Honble YADAV, J.–The petitioner by filing the present petition questions legality and validity of initiation of General Court-martial proceedings against him and prayed for a direction to the respondents not to proceed with the Court-martial proceedings in pursuant to the charge-sheet Annexure-9 to the writ petition. (2). The present writ petition is listed today for admission and disposal of stay application. Counter and rejoinder affidavits have been exchanged between the parties and now the case is ripe for final hearing. With the consent of learned counsel for the parties, the present writ petition itself it finally disposed of at admission stage. (3). After perusal of the averments made in the writ petition and reply filed by respondents and also after hearing learned counsel on both sides at length on 23.2.98, the petitioner was granted three days time to file a supplementary affidavit stating therein that statement of Smt. Suman Dudee wife of Captain R.S. Dudee- petitioner was recorded during the course of investigation in summary court of inquiry envisaged under Rule 180 of the Army Rules, 1954 as allegation made by her against respondent No. 4 affects his character. Learned counsel appearing on behalf of respondents was also directed to file a supplementary reply, indicating therein that a prima facie case was inquired against the petitioner under the aforesaid rules as allegation made against him affects military reputation. (4). In compliance of the order dated 23.2.98, the petitioner has filed supple- mentary affidavit, along with statement of Smt. Suman Dudee as Annexure-10, recorded during the course of investigation in summary court of inquiry under Rule 180 of the Army Rules, 1954. The respondents have also filed a supplementary reply along with relevant documents such as Summary of evidence, Additional Summary of evidence recorded during the course of court of inquiry, reply of Mrs. Dudee, copy of Appendix `A to Army order AO 135/78 marked as Annexure-R/5 to Annexure-R/10 in support of their claim that before initiation of General Court-martial proceedings against the petitioner which affects military reputation a prima facie case was inquired against him under Rule 180 of the Army Rules 1954. (5). Dudee, copy of Appendix `A to Army order AO 135/78 marked as Annexure-R/5 to Annexure-R/10 in support of their claim that before initiation of General Court-martial proceedings against the petitioner which affects military reputation a prima facie case was inquired against him under Rule 180 of the Army Rules 1954. (5). I propose to decide the present writ petition without delineating the facts in detail averred in the writ petition by the petitioner and emphatically denied by answering respondents in their reply except mentioning the facts that charge-sheet Annexure-7 to the writ petition was served to the petitioner on 2.9.97 thereafter a subsequent charge-sheet dated 10.2.98 Annexure-9 under Sec. 68, 63 and 56(a) of the Army Act was also served upon him. It is alleged in paragraph 11 of the writ pe- tition that when the complaint against respondent no. 4 for outraging modesty of his wife before the superior military authorities resulted into fiasco then she was compelled to file a criminal complaint under Sec. 354 and 452 IPC before the court of Judicial Magistrate No. 3, Jodhpur. The learned Judicial Magistrate after recording statements on oath under Sec. 200 and 202 Cr. P.C. has taken cognizance against respondent No. 4 under Sec. 354 and 452 IPC on 9.12.97 vide Annexure-8 to the writ petition, holding that the provisions of Sec. 475 Cr.P.C. are not applicable hence respondent No. 4 can be summoned directly. It is also averred that respondent No. 4 personally appeared before the said court on 4.2.98 wherein he was directed to furnish requisite bail bonds for his future appearance as and when required. It is further alleged that respondent No. 4 in compliance of courts order has furnished requisite bail bonds to the satisfaction of learned Judicial Magistrate No. 3, Jodhpur. Thus indisputably a criminal case relating to outraging the modesty of wife of the petitioner is pending trial before learned Judicial Magistrate No. 3, Jodhpur. (6). The answering respondents have filed detailed reply making averments to the effect that the present writ petition is pre- matured as the petitioner has not exhausted alternative remedy available to him in the General Court-martial. It is also averred that the petitioner has raised intricate disputed questions of facts which cannot be gone into under Article 226 of the Constitution as these allegations require evidence before the General Court-martial. It is also averred that the petitioner has raised intricate disputed questions of facts which cannot be gone into under Article 226 of the Constitution as these allegations require evidence before the General Court-martial. It is further averred in the reply that charge-sheet Annex.9 has been framed by the commanding officer after due application of mind and also after carrying out exhaustive and extensive investigation under Rule 180 of the Army Rules, 1954. The answering respondents averred that a prima facie case against the petitioner is clearly made out from the evidence collected during the course of court of inquiry under the aforesaid Army Rules. (7). I have heard learned counsel for the parties at length. Perused the materials available on record. (8). It is urged by learned counsel for the petitioner that the charge-sheets Annex. 7 and 9 to the writ petition have been issued against the petitioner only to counter-blast the complaint lodged by his wife before the court of learned Judicial Magistrate, No. 3, Jodhpur whereas, contrary to it, it is vehemently argued by the learned counsel for the answering respondents that the complaint of Smt. Suman Dudee wife of the petitioner has been lodged only to counter-blast the charge-sheet issued to him and also to avoid General Court Martial against him affecting military reputation. (9). I have given my thoughtful consideration to the rival contentions raised at the Bar. I have also examined the mandatory provisions of Sec. 475, Cr.P.C., Sections 70, 125 and 126 of the Army Act, 1950 and Rule 49 of the Army Rules, 1954 together with the provisions contained under paragraphs 418 and 419 of the Notifi- cation dated 9.2.1978 relating to Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 (hereinafter referred to as `the Rules of 1978). (10). A conjoined reading of the aforesaid provisions reveal that all offences can be tried by a Court Martial subject to the mandatory provisions envisaged under Sec. 70 of the Army Act, 1950. (10). A conjoined reading of the aforesaid provisions reveal that all offences can be tried by a Court Martial subject to the mandatory provisions envisaged under Sec. 70 of the Army Act, 1950. Section 70 of the said Act clearly provides that a per- son subject to the Army Act, who commits an offence of murder against a person not subject to Military, Naval or Air-force Law or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person shall not be deemed to be guilty of an offence against this Act and shall not be tried by a Court Martial unless he commits any of the said offences while on active service or at any place outside India or at a frontier post specified by the Central Government by Notification in this behalf. Sec. 70 of the Army Act, 1950 has to be read in the light of Sec. 125 and 126 of the said Act and paragraphs 418 and 419 of the Rules 1978. I have no hesitation to hold that the offences enumerated under Sec. 70 of the Army Act are only illustrative and not exhaustive. (11). A bare perusal of the charge-sheet Annx. 9 to the writ petition reveals that there would be no difficulty in conducting the Court Martial proceedings against the petitioner affecting military reputation in respect of charges No. first, second and fourth but difficulty would arise in trying charge No. three relating to allegation regarding attempt to molest his wifes modesty by respondent No.4 affec- ting his character which is already sub-judice before learned Judicial Magistrate No. 3, Jodhpur. I am of the view that if the petitioner is permitted to be tried for charge No. three before Court Martial against which a criminal case against respondent No. 4 is already sub-judice then there would be a possibility of conflicting decisions by two courts i.e. one by learned Judicial Magistrate, No. 3, Jodhpur and other by Court Martial This anomaly of conflicting decisions deserves to be avoided with better and deeper understanding of Sec. 70, 125 and 126 of the Army Act read with paragraphs 418 and 419 of the Rules of 1978 together with Sec. 475, Cr.P.C. (12). A conjoined reading of the aforesaid provisions leads towards an irresistible conclusion that where there is a dual jurisdiction of criminal court as well as Court Martial, in such a situation, the choice lies initially with the officer commanding the Army, Army Corps, division of independent brigade in which the accused-person is serving or such other officer as may be prescribed to decide whether an accused should be tried with Court Martial or he should be handed-over for trial to the criminal court. It is also revealed from reading of the aforesaid provisions that where a criminal court having jurisdiction considers that the accused should be tried before itself, it may, in writing call upon the officer referred to in Sec. 125 of the Army Act 1950 to hand-over the accused to it for trial, in which case the commanding officer either hand-over the accused as demanded by the criminal court or make a prayer before the criminal court to stay further proceedings of the case and refer the case to the Central Government whose order upon such reference shall be final. (13). Indisputably, in the present case neither the learned Judicial Magistrate No. 3, Jodhpur has given written notice to the officer referred to in Section 125 of the Army Act 1950, giving him an opportunity to exercise his choice nor the officer referred under the said Section himself made any attempt to approach the learned Judicial Magistrate No. 3, expressing his choice to try respondent No. 4 before Court-Martial as allegation made against him affects his character. (14). It is to be imbibed that when a person subject to Army Act is brought be- fore a Magistrate charged with an offence for which he is liable to be tried by a Court-Martial then such Magistrate, unless he is moved by the competent military officer referred to in Sec. 125 of the Army Act to proceed against the accused under the amended Cr.P.C. 1973, shall before so proceeding give written notice to the commanding officer of the accused and, until the expiry of fifteen days from the date of service of such notice, shall not proceed to try such person or to inquire with a view to his commitment for trial by the court of sessions for any offence triable by such court. Indisputably, the learned Judicial Magistrate No. 3, Jodhpur has not given written notice to the officer referred to under Sec. 15 of the Army Act 1950 and he has also not stayed his hands from proceeding with the complaint lod- ged by Mrs. Suman Dudee until the expiry of fifteen days from the date of service of such notice. (15). It is true that the learned Judicial Magistrate No. 3, Jodhpur has noticed the mandatory provisions envisaged under Sec. 475 Cr.P.C. in his summoning order dated 9.12.97 Annexure-8 to the writ petition but for the reasons best known to him he did not adhered to it keeping in view, the military reputation which the statutory Rules of 1978 intend to save from exposure to the public at large. (16). I am of the view that ordinarily an accused deserves to be handed over to a criminal court of competent jurisdiction for trial where such accused is alleged to have committed an offence in collaboration with other persons who are not sub- ject to military law. Here in the present case, the offence is alleged against Smt. Suman Dudee who indisputably is not subject to military law, therefore, respondent No. 4 can be handed over by the officer referred under Sec. 125 of the Army Act 1950 to criminal court for trial but such trial is not permissible before an opportunity of exercise of choice is given to such officer by learned Judicial Magistrate No. 3, Jodhpur. Indisputably, no such opportunity has been given by the learned Judicial Magistrate No. 3, Jodhpur to the officer referred under Sec. 125 of the Army Act, 1950 hence the trial of respondent No. 4 before him is per se illegal and without jurisdiction unless an opportunity of exercise of choice is given and exercised by such military officer in accordance with law. (17). The present case is of dual jurisdiction as discussed in preceding paragraph of this judgment yet initially the choice lies with the commanding officer to decide whether respondent No. 4, who is an accused under Sec. 354, 452 IPC affecting his character should be tried by learned Judicial Magistrate No. 3, Jodhpur or he should be tried before Court-martial. (18). The present case is of dual jurisdiction as discussed in preceding paragraph of this judgment yet initially the choice lies with the commanding officer to decide whether respondent No. 4, who is an accused under Sec. 354, 452 IPC affecting his character should be tried by learned Judicial Magistrate No. 3, Jodhpur or he should be tried before Court-martial. (18). As a result of aforementioned discussion any of the respondent (other than respondent No. 4) or any other military officer referred under Sec. 125 of the Army Act 1950 is hereby directed to exercise his choice within three weeks from the date of receipt of a certified copy of this order to the effect as to whether respondent No. 4 should be handed over to criminal court relating to charge No. 3, alleging outraging the modesty of petitioners wife, for trial or he should be tried before Court-martial. If any of the respondent (other than respondent No. 4) or any of the military officer referred under Sec. 125 of the Army Act in his discretion thinks it fit and proper that respondent No. 4 should be tried by learned Judicial Magistrate No. 3, Jodhpur and not by Court-martial then charge No. 3 framed against petitioner shall be dropped before the Court-martial under Rule 49 of the Army Rules, 1954. However, if the officer referred under Sec. 125 of Army Act 1950 expressed his choice that respondent No. 4 should be tried by Court-martial even then charge No. 3 framed against petitioner shall be dropped before Court-martial from the chargesheet Annexure-9 under the aforesaid Rules of 1954 and the learned Judicial Magistrate No. 3, Jodhpur shall also drop the criminal proceedings against respondent No. 4 in accordance with law especially keeping in view the provisions envisaged under paragraphs No. 418 and 419 of the Rules of 1978 framed by Central Government in exercise of its power under Sec. 475 Cr.P.C. With the aforesaid directions and observations, the present writ petition is hereby finally disposed of.