In Re: Captain Hugh May Stollery Mundy, Commanding Officer and Another

Alfred Henry Lionel Leach, C.J.—There are two matters before us. One is an application by the Officer Commanding the Royal Naval Air

Station, Tambaram, for the issue of a writ of certiorari, to quash the conviction of Eric Collins, an engine-room mechanic, who has been sentenced

to three months rigorous imprisonment for an offence u/s 304-A of the Indian Penal Code and rigorous imprisonment for one month u/s 116 of the

Motor Vehicles Act. The other matter is an application by the accused for the revision of his conviction and sentence. It is quite clear that the

Magistrate who investigated the charge and convicted the accused did not act in accordance with law.

By reason of Section 549 of the Code of Criminal Procedure the Central Government may make rules consistent with the Code and the Army

Act, the Naval Discipline Act and that Act as modified by the Indian Navy (Discipline) Act and the Air Force Act and any similar law for the time

being in force as to the cases in which persons subject to military, naval or air force law, shall be tried by a Court to which the Code applies, or by

Court-martial. When a 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 the Code applies, or by Court-Martial, the Magistrate shall have regard to the 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 regiment, corps, ship or detachment 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 Court-martial.

In pursuance of the power given to the Central Government by this section, rules have been framed by the Governor-General in Council. They

were notified in the Gazette of India of the 12th March, 1935. Rule 1 as amended in 1936 says that where a person subject to military, naval or air

force law is brought before a Magistrate and charged with an offence for which he is liable under the Army Act, the Naval Discipline Act, the

Navy Discipline Act as modified by the Indian the (Discipline)Act, 1934,orthe Air Force Act to be tried by a Court-martial, me Magistrate shall

not proceed to try him, or to issue orders for his case to be reierred to a Bench, or to inquire with a view to his commitment for trial by the Court

of bession or the High Court for any offence triable by such Court, unless (a) he is of opinion, for reasons to be recorded, that he should so

proceed without being moved thereto by competent military, naval or air force authority or (b) he is moved thereto by such authority., Rule 2 says

that before proceeding under Clause (a) of Rule 1 the Magistrate shall give notice to the commanding officer of toe accused and until the expiry of

a period of five days from the date of the service of the notice, he shall not (a) acquit or convict the accused under Sections 243, 245, 247, or 248

of the Code of Criminal Procedure or hear him in his defence u/s 244 of the Code, or (b) frame in writing a charge against the accused u/s 254 of

the Code, or (c) make an order committing the accused for trial by the High Court or the Court of Session u/s 213 or Sub-section (1) of Section

44b of the Code, or (d) issue orders under Sub-section (1) of Section 445 of the Code for the case to be referred to a Bench. Rule 3 states that

where within the period ot five days mentioned in Rule 2, or at any time thereafter before the Magistrate has done any act or issued any order

referred to in that rule, the commanding omcer of the accused gives notice to the Magistrate that, in the opinion of competent military naval or air

force authority, as the case may be, the accused should pe tried by a Court-martial, the Magistrate shall stay proceedings and, if the accused is in

his power or under his control, shall deliver him, with the statement prescribed by Section 549 of the Code to the authority specified in that section.

The attention of the Magistrate who tried the accused was not drawn to Section 549 of the Code of Criminal Procedure or the rules framed

there under, and ne aid not act m accordance therewith. Consequently the trial was illegal and the conviction and sentence must be set aside. The

commanding officer of the accused is the petitioner in the certiorari proceedings. As the Court has power to set aside the conviction and sentence

in revision, it is unnecessary for us, in fact it would be improper, to deal with the matter by a writ of certiorari. We will deal with the matter in

revision. The conviction and sentence are set aside and the Magistrate will deal with the case according to law.