In view of certain decisions of the High Courts wherein an opinion has been expressed that non-compliance with the provisions of the Act and the Rules vitiates the trial of a military personnel by the criminal courts, the learned Chief Justice referred the matter, by his order dated June 25, 1968, to a F·11l Bench. The Full Benell which consisted of the learned Chief Justice Kapoor and Tatachari, JJ. heard the criminal revision case. The learned Chief Justice and Tatachari, J. after a very elaborate reference to the material provisions of the Act and the relevant Rules held that the magistrates, before conducting a trial of a military personnel have to normally, conform to the relevant provisions of the Act and the Rules. But they held that in respect of offences for the trial of which both the Court Martial and an ordinary Criminal Court had concurrent jurisdiction, the mere omission by a magistrate, before conducting the trial, to issue the necessary notice under r. 4 will not vitiate the proceedings as oeing illegal. Kapoor, J., on the other hand, disagreed with the majority opinion and held that under the Act read with the Rules, the first option to try a military personnel lies with the Army authorities and they have to decide the forum of the trial and that the magistrate will get jurisdiction only after a decision in his favour by the Central Government in case of a conflict between the army authorities and the Magistrate. The learned Judge further held that a magistrate cannot assume jurisdiction straightaway withot1~ providing an opportunity to the military authorities to decide the forum. The iearned Judge accordingly held that the observance of the Rules is obligatory and non-observance thereof makes the trial illegal. In accordance with the majority judgment, the High Court by its order dated July 26, 1968 held that non-observance of rr. 3 and 4 of the Rules does not by itself deprive the magistrate of his inherent jurisdiction or make the proceedings conducted by hin1 null and void. The High Court further held that the effect of the violation is to be dtermined on the facts and circumstances of each case keeping in view the nature of the violation and au other relevant factors. After expressing opinio11 on the lega1 aspects, the case was remitted to the Single Judge for final disposaL
