S.K. JHA COMMODREversusSTATE OF KERALA AND ANOTHER

                   [2011] 1 S.C.R. 295


                  S.K. JHA COMMODRE                           A
                             v.
           STATE OF KERALA AND ANOTHER
           (Criminal Appeal No. 1017 of 2010)
                    JANUARY 11, 2011
                                                              8
   [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                  PRASAD, JJ.]

      Criminal ,Courts and Court Martial (Adjustme.nt of
Jurisdiction) Rules, 1978: Rule 3 r.w. s.475, Cr.P.C. - Naval C
 Officers-accused arrested for offences punishable ulss. 143,
 147, 148. 452, 307, 326, 427 r.w. s. 149, /PC - Remanded to
judicial custody - Application by the Commanding Officer of
 the Naval unit (to which the accused belonged) for handing
 over the accused for trial under the Navy Act, 1957 - Held: o
 Not maintainable at this stage since the investigation had not
 been completed and charge-sheet had yet to be submitted
- The option as to whether the accused be tried before the
 criminal courl or by a courl marlial could be exercised only
 after police had completed investigation and submitted the E
 charge-sheet and the provisions of the Rule could ,not be
 invoked in a case where police has merely started the
 investigation against the personnel who is subject to Military,
 Naval or Air Force law- Navy Act, 1957 - Code of Criminal
Procedure, 1973 - s.475.
                                                              F
    Som' Dutt Datta vs. Union of India and Ors. AIR (1969)
SC 414, Followed.
                    Case Law Reference:
    AIR (1969) SC 414        Followed.            Para 2      G

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1017 of 2010.

                            295                               H
    296       SUPREME COURT REPORTS                (2011] 1 S.C.R.


A       From the Judgment & Order dated 16.01.2008 of the High
    Court of Kerala at Ernakulam in Crl. M.C. 212 of 2008.

         P.P. Malhotra, ASG, Rajiv Nanda, S.K. Sahajpal,;--Anil
    Katiyar (for B. Krishna Prasad) for the Appellant.
8         G. Prakash for the Respondent.

          The following Order of the Court was delivered

                                ORDER
c         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
D 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
E 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
F 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 l.P.C. and some other penal laws. They were
  produced before the Magistrate on the 11th January, 2008 who
G 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     1




  application would arise only on the completion of the police
H
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       S.K. JHA COMMODRE v. STATE OF KERALA AND 297
                        ANR.

      investigation which was still at a preliminary stage and that the        A
      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         B
      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.                                           c
             The appeal is accordingly dismissed.

      D.G.                                          Appeal dismissed.




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