S.K.Jha Commodre vs State Of Kerala & Anr

S.K. JHA COMMODRE .. APPELLANT(S)

vs.

STATE OF KERALA AND ANR. .. RESPONDENT(S)

O R D E R

Heard the learned counsel for the parties in

extenso.

It is clear to us that the judgment of the High

Court is in conformity with the judgment of the

Constitution Bench of this Court in Som Dutt Datta vs.

Union of India and Others reported in AIR (1969) SC 414.

The Constitution Bench while construing Rule 3 of the

Criminal Courts and Court Martial (Adjustment of

Jurisdiction) Rules 1978 read with Sec. 549 of the Cr.P.C.

(now Section 475 of the Cr.P.C.) held that the option as to

whether the accused be tried before the Criminal Court or

by a Court Martial could be exercised only after the Police

had completed the investigation and submitted the charge-

sheet and that the provisions of the Rule could not be

invoked in a case where the police had merely started an

investigation against a personnel subject to Military,

Naval or Air Force law. The facts of the present case

indicate that three Naval Officers were arrested on

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10th January, 2008 for offences punishable under Sections

143, 147, 148, 452, 307, 326, 427 read with Section 149 of

the I.P.C. and some other penal laws. They were produced

before the Magistrate on the 11th January, 2008 who remanded

them to judicial custody. An application was filed on the

14th January, 2008 by the Commanding Officer of the Naval

Unit to which they belonged for handing over the accused

for trial under the Navy Act, 1957. This application was

rejected by the Magistrate holding that the stage of

consideration of the application would arise only on the

completion of the police investigation which was still at a

preliminary stage and that the request of the Commanding

Officer was premature. The order of the Magistrate was

challenged before the High Court of Kerala in revision.

This too has been dismissed on similar grounds. We see

from the facts that the observations of the Constitution

Bench apply fully to the facts herein. The stage at which

the option can be exercised by the Commanding Officer (as

to whether the accused should be tried before a Court

Martial or a Criminal Court) cannot be examined at this

stage as the investigation has not been completed and a

charge-sheet has yet to be submitted.

The appeal is accordingly dismissed.

.................J. (HARJIT SINGH BEDI)

....................J.

(CHANDRAMAULI KR. PRASAD)

New Delhi, January 11, 2011.