JUDGMENT 1. - The petitioner is in the Indian Army. A criminal case was registered against him under Sections 307, 323, 352 (PC and 21/25 Arms Act at P.S. G.R.P., Bharatpur. At the relevant time he was serving in 18th Guard Battalion which is under Major General, Officer Commanding, 33 Mechanised Division. He was on temporary duty at Ammunition Depot, Bharatpur. 2. The accusation against the petitioner is that he made a gun fire on a person causing injuries to him while on duty. After submission of the charge sheet in the Court of Additional Magistrate (Railways) Kota, he was handed over to Offg., Station Commander, Station Headquarters, Bharatpur on his request. It appears that Station Commander, Station Headquarters, Bharatpur, vide its letter dated 18-12-89 intimated to the concerned Magistrate to proceed with the case under Cr. PC. Thereafter, the petitioner was committed to the Court of Sessions Judge, Kota, vide order dated 19-11-90 as the offence under Section 307 IPC is triable exclusively by the Court of Sessions. 3. After the commitment of the case, General Officer Commanding, 33 Mechanised Division decided that the case be taken over and possessed under the Army Act 1950. Hence a letter dated 9-6-90 was addressed to the Sessions Judge, Bharatpur, in this connection along with the order of General Officer Commanding, 33 Mechanised Division by the Major, Offg. AAO (Legal) for GOC, HQ 33 Mechanised Division C/o 56 APO, with a request to hand over all the connected trial papers including investigating reports and weapons etc. so as to proceed against the petitioner under the Army Act, as the army authorities opted for a trial of the petitioner by a Court Marshal. However, this prayer was declined by the learned Additional Sessions Judge No. 1, Bharatpur vide impugned order dated 11-7-90 on a simple ground that the powers under Section 475 Cr. PC could be exercised only by the concerned Magistrate and not by the Court of Sessions. 4. Feeling aggrieved against the said order, the petitioner has approached to this Court under Section 482 Cr. PC. 5. PC could be exercised only by the concerned Magistrate and not by the Court of Sessions. 4. Feeling aggrieved against the said order, the petitioner has approached to this Court under Section 482 Cr. PC. 5. The learned counsel for the petitioner contended that the petitioner was serving in 18th Guard Battalion which is under General Officer Commanding 33 Mechanised Division, as such, choice between Criminal Court and Court Marshal lies in the discretion of the said Officer Commanding alone who has opted for a trial of the petitioner by a Court Marshal. He further submitted that the Station Commander, Station HQs Bharatpur was not competent to exercise the discretion as to whether the petitioner should be tried by a Criminal Court or Court Marshal. He further argued that even if the Station Commander Station HQs Bharatpur having intimated to the Railway Magistrate to proceed with the case, the power could be exercised by the Officer Commanding with whom the petitioner was serving. According to the learned counsel, the power could be exercised by such officer even after the case was committed to the Court of Sessions. He further argued that it was mandatory for the concerned Magistrate to have intimated to the concerned Officer Commanding 33 Mechanised Division, as the final choice lay with him. Lastly it was argued that the powers can be exercised by this Court under Section 475 Cr. PC. 6. On the other hand the learned P.P. supported the order of the learned Additional Sessions Judge. 7. The Army Act, 1950 (hereinafter referred to as 'the Act') was enacted to consolidate and amend the law relating to the Government of the regular army. Under the Act, there are certain offences which are peculiar to the army and they are triable by Court Martial alone. In clause (xvii) of Section 3 of the Act, the word 'offence' is defined as "any act or omission punishable under this Act and includes a civil offence". The expression "civil offence" is defined in clause (ii) of said, Section 3 as "offence which is triable by a criminal .court". In clause (xvii) of Section 3 of the Act, the word 'offence' is defined as "any act or omission punishable under this Act and includes a civil offence". The expression "civil offence" is defined in clause (ii) of said, Section 3 as "offence which is triable by a criminal .court". Clauses (vii) and (viii) of the said section read as follows: "(vii) "court-martial" means a court martial held under this Act." "(viii) "criminal court" means a court of ordinary criminal justice in any part of India." It is not disputed that the offence alleged against the petitioner is a civil offence and could be tried by a Court Martial or a regular Criminal Court. Section 125 of the Act reads as follows : "125. 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 detailed in military custody." Sections 127 of the Act is also relevant and the same is reproduced as under: "127. Successive trials by a criminal court and court-martial (1) A person convicted or acquitted by a court-martial may, with the previous sanction of the Central Government, he tried again by a criminal court for the same offence, or on the same facts." 8. A bare perusal of sections 125 and 127 (1) it is clear that they provide for resolving conflict of jurisdiction between a criminal court and a court-martial in respect of some offences. In respect of trial of offences under the Penal Code committed by persons covered by the Army Act both Court-Martial and Criminal Court have concurrent jurisdiction. A bare perusal of sections 125 and 127 (1) it is clear that they provide for resolving conflict of jurisdiction between a criminal court and a court-martial in respect of some offences. In respect of trial of offences under the Penal Code committed by persons covered by the Army Act both Court-Martial and Criminal Court have concurrent jurisdiction. Under Section 125 of the Act, the officer, mentioned therein, is given discretion to decide before which court the proceedings shall be instituted, and, if that officer decides that they should be instituted before a court-martial, the accused is to be detained in military custody but if a criminal court is of the opinion that the said offence shall be tried before itself, it may issue the requisite notice under Section 126 either to deliver over the offender to the nearest Magistrate or to postpone the proceedings pending a reference to the Central Government. 9. The word 'jurisdiction' in Section 125 of the Act though signifies the initial jurisdiction to take cognisance of a case. In other words, it refers to a stage at which proceedings are initiated. 10. It is also relevant to refer Rules 3 and 4 of Court-Martial (Adjustment of jurisdiction) Rules, 1978. Briefly stated, Rule 3 of the said Rules provides that where a person subject to any law relating to the Armed Forces of the Union is brought before a Magistrate and charged with an offence for which he is also liable to be tried by a Court-Martial or Coast Guard Court, as the case may be, such Magistrate shall not proceed to try such person or to commit the case to the Court of Sessions, unless he is moved to do so by a competent military, naval, air force or Coast Guard authority or he is of the opinion as set out in clause (b) of Rule 3 of the said Rules. Rule 4, in brief, provides that when such a person, as afore stated, is brought before the Magistrate for trial, before proceeding to frame the charge, the Magistrate shall give a notice to the Commanding Officer or the competent military authority or, as the case may be, of the accused and till the expiry of the period of 15 days from the date of service of such notice, the Magistrate concerned will not proceed to do any of the things set out in clauses (a) to (d) of Rule 4 of the said Rules. 11. From Rule 4 it is clear that the Magistrate shall give a notice to the Commanding Officer or the competent military authority before proceeding to frame the charge against the accused. In the instant case, no notice was given by the Magistrate to the Commanding Officer or to the competent military authority as required under Rule 4 of the Rules, but at the initial stage a request was made by Station Commander, Station HQs, Bharatpur to hand over the petitioner for necessary action, and in compliance of the said request, the petitioner was handed over but subsequently, the competent authority requested the Magistrate to proceed with the case. It is not disputed before me that Station Commander, Station HQs Bharatpur is not the Officer Commanding of the petitioner as he was serving in 18th Guard Battalion under Officer Commanding 33 Mechanised Division. Thus there was a non-compliance of Rule 4 by the Magistrate. The Officer Commanding, after having come to know about the case against the petitioner, opted for his trial under the provisions of Army Act in exercise of powers conferred on him under the provisions of Section 125 of the Act and an intimation was given to the concerned Sessions Judge Bharatpur. 12. In these circumstances, whether it can be said that the discretion which lay with the Officer Commanding cannot be exercised simply on the ground that the case stood committed to the Court of Sessions though no charge has been framed so far and the trial has not commenced. 13. 12. In these circumstances, whether it can be said that the discretion which lay with the Officer Commanding cannot be exercised simply on the ground that the case stood committed to the Court of Sessions though no charge has been framed so far and the trial has not commenced. 13. If the Magistrate had given notice under the Rule 4 as afore stated, the Officer Commanding 33 Mechanised Division could have exercised his powers under Section 125 of the Act at the initial stage when the case was pending in the Court of Magistrate, but as no notice was given by the learned Magistrate, the said option could not be exercised by him. In such a situation, if there is a non-compliance of Rules 3 and 4, which are mandatory in nature, the trial itself may be vitiated. It cannot be the intention of the legislators that in such a situation the discretion cannot be exercised by the competent authority under Section 125 of the Act prior to commencement of the trial. If the provisions of Section 125 of the Act is read along with the Rules 3 and 4, then the intention of the legislator appears to be that the option should be exercised before the commencement of the trial. 14. Section 475 Cr. P.C. may be reproduced as under, for ready reference : "475. If the provisions of Section 125 of the Act is read along with the Rules 3 and 4, then the intention of the legislator appears to be that the option should be exercised before the commencement of the trial. 14. Section 475 Cr. P.C. may be reproduced as under, for ready reference : "475. Delivery to Commanding Officers of persons liable to be tried by Court-martial:- (1) The Central Government may make rules consistent with the Code and the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950) and any other law, relating to the Armed Forces of the Union, for the time being in force, as to cases in which persons subject to military, naval or air force law, or such other law, shall be tried by a Court to which this Code applies or by a 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 unit 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 a Court-Martial. (2) Every Magistrate shall, on receiving a written application for that purpose by the Commanding Officer of any unit or body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavours to apprehend and secure any person accused of such offence. (3) High Court may, if it thinks fit direct that a prisoner detained in any jail situated within the State be brought before a Court-martial for trial or to be examined touching any matter pending before the Court-Martial." 15. Sub-section (3) of section 475 Cr. PC also gives power to the High Court to give direction that a prisoner detained in jail situated within the State be brought before a Court-martial or to be examined touching any matter pending before the Court-martial. 16. Sub-section (3) of section 475 Cr. PC also gives power to the High Court to give direction that a prisoner detained in jail situated within the State be brought before a Court-martial or to be examined touching any matter pending before the Court-martial. 16. Thus, taking to the entire scheme of the Act and the Rules and keeping in view that mandatory provision contained in Rule 4 has not been complied by the Magistrate, the competent Commanding Officer can exercise the discretion/choice about the forum where the accused should be tried for the particular offence committed by him, if the case is covered under Section 125 of the Act and this power can be exercised by him before the commencement of the trial even though the case stood committed to the Court of Sessions. If such request has been declined then the same can be exercised by this Court under Section 482 Cr. P.C. 17. Consequently, I allow this petition and direct that in pursuance to the request made by General Officer Commanding 33 Mechanised Division the accused petitioner be handed over to the said authority along with all connected papers for his trial in Court-martial under the provisions of Army Act. The learned Sessions Judge shall intimate to the concerned authority in this connection. It is however made clear that in case the concerned authority declines to try the accused petitioner under the provisions of the Army Act after the notice by the learned Additional Sessions Judge, then he shall be tried in accordance with Cr. PC. The petition is decided accordingly.Petition allowed. *******