State the procedure of delivery to commanding officers of persons liable to be tried by Court-Martial.

Question: State the procedure of delivery to commanding officers of persons liable to be tried by Court-Martial.

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Answer

Chapter XXXVI, Section 475 of the Code of Criminal Procedure states the elaborate procedure of delivery to commanding officers of persons liable to be tried by Court-martial.

Sub-section (1) provides that the Central Government is empowered to make rules consistent with this CrPC and the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957), and the Air Force Act, 1950 (45 of 1950), and any other law, relating to the Armed Forces of the Union, for the time being in force, in relation to the cases in which persons subject to military, navel or air force law, or such other law, shall be tried by a Court to which this Code applies or by a Court-martial, and when any 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 this Code applies or by a Court-martial, such Magistrate shall have regard to such 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 unit to which he belongs, or to the commanding officer of the nearest military, naval or air-force station, as the case may be, for purpose of being tried by a Court-martial.

Further, as per sub-section (2), every Magistrate shall, on receiving a written application for that purpose by the commanding officer of any unit or body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavours to apprehend and secure any person accused of such offence.

Sub-section (3) further allows a High Court, if it thinks fit, to direct that a prisoner detained in any jail situated within the State be brought before a Court-martial for trial or to be examined touching any matter pending before the Court-martial.

Legal provisions of the nature of this section which have the result of taking away the jurisdiction of ordinary Criminal Courts with respect to a certain class of people, should be construed very strictly, and jurisdiction should not be given up unless the plain meaning of the words of the statute so requires.

There is no scope for an extension by the analogy of a principle of this character. The offence should be an offence of which cognizance can be taken by an ordinary Criminal Court as well as a Court-martial. The phrase “Liable to be tried either by a Court… or by a Court-martial” is intended to refer to the initial jurisdiction of the two Courts to take cognizance of the case and not the jurisdiction to decide the case on merits.

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