-4-78 addressed to the Judicial Magistrate was received from the Naval Head Quarters, New Delhi, to the following effect which is Annexure 3 of the counter affidavit of Shyam Lal Tewari: "TRANSFER OF MILITARY PERSONNEL FOR TRIAL COURT MARTIAL LODR G. D. MUKHERJEE. "Sir, 1. I am to refer to your letter 7/ 9_4-76 dated 5th April 7S and to state that Indian Navy does not intend to take over the case for trial by Court-Martial. 2. THE officer has been placed on a retired list with effect from 20th Aug. 78 and at present he is on leave pending retirement. Yours faithfully, Sd/- S. K. Mandal Commander-at-Arms, Dy. Director (Discipline) & Dy. Provost Marshal (Navy), For Chief of the Naval Staff. It is not denied by the applicant that he has retired from the Navy. In fact, after retirement the applicant has enrolled himself as an Advocate of this Court and had appeared in this Court at the hearing of this application adorning the band and gown of an Advocate which the applicant took down at the time of arguing this application in person.;