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15.The next question that arises for our consideration is as to what the ordinary criminal court is required to do when a person on "active service" of the Air Force is brought, before it for trial for any of the offences listed in Section 72 of the Act (supra). It is here that Section 475 CrPC, the 1952 Rules and Sections 124 and 125 of the Air Force Act come into operation. Section 475 CrPC reads as follows:

"475. Delivery to Commanding Officers of persons liable to be tried by court-martial.- (1) The Central Government may make rules consistent with this Code 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, as to cases in which persons subject to military, naval 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 the purpose of being tried by a court- martial.

Explanation.- In this section-

(a) 'unit' includes a regiment, corps, ship, detachment, group, battalion or company,

(b) 'court-martial' includes any tribunal with the powers similar to those of a court-

martial constituted under the relevant law applicable to the Armed Forces of the Union. (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 endeavors to apprehend and secure any person accused of such offence. (3) A High Court may, if it thinks fit, 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." Sections 124 and 125 of the Air Force Act provide:

section."

17.A conjoint reading of the above provisions shows that when a criminal court and court-martial each have jurisdiction in respect of the trial of the offence, it shall be in the discretion of the officer commanding the group, wing or station in which the accused is serving or such other officer as may be prescribed, in the first instance, to decide before which court the proceedings shall be instituted and if that officer decides that they should be instituted before a "court-martial", to direct that the accused persons shall be detained in air force custody. Thus, the option to try a person subject to the Air Force Act who commits an offence while on "active service" is in the first instance with the Air Force Authorities. The criminal court, when such an accused is brought before it shall not proceed to try such a person or to inquire with a view to his commitment for trial and shall give a notice to the Commanding Officer of the accused, to decide whether they would like to try the accused by a court-martial or allow the criminal court to proceed with the trial. In case, the Air Force Authorities decide either not to try such a person by a court-martial or fail to exercise the option when intimated by the criminal court within the period prescribed by Rule 4 of the 1952 Rules (supra), the accused can be tried by the ordinary criminal court in accordance with the Code of Criminal Procedure. On the other hand if the Authorities under the Act opt to try the accused by the 'court-martial', the criminal court shall direct delivery of the custody of the accused to the Authorities under the Act and to forward to the Authorities a statement of the offence of which he is accused. It is explicit that the option to try the accused subject to the Act by a court-martial is with the Air Force Authorities and the accused person has no option or right to claim trial by a particular forum. The option appears to have been left with the Air Force Authorities for good and proper reasons. There may be a variety of circumstances which may influence the decision of the Air Force Authorities as to whether the accused be tried by a court-martial or by a criminal court. This Court in Ram Sarup v. Union of India1 opined:

22.In the present case, from the scrutiny of the record of the committing court, it transpires that in execution of the warrant of arrest issued by the committing Magistrate on 28- 7-1988, the Air Force Authorities had themselves delivered Nachhattar Singh, appellant, to the custody of ASI Daljit Singh PW 15 who had carried the said warrant issued by the competent Magistrate, for execution on 10-8-1988. PW 15 Daljit Singh, ASI, deposed at the trial that while he was posted at Police Station Dharamkot in the month of August 1988, he had obtained the warrants of arrest of the appellant and went to Tezpur (Assam) and after obtaining necessary permission from the Air Force Authorities served the warrants on appellant Nachhattar Singh. The Air Force Authorities then delivered the custody of Nachhattar Singh to him and after taking the custody of Nachhattar Singh from the Air Force Authorities, he brought him to Police Station Dharamkot on 15-8-1990 to face his trial in the criminal court. There was no challenge in the cross-examination of PW 15 either about the obtaining of the necessary permission from the Air Force Authorities to serve the warrant on the appellant or about the delivery of the custody of the appellant by the Air Force Authorities for being taken to Police Station Dharamkot for trial by the ordinary criminal courts under the Code. Handing over and taking over certificate signed by Shri Vijay Prakash, Flying Officer, Station Adjutant No. 11 Wing, Air Force and by ASI Daljit Singh was placed on the record before the committing Magistrate. The conduct of the Air Force Authorities in handing over the custody of the appellant to the police Authorities for being produced before the criminal court for trial, is a clear' indication of the exercise of the option by the Air Force Authorities that they did not wish to detain the appellant in their custody under Section 124 of the Air Force Act and had opted for the trial of the appellant by the ordinary criminal court. This conclusion is reinforced by the fact that the Commanding Officer of the Air Force Station, Halwara, had subsequently also sought information from the trial court with regard to the fate of the case, vide his letter dated 18-2-1991. The above facts unhesitatingly show that the Air Force Authorities had been made fully aware of the pendency of the criminal case against a member of the force by the criminal court and had been afforded adequate and full opportunity to exercise the option of having the appellant tried by a court-martial. Since, with the full knowledge of the pendency of the criminal case against the member of the Air Force, the Authorities had voluntarily delivered the custody of the appellant, for his trial by the ordinary criminal court, the Authorities would be deemed to have exercised the option of not trying the appellant by a court-martial. The act of the Authorities in voluntarily delivering the appellant to the civil Authorities for trial unmistakably show that the Air Force Authorities did not intend to claim the trial of the appellant by a court-martial. It is pertinent to notice here that the Air Force Authorities have made no grievance at any stage that their right to decide whether or not to try the accused by court-martial had been impinged upon by the criminal court in any manner. They have not questioned the validity of the trial of the appellant by the criminal court at any forum whatsoever. The right to exercise the option is with the Authorities and an accused has no right to demand or choose trial by a particular forum. The Authorities under the Act have made no grievance and the grievance raised by the appellant is untenable. Since, the appellant was admittedly on leave on the day of the occurrence as deposed to by PW 9 G.S. Gill, Warrant Officer, Air Force Station, Halwara and the victims of the offence were persons not subject to military, air force or naval law, these factors may well have weighed with and persuaded the Air Force Authorities not to opt to try the appellant by court-martial and to allow the criminal court to try him under the Code. We are, therefore, of the opinion that in the facts and circumstances of this case that there has been no lack of compliance with the provisions of the 1952 Rules read with Section 475 of the Code and Sections 72, 124 and 125 of the Air Force Act, by the trial court and the trial of the appellant was not in any way vitiated.