338. The attention of the Courts is invited to the provisions of Section 549 (1) of the Code. The following rules have been made under that Section :-
(1)These rules may be called the Criminal Procedure (Military Offenders) Rules.[Home Department Notification No. F-102-35, dated the 12th March 1935, as subsequently amended].(2)Where a person subject to military, naval or air force law is brought before Magistrate and charged with an offence for which he is liable under the Army Act, the Naval Discipline Act, the Naval Discipline Act as modified by the Indian Navy (Discipline) Act, 1934, or the Air Force Act, to be tried by the a Court-martial, such Magistrate, unless he is moved by the competent military, naval or air force authority to proceed against the accused under the Code of Criminal Procedure, 1898, shall before proceeding give notice to the Commanding Officer of the accused, and until the expiry of a period of five days from the date of service of such notice, shall not-(a)convict the accused under Section 243, acquit him under Section 247 or Section 248, or hear him in his defence under Section 244 of the said Code, or(b)frame a charge against the accused under Section 254 of the said Code, or(c)make an order committing the accused for trial by the High Court or the Court of Session under Section 213 or sub-section (1) of Section 446, of the said Code, or(d)transfer the case for enquiry or trial under Section 192 of the said Code, or(e)issue an order under sub-section (1) of Section 445 of the said Code for the case to be referred to a Bench.[Government of India, Legal Department, Notification No. F-248-44-C and G (Judicial), dated the 8th May 1945.](3)Where within the period of 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 Officer 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 be 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 said Code, to the authority specified in the said section.(4)Where a Magistrate has been moved by competent military, naval or air force authority, as the case may be, under rule (2), and the Commanding Officer of the accused subsequently give notice to such Magistrate that in the opinion of such authority, the accused should be tried by a Court-martial, such Magistrate, if he has not before receiving such notice done any act or issued any order referred to in rule (2), shall stay proceedings and, if the accused is in his power or under his control, shall in the like manner deliver him, with the statement prescribed in Section 549 of the said Code, to the authority specified in the said Section.(5)Where an accused person, having been delivered by the Magistrate under rule (3) or (4), is not tried by a Court-martial for the offence of which he is accused, or other effectual proceedings are not taken, or ordered to be taken, against him, the Magistrate shall report the circumstance to the Provincial Government.(6)In these rules "competent military authority" means the Brigade Commander, "competent naval authority" means the Flag Officer Commanding, Royal Indian Navy, or the Hag Officer, Bombay, or the Commodore, Bay of Bengal and "competent air force authority" means the Air Officer Commanding, Indian Command, or any Group Commander, Air Common South-East Asia of India Command.[Government of India, Legal Department, Notification No. F-235-45-C and G (Judicial), dated the 20th June 1945].(7)These rules extend to the whole of India, including Berar.
