Holding

When a magistrate has taken cognizance of an offence and found a prima‑facie case against a military officer, the Army authority must proceed to try the officer by Court‑Martial or take other effectual proceedings and cannot conduct a separate preliminary inquiry.

Summary

The case arose when Major S.K. Sharma complained before a Judicial Magistrate that Colonel Ali and Brigadier Randhawa had assaulted him, leading the Magistrate to take cognizance under the Criminal Procedure Code and issue summons. The Union of India moved to have the matter transferred to the Army authorities for disposal by Court‑Martial, arguing that the Army Act and Rules did not require a mandatory Court‑Martial and that a preliminary inquiry could be held. The Magistrate ordered transfer to the Army with a requirement that progress be reported periodically. The High Court modified the reporting requirement, and the Union of India appealed to the Supreme Court. The Court held that once a magistrate has taken cognizance and found a prima‑facie case, the Army authority cannot ignore that proceeding or conduct a separate inquiry; it must either try the accused by Court‑Martial or take other effectual proceedings as mandated by Section 475 of the Cr.P.C. and the 1978 Adjustment Rules. Consequently, the appeal was dismissed.

Issues considered

Whether the Army authority can conduct a preliminary Court of Inquiry and decide the existence of a case for trial after a magistrate has taken cognizance under the Criminal Procedure Code.
Whether the transfer of a case to the Army for trial by Court‑Martial is mandatory once a magistrate has found a prima‑facie case.
Whether the magistrate can direct periodic reporting of the Court‑Martial proceedings to the civil court.

Legislation cited

Army Act, 1950s. 124, s. 125, s. 127
Army Rules, 1954s. 177, s. 22
Code of Criminal Procedure, 1973s. 190, s. 200, s. 201, s. 202, s. 203, s. 204, s. 475, s. 5, s. 6
Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978

Subjects

Military lawCourt‑Martial jurisdictionCriminal Procedure CodeArmy ActPreliminary inquirySection 475Double jeopardyCivil‑military jurisdiction conflict

Judgment

A UNION OF INDIA THROUGH MAJOR GENERAL
H.C. PATHAK
v.
MAJOR S.K. SHARMA

JUNE 29, 1987
B
[R.S. PATHAK, CJ AND V. KHALID, J.]

Criminal Procedure Code, 1973-S. 475-Read with ss. 200 to
204 of the Code, and the provisions of the Army Act, 1950 and the
Army Rules-When a Magistrate has taken cognizance of an offence
C committed by a member of the Armed Forces and thereafter transferred
the case for trial under the Army Act and the Rules, it is not open to the
Competent Authority to hold an inquiry for determining whether there
-
is any case for trying the accused-It must proceed to hold the Court
Martial or take such other 'effectual proceedings' as is contemplated by
r. 7( I) of the Criminal Courts and Court Martial (Adjustment of Juris-
D diction) Rules, 1978.

An officer in the Army filed a complaint before a Magistrate '(
alleging that another officer has assaulted him, that the Commanding
Officer to whom he had complained earlier had failed to take satis-
factory action and thus both of them had committed offences under the
E Indian Penal Code. The Magistrate examined the complainant under
s. 200 Cr. P.C., took cognizance of the offences under s. 190(A) and, on
being satisfied of the existence of a prima facie case, issued summons
under s. 204(A) for the appearance of the accused. Upon applications j_ ..._
being made by the appellants urging that the case be handed over to the
Military Authorities for disposal, the Magistrate made an order direct-
F ing that the case be transferred to the Army Authorities for disposal in ~
accordance with the provisions of the Army Act, 1950 after trial by a
Court Martial at any place within the jurisdiction of his Court and that
the progress of the case be reported to him at intervals of two months.
Upon the appellants making further applications praying for review of
the said order on the ground that under the Army Act and the Army
G Rules, it was not mandatory that all disciplinary cases against military
personnel should culminate in a trial by Court Martial and submittingL
that the disciplinary action against the officers concerned would be'\
initiated after an investigation of the alleged offences, the Magistrate,
pointing out that the judicial process for ascertaining the prima facie
existence of a case had already been completed, held that the trial of the
H accused by Court Martial was mandatory under s. 475 Cr. P.C. and,
456
U.0.1. v. S.K. SHARMA 457

~ therefore, it was not permissible for the Army Authorities to hold a
A
preliminary investigation. However, having regard to s. 127 of the
Army Act, the Magistrate directed that the progress of the case be
intimated at intervals of fo•1r months. in the Revision filed by the appel-
lants, the High Court interfered with the order of the Magistrate in-
sofar only that it deleted the direction requiring the Army Authorities
to inform the Magistrate of the progress of the case ·at intervals of four B
~ months and directed instead that the result of the Court Martial pro-
ceeding be communicated to the Magistrate, as soon ·as may be, in
)..- accordance with r. 7 of the Criminal Courts and Court Martial (Adjust-
ment of Jurisdiction) Rules, 1978.

- Dismissing the appeal by Special Leave,
c
~· HELD: The Army Authority is not entitled to ignore the proceed-
ing taken by the Magistrate and to invoke the provisions of r. 22 and
related rules of the Army Rules. The Magistrate having held that there
is a case for trying the two accused officers and having directed their
appearance, the Army Authority must proceed to hold a Court Martial D
'y for their trial or take other effectual proceedings against them as con-
templated by the law. [468G-H]

(i) It is open to a Magistrate under ss. 200-203, Cr. P.C. to
inquire into a complaint of an offence alleged to have been committed
by a military person, where it falls within his jurisdiction and to take E
.Ac proceedings for trial of the accused. Likewise, a duly constituted Army
~~Authority has power under the provisions of r. 22 onwards of the Army
Rules to investigate into a charge against a military person accused of
an offence triable under the Army Act, and after such hearing to decide
~ whether his trial by a Court Martial should be ordered. The provisions
of the Army Rules run parallel to the provisions in the Cr. P.C. In- F
asmnch as there is always a possibility of the same offence being triable
either by a Criminal Court or by a Court Martial, s. 475, Cr. P.C.
empowers the Central Government to make rules as to cases in which
persons shall be tried by a Court to which the Code applies or by a
Court Martial, and the section provides that whenever a person is
brought before a Magistrate and charged with an offence for which he is G
ITiable to be tried either by a Court to which the Code applies or by a
Court Martial, such Magistrate must have regard to such rules and
must, in proper cases, deliver the person together with a statement of
the offence of which he is accused, to the Commanding Officer of the
unit to which he belongs for the purpose of being tried by a Court
Martial. The language used ins. 475 is significant. It refers to a person H
458 SUPREME COURT REPORTS [1987) 3.S.C.R.

A who "is brought before a Magistrate and charged with an offence." In ~
other words, he must be a person respecting whom the Magistrate has
taken the proceedings envisaged by ss. 200 to 204 of the Code. He will
be a person in respect of whom the Magistrate has found that there is a
case for trial. It is for that reason that s. 475 goes on to say that when
such person is delivered to the Commanding Officer of the unit to which
B he belongs, it will be "for the purpose of being tried by a Court Mar·
tial". When he is so delivered, a statement of the offence of which he is,~
accused will also be delivered to the Commanding Officer. The rele-
vance of delivering such statement can be easily understood, for it is to -...i
enable the Army Authority to appreciate the circumstances in which a

c
Court Martial is required by the law. [464C·D; 465E·H)

(ii) It is clear from r. 7(1) of the Criminal Courts and Court
-
Martial (Adjustment of Jurisdiction) Rules, 1978 framed under s. 475 ~
of the Cr. P.C. that when the accused is made over by the Magistrate
under s. 5 or 6 thereof to the competent military or other authority, it is
for the purpose of trial by a Court Martial or other "effectual proceed-
D ings" to be taken or ordered to be taken against him inasmuch as the
competent authority must, as soon as may be, inform the Magistrate, ....;
whether the accused has been tried by a Court Martial or other
effectual proceedings have been taken or ordered to be taken against
him and the communication of such information is mandatory. When
the Magistrate is informed that the accused has not been tried or other
E effectual proceedings have not been taken or ordered to be taken
against him, he is obliged to report the circumstances to the State
Government and the State Government, in consultation with the Cen·.:A -
tral Government, may take appropriate steps to ensure that the accused
person is dealt with in accordance with law. The policy of the law is
clear. Once the Criminal Court determines that there is a case for trial, :...
F and pursuant to the aforesaid rule, delivers the accused to the compe·
teut military or other authority, the law intends that the accused must
either be tried by a Court Martial or some other effectual proceedings
must be taken against him. [467B· EI

(iii) The policy of our Constitutional Polity is that no person
G should be regarded as being above the law. Military, navel ot air fore~
personnel are as much subject to the law as members of the civil popul3'"°
tion. It is significant that r, 8 of the Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules, 1978 empowers the Magistrate, on
coming to know that a person subject to the military, naval or air force
law or any other law relating to the Armed Forces has committed an
H offence and proceedings in respect of which ought to be instituted
U.0.l. v. S.K. SHARMA 459

....j before him and that the presence of such person cannot be procured A
except through military, navel or air force authorities, to require the
Commanding Officer of snch person either to deliver such person to a
Magistrate for being proceeded against according to law or to stay the
proceedings against such person before the Court Martial if since
instituted, and to make a reference to the Central Government for
determination as to the Court before which the proceedings should be B
,._ instituted. [467G·H; 468A·B]

(iv) Section 127 of the Army Act provides that a person convicted
or acquitted by a Court Martial, may, with the previous sanction of the

- Central Government, be tried against by a Criminal Court for the same
offence or on the same facts which is an exception to the rnle contained
in Art. 20 of the Constitution that no person shall be prosecuted and
c
punished for the same offence more than once. It is to enable the opera·
tion and application of s. 127 of the Act that r. 7(1) of the Criminal
Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978
requires the competent military or other authority to inform the Magis·
Irate whether the accused has been tried by a Court Martial or other D
effectual proceedings have been taken against him. [468B·Dl

(v) Section 125 of the Army Act, which provides that when a
Criminal Court and a Court Martial have each jurisdiction in respect
of an offence, it will be in the discretion of the Commandhtg Offi·
cer of the accused to decide before which Court the proceedings shall E
be instituted, is of no assistance in deciding whether it is open to the
~ ...._ Army Authority to take proceedings for determining prima facie
whether there is substance in the allegations made against the
accused and decline to try him by a Court Martial or take other
-4_ effectual proceedings against him even where a Magistrate has taken
cognizance of the <>ffence and finds that there is a case for trying the F
accused. [468E-F]

(vi) There is nothing in the provisions of the Army Rules relating
to Courts of Inquiry which can support the contention that notwith·
standing the proceeding taken by the Magistrate it is open to the Army
Authority to hold a Conrt of Inquiry and determine whether there is G
-~ any case for trying the accused by a Court Martial. If, it is not open to
the Army Authority to have recourse to r. 22 of the Army Rules and
investigate the charge directed against the accused officer in this case,
for the same reason, it is not open to it to hold a Court of Inquiry and
supersede the proceeding already taken by the Magistrate. [469B·D]
H
460 SUPREME COURT REPORTS [1987] 3.S.C.R.

CRIMINAL APPELLATE ORIGINAL JURISDICTION:
A
Criminal Appeal No. 27 ! of 1987.

From the Judgment and Order dated 3.7.1986 of the Gauhati
High Court in Crl. Revn. No. 229 of 1986.

B A.K. Ganguli, R.P. Srivastava, P. Purameswarn and Ashok K.
Srivastava for the Appellant in Crl. A. No. 271 of 1987 and Respon- '"'
dent in W.P. (Crl.) No. 664of 1986.

R.K. Jain, Gaurav Jain, Abba Jain and R.P. Singh for the
Respondent in Crl. A. No. 271of1987 and Petitioner in W.P. (Crl.)
No. 664 of 1986.
c
The Judgment of the Court was delivered by

PATHAK, CJ. Special Leave is granted.

D The respondent Major S.K. Sharma addressed a letter dated 21
December 1985 to Brigadier S.S. Randhawa, Commander. HQ 41 Sub
Area alleging that on 15 December, 1985 he was manhandled by Col. "'"'(
Mir Usman Ali in the HQ 41 Sub Area Officers Mess at Jorhat. It was
stated that the incident to~k place in the presence of Major M.M.
Subbaiah. Major Sharma was attached to B Camp. Signal Regiment
E while Col. Ali belonged to HQ 41 Sub Area. Brigadier Randhawa
wrote to the Officer Commanding, B. Comp. Signal Regiment on 14
January 1986 seeking clarification from Major Sharma on some of the ~ ~
allegations. It appears that correspondence was exchanged in the
matter but apparently Major Sharma, having met with no satisfactory
response, filed a complaint 21 January 1986 in the Court of the Addi- ._
F tional Chief Judicial Magistrate, Jorhat alleging that Col. Ali had
criminally assaulted him and further that Brigadier Randhawa did not
report the matter to the higher authorities and was attempting to pro-
tect Col. Ali. It was alleged in the complaint that Col. Ali had commit-
ted the offences under sections 323, 352 and 355 of the Indian Penal
Code and Brigadier Randhawa had committed the offence under
G section 217 of the Indian Penal Code. The Additional Chief Judicial
Magistrate examined the complaint, and taking cognizance of the +
offences alleged to have been committed by Col. Ali and Brigadier
Randhawa it directed that summons be issued to them for their
appearance before him on 7 March, 1986.

H On two applications moved by Major Sharma before him the

-------------·""' . . . _ ---- - - ,,,,__
U.O.l. v. S.K. SHARMA {PATHAK. CJ.] 461

Chief Judicial Magistrate made an order dated 25 January. 1986 direct- A
ing that the venue of a Court of Inquiry instituted in respect of certain
complaints made against Major Sharma by his Commanding Officer be
shifted from Mohanbari, where it was convened, to a place within the
jurisdiction of his Court and it was directed further that Major Sharma
should not be moved out of the jurisdiction of the Court during the
pendency of the case. Major Sharma had complained·that the Court of B
;.... Inquiry had been ordered by Brigadier Randhawa at Mohanbari as a
measure of retaliation because of the institution of the criminal case by
Major Sharma before the Additional Chief Judicial Magistrate.

- On 7 February 1986 the Union of India moved an application
before the Chief Judicial Magistrate along with an application dated 3 C
February 1986 addressed to the Court by Major General T.S.
Chaudhri informing the Chief Judicial Magistrate that the General
Officer Commanding was of opinion that Col. Ali should be dealt with
in accordance with the procedure laid down under the Army Act and
the Army Rules and the Criminal Courts and Court-martial (Adjust-
ment of Jurisdiction) Rules, 1978, and that therefore, the case may be D
handed over to the Military Authorities. It was pointed out by Major
Chaudhri in his letter that the complaint before the Additional Chief
Judicial Magistrate against Col. Ali should, in his opinion, be disposed
of under the procedure laid down in Army Rule 22 of Army Rules,
1954 and that under s. 125 of the Army Act 1950 read with Army Rule
197 A of the Army Rules and the Criminal Court and Court Martial E
(Adjustment of Jurisdiction) Rules 1978, Major General Chaudhri
was the competent Military authority to claim the case. He requested
that the case should be handed over to the Military authorities for
further necessary action. On 12 February 1986 the Union of India
moved another application before the Chief Judicial Magistrate along
with an application dated 3 February 1986 addressed to the Chief F
Judicial Magistrate by Major General T.S. Chaudhri as General
Officer Commanding requesting that the case against Brigadier
Randhawa should similarly be handed over to the Military authorities
for necessary action. On 17 February 1986 the Chief Judicial Magis-
trate, Jorhat made an order disposing of the two requisitions made by
Major General Chaudhri. He noted that the cognizance of the offences G
-+ had been taken by the Additional Chief Judicial Magistrate and neces-
sary process had been issued against both accused to compel their
presence, and that in the light of Rule 3 of the Criminal Court and
Court Martial (Adjustment of Jurisdiction) Rules 1978 the prayer for
trial by a Court martial by the competent authority was· allowed. In
this connection he made reference to Delhi Special Police Establish- H
462 SUPREME COURT REPORTS (1987] 3.S.C.R.

A ment v. Lt. Col. S.K. Loraiya, AIR 1972 SC 2548. He directed that the ~
case be transferred to the Army authorities pursuant to the requisi-
tions, and for disposal in accordance with the provisions of the Army
Act, 1950 after trial by a court-martial at any place within the jurisdic-
tion of his Court, He directed further that the progress of the case
should be reported to his Court at intervals of two months and ulti-
B mately intimating the result thereof, for the purpose of determining
whether a successive trial was necessary as provided for in the Army -.-4.
Act, While making the order the Chief Judicial Magistrate noted that
the Army authorities had not shifted the venue of the Court of Inquiry _;
mentioned earlier to any place within the jurisdiction of his court as
required by his order dated 125 January, 1986, and this prima facie
C amounted to contempt for which it was open fo Major Sharma to apply
to the High Court for necessary action. He also directed that Major
Sharma should be permitted to proceed on leave to enable him to ~
apply to the Gauhati High Court for filing a writ petition or taking
other legal proceedings.

D On 21, March 1986 the Union of India through the General
Officer Commanding filed an application before the Chief Judicial
Magistrate for modification of the order dated 17 February 1986. In
that application it was contended that under the Army Act and the
Army Rules it was not mandatory that all disciplinary cases against
military personnel should culminate in a trial by the Court Martial and
E that the directions made by the Chief Judicial Magistrate with regard
to the trial of Brigadier Randhawa and Col. Ali by Court Martial were
in contravention of the Army Act and the Army Rules and the Crimi-
nal Court and Court Martial (Adjustment of Jurisdiction) Rules 1978.
It was asserted that the proposed disciplinary action would be initiated
by the General Commanding Officer after an investigation of the
F alleged offences in accordance with Army Rule 22. It was prayed that
the order dated 17 February 1986 be reviewed by deleting the direction
for a trial by Court Martial at a place within the jurisdiction of the
Court of the Chief Judicial Magistrate and of the direction further that
the progress of the case should be intimated to the Chief Judicial
Magistrate at intervals of two months. On 7 April 1986 the Union of
G India filed another application making more detailed submissions for
modification or the other dated 17 February 1986. A third application
was moved by the Union of India on 30 April 1986 to the Chief Judicial
+
Magistrate requesting that the records of the case be handed over to
the Army authorities. These applications were disposed of the Chief
Judicial Magistrate by his order dated 8 May 1986. In that order he
H noted that the Addititional Chief Judicial Magistrate had, on receipt of

.
U.O.l. v. S.K. SHARMA [PATHAK. CJ.[ 463

.-4 the complaint examined the complainant Major S.K. Sharma under A
s. 200 of the Cr. P.C. and had taken cognizance of the offence under
s. 190(A) of the Code and on being satisfied of the existence of a primo
facie case process had been issued by him under s. 204(A) of the Code.
He noted that the judicial process for ascertaining the prima facie
existence of a case had thereby been completed. He held that in the
circumstances the trial of the accused officers by a court martial B
~ appeared to be mandatory under the provisions of s. 475 of the Code.
He observed that the preliminary investigations by a departmental
;.... court of inquiry did not seem permissible in the case. However, having
regard to s. 124 of the Army Act which conferred absolute power on

- the Army authorities to choose the venue of trial and keeping in view
the administrative convenience of the Army authorities he decided to
accept the request of the General Officer Commanding for deleting
c
).._ the direction in respect of the venue of the trial. The Chief Judicial
Magistrate also directed that instead of intervals of two months the
Army authorities should, having regard to the provision of s. 127 of
the Army Act, inform his Court as to the progress of the case at
intervals of four months. D

On 14 June 1986 the Union of India through the General Officer
Commanding filed a revision petition before the High Court at
Gauhati, which was disposed of by the High Court by its order dated 3
July 1986. The High Court interfered with the order of the Chief
Judicial Magistrate in so far only that it deleted the direction requiring E
the Army authorities inform the Chief Judicial Magistrate of the prog-
~~ ress of the case at intervals of four months, and it directed instead that
the result of the Court Martial proceedings should be communicated to
the Chief J udic\al Magistrate as soon as may be in accordance with
Rule 7 of the Criminal Courts and Court-martial (Adjustment of
Jurisdiction) Rules, 1978. F

It may be mentioned that according to the order of the High
Court the only submission raised on behalf of the appellant in the
revision petition was that the Magistrate had no jurisdiction to direct
the Court Martial to submit reports relating to the progress of the case,
_,.. including the result thereof, at intervals of four months. Thereafter a
special Leave Petition was filed by the Union of India, out of which the
G

present appal arises. -

Although it appears that the only point raised before the High
Court on the revision petition related to the direction that the Army
authorities should report periodically to the Chief Judicial Magistrate H
464 SUPREME COURT REPORTS [1987] 3.S.C.R.

in regard to the progress of the case, learned counsel for the appellants
A
has raised a more fundamental question before us. That question is
whether it is open to the Army authorities to constitute a Court of
Inquiry, enter upon an investigation of the charges under Rule 22 of
the Army Rules and determine whether there is a case for trial by a
Court Martial. Learned Counsel contends that the proceedings
B already taken by the Additional Chief Judicial Magistrate must be
ignored for the purpose and the Army authorities are not bound to try
the accused by a Court Martial. Although the point was not taken
before the High Court we have permitted it to be raised before us and
it has been argued by learned counsel at length.

It is apparent from the provisions of the Code of Criminal Proce-
c dure that it is open to a Magistrate to inquire into a complaint of an
offence alleged to have been committed by a military person, where it
falls within its jurisdiction, and to take proceedings either for his trial
or for committing the case to the Court of Sessions for trial. Likewise,
there is power under the Army Act in a duly constituted Army
D authorities to investigate into a charge against a military person
accused of an offence triable under the Army Act, and after such
hearing to decide whether his trial by a Court Martial should be
ordered. In the former case, ss. 200 to 203 of the Code of Criminal
Procedure provide the procedure to be followed by Magistrates taking
cognizance of an offence on a complaint. The Magistrate is required to
E examine on oath the complaint and the witnesses present and reduce
the substance of such examination to writing to be subsequently signed
by the complainant and the witnesses and by the Magistrate. That is
the procedure except when the complaint is made in writing by a public
servant or the Magistrate makes over the case for trial or inquiry to
another Magistrate. The Magistrate may either inquire into the case
F himself or direct an investigation to be made by a police officer or by
such other person as he thinks fit for the purpose of deciding whether
or not there is sufficient ground for proceeding. Where, however, it
appears to the Magistrate that the offence complained of its triable
exclusively by the Court of Session no such direction for investigation
can be made by him. For the purpose of inquiry be may take evidence
G of witnesses on oath. If the Magistrate is of opinion that the offence
complained of is triable exclusively by the Court of Session he must +
call upon the complainant to produce all his witnesses and examine
them on oath. If after considering the statement on oath of the comp-
lainant and of the witnesses and the result of the inquiry or investiga-
tion directed by him the Magistrate is of opinion that there is no
H sufficient ground for proceeding he must dismiss the complaint. Where
U.0.1. v. S.K. SHARMA [PATHAK. CJ.l 465

the Magistrate is of opinion that there is sufficient ground for proceed-
A
ing he must adopt the procedure setforth in sections 204 onwards. He
must issue process for the attendance of the accused. In certain cases
he may dispense with the personal attendence of the accused and
permit him to appear by his pleader. Where, however, the proceeding
is taken by an Army authority under the Army Act reference must be
made to the provisions of Rule 22 onwards of the Army Rules. The B
Rules provide for the hearing of a charge, in which the accused has
liberty to cross examine any witness against him and to call any witnes-
ses and make any statement in his defence. If the Commanding Officer
investigating the charge finds no offence has been committed he must
- dismiss the charge. He may also do so if, in his discretion, he is
satisfied that the charge has not to be proceeded with. If the charge is
c
to be proceeded with he may pass any of the orders detailed in Rule
22(3). They include proceedings for trial 0y a Court Martial. It is clear
that these provisions of the Army Rules run parallel to the provisions
of the Code of Criminal Procedure adverted to earlier.

Now inasmuch as there is always a possibility of the same offence D
being triable either by a Criminal Court or by a Court Martial the law
has attempted to resolve the competings claims of the civil authority
and the military authority in such cases. Section 475 of the Code of
Criminal Procedure empowers the Central Government to make rules
as to cases in which persons shall be tried by a Court to which the Code
applies or by a Court Martial, and the section provides that whenever a E
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 the Code
applies or by a Court Martial such Magistrate must have regard to such
rules and must, in proper cases, deliver the person together with a
statement of the offence of which he is accused to the Commanding
Officer of the unit to which he belongs for the purpose of being tried F
by a Court Martial. The language used ins. 475 is significant. It refers
to a person who "is brought before a Magistrate and charged with an
offence." In other words, he must be a person respecting whom the
Magistrate has taken the proceedings envisaged by ss. 200 to 204 of the
Code. He will be a person in respect of when the Magistrate has found
that there is a case for trial. It is for that reason that s. 475 goes on to G
say that when such person is delivered to the Commanding Officer of
the unit to which he belongs it will be "for the purpose of being tried
by a Court Martial". When he is so delivered, a statement of the
offence of which he is accused will also be delivered to the Command-
ing Officer. The relevance of delivering such statement can be ea>ih
understood, for it is to enable the Army authority to appreciate the H
- ----------~-------------

466 SUPREME COURT REPORTS (1987] 3.S.C.R.
'
A circumstances in which a Court Martial is required by the law.

We now turn to the Criminal Courts and Court-martial (Adjust-
. inent of Jurisdiction) Rules; 1978. These Rules have been framed
under ·s. 475 of the Code of Criminal Procedure .. When a person sub-
ject to military, naval or air force law or any other law relating to the )...
B Armed Forces is brought before a Magistrate and charged with an
offence for which he is also liable to be tried by a Court Martial, the
Magistrate will not proceed to try such person or to commit the case to
the Court of Session unless (a) he is moved to that effect by a compe-
tent -military, naval or air force authority or (b) he is of opinion for
reasons to be recorded, that he should so proceed or to commit with-
e out being moved thereto by such authority. Rule 3, in bur opinion,
comes into play at the point where the person has been brought before
a Magistrate and charged with an offence. That is the stage adverted to
earlier where the accused is directed to appear before the Magistrate
and is charged with an offence after the Magistrate has determined
that there is a case for trial. Before proceeding further with the case
D and either proceeding to try the accused or to commit the case to the
Court of Session the Magistrate must, under Rule 4, give written
notice to the .Commanding Officer of the accused and refrain for a
period of 15 days from doing any of the acts or making any of the
orders in relation to the trial of the accused specified in Rule 4. In the
event of the Magistrate entering upon the trial of the accused or com-
E milting the ,case to the Court of Session at the instance of the military,
naval or air force authority it is open to such authority or the Com-
manding Officer of the accused to give notice subsequently under Rule
.. 5 to such Magistrate that, in the opinion of such officer or authority the 'f
accused should be tried by a Court Martial. Upon such notice, the
Magistrate, if he has not taken any action or made any order referred
F'· to specifically in Rule 4 before receiving such notice, must stay the
proceedings and deliver the accused together with the statement refer-
red to in s. 475( 1) of the Code to the Officer specified in that sub- i'4-.
section. In the other kind of case, where the Magistrate intends to
proceed to try the accused or to commit the case to a Court of Session
without being moved in that behalf by the military, naval or air force . )..
G authority; and he has given notice under Rule 4 to the Commanding
Officer or the military, naval or air force authority of his intention to
do so, Rule 6. empowers the· Commanding Officer or the competent
authority to give notice to the Magistrate within the aforesaid period
of 15 days or in any event before the Magistrate takes any action or
makes any order referred to in that Rule, that in the opinion of such
H officer or authority the accused should be tried by a Court Martial.
U.0.1. v. S.K. SHARMA (PATHAK. CJ.I 467

Upon such notice the Magistrate must stay the proceedings and deliver A
the accused together with the statement referred to in s. 475( I) of the
Code to the officer specified in that sub-section. It is clear that when
the accused is made over by the Magistrate to the Commanding
Officer or the competent military. naval or air force authority it is for
the purpose of trial by a court martial or other "effectual proceedings"
f- to be taken or ordered to be taken against him. For Rule 7( 1) provides B
that when an accused has been delivered by a Magistrate under Rule 5
,.,._ or 6 the Commanding Officer or the competent military, naval or air
force authority must, as soon as may be, inform the Magistrate
.,i whether the accused has been tried by a Court Martial or other
· effectual proceedings have been taken or ordered to be taken against
him. The communication of such information is mandatory. When the C
~ Magistrate is informed that the accused has not been tried or other
effectual proceedings have not been taken or ordered to be taken
against him. he is obliged to report the circumstance to the State
Government and the State Government, in consultation with the Cent-
ral Government may take appropriate steps to ensure that the accused
'y person is dealt with in accordance with law. The policy of the law is D
clear. Once the Criminal Court determines that there is a case for trial,
and pursuant to the aforesaid rule, delivers the accused to the
Commanding Officer or the competent military. naval or air force
authority. the law intends that the accused must either be tried by a
Court Martial or some other effectual proceedings must be taken
against him. To ensure that proceedings are taken against the accused E
~ ~- the Rules require the Commanding Officer or the competent authority
to inform the Magistrate of what has been done. Rule 7(2) appears to
envisage the possibility that the Commanding Officer or the compe-
~ tent military, naval or air force authority may not try the accused or
take effectual proceedings against him even where the Magistrate has
found a case for trial. To cover that exigency it provides that the State F
Government in consultation with the Central Government, on a report
from the Magistrate to that effect. may take appropriate steps to
ensure that the accused does not escape the attention of the law. The
policy of our Constitutional polity is that no person should be regarded
. as being above the law. Military. naval or air force personnel are as
-;- much subject to the law as members of the civil population. It is signi- G
ficant that Rule 8 empowers the Magistrate. on coming to know that a
person subject to the military. naval or air force law or any other law
relating to the Armed Forces has committed an offence and proceed-
ings in respect of which ought to be instituted before him and that the
presence of such person cannot be procured except through military.
navel or air force authorities, to require the Commanding Officer of H

T
468 SUPREME COURT REPORTS [1987] 3.S.C.R.
)-
such person either to deliver such person to a Magistrate for being
A
proceeded against according to law or to stay the proceedings against
such person before the Court Martial if since instituted, and to make
a reference to the Central Government for determination as to the
Court before which the proceedings should be instituted. Reference
may also be made to s. 127 of the Army Act. It is an important provi-
B sion. It provides that a person convicted or acquitted by a Court --'.
Martial, may, with the previous sanction of the Central Government,
be tried again by a Criminal Court for the same offence or on the same ,....;
facts. This provision is an exception to Article 20 of the Constitution
which provides that no person shall be prosecuted and punished for the
same offence more than once. The provision has been made possible L.
by reason of Article 33 of the Constitution which confers power on
c Parliament to modify any Fundamental Right in its application to the _...,
members of the Armed Forces. It is to enable the operation and appli-
cation of s. 127 of the Act that Rule 7(1) of the Criminal courts and
Court Martial (Adjustment of Jurisdiction) Rules, 1978 requires the
Commanding Officer or the competent military, naval and air force
D authority to inform the Magistrate whether the accused has been tried
by a Court Martial or other effectual proceedings have been taken 'f
against him.

Our attention has been drawn by learned counsel for the appel-
lants to s. 125 of the Army Act. Section 125 provides that when a
E Criminal Court and a Court Martial have each jurisdiction in respect
of an offence it will be in the discretion of the Commanding Officer of )._ ~
the accused to decide before which Court the proceedings shall be
instituted. This provision is of no assistance in deciding whether it is
open to the Army authority to take proceedings for determining prima ~
facie whether there is substance in the allegations made against the
F .accused and decline to try him by a Court Martial or take other
effectual proceedings against him even where a Magistrate has taken
cognizance of the offence and finds that there is a case for trying the
accused.

On the aforesaid analysis we are of opinion that the Army
G authority is not entitled to ignore the proceeding taken by the Addi- ~
tional Chief Judicial Magistrate and to invoke the provisions of Rule
22 and related rules of the Army Rules. The Additional Chief Judicial
Magistrate having hold that there is a case for trying the two accused
officers and having directed their appearance, the Army authority
must proceed to held a court martial for their trial or take other
H effectual proceedings against them as contemplated by the law. The
, U.0.1. v. S.K. SHARMA (PATHAK. CJ.( 469

contention advanced by learned counsel for the appellants to the con- A
trary must be rejected.

We have also been referred to the provisions of the Army Rules
relating to Courts of Inquiry, and learned counsel for the appellants
urges that notwithstanding the proceedin.g taken by the Additional
B
Chief Judicial Magistrate it is open to the Army authority to hold a
Court of Inquiry and determine whether there is any case for trying the
accused by a Court Martial. We have been taken through Rule 177 and
the connected Rules which deal with the institution and conduct of
Courts of Inquiry, but we see nothing in those provisions which can
support the contention now raised before us. If, on the analysis
detailed earlier, it is not open to the Army authority to have recourse c
to Rule 2~ and investigate the charge directed against the accused
officer in this case, for the same reason it is not open to it to hold a
Court of lnq uiry and supersed"e the proceedings already taken by the
Additional Chief Judicial Magistrate.
D
We may mention that learned counsel for the parties placed a
number of cases before us, but having carefully perused the judgments
in those cases we do not find any declaration of law therein which is
inconsistent with the view taken by us.

Accordingly, the appeal is dismissed.
E
In the Criminal Writ Petition Major S.K. Sharma prays for a
number of reliefs. The material reliefs are that ~direction be issued to
the Army authorities to postpone the return of the petitioner to the
Unit to which he has been posted and direct the Army authorities to
stay all parallel proceedings against the petitioner until the hearing and
F
disposal of their Special Leave Petition.

So far as the first submission as concerned it refers to the mental
and physical stress suffered by the petitioner, apparently necessitating
his treatment at a hospital with sychiatric facilities. We do not think it
necessary to issue any direction because, we think, it is a matter which G
can be adequately and humanely dealt with by the Army authorities. If
indeed the petitioner should be given a posting where the requisite
medical facilities are available we have no reason to doubt that the
Army authorities will afford such posting to the petitioner. In doing so
it will be open to the Army authorities to <;ibtain the latest medical
report respecting the condition of the petitioner. H
470 SUPREME COURT REPORTS [1987] 3.S.C.R.

A As regards the second relief, we have already disposed of the
special leave petition today and, therefore, no order need be passed in
respect of that relief.

In the result the writ petition is dismissed.

B H.L.C. Petition dismissed. ~

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