JUDGMENT : S. Wasiuddin, J. 1. This is an appeal under Section 417(1) of the Code of Criminal Procedure by the State of Bihar against an ORDER :of acquittal of the respondent, who had been charged and tried for the offence under Section 409, Indian Penal Code. The case of the prosecution briefly stated is as follows: Shri D.N. Mundgil, who is the respondent in this case was working as I.C.M.F.D., Sarju during the year 1960-61 and in such capacity it was a part of his duty to receive and weigh grass that was supplied by the contractors. M.F.D. (Military Farm Depot), Sarju is under the Military Farm, Namkum. The respondent used to receive and make entries about the quantity of grass received from different supplies on different dates in a book called 'Weigh Book' and which used to be maintained by him. He used to show in this book the quantity of the grass which he used to receive from different sources also like the Government Department. The figures shown by him in the Weigh Book also represented the figures after conversion of green grass into hay and the wastage in this process was also shown in this very Register. Monthly statements used to be sent by the respondent on the basis of this Register to the Deputy Director, Military Farm, Central Command, Lucknow as well as to the Officer in Charge (Manager), Military Farm, Namkum. The Manager during the relevant period was one Shri Guru Bux Singh and it was he who used to go to Sarju Depot for making payments to the suppliers by Shri Mundgil, that is, the present respondent. All such payments had been shown in the payment register which was duly certified by Shri Mundgil, Shri Guru Bux Singh and the Cashier actually handled the cash. It was found that according to the entries made by the respondent in the Weigh Register, he had received in his stock a total quantity of 12.83,224 lbs. of hay (both baled and loose) from various sources during the period from November, 1960 to July, 1961. During the same period the total loss in the process of baling had been shown in the Register to be 42,630 lbs. The total issues including handling loss were shown to be 1,26,910 lbs. of hay (both baled and loose) from various sources during the period from November, 1960 to July, 1961. During the same period the total loss in the process of baling had been shown in the Register to be 42,630 lbs. The total issues including handling loss were shown to be 1,26,910 lbs. and consequently the balance in the hand at the end of July, 1961 should have been 11,56,314 lbs in the form of baled as well as loose hay, but in October, 1961 when Shri Guru Bux Singh was succeeded by Shri R.S. Pandey, he found that although the baled hay as per book balance the loose hay was found to be totally absent. There was not even a single pound of loose hay out of the 3,26,314 shown in record in stock to be found in Sarju Depot. No stock of loose hay was found also. 2. A report initially was submitted by Shri B.P. Singh, who was the Superintendent of Police, S.P.E. Bihar Branch, Patna and it was sent to the Deputy Commissioner, Ranchi. The report was dated 20.9.1963 and in this report the aforesaid Superintendent of Police merely stated that information had been received to the effect that No. RVE 7029 Jamadar D.N. Mundgil while posted as Depot Incharge Military Farm Depot, Sarju during the years 1960-61 misappropriated a sum of Rs. 800/- paid for 40,000 lbs of thatching grass having forged relevant registers in conspiracy with Shri Guru Bux Singh, the then Manager, Military Farm, Namkum and he also stated that a case under Section 120B read with Sections 409 and 471 of the Indian Penal Code was, therefore, registered. Investigation in the case was made and thereafter chargesheet was submitted only against this present respondent and according to the chargesheet a prima facie case under Section 409 of the Indian Penal Code was made out against him. The respondent was, therefore, consequently put up for trial. 3. The defence of the respondent was to the effect that he was Junior Commissioned Officer in the Army and, therefore, he could not be tried in the ordinary criminal court and the criminal court of a Magistrate had no jurisdiction over him to try for this offence. The respondent was, therefore, consequently put up for trial. 3. The defence of the respondent was to the effect that he was Junior Commissioned Officer in the Army and, therefore, he could not be tried in the ordinary criminal court and the criminal court of a Magistrate had no jurisdiction over him to try for this offence. It was also his defence that he had not committed any offence at all and rather if any offence had been committed, it was by Shri Guru Bux Singh, who had not been sent up for trial. 4. In the trial before the Magistrate a question of jurisdiction also arose for consideration and the learned Magistrate in the concluding portion of his JUDGMENT : on a consideration of the relevant provisions of Section 549 of the Code of Criminal Procedure and the rules framed by the Central Government under that Section, he was of opinion that there had been a non-compliance of the mandatory provisions and so the entire proceeding relating to this trial was illegal. The learned Magistrate was also of opinion that the prosecution was also bad because of the want of necessary Section as contemplated by Section 197 of the Code of Criminal Procedure. 5. As regards the merit of the allegations made against the respondent the learned Magistrate was of opinion that as the charge was under Section 409 of the Indian Penal Code, so the first essential ingredient which had to be proved was entrustment. He pointed out (already referred above by me) that the first information report showed that the respondent and one Shri Guru Bux Singh, who was the Farm Manager; Namkum were placed with the duty of obtaining certain amount of grass which they misappropriated in conspiracy with each other and a sum of Rs. 800/- was paid for 40,000 lbs of thatching grass and that there had been forgery with regard to the relevant Register in conspiracy with each other. The first information report, therefore, showed a misappropriation of a sum of Rs. 800/- in conspiracy with Shri Guru Bux Singh, the then Manager, Military Farm, Namkum. 800/- was paid for 40,000 lbs of thatching grass and that there had been forgery with regard to the relevant Register in conspiracy with each other. The first information report, therefore, showed a misappropriation of a sum of Rs. 800/- in conspiracy with Shri Guru Bux Singh, the then Manager, Military Farm, Namkum. The learned Magistrate further pointed out that the evidence adduced in the case was to the effect that it was the duty of Mundgil, the present respondent to receive and weigh grass supplied by contractors at M.F.D., Sarju under Military Farm, Namkum and that he used to make entries regarding quantity of grass and the date in the Weigh Book maintained by him. It was also clear from the evidence that it was the Manager, Shri Guru Bux Singh who used to go to Sarju Depot for making payments to the suppliers and all these had been shown in the Register which were duly certified by Mundgil. Further evidence also showed that Shri Guru Bux Singh was succeeded by Shri R.S. Pandey and when he inspected the place, that is, the Depot he found the grass missing from that place. The learned Magistrate drew inference from these facts of the evidence as it (Sic) stood showed that it was the duty of the respondent only to make entries and it was no part of his duty to make payments and the evidence adduced in the case did not support the case as made out initially in the first information report. He also pointed out that the defence had been from the very beginning, that is, from the court of inquiry until the stage of the trial that the grass was never purchased and then stucked at Sarju Depot and that he made entries in the book of account in a bonafide manner on the instructions of the Fodder Manager. The questions whether grass was purchased and stocked or was not purchased at all and whether certain entries were made in the Register were questions which had to be determined and the defence was that all these entries were made by him in a bonafide manner. The questions whether grass was purchased and stocked or was not purchased at all and whether certain entries were made in the Register were questions which had to be determined and the defence was that all these entries were made by him in a bonafide manner. The learned Magistrate was, therefore, of the view that if no grass at all had been supplied then in that event there was no entrustment and if there was no entrustment, it consequently followed that the charge under Section 409 of the Indian Penal Code could not have sustained. The learned Magistrate was also of opinion that the charge could have been proved by examining Shri Guru Bux Singh or the alleged contractors and the suppliers, but they were not examined. He was further of opinion that since the entrustment itself had not been proved so even if wrong entries were made, it would tantamount it best to a dereliction of duty for which he could have been proceeded departmentally. He was also of opinion, that there was no evidence to show that the respondent himself sold and removed the grass. 6. It may be also mentioned here that reliance on behalf of the prosecution had been placed on the provisions of Section 106 of the Indian Evidence Act with a view to show that if certain matters were within the special knowledge of the respondent, it was his duty to disclose the same and the learned Magistrate was of the view that this did not apply here because the evidence itself did not show that the charge had been proved. 7. It also appears that the prosecution in the case relied on certain confessional statements said to have been made by the respondent before the court of inquiry and the learned Magistrate did not also attach importance to the same because after all it was extra judicial confession which had been retracted and that the statements also did not show that there was any confession to the effect that the respondent admitted that he had been entrusted with the grass. 8. 8. At the time of the hearing of this appeal the learned counsel for the State firstly submitted that the learned Magistrate took an erroneous view of the law in holding that the whole proceeding was illegal and was also wrong in holding that the necessary sanction under Section 197 of the Code of Criminal Procedure was necessary. As regards the evidence in the case, the learned counsel for the State firstly submitted that the evidence which had been led was sufficient to prove that there was entrustment and the respondent ought to have been held guilty of the offence under Section 409 of the Indian Penal Code and then alternatively it has been urged that if the evidence did not disclose that a charge under Section 409 of the Indian Penal Code had been made out, then the evidence clearly showed that a charge under Section 420 of the Indian Penal Code had been made out and although no such charge had been framed, the learned Magistrate could have and ought to have convicted the respondent of the charge under Section 420 of the Indian Penal Code. 9. It has been urged, on the other hand, by the learned counsel appearing for the respondent firstly that the whole trial and proceeding was illegal and, therefore, the learned Magistrate could not pass any ORDER :of conviction and there can be no interference in this appeal. Secondly, it was urged that the learned Magistrate had carefully considered all the evidence and the materials brought on record and rightly he came to the conclusion that the charge under Section 409 of the Indian Penal Code had not been proved and it has also been urged that even if the respondent could have been convicted of the offence under Section 420 of the Indian Penal Code without there being a charge of the same, but still the evidence and the materials did not show that a charge under Section 420 of the Indian Penal Code had been made out. 10. In my opinion, the first and the foremost question which arises for consideration is whether the proceeding was bad and illegal and whether the respondent could have been tried for the offence in the ordinary criminal court and whether the relevant provisions of law had been duly complied with. 10. In my opinion, the first and the foremost question which arises for consideration is whether the proceeding was bad and illegal and whether the respondent could have been tried for the offence in the ordinary criminal court and whether the relevant provisions of law had been duly complied with. I have already stated above that it was a clear defence of the respondent at the trial that he could not be tried by ordinary criminal court and in his statement under Section 342 of the Code of Criminal Procedure he stated that as he is a Junior Commissioned Officer in the Army, the case was beyond the jurisdiction of that court. It may be mentioned here that this position that he was a Junior Commissioned Officer in the Army was not challenged at any stage at the trial and during the hearing of this appeal also this contention has not been denied. The position, therefore, is that the respondent at the relevant point of time was a Junior Commissioned Officer in the Army. 11. I will now proceed to examine some of the relevant provisions of the Army Act of 1950 (Act 46 of 1950) as modified up to the 1st June, 1967. The Army Act (hereinafter referred to as 'the Act') clearly applies to offences committed by the army personnel described in Section 2 of the Act. Sub-Section (1) lays down that the following persons shall be subject to this Act, wherever they may be. There are several categories of such officers, who are enumerated in this Section, but we are concerned here with Clause (a) of Section 2(1) of the Act which lays down--"officers, junior commissioned officers and warrant officers of the regular Army." The respondent would clearly be covered by Clause (a) of Section 2(1) of the Act. He would, therefore, be governed by the Army Act. 12. I may then refer here to Section 52 of the Act. This Section lays down as follows:-- 52. He would, therefore, be governed by the Army Act. 12. I may then refer here to Section 52 of the Act. This Section lays down as follows:-- 52. Any person subject to this Act who commits any of the following offences, that is to say-- (a) commits theft of any property belonging to the Government, or to any military, naval or air force mess, band or institution, or to any person subject to military, naval or air force law, or (b) dishonestly misappropriates or converts to his own use any such property, or (c) commits criminal breach of trust in respect of such property, or shall, on conviction by court martial be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as is in this Act mentioned. There are other Clauses also which need not be mentioned, but Clauses (a), (b) and (c) of this Section clearly show that the offence under Section 409 of the Indian Penal Code would be covered by one of these clauses. The Section lays down that anyone who has committed any offence of the nature enumerated in this Section shall, on conviction by a court martial, be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as is in this Act mentioned. This Section, therefore, imposes higher punishment in respect of offences enumerated in the Section and which are also punishable under the Indian Penal Code. It also appears that by legal fiction this Section makes offences punishable under the Indian Penal Code also offences punishable under this Act. 13. The next relevant provision in this connection is Section 69 of the Act which lays down that subject to the provisions of Section 70, any person subject to this Act who at any place in or beyond India commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this Section, shall be liable to be tried by a court martial and, on conviction, be punishable as follows. It prescribes higher punishment which need not be mentioned here. It may be mentioned that Section 70 of the Act will not apply to the nature of the offence as in this present case. 14. It prescribes higher punishment which need not be mentioned here. It may be mentioned that Section 70 of the Act will not apply to the nature of the offence as in this present case. 14. The next relevant provision in this connection is Section 125 and it runs as follows:-- 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. This section, in my opinion, clearly lays down that if there is an offence which is triable by a criminal court and also triable by a court-martial, then to resolve a conflict of jurisdiction, the necessary machinery has been provided in this section. The machinery provided is that 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 to decide before which court the proceeding shall be instituted. 15. Section 126 of the Act lays down 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 may be mentioned here that admittedly, as is also evident from the record of the case there was no compliance of the provisions of Sections 125 and 126 of the Act in this case. 16. It is also necessary in this connection to refer to Section 549 of the Code of Criminal Procedure. It may be mentioned here that admittedly, as is also evident from the record of the case there was no compliance of the provisions of Sections 125 and 126 of the Act in this case. 16. It is also necessary in this connection to refer to Section 549 of the Code of Criminal Procedure. Sub-section (1) of Section 549 is as follows:-- The Central Government may make rules, consistent with this Code and the Army Act, the Naval Act, 1934, and the Air Force Act and any similar law for the time being in force, as to the cases in which persons subject to military, naval or air-force law shall be tried by a Court to which this Code applies, or by court-martial, and when any 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 this Code applies, or by a court-martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the commanding officer of the regiment, corps, ship or detachment to which he belongs, or to the commanding officer of the nearest military, naval or air-force station, as the case may be, for the purpose of being tried by court-martial. It is clear that the provisions of this section are naturally of a very special nature and have the effect of taking away the jurisdiction of ordinary criminal courts with respect to certain class of persons as contemplated by this section. This section, as quoted above, clearly lays down "and when any person is brought before a Magistrate and charged with an offence.......such Magistrate shall have regard to such rules....". It makes it imperative that in such types of cases the Magistrate shall follow the rules, if any, made under Section 549 of the Code of Criminal Procedure. 17. The Central Government has made rules in this respect and these rules are called "Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952." The relevant Rule in this connection is Rule 3 which runs as follows:-- 3. 17. The Central Government has made rules in this respect and these rules are called "Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952." The relevant Rule in this connection is Rule 3 which runs as follows:-- 3. Where a person subject to Military, Naval, Air Force Law is brought before a Magistrate and charged with an offence for which he is liable to be tried by a court-martial, such Magistrate shall not proceed to try such person or to issue ORDER :s for his case to be referred to a Bench, or to inquire with a view to his commitment for trial by the Court of Sessions or the High Court for any offence triable by such Court, unless (a) he is of opinion, for reasons to be recorded, that he should so proceed without being moved thereto by competent Military, Naval or Air Force authority, or (b) he is moved thereto by such authority. Under Rule 3, therefore, before a Magistrate can proceed to try such a person, there should be a compliance of Clause (a) or (b) of the aforesaid Rule. Now as far as Clause (a) is concerned there was no compliance of this because admittedly, the record of the case does not show that any such reason as contemplated by Clause (a) had been recorded by the Magistrate. 18. Reference has been made in the JUDGMENT : of the learned Magistrate and it has also been urged in the course of the arguments by the learned counsel appearing for the State that it was a fit and proper case in which the trial should have been in the ordinary criminal court because the trial of an offence by a court-martial had become barred. I may in this connection refer here to Section 122(1) of the Army Act which lays down that except as provided by sub-section (2), no trial by court-martial of any person subject to this Act for any offence shall be commenced after the expiration of a period of three years from the date of such offence. The offence in this present case will not be covered by Sub section (2) and, therefore, it has been rightly urged that the trial for such an offence by a court-martial was barred by Sub-section (1) of Section 122 of the Act. The offence in this present case will not be covered by Sub section (2) and, therefore, it has been rightly urged that the trial for such an offence by a court-martial was barred by Sub-section (1) of Section 122 of the Act. It has, therefore, been urged that in such circumstance this was one of the reasons which would have justified the Magistrate in holding the trial in a criminal court. In the first place, it seems rather doubtful if it could have been a good and proper reason and even if it be so, as I have already pointed above, no such reason had been recorded as contemplated by Clause (a) of Section 3 of the Rules. In my opinion, without compliance of Clause (a), the Magistrate could not proceed with the trial. As regards Clause (b), admittedly, the Magistrate or the criminal court had not been moved by the authority as contemplated by the Rule. 19. Then again, there is another Rule which is also very important in this connection and it is Rule 4. This Rule lays down as follows:-- 4. Before proceeding under Clause (a) of Rule 3 the Magistrate shall give written notice to the Commanding Officer of the accused and until the expiry of a period of seven days from the date of the service of such notice he shall not:-- (a) convict or acquit the accused under Sections 243, 245, 247 or 248 of the Code of Criminal Procedure, 1898 (V of 1898), or hear him in his defence under Section 244 of the said Code, or (b) frame in writing a charge against the accused under Section 254 of the said Code, or (c) make an ORDER :committing the accused for trial by the High Court or the Court of Sessions under Section 213 of the said Code. Rule 4, therefore, lays down that if a Magistrate is proceeding under Clause (a) of Rule 3, then it is mandatory upon him that he should give a written notice to the Commanding Officer. The Rule undoubtedly is very wholesome because when such a person is being tried in the ordinary criminal court, notice should be given to the Commanding authority so that the military authority may be in formed that he is being tried there. The Rule undoubtedly is very wholesome because when such a person is being tried in the ordinary criminal court, notice should be given to the Commanding authority so that the military authority may be in formed that he is being tried there. But here again, admittedly there was no compliance of the provisions of Rule 4, Clauses (a), (b) and (c). Rule 4 read along with Rules 3 and 4 clearly shows that without the compliance of Rule 3 or Rule 4, Magistrate could not pass any ORDER :and consequently it follows that the Magistrate could neither convict nor acquit when the whole trial before him was illegal. 20. The learned counsel for the State has also in this connection relied on a decision of the Supreme Court in the case of (1) Major E.G. Barsay V. State of Bombay, reported in A.I.R. 1961 SC 1762, but the circumstances and the facts of the case were quite different and it was with regard to a trial of an offence before a Special Judge and not before a Magistrate because the charges there were under the Prevention of Corruption Act. In my opinion, the aforesaid ruling, therefore, does not apply to the facts of the present case. On a consideration of these facts I am of opinion that the trial was itself illegal as it was without complying with the mandatory provisions of the relevant rules and sections and so the Magistrate was not competent to pass any ORDER :either of acquittal or conviction. 21. The next point which had been urged in this connection is that the necessary sanction as contemplated under Section 197 of the Code of Criminal Procedure had not been obtained and the learned counsel of both parties relied on certain provisions of the Army Act as well as on a decision of the Supreme Court in the case of (2) Baijnath and others V. State of Madhya Pradesh, reported in A.I.R. 1966 SC 220. Similarly as also stated above, there were arguments on both sides about the merit of the case and there were also submissions on behalf of the State that even if it be found that no offence under Section 409 of the Indian Penal Code was made out, still the respondent was guilty for committing an offence under Section 420 of the Indian Penal Code and could have been convicted of the same although no charge under that section had been framed. As far as this question is concerned, the provisions of Section 236 of the Code of Criminal Procedure read with Section 237 and particularly illustrations to these sections clearly show that there can be a conviction under Section 420 of the Indian Penal Code although there had been no charge against the respondent. Reliance has also been placed in this connection on a decision of the Supreme Court in the case of (3) Sunil Kumar Paul V. the State of West Bengal, reported in A.I.R. 1965 SC 706. I have taken into consideration all these facts, but as I am of the view that the whole trial and proceeding was illegal and as such the Magistrate could not pass either ORDER :of conviction or an ORDER :of acquittal and this may necessitate, if permissible under the law for a fresh proceeding to be drawn up against the respondent, so it does not seem desirable that I should express any opinion either about the merit or on the question if any sanction under Section 197 of the Code of Criminal Procedure was necessary and whether even if the charge under Section 409 of the Indian Penal Code was not substantiated, the respondent could be convicted under Section 420 of the Indian Penal Code because these questions may in a subsequent trial arise for consideration and it will not be proper to express any opinion about these. In the result, therefore, on the question of jurisdiction and legality of the proceeding itself, the appeal fails and it is dismissed, but with the observations which I have made above. Appeal dismissed