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The first contention of learned counsel for the appellant is that the Special Judge, Poona, had no jurisdiction to take cognizance of the offences with which the accused were charged and that they should have been tried only by a court martial under the Army Act.

The argument of learned counsel for the appellant may be briefly stated thus: The Army Act, 1950 (46 of 1950) created new offences. Section 52 of the said Act created offences with which accused in the present case were charged, and provided a new machinery, namely, a court martial, to try persons committing the said offences. Therefore by necessary implication the trial of the said offences was excluded from the jurisdiction of ordinary criminal courts. This argument was sought to be reinforced by the provisions of s. 69 of the Army Act whereunder, it was said, by a fiction, offences committed by army personnel which were triable by ordinary courts were to be deemed to be offences committed against the said Act. That difference between offences against the Army Act and the offences deemed to be committed against the Army Act, the argument proceeded, was an unfailing clue for the true construction of the pro- visions of the Army Act in that the offences under the first category were exclusively triable by court martial and the offences; of the latter category were subject to concurrent jurisdiction of two courts. The logical conclusion from this premises, it was said, was that the provisions designed to resolve conflict of jurisdiction related only to the second category of offences. Assuming that the said contention was wrong, it was argued, s. 126 of the Army Act is peremptory in its language, namely, that a criminal court shall not have jurisdiction to try an offence defined under the Army Act, unless the conditions laid down therein were strictly complied with, that is, unless requisite notice is given to the officer referred to in s. 125 of the Act.

To appreciate the said argument it is necessary to scrutinize the provisions of the Army Act in some detail. Section 2 describes the different categories of army personnel who are subject to the Army Act. Section 3(ii) defines "civil offence" to mean "an offence which is triable by a criminal court"; a. 3(vii) defines "court-martial" to mean "a court-martial held under this Act"; s. 3(viii) defines "criminal court" to mean "a court of ordinary criminal justice in any part of India, other than the State of Jammu and Kashmir"; s. 3(xvii) defines "offence" to mean "any act or omission punishable under this Act and includes a civil offence"; and s. 3(xxv) declares that "all words and expressions used but not defined in this Act and defined in the Indian Penal Code shall be deemed to have the meanings assigned to them in that Code." Chapter VI is comprised of ss. 34 to 70. The heading of the Chapter is "Offences". As we have already noticed, the word "offence" is defined to mean not only any act or omission punishable under the Army Act, but also a civil offence. Sections 34 to 68 define the offences against the Act triable by court-martial and also

Now let us apply this legal position to the facts of the case. Under s. 52 of the Act, any person subject to the Act who commits theft of any property belonging to Government or to any military, naval or air force mess, band or institution, or to any person subject to military, naval or air force law, or dishonestly misappropriates or converts to his own use any such property, or commits criminal breach of trust in respect of any such property, or does any other thing with intent to defraud, or to cause wrongful gain to one person or wrongful loss to another person shall, on conviction by court-martial, be liable to suffer im- prisonment for a term which may extend to ten years or such less punishment as is in the act mentioned. Section 2 (xxv) says that all words and expressions used but not defined in the Army Act and defined in the Indian Penal Code shall be deemed to have the meanings assigned to them in that Code. The section does not create new offences, but prescribes higher punishments if the said offences are tried by a court-martial. The appellant and the other accused were charged in the present case, among others, for having been parties to a criminal conspiracy to dishonestly or fraudulently misappropriate or otherwise convert to their own use the military stores and also for dishonestly or fraudulently misappropriating the same. The said acts constitute offences under the Indian Penal Code and under the Prevention of Corruption Act. They are also offences under s. 52 of the Army Act. Though the offence of conspiracy does not fall under s. 52 of the Act, it, being a civil offence, shall be deemed to be an offence against the Act by the. force of s. 69 of the Act. With the result that the offences are triable both by an ordinary criminal court having jurisdiction to try the said offences and a court- martial. To such a situation ss. 125 and 126 are clearly intended to apply. But the designated officer in s. 125 has not chosen to exercise his discretion to decide before which court the proceedings shall be instituted. As he has not exercised the discretion, there is no occasion for the criminal court to invoke the provisions of s. 126 of the Act, for the second part of s. 126(1), which enables the criminal court to issue a notice to the officer designated in s. 125 of the Act to deliver over the offender to the nearest magistrate or to postpone the proceedings pending a reference to the Central Government, indicates that the said subsection presuppose,% that the designated officer has decided that the proceedings shall be instituted before a court-martial and directed that the accused person shall be detained in military custody. If no such decision was arrived at, the Army Act could not obviously be in the way of a criminal court exercising its ordinary jurisdiction in the manner provided by law.

The correct approach to the problem may be stated thus: The appellant and the other accused have committed offences under the Indian Penal Code and the Prevention of Corruption Act. By reason of s. 7 of the Criminal Law (Amendment) Act, 1952, the said offences are triable by a special judge appointed under that Act. The special judge so appointed would have jurisdiction to try the said offences unless the Army Act expressly, or by necessary implication, excluded the offences alleged to have been committed by the appellant and others from the jurisdiction of that court. The aforesaid discussion of the provisions of the Army Act indicates that there is not only no such exclusion but also that there is clear and unambiguous indication to the contrary.