Legal Provisions of Section 475 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Delivery to commanding officers of persons liable to be tried by Court-martial:
The section seeks to avoid the conflict of jurisdiction in respect of offences which are triable both, by the ordinary criminal Court and the Court-martial. The offence of which the accused is to be tried should be an offence of which cognizance can be taken by an ordinary criminal Court as well as Court-martial. The section refers to the initial jurisdiction of the two Courts to take cognizance of the case and not to their jurisdiction to decide it on merits.
ADVERTISEMENTS:
Sub-section (1) of this section should be construed in the light of Section 125 of the Army Act, 1950. Thus where a Magistrate committed a case of an army personnel charged of an offence, under Section 306 IPC while he was on leave, to the Court of Session, the committal was held to be illegal and therefore, it was quashed and the case was remanded back to the Magistrate to pass a reasoned order as required by Section 3 (b) of the Criminal Courts and Court martial (Adjustment) of Jurisdiction Rules, 1978 read with Section 475 of CrPC and Section 125 of the Army Act, 1950.
The Court held that it was necessary for the Magistrate to give notice to the Army authorities before initiating the committal proceedings. However, where the Naval authority made a request to the Magistrate to allow the accused (a navy man) to be tried under the Naval law, the Magistrate was bound to stay the proceedings and deliver the accused to the Naval authorities and there was no necessity to record reasons in this case.
Image Source : luna.edu
In order to avoid the conflict of jurisdiction between the Criminal Courts and the Court Martial, the Government of India has framed the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952. In case where the accused happens to be an Army-man, Section 125 of the Army Act, 1950 gives discretion to the competent Army authorities to decide as to where the proceedings against the accused should be instituted; but if the designated authorities do not exercise this discretion, the Criminal Court can exercise jurisdiction and proceed against the accused.
ADVERTISEMENTS:
In the case Gajendra Singh v. State of Rajasthan, a BSF personnel who was absent from duty without any leave, committed an offence under Section 352/323/307 IPC and it was for the BSF authorities to decide whether the accused would be tried by the BSF Court or by the regular Criminal Court; as both the Courts had jurisdiction to try the case.
Once the BSF authorities decide that the accused will be tried by the BSF Court, the Criminal Court, the accused has no option to claim that he should be tried by a Criminal Court. Therefore, if the Magistrate takes cognizance of an offence against BSF personnel, he is required to issue a notice to the BSF authorities and if they ask for the accused to be handed over to them for being tried by their Court, the Magistrate should deliver the accused to them.
But if the Magistrate commits the case to the Court of Session without giving a notice to the BSF authorities as required under Section 80 of the BSF Act, 1968 r/w Rule 41(i)(ii) of the Criminal Courts and BSF Courts (Adjustment of Jurisdiction) Rules, 1969, the entire proceedings would be null and void.
Sub-section (3) provides that the High Court has the discretionary power to direct that a prisoner detained in any jail within the State, be sent for Court martial for trial or examination in a case pending before the Court martial.