REPORTABLE

                  IN THE SUPREME COURT OF  INDIA             CRIMINAL APPELLATE JURISDICTION   

             CRIMINAL APPEAL NO. 1017  OF 2010

S.K. JHA COMMODRE ..  APPELLANT(S)

vs.

STATE OF KERALA AND ANR. ..  RESPONDENT(S)

O  R D E R

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 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 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 of the present case  

indicate that three Naval Officers were arrested on  

-2-

10th January, 2008 for offences punishable under Sections  

143, 147, 148, 452, 307, 326, 427 read with Section 149 of

the I.P.C. and some other penal laws. They were produced  

before the Magistrate on the 11th January, 2008 who 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 application would arise only on the  

completion of the police investigation which was still at a  

preliminary stage and that the 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 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.

The appeal is accordingly dismissed.

                   .................J.         (HARJIT SINGH BEDI)

                                  ....................J.

                                 (CHANDRAMAULI KR. PRASAD)

New Delhi, January 11, 2011.