In this petition, the petitioner has invoked the inherent power of this Court under section 482 of the Code of Criminal Procedure to quash the order dated 15.5.86 taking cognizance of the offence and also the criminal case No. CR 150/86 pending in the Court of the Magistrate, Jorhat. 2. The facts of the case are in narrow compass. The opposite party on 12.5.86 lodged a complaint before the Additional Chief Judicial Magistrate, Jorhat, alleg­ing, inter-alia that Brig. S. S. Randhawa and Lt. Col. Amrik Singh had no authority to engage Government Pleader to file a complaint case, viz. CR Case No. 16/86, before the Magistrate, Jorhat. The said accused persons also had no authority or competence to represent the petitioner. Besides, the said accused persons gave false information to the Government Pleader and forged the confidential communica­tions given by the petitioner in the above criminal case. The contention of the petitioner is that under the Army Act, the General Commanding Officer of 101 Area is the only competent authority to move the Court. He is also the financial authority under the Army Regulation to engage the Government Pleader at public expenses. The petitioner and the accused persons are all Army Officers and subject to Army Act. The alleged offences are civil offences and punishable by the Army Authorities. The Criminal Court had no jurisdiction, whatsoever, to entertain the complaint and direct the Army Authorities to deliver the offenders to the Court. Therefore, the cognizance taken by the Magistrate is without jurisdiction. Hence the present petition. 3. I have heard both sides. Mr. S.K. Chand Mohammad, learned senior Central Government Standing Counsel, strenuously argues that the criminal proceedings initiated by the Magistrate is not maintainable, in as much as, the Magistrate has no competence to take cognizance of the offences under the provisions of the Army Act. He further submits that under section 70 of the Army Act ordinarily the Army Authorities have the concurrent jurisdiction in respect of only three offences mentioned in the said section and only in those offences a Magistrate of a Criminal Court can take cognizance of the offence and direct the Army Authorities to deliver the offender as envisaged under section 126 of the Army Act or to direct the Army Authority to refer to the Central Government for its opinion. According to Mr. According to Mr. S.K. Chand Mohammad the offences mentioned in the Criminal case are exclusively tribal by the Army Authorities under the Army Act and the Rules framed there under and, therefore, the Magistrate cannot take cognizance of the offences and proceed with the criminal trial. He also submits that the complaint petition does not disclose any offence against the accused persons. Even if any offence had been committed by the accused such offences are friable in a Court Martial. Mr. Chand Mohammad further contends that the Magistrate of a Criminal Court has concurrent jurisdiction to try the offence in respect of offence of murder, culpable homicide not amounting to murder or rape against a person not subject to Army Act as mentioned in section 70 of the Army Act. In respect of those offences the Magistrate may direct the Army Authorities to deliver the offenders or refer the matter to the Central Government for its opinion who should try the case. According to the learned Standing Counsel, in the instant case, the alleged offences do not come within the purview of section 70 of the Army Act, and, therefore, taking cognizance of the offence and continuance of the criminal proceeding before the Magistrate is only an abuse of process of Court and therefore, liable to be set aside and quashed. 4. Mr. N. Dutta, learned counsel for the opposite party, on the other hand submits that the complaint petition clearly discloses the offences against the accused persons and such offences are friable by an ordinary Criminal Court and the learned Magistrate has competence and authority to take cognizance of the offence even though the petitioner as well as the accused persons are the members of Armed Forces. Mr. Dutta further submits that the Magistrate have the power to take cognizance of the offences as disclosed in the complaint petition under the provisions of law. It is not a fit case to quash the criminal proceeding by invoking the inherent power of this Court. He also submits that normally this Court will not quash a criminal proceeding invoking the inherent power of this court and it should be exercised in rarest of the rare cases as held by die Apex Court. 5. It is not a fit case to quash the criminal proceeding by invoking the inherent power of this Court. He also submits that normally this Court will not quash a criminal proceeding invoking the inherent power of this court and it should be exercised in rarest of the rare cases as held by die Apex Court. 5. On the rival contentions of the learned counsel for both the parties, it is to be seen whether the order of the learned Magistrate taking cognizance of the offences and also the impugned order should be set aside and quashed ? Before I deal with the controversy in the present case I feel it expedient to scrutinize some of the provisions of the Army Act, 1950. Section 2 of the Army Act refers to different categories of Army personnel who are subject to the Army Act. Section 3 (ii) defines a "Civil offence" to mean " an offence which is friable by a Criminal Court", Section 3 (vii) defines "Criminal Court". As per definition, a "Criminal Court" means" a Court of ordinary criminal justice in any part of India, other than the State of Jammu and Kashmir". Section 3 (xvii) defines the "offence" to mean "any act or omission punishable under this Act and include a civil offence", section 3 (xxv) says that all words and expressions used but not defined in this Act and defined in the Indian Penal Code shall be deemed to have the meanings assigned to them in that Code. The word "offence" is defined to mean not only any act or omission punishable under the Army Act, but also a civil offence. Sections from 34 to 68 define the offences under the Act friable by Court Martial and also indicate the punishments for such offence. Sections 69 and 70 deal with the commission of offence of a "civil offence". The word "offence" is defined to mean not only any act or omission punishable under the Army Act, but also a civil offence. Sections from 34 to 68 define the offences under the Act friable by Court Martial and also indicate the punishments for such offence. Sections 69 and 70 deal with the commission of offence of a "civil offence". In short, under this Chapter there are three categories of offences, viz; (i) Offences committed by a person subject to the Act friable by a Court Martial in respect whereof specific punishments have been assigned, (ii) Civil offences committed by the said person at any place in or beyond India, but deemed to be offences committed under the Act, and, if charged under section 69 of the Act, friable by a Court Martial; and (iii) offences of murder and culpable homicide not amounting to murder or rape committed by a person subject to the Act against a person not subject to the military law. Subject to few exceptions, these offences are not friable by Court Martial but only by ordinary Criminal Courts. Section 475 of Code of Criminal Procedure empowers the Central Govern­ment to make rules consistent with the Code and other Acts, including the Army Act, as to the cases in which persons subject to Military, Naval or Air-force law be tried by a Court to which the Code applies or by Court Martial. This sections further provides that when a person accused of such an offence which can be tried by an ordinary Criminal Court or by a Court Martial is brought before a Magistrate, he 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. This gives a discretion to the Magistrate, having regard to the rules framed, to deliver the accused to the Military authorities for trial by a Court Martial. This gives a discretion to the Magistrate, having regard to the rules framed, to deliver the accused to the Military authorities for trial by a Court Martial. Under the said section and the rules framed there under, the final choice about the forum of the trial of a person accused of a civil offence rests with the Central Government, whenever there be difference of opinion between a Criminal Court and the Military Authorities about the forum where an accused be tried for the particular offence committed by him. His position under sections 125 and 126 of the Act is also the same. 6. Mr. Dutta placed reliance in support of his submissions on the following decision: (a) Major E:G. Barsay v. State of Bombay, AIR 1961 SC 1762 , (b) Ram Samp v. Union of India, AIR 1965 SC 247 , (c) Som Datt Datta v. Union of India, AIR 1969 SC 414 , (d) Joginder Singh v. State of Himachal Pradesh, AIR 1971 SC 500 , and (e) Lt Col S.K. Kashyap v. State of Rajasthan, AIR 1971 SC 1120 . 7. In Major E.G. Barsay (Supra) the Supreme Court observed thus : "The scheme of the Act is self evident. It applies to offences committed by Army personnel described in Section 2 of the Act; it creates new offence with specified punishments, imposes higher punishments to pro-existing offences and enables civil offences by a fiction to be treated as offences under the Act; it provides a satisfactory machinery for resolving the conflict of jurisdiction. Further it enables, subject to certain conditions, an accused to be tried successively both by Court Martial and by a Criminal Court. It does not expressly bar the jurisdiction of Criminal Courts in respect of acts or omissions punishable under the Act, if they are also punishable under any other law in force in India." 8. In Ram Sarup (Supra) the Supreme Court after discussing the expediency of summary trial in a Court Martial have held thus : "... It does not expressly bar the jurisdiction of Criminal Courts in respect of acts or omissions punishable under the Act, if they are also punishable under any other law in force in India." 8. In Ram Sarup (Supra) the Supreme Court after discussing the expediency of summary trial in a Court Martial have held thus : "... It also provides that when a person accused of such an offence which can be tried by an ordinary Criminal Court or by a Court Martial is brought before a Magistrate, he 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. This gives a discretion to the Magistrate, having regard to the rules framed, to deliver the accused to the Military authorities for trial by Court Martial." From this decision it is clear that the Magistrate has the discretion to send an offender to the Court Martial. 9. In Som Dutta (Supra) the Supreme Court observed thus; "Section 125 presupposes that in respect of an offence both a Criminal Court as well as a Court Martial have each concurrent jurisdiction. Such a situation can arise in a case of an act or omission punishable both under the Army Act as well as under any law in force in India. It may also arise in the case of an offence deemed to be an offence under the Army Act. Under the scheme of the two sections, in the first instance, it is left to the discretion of the officer mentioned in section 125 to decide before which court the proceedings shall be instituted, and, if the officer decides mat they should be instituted before a Court Martial, the accused person is to be detained in Military custody; but if a criminal Court is of 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. On receipt of the said requisition, the officer may either deliver over the offender to the said court or refer the question of proper court for the determination of the Central Government whose order shall be final. These two sections of the Army Act provide a satisfactory machinery to resolve the conflict or jurisdiction, having regard to the exigencies of the situation in any particular case." 10. In Joginder Singh (Supra) the Supreme Court held that in respect of an offence which could be tried both by a Criminal Court as well as a Court Martial, sections 125 and 126 have been made to avoid a conflict of jurisdiction between the ordinary criminal courts and the Court Martial. However, it is to be noted that the discretion is left to the officer mentioned in section 125 to decide before which court the proceedings should be instituted. Under Section 125 a Commanding Officer may exercise his discretion and decide that the case be tried in a Court Martial. In that case when a Commanding Officer exercise his discretion and decide to try the offender before a Court Martial, section 126(1) comes into operation. In case, if the Designated Officer does not exercise his discretion and decide to try the offender before a Court Martial, the Criminal Court can exercise its ordinary jurisdiction and may obviously proceed with the case. 11. In Lt. Col. S.K. Kashyap (Supra), the Supreme Court held that the Criminal Court is not powerless when it is of the opinion that the case should be tried in a Criminal Court and in case of conflict between the Criminal Court and the Court Martial the order of the Central Government is final as to the forum of trial of the offence. 12. In view of the various decisions of the Supreme Court quoted above, it is abundantly clear that a Civil offence referred to in the Act can be tried by an ordinary Criminal Court. The legal position, therefore, is that, when an offence is for the first time created by the Army Act, such as those created by Sections 34, 35, 36, 37 etc. The legal position, therefore, is that, when an offence is for the first time created by the Army Act, such as those created by Sections 34, 35, 36, 37 etc. it should be exclusively friable by a Court Martial, but where a Civil offence is also an offence under the Act or deemed to be an offence under the Act, both an ordinary Criminal Court as well as a Court Martial would have jurisdiction to try the person committing the offence. Such a situation is visualized and provision is made for resolving the conflict under Sections 125 and 126 of the Army Act. 13. In the light of the above discussions, now it is to be seen whether in the instant case, the Judicial Magistrate, Jorhat, has the authority and jurisdiction to take cognizance of the offences referred to in the complaint petition and whether the continuance of the criminal case is an abuse of process of the Court. On perusal of the complaint petition it discloses some offence, but that offences are not exclusively friable by the Court Martial under the Act as referred to above. These offences can be said to be civil offences and the Magistrate has jurisdiction to take cognizance of the offences. From the petition it does not appear that the Command­ing Officer has exercised his discretionary power, therefore, the question of taking opinion of the Central Government does not arise in the instant case. 14. The above observations, are my tentative view, because the proceeding is yet to start and the evidence of the witnesses are also yet to be recorded. After the recording of the evidence, if any offence is made out and which is not exclusively friable by a Court Martial, the Criminal Court may proceed with the case. 15. In view of what have been stated above, I do not find any merit in the petition. Accordingly, the petition is dismissed.