REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1017 OF 2010
S.K. JHA COMMODRE
.. APPELLANT(S)
vs.
STATE OF KERALA AND ANR.
.. RESPONDENT(S)
O
RDER
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
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.