SEWA RAM NAGIAL Vs. GENERAL OFFICER COMMANDING 39 INFANTRY DIVISION

JUDGEMENT

(1.) THIS is a petition filed under Section 126 of the Army Act, 1950. The petition was sought to be filed in the Court of the Chief Judicial Magistrate, Dharamsala, but as at that time the judicial officer had proceeded on promotion and the office was temporarily vacant the petition was presented before the learned Sessions Judge, Kangra at Dharamsala, who directed the petitioner to this Court.

(2.) THE petition come on for admission before a Bench of this Court on July 23, 1976, and the Bench directed issue of notice to the respondents to show cause why the petition should not be admitted. No order was made directing service of notice on Shri H. S. Thakur, who had entered appearance on July 23, 1976, as counsel for the respondents. It appears that copies of the petition and the process fee were not furnished within time by the peritioner, and therefore, time was allowed afresh for supplying the copies and furnishing the process fee. Notice was directed to be made returnable by August 30, 1976. This petition has been listed before us today for admission, It is apparent that the date for return of notice directed to the respondents has not been reached, but learned Counsel for the petitioner has been anxious to argue the petition on the merits for the purpose of admission in the desire to obtain an interim order. It is stated that today's date has been fixed by the General Court-martial for hearing the address of the accused officer, and that the trial has reached its concluding stage. In the circumstances, we have decided to hear the petition for the purpose of admission, without waiting for the return of notice.

(3.) THE preliminary question before us is whether the petitioner is entitled to apply under Section 126 of the Army Act. Section 125 of the Act provides that 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, 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. The case of the petitioner is that the offences charged against the petitioner fall within the jurisdiction both of the criminal court and a court-martial. The requisite military authority contemplated by Section 125 decided to hold a court-martial proceeding against the petitioner, and, as is apparent from the record, the proceedings have reached a stage when the trial has almost concluded. The petitioner applies under Section 126 of the Act and contends that this is a case where the criminal court should direct the military authorities to hand-over the petitioner to the nearest Magistrate to be proceeded against according to law. Section 126 (1) provides that when a criminal court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged offence, it may, by written notice, require the officer referred to in Section 125 at his option, either to deliver over the offender to the nearest Magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central Government. It is apparent that in the first instance the criminal court should be of opinion that the proceedings should be instituted before it in respect of an alleged offience against the accused and it is only after it has reached such opinion that it will make the request for delivery of the offender or a reference contemplated by Section 126.