JUDGMENT (Prayer: This Criminal Original Petition has been filed under Section 482of Cr.P.C., to set aside the order dated 23.10.2021 passed by I AdditionalDistrict & Sessions Court, Coimbatore in Criminal Revision Petition No.22 of2021 partly allowed with modification order passed by CMP.No.20197 of2021 on the file of the Judicial Magistrate, Additional Mahila Court, Coimbatore.) 1. This Criminal Original Petition has been filed to set aside theorder dated 23.10.2021 passed by I Additional District & Sessions Court,Coimbatore in Criminal Revision Petition No.22 of 2021 which has beenpartly allowed by modifying the order passed by the learned JudicialMagistrate, Additional Mahila Court, Coimbatore, dated 30.09.2021 made inC.M.P.No.20197 of 2021. 2. Heard the learned Government Advocate (Crl.Side) for the petitionerand the learned counsel for the respondent and perused the materials availableon record. 3. This Criminal Original Petition has been filed by the State representedby the Inspector of Police, All Women Police Station Central, CoimbatoreCity. The petitioner has registered a case against one AmiteshHarmukh inCrime No.9 of 2021 of All Women Police Station Central, Coimbatore Cityfor the offence under Section 376(1) IPC. 4. The defacto complainant and the accused are the flight lieutenants inIndian Air Force and they were undergoing a Professional Knowledge Coursefor seven weeks at the Air Force Administrative College (hereinafter referredas AFAC), Coimbatore from 16.08.2021. On 09.09.2021, after an eveningparty at the Officers Mess in AFAC with the course officers, the defactocomplainant fell asleep at Room No.303 in P-43 Block, Officers Mess on thenight intervening 09.09.2021 and 10.09.2021. The room was locked fromoutside by her friend. The accused trespassed into her room around 00.30hours on 10.09.2021 and committed an offence of rape on her. The defactocomplainant was unconscious and she was not in a state to offer resistance.After the occurrence, the accused slept next to the victim in the same bed. Thevictim''s room mate came to the room at around 01.30 a.m. on the same nightwithout knowing the presence of the accused. At about 03.06 hours the friendof the de-facto complainant received a call from her course-mate and askedwhere the accused was. When she woke up to attend the call, she realized thatthe accused was sleeping next to her. Even during that time, the victim wasnot conscious enough to converse well or to give proper answers to her friend. 4.1. At about 03.06 hours the friendof the de-facto complainant received a call from her course-mate and askedwhere the accused was. When she woke up to attend the call, she realized thatthe accused was sleeping next to her. Even during that time, the victim wasnot conscious enough to converse well or to give proper answers to her friend. 4.1. On 10.09.2021, the accused sent a Whatsapp message to the defactocomplainant''s friend and on getting her permission, he came to their room andconfessed about the offence to the defacto complainant''s friend and an anotherperson. Defacto complainant''s friend recorded the confession given by theaccused. On 11.09.2021, the defacto complainant preferred a writtencomplaint against the accused to the Air Force Administrative CollegeAuthorities (in short AFAC). As per the advice of the officers, the victim hadundergone medical examination at the Air Force Hospital on 11.09.2021 ataround 19.00 hours. However, she suffered humiliation at the hands of thedoctors therein. 4.2. A prima facie fact finding Court of Inquiry was formed to inquireinto the matter. Due to the pressure given to the de-facto complainant, she wasforced to withdraw the complaint twice. The biological specimen collectedfrom the victim during the medical examination and the semen stained bedsheet taken from the place of occurrence were kept in the Air Force Hospital and they were not sent for forensic examination till 23.09.2021. The accusedwas roaming freely in the AFAC premises and he was even allowed to sitalong with the victim in the classes. Having not satisfied with the way thecomplaint was handled by the AFAC authorities, the victim preferred a policecomplaint on 20.09.2021 and consequently a case in Crime No.09 of 2021 wasregistered under Section 376(1) IPC. 4.3. The petitioner started investigation by going to the scene ofoccurrence and by examining the witnesses. During that course, the accusedwas also arrested at 14.22 hours at Room No.4, P-43 Block, Officers'' Mess,AFAC. Prior arrest information was given to AFAC Authorities orally. Thegrounds of arrest were communicated to the accused in compliance of Section41-B and 41-D of Cr.P.C and a written intimation was given to AFACAuthorities, but they omitted to give acknowledgement. The petitioner wasallowed to take custody of the accused after a long delay. After the accusedwas arrested, he was produced before the Judicial Magistrate, AdditionalMahila Court, Coimbatore, on the same night. The accused was kept underjudicial custody till 30.09.2021. 4.4. The petitioner wasallowed to take custody of the accused after a long delay. After the accusedwas arrested, he was produced before the Judicial Magistrate, AdditionalMahila Court, Coimbatore, on the same night. The accused was kept underjudicial custody till 30.09.2021. 4.4. On 25.09.2021, the respondent filed a petition seeking custody ofthe accused under Section 124 of Air Force Act, 1950 r/w Section 475 Cr.P.Cand the Criminal Courts and Court Martial (adjustment of jurisdiction) Rules,1978. Hence the custody of the accused was handed over to the air forceauthorities by the learned Magistrate by an order dated 30.09.2021 passed inC.M.P.No.20197 of 2021. 4.5. The learned Magistrate did not consider the objections raised bythe petitioner and also the request for seeking police custody. The order of theMagistrate was challenged before the Principal District and Sessions Court,Coimbatore in Criminal Revision Petition No.22 of 2021. But the saidpetition was partly allowed with modification vide an order dated 23.10.2021.However, the order of the learned Magistrate to hand over the custody of theaccused to Air Force Authorities was not revised. Aggrieved over the saidorder, this Criminal Original Petition has been preferred. 5. The learned Government Advocate (Crl.Side) appearing on behalf ofthe petitioner submitted that the order for handing over the accused to thecustody of the Air Force was granted in accordance with Section 124 of AirForce Act r/w Section 475 Cr.P.C and Section 3 & 4 of the Criminal Courtsand Court Martial (adjustment of jurisdiction) Rules, 1978; but the aboveprovisions and rules are applicable only when the charge sheet is filed and thecognizance is taken by the learned Magistrate; hence handing over theaccused to the authorities of the Air Force is pre-matured. 5.1.It is further submitted that the Hon''ble Supreme Court has made theabove position clear in S.K.JhaCommodre Vs. State of Kerala &Anr,reported in (2011) 15 SCC 492 and it has held that the rules framed by theCentral Government with regard to the handing over the custody applies to acase where the police has completed investigation and the accused wasbrought before the Judicial Magistrate after submission of the charge sheetand the said provisions cannot be invoked in a case where the police has juststarted the investigation; while passing the above order, the Hon’ble SupremeCourt has referred the dictum laid down in the case of SomDattDatta Vs.Union of India reported in AIR 1969 SC 414 ; the same point is furtherclarified in Army Headquarters Vs. CBI, reported in (2012) 6 SCC 228 ; inthe case of Adm Commandant Vs. State of Odisha and Ors, reported in 2020SCC Online Ori 873, it has been held that giving custody of Naval Officercannot be considered at the preliminary enquiry stage of the police and onlyafter submission of the police report. 5.2. It is further submitted that the power of the Court to requiredelivery of the offender under Section 125 of the Act either before itself or tothe Officer concerned will also arise only after the charge sheet is filed; thelearned Sessions Judge has erred in directing the petitioner to prepare two setsof material evidence and submit one set of such evidence to the Court Martialfor trial under the Air Force Act, 1950; the law mandates that only the officerin-charge of the police station to complete the investigation and file a finalreport before the jurisdictional Magistrate and he alone can take cognizanceof the offence on a police report. 6. The learned counsel for the respondent submitted that the accusedwas tried before the Court Martial and was convicted for the offence andhence this Criminal Original Petition itself has become infructuous; the letterof the respondent for invoking Section 124 of Air Force Act was made evenbefore receiving the intimation about the arrest of the accused; the arrest waseffected in an illegal and arbitrary manner by violating all the legal norms ;the accused was forcefully taken away from the premises of AFAC on thepretext of medical examination; the proper legal remedy for the policeauthorities is to approach the Court of competent Magistrate and not to giveillegal pressure to the Air Force Authorities for taking custody of the accusedby misrepresenting the facts; the respondent sought the custody of the accusedfrom the Magistrate before whom the accused was produced. 6.1.The Air Force authorities were not willing to allow the custody ofthe accused to police because of the inhuman treatment meted out to someaccused persons in the past like Sathankulam custodial death case (death ofJayaraj and Bennix in custody) and a custodial death of Prabhakaran, aphysically challenged person in Namakkal District are a few incidents wherethe Tamil Nadu police had committed acts of atrocities against arrestedpersons and it had drawn adverse criticism both from the High Court and theSupreme Court; the request for taking back the accused to Air Forcejurisdiction for further action under Air Force law did not amount to movingan application under Rule 6 of the Criminal Courts and Court Martial(adjustment of jurisdiction) Rules 1978, as the circumstances warranted in thesaid provision did not exist; the accused was handed over to Air ForceAuthorities vide a reasoned order dated 30.09.2021, passed by the AdditionalMahila Court, Coimbatore in CMP.No.20197 of 2021; the accused was takenby the Air Force authorities on 30.09.2021 for further action and the Court ofInquiry continued the investigation. 6.2.The Court of Inquiry could not proceed the investigation withoutthe presence of the accused; so handing over the accused to the custody of theAir Force authorities is just and proper; the Court of Inquiry completed itsinvestigation on 14.10.2021 and the accused was charged for various acts ofindiscipline including the offence of rape; the report has recommendations fortaking disciplinary action also under the Air Force law ; on 26.10.2021, theaccused was attached to Air Force Station Jalahalli, Bengaluru for disciplinary action under Air Force law; subsequently, the disciplinary proceedings wereinitiated against the accused which has resulted in convening a General CourtMartial on 16.12.2021 under Section 110 of the Air Force Act to conduct afull-fledged trial by following the procedure laid down under Air Force law. 6.3. 6.3. The General Court Martial convened under Air Force Law has thepowers of punishment equivalent to that of a Sessions Court and the trial shallbe deemed to be a judicial proceedings under Section 151 of the Air Force Actas well as Section 2(i) of Cr.P.C.; the General Court Martial is not under thesupervision or the territorial jurisdiction of the High Court; the General CourtMartial has commenced the trial on 16.12.2021 and 18 prosecution sidewitnesses have been examined; the charges against the accused were inclusiveof the offences under Sections 376(1), 354, 354(B), 451 of IPC and Sections46(a), 65, 45 of the Air Force Act, 1950; the Investigation Officer wassummoned twice to appear before the Officer for recording summary ofevidence prior to convening General Court Martial, but she did not presentherself for giving summary of evidence; however, based on the othersubstantive evidence, the General Court Martial was convened; thereafter, theInvestigation Officer was summoned thrice to appear before the General CourtMartial through the competent Magistrate; but, the Investigation Officer didnot appear; therefore, the present petition is not maintainable under Section482 of Cr.P.C. 6.4 It is further submitted that Section 124 of Air Force Act has beencorrectly invoked and the orders of the Courts in handing over the accused tothe Air Force authorities is fair and proper; the General Court Martial hasalready been convened and the trial is pending; in fact, through the impugnedorder, the Court has permitted the petitioner to continue the investigation; therespondent was also willing to give active cooperation not only upto the pointof arrest, but also during the judicial custody, pending decision of theAdditional Mahila Court. 6.5. On 28.09.2021, when the custody of the accused was subjudice, thepolice had recorded statements of six Air Force personnels inside the premisesof AFAC; the police ought to have proceeded with the investigation andconcluded the same within 60 days from the date of FIR in accordance with Section 173 Cr.P.C. and ought to have filed the charge sheet; but thepetitioner did not approach the Air Force authorities for conductinginvestigation; they disregarded their legal obligations; the petitioner cannotinvoke Section 482 Cr.P.C for the present situation. 6.6. It is further submitted that the decision of the Hon''ble SupremeCourt held in the case of S.K.Jha Commodore Vs. 6.6. It is further submitted that the decision of the Hon''ble SupremeCourt held in the case of S.K.Jha Commodore Vs. State of Kerala and Anrisnot applicable to the facts of this case; because in the present case the accusedand the victim are the subjects of Air Force Act; in the S.K.Jha''s case, theaccused alone is subject of Navy Act; in the present case, the offence was firstreported to Air Force authorities on the very same day; the competentauthority has exercised power under Section 124 of the Air Force Act anddecided to retain the accused under Air Force jurisdiction / custody andproceeded against him in accordance with the Air Force Act; in S.K.Jha''s case,the competent Naval authority had not ordered any Court of Inquiry and theFIR was first registered; further, the Naval Law does not have provisionssimilar to Section 124 of Air Force Act and no similar act was done by theNaval authorities; the commanding Officer of the accused gave pre-maturednotice under the said Adjustment of Jurisdiction Rules for trial of the accusedunder Navy Act before framing charges by the Magistrate and hence the samewas rejected; in the instant case the request was made by the Air Forceauthorities soon after the arrest was made by the police. The facts of theinstant case are similar to the case of SomdattDatta, which is theauthoritative case law on the Doctrine of concurrent jurisdiction. 6.7. In Army Headquarters Vs. CBI, the competent authority had notinvoked the provisions of Section 125 of the Army Act (similar to Section 124of Air Force Act); in Balbir Singh Vs. State of Punjab, reported in (1995) 1SCC 90 (a case of an accused person subject to Air Force Act); the competentauthority has not invoked Section 124 of Air Force Act, but handed over thecustody of the accused to civil authorities for trial by ordinary Criminal Courtand hence, in that case, the contention of the accused of his right to be triedonly by the Court Martial was disallowed; in the case of State of Sikkim Vs.Jasbir Singh, the competent Army authority had invoked Section 125 (AA)and decided not to take over the case and allowed the case to be tried by theCriminal Court after the revision order of the High Court of Sikkim. Theprinciples of concurrent jurisdiction have been settled in the case of SomDattDatta Vs. Theprinciples of concurrent jurisdiction have been settled in the case of SomDattDatta Vs. Union of India and Ors, by a five judges Constitution Bench; therelevant provisions governing this subject would be Section 124 of Air ForceAct.Discussion: 7. The accused involved in Crime No.9 of 2021 and the victim areflight lieutenants in the Indian Air Force. At the time of occurrence, both ofthem along with the other officers were undergoing seven weeks ProfessionalKnowledge Course from 16.08.2021 at AFAC, Coimbatore. They participatedin a party at the officers'' mess in AFAC in the evening of 09.09.2021.Thereafter the victim went to her room and slept there. The occurrence is saidto have occurred at the room of the victim on the same night and for whichshe had already given a complaint to her Officers and that resulted in forminga Court of Inquiry and it had started its inquiry. 8.Having not satisfied with the manner in which the matter washandled, the victim had given a police complaint on 20.09.2021 and the FIRgot to be registered on the same day in Crime No.9 of 2021 of All Women Police Station Central, Coimbatore. All Women Police Station Central,Coimbatore took charge of the case and started to investigate and the accusedwas arrested. At the time when the accused was produced before the learnedMagistrate, the Air Force Authorities placed a request for seeking the custodyof the accused and the same is ordered by the learned Judicial Magistrate,Additional Mahila Court dated 30.09.2021. The police challenged the same bypreferring a revision before the Sessions Court and the learned Sessions Judgepassed an order and by which the order of the learned magistrate was modifiedand investigation was permitted to be done by both the petitioner and therespondent in accordance with the Air Force Act and the Code of CriminalProcedure respectively. However that part of the order of the Magistratewhich handed over the custody of the accused to the Air Force authoritiesremained unaltered. Further, the petitioners were directed to prepare two setsof material papers for placing one set before the Court Martial for trial underthe Air Force Act, 1950 and another set before the regular Court. Having gotaggrieved over the said order, the State has preferred this Criminal Original Petition. 9. In usual course the issue involved in this case could be resolvedthrough application and interpretation of the law on the subject withoutmaking much elaboration. Having gotaggrieved over the said order, the State has preferred this Criminal Original Petition. 9. In usual course the issue involved in this case could be resolvedthrough application and interpretation of the law on the subject withoutmaking much elaboration. However, the petitioner has expressed anguish byalleging that the victim of a sexual offence involved in this case was furthervictimised due to the insensitivity and apathy shown by the authorities andthat compelled her to lodge a police complaint. Perusal of the detailedcomplaint of the victim to the police would justify their anguish. Though therespondent has filed a detailed counter, the tenor of the counter is as though itis an onset for a power wrangle. That contains some disparaging statementsabout the performance of the State police by taking excuses from certainisolated incidents. Such misunderstanding or bickering will defeat the nobleobject of the legislative arrangement of concurrent jurisdiction. When suchvisible misunderstanding between the two responsible forces is brought to thiscourt, the court is obliged to assume a little higher responsibility by making alittle more elaboration. 10. Before focusing on the concept of concurrent jurisdiction in themilitary law a quick understanding about the scheme of the Act which led tothe conferment of concurrent powers on the Criminal Courts and the CourtMartial is essential. The Air Force Act is largely modelled on the Army Act.Chapter –VI of the Air Force Act (hereinafter referred to as the Act) classifiescertain military offences under sections 34 to 70. The said offences arerelative to persons who commit the same and those persons should be thesubjects of the Act. Section 2 of the Act defines the persons subject to theAct. 11. For the sake of clarity, Section 2 of the Act is shown as under: “ Section.2. The said offences arerelative to persons who commit the same and those persons should be thesubjects of the Act. Section 2 of the Act defines the persons subject to theAct. 11. For the sake of clarity, Section 2 of the Act is shown as under: “ Section.2. Persons Subject to the Act:The following persons shall be subject to this Act wherever theymay be, namely:— (a) officers and warrant officers of the Air Force; (b) persons enrolled under this Act; (c) persons belonging to the Regular Air Force Reserve or theAir Defence Reserve or the Auxiliary Air Force, in thecircumstances specified in section 26 of the Reserve andAuxiliary Air Forces Act, 1952 (62 of 1952); (d) persons not otherwise subject to air force law, who, onactive service, in camp, on the march, or at any frontier postspecified by the Central Government by notification in thisbehalf, are employed by, or are in the service of, or arefollowers of, or accompany any portion of the Air Force” 12. So, any person who falls within the ambit of the above definition isthe subject under the Act and if he commits any of the offence prescribedunder Sections 34 to 70, he shall be tried before the Court Martial. Apart fromthose offences listed under Sections 34 to 70, the Court Martial has also gotjurisdiction to try the civil offences also, if the offender happens to be aperson subject of this act and so charged under Section 71 of the Act. This isirrespective of the fact whether the offence is committed within India or at anyplace beyond India, but subject to the exceptions under Section 72. Theprovision under section 71 not only empowers the Court Martial to try thoseoffences and it also prescribes the nature and the limit of the punishment thatcan be imposed on the offender. Section 71 of Act reads as under:- “71. Theprovision under section 71 not only empowers the Court Martial to try thoseoffences and it also prescribes the nature and the limit of the punishment thatcan be imposed on the offender. Section 71 of Act reads as under:- “71. Civil offences.— Subject to the provisions of section 72, any person subject to thisAct who at any place in or beyond India commits any civiloffence shall be deemed to be guilty of an offence against thisAct and, if charged therewith under this section shall be liableto be tried by a court-martial and, on conviction, be punishableas follows, that is to say,— (a) if the offence is one which would be punishable under anylaw in force in India with death or with transportation, he shallbe liable to suffer any punishment, other than whipping,assigned for the offence, by the aforesaid law and such lesspunishment as is in this Act mentioned; and (b) in any other case, he shall be liable to suffer any punishmentother than whipping “assigned for the offence by any law inforce in India, or imprisonment for a term which may extend toseven years or such less punishment as is in this Act mentioned 13. While the offences under Sections 34 to 70 are directly consideredas offences under the Act, the civil offences are also construed as offencesagainst the Act under Section 71, if the offender happens to be the subject ofthe Air Force Act. For the sake of completion it is worthwhile to look into thedefinition for civil offence under Section 4(xii), before proceeding toappreciate the exceptions contemplated under Section 72 of the Act. “Section 4(xii) -“civil offence” means an offence which istriable by a criminal court.” 14. Now coming to the exceptions provided under Section 72 of the Actwhich are not considered as Offences under the Air Force Act, it can be seenthat those are the grave and heinous offences like murder, culpable homicidenot amounting to murder and rape. However, there are exceptionalcircumstances and under said circumstances, the Court Martial can stillassume jurisdiction to try those heinous offences as well. For the sake ofclarity Section 72 of Act is extracted below:- “72. However, there are exceptionalcircumstances and under said circumstances, the Court Martial can stillassume jurisdiction to try those heinous offences as well. For the sake ofclarity Section 72 of Act is extracted below:- “72. Civil offences not triable by court-martial.— A person subject to this Act who commits an offence ofmurder against a person not subject to Military, Naval or AirForce law, or of culpable homicide not amounting to murderagainst such a person or of rape in relation to such a person,shall not be deemed to be guilty of an offence against this Actand shall not be tried by a court-martial, unless he commitsany of the said offences— (a) while on active service, or (b) at any place outside India, or (c) at a frontier post specified by the said Government bynotification in this behalf.” 15. The offender should always be the subject of this Act even undersection 72. But the distinction under section 72 is made on the basis of thetype of the offences, type of the victims and the situation during which theoffence was committed. (i) Type of offences– as stated already the type of the offences aremurder, culpable homicide not amounting to murder and rape. (ii) Type of victims– whether the victim is the subject of the Act orany other person. (iii) Type of the situations:- The following situations are alsorelevant for the Court Martial to assume jurisdiction to try those exemptedgrave offences also. If the offender subject to the act commits the offence, (a) while he is in active service; (b) at any place outside India; (c) at a frontier post specified by the Government by notification. 16. If the victim is a person falling under this Act and if the offenderhad committed the offence while he was in active service and if the place ofoccurrence is any place outside India or at a frontier post specified by theGovernment by notification, the Court Martial can still assume jurisdiction totry these offences also similar to those offences triable under Section 71 ofthe Act. 17. 17. The term “active service” is defined under Section 4(i) as under: “(i) active service, as applied to a person subject to thisAct, means the time during which such person, (a) is attached to, or forms part of, a force which is engaged in operations against an enemy, or (b) is engaged in Air Force operations in, or is on theline of march to, a country or place wholly or partlyoccupied by an enemy, or (c) is attached to, or forms part of, a force which is inmilitary occupation of any foreign country.” 18. The civil offences by their very nature are triable by the regularCriminal Courts. However, the jurisdiction to try the civil offences has alsobeen conferred on the Court Martial in view of the circumstances and exigenciesthat are specially known to the Armed forces. In Ram Sarup Vs. Unionof India &Anr., AIR 1965 SC 247 , the Hon’ble Supreme Court has held thatthere could be variety of circumstances which may influence the justificationas to whether the offender be tried by a Court Martial or by the CriminalCourt, and therefore, it becomes inevitable that the discretion to make such achoice be left to the Military Officers. Military Officer is to be guided by considerationsof the exigencies of the service, maintenance of discipline in theArmy, speedier trial, the nature of the offence and the persons against whomthe offence is committed. 19. With the above avowed object in mind, the legislature in its wisdomthought it fit to have provisions for concurrent jurisdiction under military lawsby conferring the powers on Court Martial to try civil offences along withmilitary offences. Hence the object of such special arrangement cannot bewrongly construed that if an offender of heinous crime like rape, if happens tobe a subject of this Act, he should be treated like a privileged person and hisauthorities should act like his guardians by leaving the interest of the victim atlurch. On the other hand, the offender being a part of a disciplined force isexpected to act in a more disciplined manner than an ordinary citizen and anydeviance on his part is liable to be handled so seriously and fastly. On the other hand, the offender being a part of a disciplined force isexpected to act in a more disciplined manner than an ordinary citizen and anydeviance on his part is liable to be handled so seriously and fastly. Though thesystem of Court Martial appears to be an in-house mechanism, suchproceedings before the Court Martial are not mere disciplinary proceedingsbut they are akin to criminal proceedings before a regular Criminal Court andhence the Court Martial has been conferred with the power of a SessionsJudge. 20. Sections 124 and 125 of the Air Force Act speak about theconcurrent jurisdiction. While Section 124 refers about the discretion that canbe exercised by the Chief of the Army staff or any other competent Authorityin this regard in the matters which have concurrent jurisdiction. Before adverting into the nitty-gritties of Sections 124 and 125, it is worthwhile toextract those provisions below: “Section 124. Choice between criminal court and court-martial.— When a criminal court and a court martial have each jurisdictionin respect of an offence, it shall be in the discretion of [the Chief ofthe Air Staff], the officer commanding any group, wing or stationin which the accused prisoner is serving of such other officer asmay be prescribed to decide before which court the proceedingsshall be instituted, and, if that officer decides that they should beinstituted before a court-martial, to direct that the accused personshall be detained in Air force custody.” 21. As per Section 124 of the Act in matters falling under the concurrentjurisdiction, if the Competent Authority opts to exercise his power to try theoffence before the Court Martial by getting the proceedings instituted beforehim, he can direct the accused to be handed over to the Air Force custody.Priority is given to the Competent Authority of the Act to exercise option andnot to the Criminal Court. The justification for giving such a priority to theAuthorities has been approved by the Supreme Court in Balbir Singh andanother Vs State of Punjab reported in (1995) 1 SCC 90 and the relevan Observation in this regard is extracted as below: “17.********* There appears to be sound logic to give the first option to theAuthorities under the Act to decide whether the accusedshould be tried by the court martial or the criminal court. Thedefence of the country being of paramount importance, the AirForce Authorities would know best as to whether the accusedshould be tried by the court-martial or by the ordinary criminalcourt because the trial by the ordinary criminal courtwould necessarily involve a member of the force being takenaway for trial by the ordinary criminal court and not beingavailable to the Authorities and the like considerations. However,in the event the criminal court is of the opinion, for reasonsto be recorded, that instead of giving option to the Authoritiesunder the Act, the said court should proceed with thetrial of the accused, without being moved by the competentauthority under the Act and the Authorities under the Act decideto the contrary, the conflict of jurisdiction shall be resolvedby the Central Government under Section 125(2) of theAct and the decision as to the forum of trial by the CentralGovernment in that eventuality shall be final.” 22. Section 125 speaks about the option exercisable by a CriminalCourt and it is given as below: “Section 125. Power of criminal court to require delivery ofoffender.— (1) When a criminal court having jurisdiction is of opinion thatproceedings shall be instituted before itself in respect of anyalleged offence, it may, by written notice, require the officerreferred to in section 124 at his option, either to deliver over theoffender to the nearest Magistrate to be proceeded, againstaccording to law, or to postpone proceedings pending a referenceto the Central Government. (2) In every such case the said officer shall either deliver over theoffender in compliance with the requisition, or shall forthwith referthe question as to the court before which the proceedings are to beinstituted for the determination of the Central Government whoseorder upon such reference shall be final. 23. As per Section 125 of the Act, if a Criminal Court havingjurisdiction thinks it fit that the proceedings should be instituted before it, thecourt shall give a written notice to the competent authority referred underSection 124 of the Act to deliver the offender to the nearest Magistrate forproceeding against the offender in accordance with law or to postpone the proceedings till the decision on the reference made to the Central Governmentis given. Section 125(2) says about the duty on the part of the competentauthority of the Act either to deliver the accused as requested by the Court orto refer the matter to the decision of the Central Government. Section 125(2) says about the duty on the part of the competentauthority of the Act either to deliver the accused as requested by the Court orto refer the matter to the decision of the Central Government. However,delivering the offender to the nearest Magistrate is at the option of theCommanding Officer. So, it is again the authorities under the Act have beengiven with the right of priority to deal with any subject of Air Force. 24. At the risk of repetition it is reiterated that when the Criminal Courtdeems it fit to deal the matter by itself by assuming its own jurisdiction thatcannot be done automatically as it is done in all other cases, but only afterputting the Commanding Officer on notice and after getting his consent. If theCommanding Officer has not chosen to give his consent to the notice given bythe Magistrate, he cannot disregard the notice of the Criminal Court, but hehas to refer the issue to the Central Government and stop the proceeding untilits decision and the decision of the Central Government shall be final. 25. Section 475 Cr.P.C speaks about the situation where the personssubject to Military, Naval or Air Force law or such other law is brought beforethe Magistrate and charged with an offence. As per Section 475 (1), theMagistrate “shall in proper cases” deliver him together with a statement ofthe offence to the Appropriate Authority. Sub-section (2), says about the dutyof the Magistrate to apprehend an accused within his jurisdiction, at therequest of the appropriate authority. In this regard it is relevant to referSection 105 of the Air Force Act, which also speaks about the assistance to berendered by the Police in apprehending and delivering the accused to AirForce custody, upon receipt of a written request from the commanding officer. 26. In view of sub section (3) of Section 475 Cr.P.C, the High Court inappropriate cases, can pass orders to hand over any accused detained in anyjail within the State to be produced before the Court Martial. The Rules asrequired under Section 475 Cr.P.C have also been framed and kept in place as‘the Criminal Court and Court Martial (Adjustment of Jurisdiction Rules),1978’. For a better understanding, Section 475 Cr.P.C is extracted below: “Section 475. Delivery to commanding officers of personsliable to be tried by Court- martial. The Rules asrequired under Section 475 Cr.P.C have also been framed and kept in place as‘the Criminal Court and Court Martial (Adjustment of Jurisdiction Rules),1978’. For a better understanding, Section 475 Cr.P.C is extracted below: “Section 475. Delivery to commanding officers of personsliable to be tried by Court- martial. (1) The Central Government may make rules consistent with thisCode and the Army Act, 1950 (46 of 1950 ), the Navy Act, 1957(62 of 1957 ), and the Air Force Act, 1950 (45 of 1950 ), andany other law, relating to the Armed Forces of the Union, for thetime being in force, as to cases in which persons subject toMilitary, Naval or Air Force law, or such other law, shall betried by a Court to which this Code applies or by a Courtmartial;and when any person is brought before a Magistrateand charged with an offence for which he is liable to be triedeither by a Court to which this Code applies or by a Courtmartial,such Magistrate shall have regard to such rules, andshall in proper cases deliver him, together with a statement ofthe offence of which he is accused, to the commanding officer ofthe unit to which he belongs, or to the commanding officer of thenearest Military, Naval or Air Force station, as the case may be,for the purpose of being tried by a Court- martial. Explanation.-In this section- (a)"unit" includes a regiment, corps, ship, detachment, group,battalion or company, (b) " Court- martial" includes any tribunal with the powerssimilar to those of a Court- martial constituted under therelevant law applicable to the Armed Forces of the Union. (2) Every Magistrate shall, on receiving a written applicationfor that purpose by the commanding officer of any unit or bodyof soldiers, sailors or airmen stationed or employed at any suchplace, use his utmost endeavours to apprehend and secure anyperson accused of such offence. (3) A High Court may, if it thinks fit, direct that a prisonerdetained in any jail situate within the State be brought before aCourt- martial for trial or to be examined touching any matterpending before the Court- martial.” 27. In the instance case, on a complaint given by the victim, the Court ofInquiry has been constituted and it has started its enquiry. In the instance case, on a complaint given by the victim, the Court ofInquiry has been constituted and it has started its enquiry. However, thevictim had given another complaint to the police and on which, a case hasbeen registered and the accused was secured from the Air force premises aftergiving notice to the authorities concerned and he was brought before theMagistrate. On a request made to the learned Magistrate to hand over theaccused to Air Force custody, an order has been passed to hand over thecustody to them. When it was challenged by the petitioner by preferring arevision, the Revisional Court confirmed the order to handing over custody,but with some additional directions. 28. It was the argument of the petitioner, State prosecution that the stageto hand over the custody would arise only at the time of institution of theproceedings and the language of Section 475 Cr.P.C and Sections 124 and 125would confirm the same. The words employed in Section 475 Cr.P.C is ‘whenany person is brought before the Magistrate and Charged with an offence’. InSections 124 and 125 Air Force Act, it is mentioned as ‘ the proceedings shallbe instituted’. In this regard it is relevant to make a mention about thejudgment of the Supreme Court in Army Head Quarters Vs CBI 2012 (6)SCC 228 and in which, it is held that the stage of making option to try is afterfiling the charge sheet. The relevant paragraph is brought down here: “91.Thus, the law on the issue is clear that under Section125 of the Army Act, the stage of making option to try anaccused by a court- martial and not by the criminal court isafter filing of the chargesheet and before taking cognizance orframing of the charges.” 29. The full bench of the Hon''ble Supreme Court has held in R.R.ChariVs Uttar Pradesh reported in 1951 SCC online SC 22 that commencement ofproceedings is different from initiation of proceedings and taking cognizanceis a condition precedent for initiating the proceedings. In Balbir Singh andanother Vs State of Punjab (1995 ) 1 SCC 90, the Hon''ble Supreme Courthad an occasion to deal with the argument that if the compliance of theprovisions 124 and 125 of Air Force Act is not in order that will vitiate theproceedings before the Magistrate. In Balbir Singh andanother Vs State of Punjab (1995 ) 1 SCC 90, the Hon''ble Supreme Courthad an occasion to deal with the argument that if the compliance of theprovisions 124 and 125 of Air Force Act is not in order that will vitiate theproceedings before the Magistrate. A reference was made to the Full Bench judgment of the High Court of Punjab in Ajit Singh Vs State of Punjab,wherein it is held as under: “18. In our opinion, on a construction of the various provisionsreferred to above the criminal courts are not deprived oftheir inherent jurisdiction to take cognizance of civil offencesunder t he Code. Before the Full Bench of the Punjab &Haryana High Court in Ajit Singh v. State of Punjab2 it wasargued on behalf of the appellant therein, who was in "activeservice" of the Air Force, that on account of the non-compliancewith the provisions of Section 125 of the Act and Section549 CrPC (corresponding to Section 475 of the Code), thecommittal of the appellant and his trial held in pursuancethereof must be held to be without jurisdiction. The Full Benchrepelled the argument and opined: "No room is left for doubt about the legal position being thatthe inherent jurisdiction which a Magistrate has to take cognizanceof civil offences under t he Code of Criminal Procedureis not taken away by any provisions of the ArmyAct (and, therefore, of the Air Force Act), and of Section549 of the Code of Criminal Procedure and the rules madethereunder. What those provisions, envisage is concurrent jurisdictionin the criminal courts and the court-martial and anarrangement for the proper exercise of such jurisdiction including,when necessary a way of resolving a conflict of jurisdiction."and went on to hold: "That the contention raised on behalf of the appellant that thetrial was vitiated by lack of jurisdiction in the Magistrate andthe learned Additional Sessions Judge must be rejected as untenable." 19. …….. 20. We are also unable to agree with Mr Poti, in the facts andcircumstances of this case, that there was any non- compliancewith the provisions of Sections 124 and 125 of the Air ForceAct read with Section 475 CrPC. 21. …….. 20. We are also unable to agree with Mr Poti, in the facts andcircumstances of this case, that there was any non- compliancewith the provisions of Sections 124 and 125 of the Air ForceAct read with Section 475 CrPC. 21. The object of giving a notice as envisaged by the Act andthe 1952 Rules to the Authorities under the Act is to make themfully aware of the pendency of a criminal case against amember of the force and to afford them an opportunity toexercise their discretion of having the member of the forcetried either by the court-martial or to allow the ordinarycriminal court to proceed with the trial. Though the provisionsof the Act and t he Code referred to above are mandatory incharacter insofar as they require that the Authorities under theAct shall be given the first option to decide whether to try theaccused by court-martial or allow his trial by the ordinarycriminal court, no particular form of notice has beenprescribed either under the Act, the Rules or t he Code.Whether or not the Authorities have been made fully awareand put on notice by the criminal court to enable them toexercise their option, would depend upon the facts andcircumstances of each case. It is the substance and not theform of notice which is relevant and important. All that the lawenvisages is that the Authorities under the Act must be madefully aware of the nature of offence, status of the victim andthe pendency of the criminal case against a member of theforce on "active service", so that the Authorities under the Actmay exercise their option whether or not to try the accused bya court-martial. Where full and complete 'information' isprovided to the Authorities, the requirement of law wouldstand complied with, irrespective of the fact whether theinformation was given by way of a notice or otherwise. 30. The arguments of the petitioner revolves around a single point that aright provision has been invoked at a wrong stage. The counter argument ofthe respondent is that the stage to exercise option itself arise only if the chargesheet has been filed before the Criminal Court and even before that the Courtof Inquiry has been formed and it had taken up the investigation. 31. Similar such argument is seen to have surfaced before theConstitutional bench of the Supreme Court in SomDattDatta Vs Union ofIndia and others (AIR (1969) SC 414). 31. Similar such argument is seen to have surfaced before theConstitutional bench of the Supreme Court in SomDattDatta Vs Union ofIndia and others (AIR (1969) SC 414). Certain similarities between the casein hand and SomDattDattais that both the offender and the victim arepersons subject to the Act and the offence committed was murder whichordinarily prohibits a trial before a Court Martial except during some specialcircumstances and part of the investigation was carried out by the police, eventhough a Court of Inquiry was formed by the appropriate authority. It wasargued on behalf of the petitioner of the said case, who was convicted by theCourt Martial and whose conviction was confirmed by the confirmingauthority that the concerned authority did not give any notice to the CriminalCourt about his intention to try the case before the Court Martial and hence the Criminal Court alone has got the jurisdiction to try the case and furtherthat the order of the confirming authority has not given any reasons forconfirmation. But the Supreme Court has held that the Rules framed by theCentral Government under Section 549 of the Criminal Procedure Code(corresponding to Section 475 of the new Code) shall apply to a case wherethe proceedings against the offender have already been instituted in anordinary Criminal Court having jurisdiction to try the matter and not at a stagewhere such proceedings have not been instituted. 32. In this regard the relevant part of the judgment is extracted below:SomDattDatta Vs, Union Of India and others ( AIR 1969SC 414) “5. In the present case, we are unable to accept thecontention of the petitioner that merely because Maj. Agarwalhad directed that the first information report should be lodgedwith the police through Second Lt. Jesudian, it means that thecompetent authority under Section 125 of the Army Act hadexercised its discretion and decided that the proceedings shouldbe instituted before the Criminal Court. The reason is that Maj.Agarwal was not the competent authority under Section 125 ofthe Army Act to exercise the choice under that section. Thecompetent authority was the Central Officer Commanding, Madras, Mysore and Kerala Area and that authority haddecided on September 2, 1965 that the matter should be tried bya Court Martial and not by the Criminal Court. The reason is that Maj.Agarwal was not the competent authority under Section 125 ofthe Army Act to exercise the choice under that section. Thecompetent authority was the Central Officer Commanding, Madras, Mysore and Kerala Area and that authority haddecided on September 2, 1965 that the matter should be tried bya Court Martial and not by the Criminal Court. On the samedate, the General Officer Commanding, Madras, Mysore &Kerala Area had ordered the constitution of the Court Martialunder Chapter VI of the Army Rules to investigate into the caseof the petitioner and the other accused persons. There wasadmittedly no direction by the Commander of that area to handover the proceedings to the Criminal Court. It is true that Maj.Agarwal had directed a report to be lodged with the Police at4.00 a.m. on September 2, 1965. It is also true that Sri Bashyam,Inspector of Police had inspected the place of occurrence,seized certain exhibits and held inquest of the dead body of Spr.Bishwanath Singh. Sri Bashyam has admitted that he stoppedinvestigations on the same date as directed by the militaryauthorities. Merely because Sri Bashyam conducted the inquestof the dead-body of Spr. Bishwanath Singh or because he seizedcertain exhibits and sent them to the State Forensic ScienceLaboratory, Madras for chemical examination, it cannot bereasonably argued that there was a decision of the competentmilitary authority under Section 125 of the Army Act forhanding over the inquiry to the Criminal Court. On the otherhand, the action of the General Officer Commanding inconstituting the court of enquiry on September 2, 1965 indicatesthat there was a decision taken under Section 125 of the ArmyAct that the proceedings should be instituted before the Court Martial. 7. It was argued on behalf of the petitioner that therewas no notice given by the Commanding Officer to theMagistrate under Rule 5 that the petitioner should be tried bya Court Martial and hence the criminal court alone hadjurisdiction under Rule 3 to conduct proceedings against thepetitioner for the offences charged. In our opinion, theargument on behalf of the petitioner is misconceived. TheRules framed by the Central Government under Section 549 ofthe Criminal Procedure Code apply to a case where theproceedings against the petitioner have already been institutedin an ordinary Criminal Court having jurisdiction to try thematter and not at a stage where such proceedings have notbeen instituted. In our opinion, theargument on behalf of the petitioner is misconceived. TheRules framed by the Central Government under Section 549 ofthe Criminal Procedure Code apply to a case where theproceedings against the petitioner have already been institutedin an ordinary Criminal Court having jurisdiction to try thematter and not at a stage where such proceedings have notbeen instituted. It is clear from the affidavits filed in the presentcase that the petitioner was not brought before the Magistrateand charged with the offences for which he was liable to betried by the Court Martial within the meaning of Rule 3 and sothe situation contemplated by Rule 5 has not arisen and therequirements of that Rule are therefore not attracted. It waspointed out by Mr Dutta that after the first information reportwas lodged at Pallavaran police station a copy thereof shouldhave been sent to the Magistrate. But that does not mean thatthe petitioner “was brought before the Magistrate and chargedwith the offences” within the meaning of Rule 3. It is manifestthat Rule 3 only applies to a case where the police hadcompleted investigation and the accused is brought before theMagistrate after submission of a charge sheet. The provisions ofthis Rule cannot be invoked in a case where the police hadmerely started investigation against a person subject toMilitary, Naval or Air Force law. With regard to the holding ofthe inquest of the dead-body of Spr. Bishwanath Singh it waspointed out by the Attorney-General that Regulation 527 of theDefence Services Regulations has itself provided that in cases ofunnatural death that is death due to suicide, violence or undersuspicious circumstances information should be given underSection 174 of the Criminal Procedure Code to the civilauthorities, and the conduct of Maj. Agarwal in sendinginformation to the police was merely in accordance with theprovisions of this particular regulation. For these reasons wehold that counsel for the petitioner is unable to make good hisargument on this aspect of the case. 9. Finally it was contended on behalf of the petitionerthat the order of the Chief of the Army Staff confirming theproceedings of the Court Martial under Section 164 of the ArmyAct was illegal since no reason has been given in support of theorder by the Chief of the Army Staff. 9. Finally it was contended on behalf of the petitionerthat the order of the Chief of the Army Staff confirming theproceedings of the Court Martial under Section 164 of the ArmyAct was illegal since no reason has been given in support of theorder by the Chief of the Army Staff. It was also pointed out the Central Government has also not given any reasons whiledismissing the appeal of the petitioner under Section 165 of theArmy Act and that the order of the Central Government musttherefore be held to be illegal and ultra vires and quashed bythe grant of a writ in the nature of certiorari. In this context it isnecessary to reproduce Sections 164 and 165 of the Army Actwhich are to the following effect: “164. (1) Any person subject to this Act whoconsiders himself aggrieved by any order passedby any Court Martial may present a petition tothe officer or authority empowered to confirm anyfinding or sentence of such Court Martial, andthe confirming authority may take such steps asmay be considered necessary to satisfy itself as tothe correctness, legality or propriety of the orderpassed or as to the regularity of any proceedingto which the order relates. (2) Any person subject to this Act who considershimself aggrieved by a finding or sentence of anyCourt Martial which has been confirmed, maypresent a petition to the Central Government, theChief of the Army Staff or any prescribed officersuperior in command to the one who confirmedsuch finding or sentence, and the CentralGovernment, the Chief of the Army Staff or otherofficer, as the case may be, may pass such orderthereon as it or he thinks fit. 165. The Central Government, the Chief of theArmy Staff or any prescribed officer may annulthe proceedings of any Court Martial on theground that they are illegal or unjust.” Incontrast to these sections, Section 162 of theArmy Act expressly provides that the Chief of theArmy Staff “for reasons based on the merits ofthe case” set aside the proceedings or reduce thesentence to any other sentence which the courtmight have passed. Section 162 reads as follows:“The proceedings of every summary CourtMartial shall without delay be forwarded to theofficer commanding the division or brigadewithin which the trial was held, or to theprescribed officer; and such officer, or the Chiefof the Army Staff, or any officer empowered inthis behalf by the Chief of the Army Staff, may, forreasons based on the merits of the case, but notany merely technical grounds, set aside theproceedings or reduce the sentence to any othersentence which the court might have passed.”It is necessary in this context to refer to Rules 61and 62 of the Army Rules which prescribe thestandard form of recording the opinion of theCourt Martial on each charge and ofannouncement of that finding. These Rules omitall mention of the evidence or the reasoning bywhich the finding is reached by the CourtMartial. Rules 61 and 62 are to the followingeffect: “61. Consideration of finding.— (1) The courtshall deliberate on its finding in closed court inthe presence of the Judge-Advocates. (2) Theopinion of each member of the court as to thefinding shall be given by word of mouth on eachcharge separately. 63. Form, record and announcement of finding.— (1) The finding on every charge upon whichthe accused is arraigned shall be recorded and,except as provided in these Rules, shall berecorded simply as a finding of ‘guilty’ or of ‘notguilty’. (10) The finding on each charge shall beannounced forthwith in open court as subject toconfirmation.” In the present case it is manifest that there is noexpress obligation imposed by Section 164 or by Section 165 ofthe Army Act on the confirming authority or upon the CentralGovernment to give reasons in support of its decision to confirmthe proceedings of the Court Martial. Mr Dutta has been unableto point out any other section of the Act or any of the Rule madetherein from which necessary implication can be drawn thatsuch a duty is cast upon the Central Government or upon theconfirming authority. Apart from any requirement imposed bythe statute or statutory rule either expressly or by necessaryimplication, we are unable to accept the contention of Mr Duttathat there is any general principle or any rule of natural justicethat a statutory tribunal should always and in every case givereasons in support of its decision.” 33. Apart from any requirement imposed bythe statute or statutory rule either expressly or by necessaryimplication, we are unable to accept the contention of Mr Duttathat there is any general principle or any rule of natural justicethat a statutory tribunal should always and in every case givereasons in support of its decision.” 33. In fact, in SomDattDattacase, it is the police who had firstregistered the case on 2nd September 1995 and started their investigation andthe Court of Inquiry was formed on 3rd September 1995. Subsequent to theformation of Court of Inquiry the police had stopped their investigation. However, it is submitted by the learned Government Advocate for thepetitioner that the Supreme Court has held in S.K JhaCommodre vs State ofKerala and Anr 2011(15) SCC 492 that the commanding officer cannotexercise his option before the charge sheet is filed and it has been laterfollowed by the High Court of Orissa in Adm Commandant vs State ofOdisha and ors 2020 SCC Online Ori 873. 34. For the sake of clarity the essential portion of those judgments aregiven as under: S.k JhaCommodre Vs State of Kerala and Anr 2011(15)SCC 492“ 1. Heard the learned counsel for the parties in extenso. 2. It is clear to us that the judgment of the High Court is inconformity with the judgment of the Constitution Bench of thisCourt in SomDuttDatta v. Union of India. The ConstitutionBench while construing Rule 3 of the Criminal Courts andCourt Martial (Adjustment of Jurisdiction) Rules 1952 readwith Section 549 of the Cr.P.C., 1898 (now Section 475Cr.P.C., 1973) held that the option as to whether the accusedbe tried before the criminal court or by a Court Martial couldbe exercised only after the police had completed the investiga tion and submitted the charge-sheet and that the provisions ofthe Rule could not be invoked in a case where the police hadmerely started an investigation against a personnel subject toMilitary, Naval or Air Force law. 3. The facts of the present case indicate that three naval officerswere arrested on 10-1-2008 for offences punishable underSections 143, 147, 148, 452, 307, 326 and 427 read withSection 149 IPC and some other penal laws. They were producedbefore the Magistrate on the 11-1-2008 who remandedthem to judicial custody. An application was filed on 14-1-2008 by the Commanding Officer of the Naval Unit to whichthey belonged for handing over the accused for trial under theNavy Act, 1957. They were producedbefore the Magistrate on the 11-1-2008 who remandedthem to judicial custody. An application was filed on 14-1-2008 by the Commanding Officer of the Naval Unit to whichthey belonged for handing over the accused for trial under theNavy Act, 1957. This application was rejected by the Magistrateholding that the stage of consideration of the applicationwould arise only on the completion of the police investigationwhich was still at a preliminary stage and that the request ofthe Commanding Officer was premature. The order of theMagistrate was challenged before the High Court of Kerala inrevision. This too has been dismissed on similar grounds. 4. We see from the facts that the observations of the ConstitutionBench in SomDattDatta case apply fully to the factsherein. The stage at which the option can be exercised by theCommanding Officer (as to whether the accused should betried before a Court Martial or a criminal court) cannot beexamined at this stage as the investigation has not been completedand a charge-sheet has yet to be submitted. 5. The appeal is accordingly dismissed.”Adm Commandant vs State of Odisha and ors 2020 SCCOnline Ori 873“ 11. In the case of Chandra Mohan Shukla, which was renderedon 17th July, 2007, it is observed by the Guahati HighCourt, as follows:— “70. What crystallizes from the above discussion is that evenwhen an investigation by police into an offence alleged tohave been committed by a person subject to the Army Act is inprogress, there is no impediment, on the part of the competentmilitary authority, to either investigate the case in terms ofChapter V of the Army Rules or in holding. Court-martial ifthe accused is not in the custody of the Criminal Court or inthe custody of the police on the orders of the Criminal Court.The decision in SomDattDatta, 1969 Cri LJ 663 (supra) is acase of this nature, where the Army Officer was put to trialeven when the investigation by police was pending. If, however,the accused is arrested during investigation and broughtbefore a Magistrate, Rule 4 gets, attracted and a notice to thecompetent military authority to exercise their option to try theaccused has to be given.” 12. But every confusion has been cleared by the Hon'bleSupreme Court in the case of S.K. JhaCommodre (supra). It isa short judgment of the Hon'ble Supreme Court, which is producedbelow in entire. 13. But every confusion has been cleared by the Hon'bleSupreme Court in the case of S.K. JhaCommodre (supra). It isa short judgment of the Hon'ble Supreme Court, which is producedbelow in entire. 13. In the factual aspects of the present case at hand, the sameis found squarely covered by the decision of the Hon'bleSupreme Court in the case of S.K. Jha (supra). Here is a case,the F.I.R. was lodged on 7.10.2020, opposite party No. 3 (accused)was arrested and produced on the next day before thelearned S.D.J.M., Bhubaneswar and then on the same day theMilitary custody of the accused (opposite party No. 3) wassought for by the Army authority and it was allowed. It is thusclear that, the custody of the accused was handed over to theArmy authority pending investigation and before submissionof the police report under Section 173(2) of the Cr.P.C.. Whatis contended on behalf of the petitioner as well as oppositeparty No. 3 that, the custody of opposite party No. 3 pendinginvestigation is in terms of provision under Section 104 of theArmy Act and not under Sections 125 and 126 or under theprovisions of the Criminal Procedure Code is not seen withsubstance. It is for the reason that the provisions of Section104 has to be read in coherence with the provisions of 125 ofthe Amy Act, Section 475 of the Code and the Criminal Courtsand Court Martial (Adjustment of Jurisdiction) Rules 1978.The provisions under Section 104 cannot stand alone to decidethe custody of the accused in respect of the civil offencescommitted against a civilian or non-subject of Army Act.Moreover, the decision rendered by the Hon'ble SupremeCourt in the case of S.K. Jha leaves no scope or any confusionwith regard to custody of opposite party No. 3 in the present context. 14. It is thus clear that, the custody of opposite party No. 3cannot be examined at this stage pending investigation andthe stage to exercise the option by the petitioner for custody ofopposite party No. 3 has not reached yet awaiting submissionof police report U/s.173(2) of the Cr.P.C.. Accordingly, I donot see any merit in the present Criminal Misc. Case to interferewith the order of the learned Sessions Judge.” 35. But in both the cases, the victims are civilians and not subjects ofthe Act and further the investigation appeared to have been initiated andallowed to be made by the police. Accordingly, I donot see any merit in the present Criminal Misc. Case to interferewith the order of the learned Sessions Judge.” 35. But in both the cases, the victims are civilians and not subjects ofthe Act and further the investigation appeared to have been initiated andallowed to be made by the police. Further, the judgment of S.K JhaCommodrehas been rendered by the Full Bench of the Supreme Court and ithas been followed by the Single bench of the Orissa High Court in AdmCommandant vs State of Odisha and ors. But the dictum in SomdattDattahas been laid down by a constitutional bench of the Supreme Court and hence that alone can rule the position of law involved in the subject. In the case inhand, the Court of Inquiry has been constituted at the very beginning and thatwould indicate the intention of the Appropriate Authority to assumejurisdiction before the Court Martial in terms of Section 124 of the Act. 36. No doubt the offence of rape falls within the exceptional offencesunder Section 72 and over which the Court Martial cannot ordinarily exercisejurisdiction. The exceptional offences are murder, culpable homicide notamounting to murder and rape. But denial of jurisdiction to Court Martial isonly if the person against whom the offence committed is not a subject ofMilitary, Naval or Air Force law. The words ‘against a person not subject toMilitary, Naval or Air Force law’ and ‘such a person’ under Section 72 wouldonly mean that the person should be the person not defined under Section 2 ofthe Act (extracted supra). However, if any of those offences is committedagainst a person who is also subject of the Military, Navy and Air Force, theCourt Martial cannot be excluded from exercising his option to assumejurisdiction. Even when the victim is not a subject of the Act, under certaincircumstances and as specified under Section 72, the Court Martial canexercise jurisdiction. In the instant case the victim is also a subject of AirForce law and hence it cannot be said that the Court Martial cannot exerciseoption to assume jurisdiction over the offence involved in this case. 37.Having said that, it should also be emphasised that the propositionof law laid down in Sam dattDatta, cannot be superficially understood as amere ‘No’ to exercise option to assume jurisdiction until the investigation iscompleted and the charge sheet is filed before the Magistrate. 37.Having said that, it should also be emphasised that the propositionof law laid down in Sam dattDatta, cannot be superficially understood as amere ‘No’ to exercise option to assume jurisdiction until the investigation iscompleted and the charge sheet is filed before the Magistrate. It should becomprehensively understood that if the Court of Inquiry has undertaken theinvestigation, it is indicative of assumption of jurisdiction by the CourtMartial and in such case, there is no necessity to continue or complete theinvestigation by the police and hence the necessity to lay the charge sheet bypolice before the Criminal Court and the consequential need to invoke Section475 Cr.P.C read with the corresponding Court Martial (Adjustment ofJurisdiction ) Rules, will not arise. 38.Any piece meal or truncated understanding of the above legalposition will only cause confusion and confrontation between the two mightyforces. Even though the learned Magistrate at the first level had rightlyunderstood the legal position and passed orders to hand over the custody ofthe accused, he omitted to add that the further investigation of the policeshould not be continued, unless it is so desired by the Appropriate Authorityunder the Act. 39. The Revisional Court further confounded the situation by directingthe police to continue the investigation and prepare two copies of evidenceand lay one before the regular Court and another before the Court Martial. Infact that order of the Revisional Court ought to have been challenged by therespondent, if he did not desire the police to continue the investigation. Bykeeping silence and not raising any red flag, the respondent allowed the policealso to continue the investigation. Simultaneous investigation was carried outby the Court of Inquiry also and the report has been laid before the CourtMartial and thereafter the accused was tried by the Court Martial. Theadjustment of concurrent jurisdiction as contemplated under the Act and therelevant rules framed in this regard are towards an understanding between twoforces in the larger interest and not for a race between two different forces towin any trophy. 40. In the instant case, the necessity to register a case by the policearose due to the complaint filed by the victim. Having not satisfied with theway in which the things were handled by Air Force authorities subsequent toher reporting and having faced humiliation and threat to withdraw thecomplaint, the victim had approached the police. 41. 40. In the instant case, the necessity to register a case by the policearose due to the complaint filed by the victim. Having not satisfied with theway in which the things were handled by Air Force authorities subsequent toher reporting and having faced humiliation and threat to withdraw thecomplaint, the victim had approached the police. 41. The country had waken up to a progressive world order of genderequality with the promulgation of the Constitution of India. The march gainedmomentum with the successive victim centric enactments made to combatviolence against women and children, especially the sexual violence againstthem and this has spread more awareness among the populace. The definitionof rape has been very much updated and the Ministry of Home affairs has alsoreleased the Standard Operating Procedure for Investigation and Prosecutionof the offence of Rape in their official website. (https://www.mha.gov.in).Victim jurisprudence have evolved to the extent of recognizing the victim’sright to participation in the proceedings from bail to trail and much attention isgiven to restorative justice by awarding compensation under VictimCompensation Scheme. In this era of awareness and sensitivity, it is difficultto comprehend that a victim of a sexual offence in the Armed Forces was notcomfortable enough to take up her grievance and she was looked down andpressured for having got the courage to report. If the women of the armedforces should not have courage to fight such violence, who else can have? 42. If an appropriate authority under the Act continues to handle theoffences like rape against the persons subject to the Act by opting to assumejurisdiction under the Court Martial, even when the situations and eventssurrounding the victim are not hunky-dory, the victim will be vulnerable tosecondary victimisation. Even if the accused is convicted at the end of the trialthat cannot be called as a complete justice and there is a possibility for suchvictimisation to continue even after the conviction of the accused. 43.The remedy available to all aggrieved Officers under Section 27 ofthe Act by making complaints against their superiors to the CentralGovernment or a remedy of re-trial at the discretion of the CentralGovernment under Section 126, cannot be an immediate answer to the mostdemanding post reporting situations of the victims of sexual offences. 43.The remedy available to all aggrieved Officers under Section 27 ofthe Act by making complaints against their superiors to the CentralGovernment or a remedy of re-trial at the discretion of the CentralGovernment under Section 126, cannot be an immediate answer to the mostdemanding post reporting situations of the victims of sexual offences. Thishard-core reality can only be remedied through legislative measures byproperly addressing the gap in such special legislation and by ensuring thecompliance of mandates of the Sexual Harassment of Women at Workplace(Prevention, Prohibition and Redressal) Act 2013 in the Armed Forces and byspreading awareness. 44. It is not out of place to mention that Section 357(c) of Cr.P.C.,would mandate that all hospitals, public or private, whether run by the CentralGovernment or the State Government and the local bodies or any other personshould immediately provide medical treatment for free of cost to the victim ofthe offence of rape and the matter should be immediately informed to thepolice and any deviation of the mandates of Section 357(c) would amount tocriminal offence under Section 166-B of IPC. 45. To conclude in the background of the above discussions, I feel thefollowing guidelines can be given to the Criminal Courts for dealing with thematters of handing over custody of the subjects of Armed Forces. (i) Whenever the requests for custody is made by acompetent authority of any Armed Force, the magistrateshould follow the dictum laid down in SomdattDatta VsUnion of India in letter and spirit by having a comprehensiveunderstanding that if the Court of Inquiry has undertaken theinvestigation in the matter, it is indicative of assumption ofjurisdiction by the Court Martial under Section 124 of the Act. (ii) Once an option under Section 124 is exercisedthere is no necessity to continue or complete the investigationby the police and hence the necessity to lay the charge sheetby police before the Criminal Court and the consequentialneed to invoke Section 475 Cr.P.C read with thecorresponding Court Martial (Adjustment of Jurisdiction )Rules, will not arise. Hence an order should be passed thatthe police shall not continue the investigation unless it isexpressly desired by the Competent Authority of the Military,Naval, Air Force, as the case may be. (iii) Once the Investigation is undertaken by theappropriate Authority, it is that authority or team ofauthorities who had investigated the offence have to appearbefore the Court Martial during trial to depose evidence andnot the police. (iii) Once the Investigation is undertaken by theappropriate Authority, it is that authority or team ofauthorities who had investigated the offence have to appearbefore the Court Martial during trial to depose evidence andnot the police. Hence if any summons is ordered by the CourtMartial through the Magistrate for the appearance of thePolice, before serving the same, the magistrate shall clarifywhether it was due to the investigation carried out by thePolice. (iv) There need not be any doubt that if the police hasundertaken the investigation, the charge sheet has to be laidonly before the Magistrate under Section 190 Cr.P.C and notbefore the Court Martial, even though the Magistrate isobliged to follow sec.125 of the Act. However, such reportswill be directly instituted before the Court Martial if theinvestigation is done by the Court of Inquiry and if the reportis filed by the Appropriate Authority. (v) So far as the power of the Criminal Court toexercise the option to assume jurisdiction to try the offence, itcan be exercised only after the charge sheet is filed and inaccordance with Section 125 of the Act,. (vi) While exercising such an option under sec.125, themagistrate shall put the Appropriate Authority on notice andpostpone the trial until his decision or the decision of theCentral Government at his instance is obtained and informedto the Court. (vii) If the request is made by the AppropriateAuthority after the charge sheet is filed in accordance withSection 125, due procedure contemplated under Section 475Cr.P.C and the Court Martial (Adjustment of Jurisdiction )Rules 1978 shall be followed. (viii) When a subject of the Act is arrested and broughtbefore the learned Magistrate after he was arrested underSection 105 of the Act, the accused should be handed over tothe custody of the Military, Navy or Air force as the case maybe, if request for custody is made. If no such request is madeby the Appropriate Authority for custody, the magistrate shallremand the accused u/s 167 Cr.PC on intimation to theAppropriate Authority, if the offence involved is a civil offenceand it is well grounded and over which the Criminal Courtshave jurisdiction. If the offence involved is not a civil offencebut a military offence or combined with any military offenceand over which the Criminal Courts have no jurisdiction, theaccused shall be handed over to the custody of the Military,Navy, Air Force, as the case may be, even if there is no written request. 46. If the offence involved is not a civil offencebut a military offence or combined with any military offenceand over which the Criminal Courts have no jurisdiction, theaccused shall be handed over to the custody of the Military,Navy, Air Force, as the case may be, even if there is no written request. 46. With the above guidelines, this Criminal Original Petition isdisposed. And the Central Government is directed to ensure the properexistence of Internal Complaints Committee in the Armed Forces inaccordance with the mandates of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 and to sensitisethe armed personnel by imparting gender sensitive awareness training toachieve its objectives. Consequently, connected miscellaneous petition is closed.