Judgment On or about June 20. 1969 Tejendar Singh, Deputy Superintendent of Police, Central Bureau of Investigation: Special Police Establishment Division, Calcutta filed a complaint before the Judge. 4th Additional Special Court, Calcutta against Manmal Bhutori., the opposite party on this rule and Chittaranjan Bhattacherjee, a former Major of the Indian Penal Code read with S.50(2) of the prevention of Corruption Act 1947 and S. 5(2) read with S. 5(l)(d) of, the said Act. Tile learned Judge took cognizance upon the said complaint on July 1. 1967 and issued process against them. The jurisdiction of the Special Court to try was challenged by the accused persons and ultimately the Supreme Court decided against them. When the matter came up for disposal before the learned Judge the opposite party again Challenged the maintainability of the proceeding on different ground before this Court and by a judgment delivered in Criminal Revision No. 471 of 1978 it directed the learned Judge to decide the question as to the maintainability of the proceeding in the light of certain observations made in the said judgment. An application was also filed by Sri Bhattacherjee challenging the jurisdiction of the Court to try him on various other grounds. The application tiled by Sri Bhattacherjee however could not be heard as in the meantime he died. The question whether the opposite party could be tried was taken up for consideration by the learned Judge and after hearing the parties be hold by his order dated April 2, 1979, that no valid cognizance was taken in the case, as the Court did not follow the mandatory provision of Rule 3 framed under S. 549 of the Code of Criminal Procedure 1898 and discharged the opposite party. The above order forms the subject matter of challenge in the instant Rule. 2. Mr. Ghosh, the learned Advocate appearing for the petitioner submitted that the learned Judge failed to consider that Rule 3 of The Criminal Courts and Court-Martial (Adjustment of jurisdiction) Rules 1952, (hereinafter referred to as the “Adjustment Rules", had no manner of application to the facts of the instant case as Sri Bhattacherjee ceased to be subject to Army Act before cognizance’s was taken Mr. Nalin Banerjee, the learned Advocate, appearing for the opposite party on the other hand contended that in view of the provision of S. 122 of the Army Act 1950 (hereinafter referred to as the "Act") Sri Bhattacherjee was liable to be tried by the Court-Martial even if it was assumed that he was invalidated from the military service with effect from February 14, 1966 and consequently the Adjustment Rules were applicable to the facts of the instant case. 3. To appreciate the contentions of the respective parties it will be necessary to refer to certain provisions of the Act and the Adjustment Rules. 4. Section 2(1) of the Act specifies the persona who will be the subject to the Act. Section 2(2) provides that every person subject to the Act under Clauses (a) to (g) of sub-s.(1) shall remain so subject until duly retired, discharged, released, dismissed or cashiered from the service. The scheme of the Act indicates that certain offence arc exclusively triable by a Court-Martial, certain other offences are exclusively triable by the ordinary Criminal Court; and certain other offences are triable both by the ordinary Criminal Courts and Court-Martial. It is in respect of last category of offences that certain provision have been made as to how the choice is to be made regarding the forum of the trial. Sections 125 and 126 of the Act provide by whom and in what manner the choice be made. It appears therefrom that the out choice is with the. Army authority and for that purpose it may direct that an accused, who is already in civil custody, may be detained in military custody. If in spite of such direction the appropriate criminal Court is of the opinion that the proceeding should be instituted before itself be may require the Army authorities to deliver over the offender to the nearest Magistrate to be proceeded against according to law r to postpone the proceeding pending a reference to the Central Government, If the Army authorities do not wish to comply with the said direction they shall refer the question as to the Court before which the proceedings were to be instituted and the determination of the Central Government would be final. Section 122 provides that a trial before a Court-Martial of any person subject to the Act muse commence before the expiration of a period of three years from the date of such offence. Rule 3 of the Adjustment Rules prescribes the procedure to be followed by a Magistrate where a person subject to Military, Neval or Air Force Law is brought before him charged with an offence for which he is liable to be tried by a Court-Martial and expressly provides that such Magistrate shall not proceed to try such person or to enquire with a view, to his commitment for trial unless he is of opinion, for reasons to be recorded that he should so proceed without being moved by the competent Army authority or he is moved thereto by such authority. As indicated earlier, the learned judge discharged the accused on the ground that at the time of taking cognizance the above requirement of Rule 3, which was mandatory, was not followed. 5. The materials on record unmistakably go to show that Sri Bhattacharjee was invalidated from the Military service with effect from February 14, 1966, as permanently unfit for any from of Military service and consequently he was not subject to the Act on the date when the cognizance was taken by the learned judge. In the case of Delhi Special Police Establishment v. S.K. Loratya reported in AIR 1972 SC 2548 , the Supreme Court held that the phrase is liable to be tried either by a court to which this Code applies or by Court-Martial” id intended to refer to the initial jurisdiction of the two Court to take cognizance of the case and not to their jurisdiction of the two Courts to take cognizance of the case and not to their jurisdiction to decide it on merits. The Supreme Court further observed that the word “jurisdiction” in S.125 really signifies the initial jurisdiction to take cognizance of the case and it refers to the stage at which proceedings are instituted in a Court. Inasmuch as Sri Bhattacharjee was not subject to the Act when cognizance was taken he was not liable to be tried by the Court-Martial; consequently Rule 3 had no manner of application to the fact of the instant case. For the self same reason S.122(1) of the Act will not come in aid of the opposite Party as contended by Mr. For the self same reason S.122(1) of the Act will not come in aid of the opposite Party as contended by Mr. Banerjee. 6. The same conclusion is reached by a different route Section 123 of the Act provides that where an offence under the Act had been committed by a person while subject to the Act and he has ceased to be subject, he may be taken into and Kept in military custody and tried and punished for such offence as if he continued to be so subject but no such person shall be tried for an offence unless his trial commences within six month after he had ceased to be subject to the Act. Inasmuch as the provisions to Sub-s. (2) of the said section does not apply to the facts of the instant case Sri Bhattacharjee could not be prosecuted by the Court Martial as offence in the instant case was committed in the year 1964 and he was not tried by the Court-Martial with the stipulated periods of six months. 7. In view of the above discussions the application succeeds and the Rule is made absolute. The impugned order is hereby set aside and the learned judge is directed to proceed with the trial expeditiously to bring it to an early close, now that more than 13 years have elapsed since institution of the case. Rule made absolute.