JURISDICTION Criminal Appeal No 271 of 1987
From the Judgment and Order dated 37
1986 of the Gauhati High Court in Crl
No 229 of 1986
AK Ganguli RP Srivastava P Purameswarn and Ashok K Srivastava for the Appellant in Crl
A No 271 of 1987 and Respondent in WP Crl No 664 of 1986
RK Jain Gaurav Jain Abha Jain and RP Singh for the Respondent in Crl
A No 271 of 1987 and Petitioner in WP Crl No 664 of 1986
The Judgment of the Court was delivered by PATHAK CJ
Special Leave is granted
The respondent Major SK Sharma addressed a letter dated 21 December 1985 to Brigadier SS Randhawa Command er 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 took place in the presence of Major MM Subbaiah
Major Sharma was attached to B Camp
Signal Regiment 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 Additional 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 attempt ing to protect Col Ali
It was alleged in the complaint that Col Ali had committed the offences under sections 323 352 and 355 of the Indian Penal Code and Brigadier Randhawa had committed the offence under section 2 17 of the Indian Penal Code
The Additional Chief Judicial Magistrate exam ined 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
On two applications moved by Major Sharma before him the 461 Chief Judicial Magistrate made an order dated 25 January
1986 directing that the venue of a Court of Inquiry insti tuted 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 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 applica tion before the Chief Judicial Magistrate along with an application dated 3 February 1986 addressed to the Court by Major General TS Chaudhri informing the Chief Judicial Magistrate that the General Officer Commanding was of opin ion that Col
Ali should be dealt with in accordance with the procedure laid down under the and the Army Rules and the Criminal Courts and Court martial Adjustment of Jurisdiction Rules 1978 and that therefore the case may be handed over to the Military Authorities
It was pointed out by Major Chaudhri in his letter that the com plaint 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 section 125 of the read with Army Rule 197A of the Army Rules and the Criminal Court and Court Martial 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 Judicial Magistrate by Major General TS Chaudhri as Gener al 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 Magistrate Jothat made an order disposing of the two requisitions made by Major General Chaudhri
He noted that the cognizance of the offences had been taken by the Additional Chief Judicial Magistrate and necessary 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 Juris diction 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 462 ment vs Lt Col SK Loraiya  He directed that the case be transferred to the Army authorities pursu ant to the requisitions and for disposal in accordance with the provisions of the after trial by a court martial at any place within the jurisdiction of his Court He directed further that the progress of the case should be reported to his Court at intervals of two months and ultimately intimating the result thereof for the pur pose of determining whether a successive trial was necessary as provided for in the 
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 25 January 1986 and this prima facie amounted to contempt for which it was open to 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
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 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 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 and the Army Rules and the Criminal Court and Court Martial Adjust ment 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 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 Judi cial Magistrate at intervals of two months
On 7 April 1986 the Union of 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 noted that the Additional Chief Judicial Magistrate had on receipt of 463 the complaint examined the complainant Major SK Sharma under section 200 of the Cr
PC and had taken cognizance of the offence under section 190A of the Code and on being satisfied of the existence of a prima facie case process had been issued by him under section 204A 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 appeared to be mandatory under the provisions of section 475 of the Code
He observed that the preliminary investiga tions by a departmental court of inquiry did not seem per missible in the case
However having regard to section 124 of the 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 Com manding for deleting 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 section 127 of the  inform his Court as to the progress of the case at intervals of four months
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 the Army authorities inform the Chief Judicial Magistrate of the progress 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 Judicial Magistrate as soon as may be in accordance with Rule 7 of the Criminal Courts and Court martial Adjustment of Jurisdiction Rules 1978
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 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 periodi cally to the Chief Judicial Magistrate 464 in regard to the progress of the case learned counsel for the appellants has raised a more fundamental question before us
That question is whether it is open to the Army authori ties to constitute a Court of Inquiry enter upon an inves tigation 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 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 per mitted 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 Crimi nal Procedure that it is open to a Magistrate to inquire into a complaint of an offence alleged to have been commit ted by a military person where it fails within its juris diction 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 in a duly con stituted Army authorities to investigate into a charge against a military person accused of an offence triable under the  and after such hearing to decide whether his trial by a Court Martial should be ordered
In the former case sections 200 to 203 of the Code of Criminal Proce dure provide the procedure to be followed by Magistrates taking cognizance of an offence on a complaint
The Magis trate is required to examine on oath the complaint and the witnesses present and reduce the substance of such examina tion to writing to be subsequently signed by the complainant and the witnesses and by the Magistrate
That is the proce dure 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 himself or direct an investiga tion 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 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 wit nesses and examine them on oath
If after considering the statement on oath of the complainant and of the witnesses and the result of the inquiry or investigation directed by him the Magistrate is of opinion that there is no sufficient ground for proceeding he must dismiss the complaint
Where 465 the Magistrate is of opinion that there is sufficient ground for proceeding he must adopt the procedure setforth in sections 204 onwards
He must issue process for the attend ance 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 reference must be made to the provisions of Rule 22 onwards of the Army Rules
The 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 witnesses 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 to be proceeded with he may pass any of the orders detailed in Rule 223
They include proceedings for trial by 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 being triable either by a Criminal Court or by a Court Martial the law has attempted to resolve the compet ings claims of the civil authority and the military authori ty in such cases
Section 475 of the Code of Criminal Proce dure 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 Magis trate 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 by a Court Martial
The language used in section 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 Magis trate has taken the proceedings envisaged by sections 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 section 475 goes on to 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 Commanding Officer
The relevance of delivering such statement can be easily understood for it is to enable the Army authority to appreciate the 466 circumstances in which a Court Martial is required by the law
We now turn to the Criminal Courts and Court martial Adjustment of Jurisdiction Rules 1978
These Rules have been framed under section 475 of the Code of Criminal Procedure
When a person subject to military naval or air force law or any other law relating to the 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 competent 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 without being moved thereto by such authority
Rule 3 in our 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 Magis trate has determined that there is a case for trial
Before proceeding further with the case and either proceeding to try the accused or to commit the case to the Court of Ses sion 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 speci fied in Rule 4
In the event of the Magistrate entering upon the trial of the accused or committing 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 Command ing Officer of the accused to give notice subsequently under Rule 5 to such Magistrate that in the opinion of such officer or authority the 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 to specifically in Rule 4 before receiving such notice must stay the pro ceedings and deliver the accused together with the statement referred to in section 4751 of the Code to the Officer speci fied in that subsection
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 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 offi cer or authority the accused should be tried by a Court Martial
467 Upon such notice the Magistrate must stay the proceedings and deliver the accused together with the statement referred to in section 4751 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 to be taken or ordered to be taken against him
For Rule 71 provides 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 whether the accused has been tried by a Court Martial or other effectual pro ceedings have been taken or ordered to be taken against him
The communication of such information is mandatory
When the Magistrate is informed that the accused has not been tried or other effectual proceedings have not been taken or or dered to be taken against him he is obliged to report the circumstance to the State Government and the State Govern ment in consultation with the Central 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
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 the Rules require the Commanding Officer or the competent au thority to inform the Magistrate of what has been done
Rule 72 appears to envisage the possibility that the Commanding Officer or the competent military naval or air force au thority may not try the accused or take effectual proceed ings against him even where the Magistrate has found a case for trial
To cover that exigency it provides that the State Government in consultation with the Central Government on a report from the Magistrate to that effect may take appro priate 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 significant 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 proceedings 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 468 such 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 instituted
Reference may also be made to section 127 of the 
It is an important provi sion
It provides that a person convicted or acquitted by a Court Martial may with the previous sanction of the Cen tral 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 by reason of Article 33 of the Constitution which confers power on Parliament to modify any Fundamental Right in its application to the members of the Armed Forces
It is to enable the operation and application of section 127 of the Act that Rule 71 of the Criminal courts and Court Martial Adjustment of Jurisdiction Rules 1978 requires the Com manding Officer or the competent military naval and air force authority to inform the Magistrate whether the accused has been tried by a Court Martial or other effectual pro ceedings have been taken against him
Our attention has been drawn by learned counsel for the appellants to section 125 of the 
Section 125 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 Commanding Officer of the accused to decide before which Court the proceedings shall be institut ed
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 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 authority is not entitled to ignore the proceeding taken by the Additional 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 offi cers and having directed their appearance the Army authori ty must proceed to held a court martial for their trial or take other effectual proceedings against them as contemplat ed by the law
The 469 contention advanced by learned counsel for the appellants to the contrary 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 proceeding taken by the Additional Chief Judicial Magistrate it is open to the Army authority to hold a Court of Inquiry and deter mine 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 to Rule 22 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 proceedings already taken by the Additional Chief Judicial Magistrate
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
In the Criminal Writ Petition Major SK Sharma prays for a number of reliefs
The material reliefs are that a 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 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 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 obtain the latest medical report respecting the condition of the petitioner
470 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
HLC Petition dismissed


Summary:
An officer in the Army filed a complaint before a Magis trate alleging that another officer has assaulted him that the Commanding Officer to whom he had complained earlier had failed to take satisfactory action and thus both of them had committed offences under the Indian Penal Code
The Magis trate examined the complainant under section 200 Cr
PC took cognizance of the offences under section 190A and on being satisfied of the existence of a prima facie case issued summons under section 204A for the appearance of the accused
Upon applications being made by the appellants urging that the case be handed over to the Military Authorities for disposal the Magistrate made an order directing that the case be transferred to the Army Authorities for disposal in accordance with the provisions of the after trial by a Court Martial at any place within the jurisdic tion of his Court and that the progress of the case be reported to him at intervals of two months
Upon the appel lants making further applications praying for review of the said order on the ground that under the and the Army Rules it was not mandatory that all disciplinary cases against military personnel should culminate in a trial by Court Martial and submitting 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 accused by Court Martial was mandatory under section 475 Cr
PC and 457 therefore it was not permissible for the Army Authorities to hold a preliminary investigation
However having regard to section 127 of the  the Magistrate directed that the progress of the case be intimated at intervals of four months
in the Revision filed by the appellants the High Court interfered with the order of the Magistrate insofar only that it deleted the direction requiring the Army Au thorities to inform the Magistrate of the progress of the case at intervals of four months and directed instead that the result of the Court Martial proceeding be communicated to the Magistrate as soon as may be in accordance with r 7 of the Criminal Courts and Court Martial Adjustment of Jurisdiction Rules 1978
Dismissing the appeal by Special Leave HELD The Army Authority is not entitled to ignore the proceeding taken by the Magistrate and to invoke the provi sions 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 for their trial or take other effectual proceedings against them as contemplated by the law
468G H i It is open to a Magistrate under sections 200 203 Cr
PC 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 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  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
PC Inasmuch as there is always a possibility of the same offence being triable either by a Criminal Court or by a Court Martial section 475 Cr
PC 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 Magis trate 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 by a Court Martial
The language used in section 475 is significant
It refers to a person 458 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 sections 200 to 204 of the Cede
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 section 475 goes on to 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 Commanding Officer
The relevance of deliv ering such statement can be easily understood for it is to enable the Army Authority to appreciate the circumstances in which a Court Martial is required by the law
464C D 465E H ii It is clear from r 71 of the Criminal Courts and Court Martial Adjustment of Jurisdiction Rules 1978 framed under section 475 of the Cr
PC that when the accused is made over by the Magistrate under section 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 proceedings 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 in formed that the accused has not been tried or other effectu al 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 consulta tion with the Central Government may take appropriate steps to ensure that the accused person is dealt with in accord ance with law
The policy of the law is clear
Once the Criminal Court determines that there is a case for trial and pursuant to the aforesaid rule delivers the accused to the competent 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 E iii The policy of our Constitutional Polity is that no person should be regarded as being above the law
Military navel or air force personnel are as much subject to the law as members of the civil population
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 offence and proceedings in respect of which ought to be instituted 459 before him and that the presence of such person cannot be procured except through military navel or air force author ities to require the Commanding Officer of such person either to deliver such person to a Magistrate for being proceeded against according to law or to stay the proceed ings against such person before the Court Martial if since instituted and to make a reference to the Central Govern ment for determination as to the Court before which the proceedings should be instituted
467G H 468A B iv Section 127 of the 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 rule contained in article 20 of the Constitution that no person shall be prose cuted and punished for the same offence more than once
It is to enable the operation and application of section 127 of the Act that r 71 of the Criminal Courts and Court Martial Adjustment of Jurisdiction Rules 1978 requires the compe tent military or other authority to inform the Magistrate whether the accused has been tried by a Court Martial or other effectual proceedings have been taken against him
468B D v Section 125 of the  which provides that when a Criminal Court and a Court Martial have each juris diction in respect of an offence it will he in the discre tion of the Commanding Officer of the accused to decide before which Court the proceedings shall he 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 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
468E F vi There is nothing in the provisions of the Army Rules relating to Courts of Inquiry which can support the contention that notwithstanding the proceeding taken by the 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
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 ac cused 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 460