THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.10326 of 2011 ORDER: Petitioners approached this Court with a prayer to quash the proceedings initiated against them in S.C.No.25 of 2011 on the file of Additional Sessions Judge-cum-Senior Civil Judge, Vikarabad, wherein they are facing trial for the offence punishable under Section 354 IPC. The brief facts of the case, in nutshell, are as follows: On 24.04.2007 at 10.30 p.m., while the petitioners were traveling in train Number 7032 Up Mumbai Express, under the influence of alcohol consumed by them, they misbehaved with one lady namely Smt. Zaheera Shaik, who was also traveling along with them in the train. On the basis of the complaint given by TTE, Secunderabad, a case in Crime No.40 of 2007 was registered against the petitioners by Railway Police, Vikarabad, for the offence punishable under Section 354 IPC. After completion of investigation in the present crime, charge sheet was filed before the II Metropolitan Magistrate for Railways at Sencunderabad, and the same was numbered as P.R.C.No.10 of 2007. Subsequently, as the petitioners are army personnel governed by the Army Act, the 2nd respondent herein addressed a letter dated 04.08.2007 to the Magistrate requesting to transfer the case for being tried by the military authority, and the learned Magistrate was pleased to transfer the case to the Court Martial, vide order dated 28.12.2007. On 10.01.2008, the proceedings of the Court Martial had commenced and summons were issued to the witnesses to appear. However, the summons sent to the main witnesses i.e., the victim and the eyewitness could not be served and the concerned police gave a non-traceable certificate. Based on the evidence of the doctor, initiation of disciplinary action against the petitioner for bring intoxicated while traveling in the train was recommended. Insofar as the main charge under Section 354 IPC is concerned, as the main witnesses could not be traced out, a recommendation was made to close the case. But, the 2nd respondent, instead of closing the case, filed an application being Crl.M.P.No.1052 of 2010 in P.R.C.No.10 of 2007, under Section 475 IPC read with Section 125 (5) of Army Act, before the II Metropolitan Magistrate for Railway at Secunderabad, requesting to take over the case on its file namely P.R.C.No.10 of 2007 for being tried according to law. Thereupon, the learned Magistrate, by his order dated 14.06.2010, allowed the said petition, and by order dated 03.12.2010, committed the case to the Court of Metropolitan Sessions Judge, Hyderabad, as Section 354 IPC is exclusively triable by the Court of Sessions. Aggrieved thereby, the present criminal petition is filed. Learned counsel for the petitioners submits that when once the case against the petitioner has been transferred to the Court Martial, on the basis of the request made by the 2nd respondent herein, and trial has been conducted before the Court Martial, the 2nd respondent has no power to return the case to the learned II Metropolitan Magistrate for Railways, Secunderabad, before whom the charge sheet against the petitioners herein was originally filed. He further submitted that the petitioners cannot be tried twice for the same offence. Today, it is brought to the notice of this Court that after due trial of the case before the Court Martial, it was established that the petitioners were found under the influence of alcohol while traveling in the trial and as such, they were convicted for the offence under Section 48 of the Army Act. On perusal of the material available on record, it is evident that the respondent police investigated the case and filed the charge sheet before the concerned Court. Subsequently, as the petitioners were army personnel, on the request made by the 2nd respondent herein, the case was transferred to Court Martial. However, as the summons issued by the Court Martial to the main witnesses i.e., the victim and the eye-witness could not be served and the concerned police gave a non-traceable certificate with regards the main witnesses, the Court Martial, having felt that it is not possible for it to compel the civilians to appear before it and proceed with the case in the absence of the main witnesses, returned the case to the Court before whom the charge sheet was originally filed, by invoking the provisions under Section 475 IPC read with Section 125 (5) of Army Act. Section 125 of the Army Act runs as follows: “Choice between criminal court and court-martial:- 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, 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. “ There is no dispute that the Court Martial has taken cognizance of the case, and subsequently, as it felt that it is not possible for it to proceed with the trial in the absence of main witnesses, the 2nd respondent herein filed a petition under Section 475 IPC read with Section 125 (5) of Army Act before the Court where originally the charge sheet was filed and which can compel the attendance of the witnesses concerned by invoking the relevant provisions under the Code of Criminal Procedure. Further, the petitioners in the present Sessions Case are tried only for the offence under Section 354 IPC and there is no charge against them for consumption of liquor. Hence, this Court is not inclined to interfere with the trial of the present case. Accordingly, the criminal petition is dismissed. Miscellaneous petitions, if any, pending in this criminal petition are closed. ____________________ JUSTICE RAJA ELANGO 31.10.2011 v v