JUDGMENT : 1. Rule. Rule made returnable forthwith with the consent of the learned Standing Counsel for the applicant. 2. Heard Mr. Mahesh Amonkar, the learned Standing Counsel for the applicant. 3. Inspite of service, respondent nos. 2 and 3, chose to remain absent and therefore, the matter is being proceeded. 4. The present revision application is filed by Commanding Officer, INS Hansa, Dabolim being aggrieved by the order dated 14.11.2019, passed by the Judicial Magistrate First Class, 'B' Court (JMFC) at Vasco da Gama in Criminal Case No. 71/S/2018/B. By this order, the application of the applicant was rejected, thereby the Court refused to transfer the criminal case referred above to the Navy Court for trial under the Navy Act, 1957 in terms of Section 78 of the Navy Act read with Section 475 of the Criminal Procedure Code, 1973 (Cr.P.C., for short) and Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978. 5. It is submitted that respondent nos. 2 and 3 are serving Indian Navy and are subject to Navy Act. It appears that there is one complaint against respondent nos. 2 and 3 registered at Vasco Police Station for having committed offence punishable under Section 279, 504, 506(ii) read with Section 34 of IPC and Section 134(b) and 186 of the Motor Vehicles Act. After investigation, charge sheet was filed. 6. The applicant on 30.08.2019 made a confidential application for transfer of the said criminal case for trial under the Navy Act. The learned JMFC instead of independently deciding the application, sought reply from the prosecution. The application was opposed by the prosecution on the ground that respondent nos. 2 and 3 would require to prove that they are in active service of Navy. 7. The learned JMFC rejected the prayer of the applicant for transfer of Criminal Case No. 71/S/2018/B on the ground that the offence for which the respondent nos. 2 and 3 have been charged does not fall into the category of the type of offence for transferring of the case to the Naval Court. It is submitted that the impugned order is erroneous, bad in law and is liable to be quashed and set aside. 8. It is submitted that the learned JMFC failed to appreciate the legal provisions under the Cr.P.C., Naval Law and Rules under the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978. It is submitted that the impugned order is erroneous, bad in law and is liable to be quashed and set aside. 8. It is submitted that the learned JMFC failed to appreciate the legal provisions under the Cr.P.C., Naval Law and Rules under the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978. The learned Standing Counsel also relied on judgment dated 28.10.2013 in Criminal Revision Application No. 328/2013 passed by Bombay High Court in the case of Union of India Vs. State of Maharashtra. 9. For proper consideration of facts, it would be necessary to see the relevant provisions of Rule 3,4,5 and 6 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978, which read as under: “3. Where a person subject to military, naval or air force law, or any other law relating to the Armed Forces of the Union for the time being in force is brought before a Magistrate and charged with an offence for which he is also liable to be tried by a Courtmartial, such Magistrate shall not proceed to try such person or to commit the case to the Court of Session, unless— (a) he is moved thereto by a competent military, naval or air force authority; or (b) he is of opinion, for reasons to be recorded, that he should so proceed or to commit without being moved thereto by such authority. 4. 4. Before proceeding under clause (b) of rule 3, the Magistrate shall give a written notice to the Commanding Officer or the competent military, naval or air force authority, as the case may be, of the accused and until the expiry of a period of fifteen days from the date of service of the notice he shall not- (a) convict or acquit the accused under section 252, sub-sections (1) and (2) of section 255 sub-section (1) of section 256 or section 257 of the Code of Criminal Procedure, 1973 (2 of 1974), or hear him in his defence under section 254 of the said Code; or (b) frame in writing a charge against the accused under section 240 or sub-section (1) of section 246 of the said Code; or (c) make an order committing the accused for trial to the Court of Session under section 209 of the said Code; or (d) make over the case for inquiry or trial under section 192 of the said Code. 5. Where a Magistrate has been moved by the competent military, naval or air force authority, as the case may be, under clause (a) of rule 3, and the commanding officer of the accused or the competent military, naval or air force authority, as the case may be, subsequently gives notice to such Magistrate that, in the opinion of such officer or authority, the accused should be tried by a Court-martial, such Magistrate if he has not taken any action or made any order referred to in clauses (a), (b), (c) or (d) of rule 4, before receiving the notice shall stay the proceedings and, if the accused is in his power or under his control, shall deliver him together with the statement referred to in sub-section (1) of section 475 of the said Code to the officer specified in the said subsection. 6. 6. Where within the period of fifteen days mentioned in rule 4, or at any time thereafter but before the Magistrate takes any action or makes any order referred to in that rule, the commanding officer of the accused or the competent military, naval or air force authority, as the case may be, gives notice to the Magistrate that in the opinion of such officer or authority, the accused should be tried by a Court-martial, the Magistrate shall stay the proceedings, and if the accused is in his power or under his control, shall deliver him together with the statement referred to in sub-section (1) of section 475 of the said Code to the officer specified in the said subsection.” 10. Section 475(1) of Cr.P.C. reads thus: “475. Delivery to commanding officers of persons liable to be tried by Court- martial. (1) The Central Government may make rules consistent with this 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 Courtmartial; 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” 11. From the perusal of these provisions of law, the procedure prescribed by the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 are very clear that, after filing of the charge sheet, the Magistrate must issue notice, writing to the Commanding Officer of the accused and thereafter, until the period of 15 days from the date of service of the notice, the Magistrate shall not frame the charge or convict or acquit the accused or hear him in his defence or commit for trial to the Court of Sessions. If the Commanding Officer of the accused has given notice to the Magistrate within 15 days or thereafter, and the Magistrate has not taken any action or made any order under Rule 4 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, before receiving notice, shall stay the proceeding. If in the opinion of such Officer, the accused should be tried by a Court Martial, the Magistrate shall stay the proceeding and if the accused is in his power or under his control, shall deliver him together with the statement referred to in sub-section (1) of Section 475 of Cr.P.C. to the Officer specified in the said sub-section. It appears that the learned JMFC failed to appreciate that Section 475 of Cr.P.C. and Rule 3 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules come into play at the point where the person is subject to Naval Act has been brought before the Magistrate and is charged with an offence. 12. The learned Standing Counsel also pointed out that the Hon'ble Apex Court in case of Balbir Singh & Others Vs. State of Punjab reported in (1995) 1 SCC 90 has clearly laid down that: “17. A conjoint reading of the above provisions shows that when a criminal court and court-martial each have jurisdiction in respect of the trial of the offence, it shall be in the discretion of the officer commanding the group, wing or station in which the accused is serving or such other officer as may be prescribed, in the first instance, 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 persons shall be detained in air force custody. Thus, the option to try a person subject to the Air Force Act who commits an offence while on "active service" is in the first instance with the Air Force Authorities. The criminal court, when such an accused is brought before it shall not proceed to try such a person or to inquire with a view to his commitment for trial and shall give a notice to the Commanding Officer of the accused, to decide whether they would like to try the accused by a court-martial or allow the criminal court to proceed with the trial. In case, the Air Force Authorities decide either not to try such a person by a court-martial or fail to exercise the option when intimated by the criminal court within the period prescribed by Rule 4 of the 1952 Rules (supra), the accused can be tried by the ordinary criminal court in accordance with the Code of Criminal Procedure. On the other hand if the Authorities under the Act opt to try the accused by the 'court-martial', the criminal court shall direct delivery of the custody of the accused to the Authorities under the Act and to forward to the Authorities a statement of the offence of which he is accused.” 13. Rule 5 of the Navy Orders reads as under: In light of the above, the following guidelines are provided for the purposes of deciding whether a case is to be taken over from the civil authorities for trial under the Navy Act, 1957. (a) Types of Cases which may be taken over by the Competent Naval Authority. The under mentioned offences committed in station may be taken over if considered appropriate by the Competent Authority:- (i) Drunkenness. (ii) Disorderly behavior/Assault. (iii) Indecent exposure/indecent acts of an immoral character. (iv) Use of indecent language or behaving indecently. (v) Traffic Offences. (vi) Cases of hurt/injuries. (vii) Theft/Smuggling/Fraud. (viii) Trespassing. (ix) Cases of corruption/bribery/ dishonesty. (A specimen of a letter requesting the Magistrate to hand over the case is placed at Appendix 'B') (b) Type of Cases which are to be Taken Over After Due Deliberations. All other cases are to be taken over on the circumstances of each case and if required, in consultation with IHQ MoD (Navy). A specimen of a letter to be written to the Magistrate/Police station concerned is placed at Appendix 'C'. 14. All other cases are to be taken over on the circumstances of each case and if required, in consultation with IHQ MoD (Navy). A specimen of a letter to be written to the Magistrate/Police station concerned is placed at Appendix 'C'. 14. Considering the provisions and settled position of law, the impugned order passed by the learned JMFC is patently illegal and erroneous. Rule 5 of the Navy Order empowers the competent Naval Authority to take over the cases which includes “Traffic Offences”. Thus, the respondent nos. 2 and 3 charged with the offences fall under Rule 5 (v) of the Navy Order. It appears that the learned JMFC has not considered the import of Section 475 of Cr.P.C. at all. Section 475 of Cr.P.C. mandates that the JMFC on receiving written application or on knowledge that the accused is a person subject to Military, Navy or Air Force law, after issuing notice to those Authority, shall deliver such person to the Commanding Officer of the unit to which he belongs for the purpose of being tried by a Court Martial, if they so desire. In view of this, atleast, on the application moved by the Commanding Officer in view of Section 475 of Cr.P.C and other Naval Laws and Rules, the learned JMFC ought to have transferred along with custody of accused the criminal proceedings to the Commanding Officer i.e. the present applicant. The option to try a person, subject to Naval Act, who commits an offence while on active services, is in the first instance with the Naval Authorities. The Criminal Court, when such an accused, is brought before it, shall not proceed to try such a person or shall give notice to the Commanding Officer of the accused to decide whether they would like to try the accused by Court Martial. 15. The order passed being illegal, improper and erroneous is liable to be quashed and set aside. Accordingly, I proceed to pass the following order: ORDER (i) The Revision Application is allowed. (ii) The Order dated 14.11.2019 below application dated 03.08.2019 passed by Judicial Magistrate First Class, 'B' Court, Vasco da Gama, is hereby quashed and set aside. 15. The order passed being illegal, improper and erroneous is liable to be quashed and set aside. Accordingly, I proceed to pass the following order: ORDER (i) The Revision Application is allowed. (ii) The Order dated 14.11.2019 below application dated 03.08.2019 passed by Judicial Magistrate First Class, 'B' Court, Vasco da Gama, is hereby quashed and set aside. (iii) The Judicial Magistrate First Class, 'B' Court, Vasco, shall proceed in accordance with Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 in exercise of powers conferred by Section 475(1) of the Code of Criminal Procedure, 1973. (iv) Rule is made absolute in the above terms.