(Prayer: Petition (disposed of on 20-3-1945) praying that in the circumstances stated in the affidavit filed therewith the High Court will be pleased to issue a writ of certiorari calling for the records in C.C. No. 259 of 1945 on the file of the Court of the Special Honorary Presidency Magistrate, G.T., Madras and to quash the proceedings and conviction of the accused in the said C.C. No. 259 of 1945 and to direct the surrender of Eric Collins (accused) to the petitioner herein etc.)

There are two matters before us. One is an application by the Officer commanding the Royal Naval Air Station, Tambaram, for the issue of a writ of certiorari to quash the conviction of Eric Collins, an engine-room mechanic, who has been sentenced to three months rigorous imprisonment for an offence under S. 304-A of the Indian Penal Code and rigorous imprisonment for one month under S. 116 of the Motor Vehicles Act. The other matter is an application by the accused for the revision of his conviction and sentence. It is quite clear that the Magistrate who investigated the charge and convicted the accused did not act in accordance with law.

By reason of S. 549 of the Code of Criminal Procedure the Central Government may make rules consistent with the Code and the Army Act, the Naval Discipline Act and that Act as modified by the Indian Navy (Discipline) Act and the Air Force Act and any similar law for the time being in force as to the cases in which persons subject to military, naval or air force law, shall be tried by a Court to which the Code applies, or by Court-martial. When a 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 the Code applies, or by Court-martial, the Magistrate shall have regard to the 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 regiment, corps, ship or detachment 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 Court-martial.

In pursuance of the power given to the Central Government by this section, rules have been framed by the Governor-General in Council. They were notified in the Gazette of India of the 12th March 1935. R. 1 as amended in 1936 says that where a person subject to military, naval or air force law is brought before a Magistrate and charged with an offence for which he is liable under the Army Act, the Naval Discipline Act, the Navy Discipline Act as modified by the Indian Navy (Discipline) Act, 1934 or the Air Force Act to be tried by a Court-martial, the Magistrate shall not proceed to try him, or to issue orders for his case to be referred to a Bench, or to inquire with a view to his commitment for trial by the Court of Session or the High Court for any offence triable by such Court, unless (a) he is of opinion, for reasons to be recorded, that he should so proceed without being moved thereto by competent military, naval or air force authority, or (b) he is moved thereto by such authority. R. 2 says that before proceeding under Cl. (a) of R. 1 the Magistrate shall give notice to the Commanding Officer of the accused and until the expiry of a period of five days from the date of the service of the notice, he shall not (a) acquit or convict the accused under S. 243, 245, 247 or 248 of the Code of Criminal Procedure or hear him in his defence under S. 244 of the Code, or (b) frame in writing a charge against the accused under S. 254 of the Code, or (c) make an order committing the accused for trial by the High Court or the Court of Session under S. 213 or Sub-S

. (1) of S. 446 of the Code, or (d) issue orders under Sub-S

. (1) of S. 445 of the Code for the case to be referred to a Bench. R. 3 states that where within the period of five days mentioned in R. 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 S. 549 of the Code, to the authority specified in that section.

The attention of the Magistrate who tried the accused was not drawn to S. 549 of the Code of Criminal Procedure or the rules framed there under, and he did not act in accordance therewith. Consequently the trial was illegal and the conviction and sentence must be set aside. The Commanding Officer of the accused is the petitioner in the certiorari proceedings. As the Court has power to set aside the conviction and sentence in revision, it is unnecessary for us, in fact it would be improper, to deal with the matter by a writ of certiorari . We will deal with the matter in revision. The conviction and sentence are set aside and the Magistrate will deal with the case according to law.