whether the accused should be tried by a court-martial or in the alternative, should be proceeded with before the ordinary criminal court.
Whether ordinary criminal court and a court-martial under the Army Act - Section 69 of the Army Act is reproduced below:
“Subject to the provisions of section 70, any person subject to this Act who at any place in or beyond India, commits any civil offence, shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be 39 liable to be tried by a court-martial and, on conviction, be punishable as follows, that is to say,--
(a) if the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and
(b) in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned.” (emphasis supplied) -
During the course of the hearing, counsel for the accused inter alia contended that as the respondent-accused and the deceased were both governed by the Army Act 19507 when the incident took place, in view of Section 69 of the Army Act, the accused could be tried only by a General Court-Martial and not by the Sessions Court. Having due regard to the provisions of Section 69 of the Army Act, the Sessions Judge by his order dated 9 March 2017 upheld the objection of the respondent-accused by concluding that given the nature of offence, the accused ought to have been tried by court-martial alone and that the Sessions Court had no jurisdiction. With this conclusion, the Chief Judicial Magistrate was directed to give a written notice to the CO of the respondent’s unit or the competent military authority for his trial by a court-martial.-
The order of the Sessions Court was challenged in revision. The Sikkim High Court in its judgment dated 6 April 2019 adverted to the provisions of Section 69 and 70 of the Army Act. The High Court held that the procedure prescribed under Sections 125 and 126 of the Army Act, Section 475 of the CrPC, and Rules 3, 4 and 5 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules 19788 had not been observed. While issuing notice to the Army authorities, the High Court held that both the respondent and the deceased were subject to the Army Act.
The “Army Act” 8 “1978 Rules” procedure mandated by the 1978 Rules had to be followed and the submission that the Army authority had exercised their discretion to try the accused in the criminal court was held to bear no weight on the ground that no documentary evidence existed to prove the exercise of the discretion. Moreover, the mere handing over of the accused to the civil authority was held not to be proof of the exercise of the option.
While a minute sheet was produced before the High Court where the General Officer Commanding had accepted the recommendation that the accused be tried by the Sessions Court, the High Court rejected this on the ground that:
(i) the document was not furnished before the Sessions Judge and
(ii) the document which was produced was a photocopy and not a certified copy.
The revision petition was dismissed.
Apex court held that whether the accused should be tried by a court-martial or in the alternative, should be proceeded with before the ordinary criminal court.
Under Rule 3, where a person who is subject to military, naval or air force law, (or any other law relating to the Armed Forces of the Union) is brought before a Magistrate and is charged with an offence liable to tried by a court-martial, the Magistrate cannot proceed to try such a person or commit the case to the Court of Session, except in one of the two eventualities specified in clauses (a) and (b). Clause (a) envisages a situation where the Magistrate is moved by a competent military, naval, or air force authority. Clause (b) envisages a situation where the Magistrate is of the opinion that the person should be tried by him or that the case should be committed to the Court of Session.
Rule 4(c) provides that before proceeding under clause (b) of Rule 3, the Magistrate has to give a written notice to the Commanding Officer or the competent authority of the accused and until the expiry of fifteen days, the Magistrate cannot make an order committing the accused for trial to the Court of Session under Section 209 of the CrPC. Rule 5 deals with a situation where the Magistrate has been moved by the competent military, naval or air force authority under clause (a) of Rule 3 and subsequently, the Commanding Officer or competent authority gives notice to the Magistrate that in the opinion of the officer, the accused should be tried by a court-martial.
Broadly speaking there are three categories of offences.
First, the provisions of Chapter VI of the Army Act indicate that where an offence is created by the Act itself it would be exclusively triable by a court-martial.
Second, where a ‘civil offence’ is also an offence under the Army Act or is deemed to be an offence under the Act, both the ordinary criminal court as well as court-martial would have jurisdiction to try the person committing the offence.
The third category (referred to in Section 70) consists of the offences of murder, culpable homicide not amounting to murder or rape committed by a person subject to the Army Act against a person who is not subject to military, naval or air force law.
Subject to the three exceptions which are set out in Section 70, such offences are not triable by a court-martial but by an ordinary criminal court.
The offence in the present case does not fall in the category of those offences which are triable exclusively by a court-martial (Section 34 to 68) or those offences which cannot be tried by a court-martial (under Section 70).
The offence with which the respondent-accused is charged falls in the category where there is a concurrent jurisdiction between the court-martial and the ordinary criminal court.
Hence, it needs to be underscored that there is no inherent lack of jurisdiction in the ordinary criminal court to conduct a trial in accordance with the procedure envisaged in the CrPC.
For the above reasons, we find that the High Court was in error in affirming, in the exercise of its revisional jurisdiction, the decision of the Sessions Judge that the court-martial alone would have jurisdiction. Both on law and in fact, the position is to the contrary. The Sessions Judge was competent and there was no error in the assumption or the exercise of the jurisdiction. The consequence of the decision of the High Court is to foist an obligation on the Army Authorities to hold a court-martial despite a clear and unequivocal submission to the jurisdiction of the Court of Sessions. We accordingly allow the appeal and set aside impugned judgment of the Single Judge of the High Court of Sikkim dated 6 April 2019 in Criminal Revision Petition No 2 of 2017. The respondent-accused shall be transferred from military custody to civil custody to face trial.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 85 of 2022
The State of Sikkim … Appellant
Versus
Jasbir Singh & Anr. … Respondent
1
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
A Facts........................................................................................................................2
B Submissions............................................................................................................8
C Analysis.................................................................................................................14
D Conclusion.............................................................................................................42
A Facts
2
1 This appeal arises from a judgment of a Single Judge of the High Court of
Sikkim. While exercising the revisional jurisdiction under Sections 397 and 401 read
with Section 482 of the Code of Criminal Procedure 19731
, the High Court has
upheld the order of the Sessions Judge, Special Division-II, Sikkim, at Gangtok,
directing the Chief Judicial Magistrate, East Sikkim to furnish a written notice to the
Commanding Officer of the unit of the respondent-accused and deliver him for trial
by a court-martial.
2 On 14 December 2014, at about 19:40 hours, Lance Naik Rajesh Kumar of 17
Mountain Division of the Indian Army lodged a First Information Report2
before the
Station House Officer at the Sadar Police Station in Gangtok stating inter alia that on
the relevant date at around 6.00 p.m., when he returned to his barracks, he struck
up a conversation with two riflemen for a short while. After that, as he was
freshening up, between 6.30 p.m. and 6.45 p.m. he heard sounds of gunshots inside
the barracks. He immediately rushed to the barracks and witnessed the respondentaccused, Lance Naik Jasbir Singh, opening fire on a rifleman, Balbir Singh, with an
INSAS Rifle. The informant pulled the respondent-accused out of the barracks along
with the rifle and simultaneously raised an alarm for help, on which Signalmen Ujjal
Sinha and C.H. Anil arrived at the spot. The accused, in the meanwhile, escaped
from the clutches of the informant. The informant then immediately rang up the
medical room and returned to check on the injured rifleman, by which time he
1 “CrPC”
2 FIR No. 409/2014
3
suspected that the he was already dead. FIR No. 409 of 2014 was registered on 14
December 2014 at the Sadar Police Station, Gangtok.
3 On 15 December 2014, the custody of the accused was handed over by the
competent military authority to the Investigating Officer3
and an arrest/ court
surrender memo was issued by the Sub-Inspector of Police at the Sardar Police
Station. While conducting the investigation, the IO issued a requisition to the
Commanding Officer of the 17 Mountain Division Pro Unit, informing him that an FIR
under Section 302 of the Indian Penal Code 18604
had been registered against the
respondent-accused. The IO requested certain documents for the purpose of
investigation, namely:
(i) The order of appointment of the accused;
(ii) Duty Deployment Chart of Sunday, 14 December 2014;
(iii) Weapon Issue Register of Sunday, 14 December 2014; and
(iv) Records of any previous offence.
4 In response to the above communication, Colonel RR Nair, the Commanding
Officer5
of the 17 Mountain Division Pro Unit furnished the following documents by
his letter dated 27 December 2014:
(i) Copy of the posting order in respect of No. 778224F L/Nk(MP) Jasbir Singh;
(ii) CTC of Pilot duty detailment extract as on 14 December 2014;
(iii) CTC of Weapon Issue Register, where he informed the IO that the
respondent-accused had withdrawn the weapon for piloting duty on 14
3 “IO”
4 “IPC”
5 “CO”
4
December 2014. After completion of the duty however, while committing the
offence, the respondent had unauthorizedly accessed the weapon; and
(iv) Record of previous offences.
A copy of this communication was forwarded by the CO to the Headquarters of the
17 Mountain Division Pro Unit.
5 On 12 January 2015, the IO filed an application before the Chief Judicial
Magistrate (East & North), for recording the statement of the informant (Rifleman
Rajesh Kumar). On 13 February 2015, the IO submitted a charge-sheet after the
completion of investigation against the respondent-accused for offences punishable
under Sections 302 and 308 of the IPC. An order of committal was passed by the
Chief Judicial Magistrate to the Principal Sessions Judge. On 28 February 2015, a
case was registered as Sessions Trial Case No.03/2015. On 15 July 2015, the
Sessions Judge framed charges against the respondent under Sections 302 and
308 of the IPC and under Section 25(1-B)(a) of the Arms Act 19596
. On 18
November 2015, the Sessions Judge allowed an application filed under Section 216
of the CrPC for alteration of the charge under Section 25(1-B)(a) to Section 27(3) of
the Arms Act.
6 During the course of the trial, on 18 June 2016, the Sessions Judge directed
the issuance of fresh summons to Colonel RR Nair returnable on 7 July 2016. On 07
July 2016, the Sessions Judge was informed that a letter had been received from
the Army authorities stating that Colonel RR Nair was undergoing a training course
6 “Arms Act”
5
and was on leave up to 24 July 2016. During the course of the trial, the CO, Colonel
RR Nair was examined as PW19 on 28 July 2016. After the recording of evidence
was complete, the Sessions Judge heard the counsel for the parties for final
arguments. During the course of the hearing, counsel for the accused inter alia
contended that as the respondent-accused and the deceased were both governed
by the Army Act 19507
when the incident took place, in view of Section 69 of the
Army Act, the accused could be tried only by a General Court-Martial and not by the
Sessions Court. Having due regard to the provisions of Section 69 of the Army Act,
the Sessions Judge by his order dated 9 March 2017 upheld the objection of the
respondent-accused by concluding that given the nature of offence, the accused
ought to have been tried by court-martial alone and that the Sessions Court had no
jurisdiction. With this conclusion, the Chief Judicial Magistrate was directed to give a
written notice to the CO of the respondent’s unit or the competent military authority
for his trial by a court-martial.
7 The order of the Sessions Court was challenged in revision. The Sikkim High
Court in its judgment dated 6 April 2019 adverted to the provisions of Section 69 and
70 of the Army Act. The High Court held that the procedure prescribed under
Sections 125 and 126 of the Army Act, Section 475 of the CrPC, and Rules 3, 4 and
5 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules 19788
had not been observed. While issuing notice to the Army authorities, the High Court
held that both the respondent and the deceased were subject to the Army Act. The
7 “Army Act”
8 “1978 Rules”
6
procedure mandated by the 1978 Rules had to be followed and the submission that
the Army authority had exercised their discretion to try the accused in the criminal
court was held to bear no weight on the ground that no documentary evidence
existed to prove the exercise of the discretion. Moreover, the mere handing over of
the accused to the civil authority was held not to be proof of the exercise of the
option. While a minute sheet was produced before the High Court where the
General Officer Commanding9
had accepted the recommendation that the accused
be tried by the Sessions Court, the High Court rejected this on the ground that: (i)
the document was not furnished before the Sessions Judge and (ii) the document
which was produced was a photocopy and not a certified copy. The revision petition
was dismissed.
8 Pursuant to the impugned judgment of the High Court, the GOC of 17
Mountain Division Pro Unit, Maj. General. RC Tiwari, by an order dated 22 April
2019, exercised his powers under Section 125 of the Army Act and decided that the
proceedings against the respondent-accused be instituted before the criminal court
and that he be detained in civil custody. An application was filed before the Chief
Judicial Magistrate to convey the decision of the GOC. By an order dated 22 April
2019, the Chief Judicial Magistrate rejected the application of the GOC in view of the
order of the Sessions Judge dated 9 March 2017, which required that the accused
be delivered to the competent military authority. Since this order had been upheld by
the High Court, the Chief Judicial Magistrate directed the Superintendent of Prisons,
Central Jail, Rongyek to hand over the respondent to the competent military
9 “GOC”
7
authority. The respondent was handed over to the Army and has been in military
custody since 23 April 2019. Meanwhile, the respondent retired from service on 31
March 2020. On the same day, the Army authorities passed an order for extension of
the time of detention.
B Submissions
9 The State of Sikkim is in appeal against the judgment of the High Court. The
State has been represented by Mr Vivek Kohli, learned Advocate General. The
challenge made by the State of Sikkim has been supported by the Union of India
appearing as a respondent through Mr Aman Lekhi, learned Additional Solicitor
General. The arguments on behalf of the respondent were made by Mr Pradeep
Kumar Dey, learned Senior Counsel.
10 Mr Vivek Kohli, Advocate General appearing on behalf of the appellant-State
made the following submissions:
(i) The High Court and Sessions Court have both failed to appreciate that the
criminal courts and court-martial have concurrent jurisdiction to try a case,
depending on the “discretion” exercised under Section 125 of the Army Act.
The “discretion” to decide whether or not the accused is to be tried by courtmartial, is solely with the Commanding Officer;
(ii) Under Section 125, one of the following three situations may arise:
(a) The Commanding Officer may exercise his discretion and affirmatively
choose to try the accused through court martial;
(b) The Commanding Officer may exercise his discretion and may not choose
a trial through court martial; and
8
(c) There may be no overt exercise of discretion by the Commanding Officer,
in which event his conduct should determine whether there was an
exercise of discretion;
(iii) When the Commanding Officer exercises discretion in terms of the first two
situations noted above, the procedure under Section 126 of the Army Act and
Rules 3, 4 and 5 of the 1978 Rules becomes applicable;
(iv) However, when the Commanding Officer does not exercise his discretion as
detailed in the last situation, the absence of any objection by the Army
authorities to the trial by the criminal court can be regarded as a tacit approval
of the Commanding Officer for the accused to be tried by the criminal court;
(v) As held by this Court in Joginder Singh v. State of Himachal Pradesh10, if
the designated officer does not exercise his discretion to institute proceedings
before a court-martial, then the Army Act would not come in the way of the
criminal court exercising its ordinary jurisdiction in the manner provided by
law;
(vi) On the basis of the above premises, in the present case, the discretion has
been exercised by the Commanding Officer by recommending that the trial
can be conducted by the ‘civil court’ (ie, the criminal court) which, in the
present case is, the Sessions Judge, Special Division-II, Sikkim, Gangtok.
The following circumstances indicate the exercise of this discretion:
10 (1971) 3 SCC 86
9
(a) The handing over of the accused by the Commanding Officer to the IO on
15 December 2014, immediately after the incident took place on 14
December 2014;
(b) The letter dated 27 December 2014 by the Commanding Officer in
response to the requisition made by the IO (by his letter dated 26
December 2014) for furnishing of documents for conducting the
investigation;
(c) The recording of the statement under Section 164 of the CrPC on 12
January 2015 of the informant - Lance Naik Rajesh Kumar;
(d) The examination on 28 July 2015 of the Commanding Officer (Colonel RR
Nair) during the course of the trial, together with the examination of other
Army officials;
(e) The participation, right from the institution of the FIR till the investigation
and throughout the trial, by the Commanding Officer and the Army in the
proceedings before the criminal court. Thus, the trial has to be conducted
by the criminal court and not the court-martial;
(f) On 16 January 2015, the Army authorities recommended that the case of
the accused be tried by the civil court (criminal court). On 8 March 2015,
this recommendation culminated into the Commanding Officer exercising
“discretion” by deciding that the case of the accused should be tried by the
criminal court. On 22 April 2019, the Commanding Officer exercised his
discretion under Section 125 of the Army Act read with Rule 9 of the 1978
Rules by addressing a communication to the Chief Judicial Magistrate,
10
East Sikkim (Gangtok), intimating the decision that the trial of the accused
should be conducted by the criminal court; and
(vii) The order of the Sessions Judge dated 9 March 2017, turned back the clock
at the stage of final arguments. The High Court has failed to consider that
under Section 122 of Army Act, the period of limitation to commence a trial by
court-martial is three years from the date of the offence. In the present case,
the offence took place on 14 December 2014 and immediately thereafter
proceedings were initiated before the criminal court.
11 Mr Aman Lekhi, Additional Solicitor General, has supported the submissions
of the State of Sikkim and urged the following propositions:
(i) The controversy in the present case is covered by the decision of this Court in
Joginder Singh v. State of Himachal Pradesh11, where it was held that the
Army authority was aware of the offence committed and decided to handover
the custody of the accused to the police and not to hold a court martial;
(ii) There are three categories of offences, namely: -
(a) Offences which are created by the Army Act, such as those provided
under Sections 34, 35, 36 and 37, which are exclusively triable by a courtmartial;
(b) Offences which are committed under Section 70 of the Army Act which
are to be tried by a criminal court subject to exceptions; and
11 (1971) 3 SCC 86
11
(c) Offences involving the exercise of jurisdiction by the court-martial and by
an ordinary criminal court (Section 69), where a court martial can be
convened if a decision in terms of Section 125 of the Army Act is taken;
(iii) In the present case, the Army authorities had taken control of the accused
and handed him over to the IO for trial by criminal court. This clearly
establishes that the Army did not want to try the accused by court-martial.
12 Mr Pradeep Kumar Dey, Senior Counsel appearing on behalf of the
respondent-accused has supported the decision of the High Court and made the
following submissions:
(i) In view of the provisions of Sections 69 and 70 of the Army Act, a trial is
possible only before the court-martial and not by an ordinary criminal court;
(ii) Sections 125 and 126 operate in different spheres. Section 125 relates to the
discretion of the Army authorities to the effect that when a criminal court and a
court- martial both have jurisdiction in respect of an offence, it shall be the
discretion of the Commanding Officer to decide before which court the
proceedings shall be instituted;
(iii) Section 126 deals with the power of the criminal court to require delivery of an
offender. When a criminal court having jurisdiction is of opinion that
proceedings shall be instituted before itself in respect of any alleged offence,
it may, by written notice, require the officer referred to in Section 125, at his
option, to either deliver the offender to the nearest magistrate to be proceeded
against according to law, or to postpone proceedings pending a reference to
the Central Government. In every such case the said officer shall either
12
deliver the offender in compliance with the requisition, or shall forthwith refer
the question as to the court before which the proceedings are to be instituted
for the determination by the Central Government, whose order upon such
reference shall be final;
(iv) Section 475 of the CrPC and Rules 3, 4 and 5 of the 1978 Rules indicate that
in this case, a trial is only permissible before the court-martial;
(v) It is a settled principle of law that where a statute provides that a particular
thing should be done in the manner prescribed by law and if it is not done in
the same manner, failure to comply with this mandatory requirement would
lead to severe consequences and any action taken would be a nullity. It will be
a mockery of the provisions of Section 461(l) of the CrPC and other provisions
of the law and the trial stands vitiated;
(vi) The trial before the ordinary criminal court will cause serious prejudice to the
accused and will result in a failure of justice. The entire trial before the
ordinary criminal court is null and void as it lacks jurisdiction;
(vii) The decision in Joginder Singh (supra) is contrary to the judgments of the
Constitution Bench in Som Datt Datta v. Union of India and others12 and
Ram Sarup v. Union of India and another13;
(viii) The crucial question is the stage at which the discretion has to be exercised
under Section 125. The decision has to be taken after the filing of the chargesheet and before taking cognizance. However, in the present case, the
decision was taken by the Army authority to opt for a trial before the ordinary
criminal court before filing the charge-sheet, which is clear from the cross12 AIR 1969 SC 414
13 AIR 1965 SC 247
13
examination of the Commanding Officer. Since the decision was taken before
the submission of the charge-sheet, it is immaterial;
(ix) The Magistrate was required under Rules 3 and 4 of the 1978 Rules to issue
a notice to the Commanding Officer and to require him to take a decision
under Section 125 of the Army Act. The Magistrate, however, committed the
case to the Sessions Court on the same day as the filing of the charge sheet,
as a consequence of which there was non-compliance of the provisions of
Rules 3, 4 and 5 of the 1978 Rules. In view of the well settled position of law,
the discretion under Section 125 has to be exercised by the Commanding
Officer only after filing of the charge-sheet;
(x) The 1978 Rules have been framed in pursuance of the powers conferred
under Section 475 CrPC and the mandate of issuing a notice is provided
under Section 126 of the Army Act; and
(xi) The respondent can still be tried by a court-martial under Section 123 of the
Army Act, having regard to the fact that his retirement was due on 31 March
2020.
13 The rival submissions shall now be considered.
C Analysis
14 Chapter VI of the Army Act deals with offences. The expression ‘civil offences’
is defined in Section 3(ii) to mean “an offence which is triable by a criminal court”.
14
Section 6914 deals with civil offences. Section 7015 deals with civil offences which are
not triable by a court-martial.
15 Section 12516 deals with a situation where both a criminal court and a courtmartial have jurisdiction in respect of an offence. In such a case, it is the discretion
of the Commanding Officer of the unit where the accused person is serving to
decide before which court the proceedings shall be instituted, and if that officer
decides that the proceedings should be instituted before a court-martial, he may
direct that the accused be retained in military custody. Section 125, in other words,
confers the discretion on the designated officer to decide whether the accused
should be tried by a court martial or by the regular criminal court.
16 Section 126, as the marginal note indicates, deals with the powers of the
criminal court “to require delivery of offender”. Section 126 provides that when a
14 “69. Civil offences. Subject to the provisions of section 70, any person subject to this Act who at any place in or
beyond India, commits any civil offence, shall be deemed to be guilty of an offence against this Act and, if charged
therewith under this section, shall be liable to be tried by a court-martial and, on conviction, be punishable as follows,
that is to say,--
(a) if the offence is one which would be punishable under any law in force in India with death or with transportation,
he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and
such less punishment as is in this Act mentioned; and
(b) in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the
law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in
this Act mentioned.”
15 “70. Civil offence not triable by court-martial. A person subject to this Act who commits an offence of murder
against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder
against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against
this Act and shall not be tried by a court- martial, unless he commits any of the said offences-
(a) while on active service, or
(b) at any place outside India, or
(c) at a frontier post specified by the Central Government by notification in this behalf.”
16 “125. Choice between criminal court and court- martial. When a criminal court and a court- martial have each
jurisdiction in respect of an offence, it shall be in the discretion of the officer commanding the army, army corps,
division or independent brigade in which the accused person is serving or such other officer as may be prescribed 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 person shall be detained in military custody.”
15
criminal court having jurisdiction is of the opinion that the proceedings should be
instituted before itself in respect of “any alleged offence”, it may by written notice
require the officer referred to in Section 125 to either deliver over the offender to the
nearest magistrate to be dealt with in accordance with law or in the alternative to
postpone the proceedings, pending a reference to the Central Government. Under
Section 126, the designated officer has two courses of action open: (i) deliver the
offender in compliance with the requisition of the criminal court; or (ii) refer the
question to the Central Government for determining the court before which the
proceedings are to be instituted. The determination by the Central Government is to
be final.
17 Sections 125 and 126 operate in different domains. Section 125 envisages
that there is a discretion in the designated officer to determine as to whether the
accused should be tried by a court-martial or by the competent criminal court.
Section 126 on the other hand recognises that the criminal court may require the
officer designated in Section 125 by a written notice, to deliver the offender to the
nearest magistrate to be proceeded with in accordance with law. Upon the issuance
of such a written notice, the designated officer has the discretion either to accept the
decision of the criminal court by delivering the offender or the officer may decide to
refer the matter to the Central Government for its decision. Section 126 explicitly
recognises that in the event of a difference of view between the officer designated
under Section 125 and the criminal court under Section 126, the matter has to be
referred to the Central Government for resolution, finality being attached to the
16
decision of the Central Government. Section 126, in other words, has provided the
modalities for resolving a situation where a criminal court decides to proceed against
the accused, while on the other hand the designated officer under Section 125
decides to have the accused tried by a court-martial. It is to resolve a situation of this
nature that a reference is envisaged to the Central Government.
18 Section 47517 of the CrPC has empowered the Central Government to make
rules consistent with the CrPC and the Army Act, Navy Act 1957 and the Air Force
Act 1950 and any other law relating to the Armed Forces of the Union, as regards
the cases in which persons subject to military, naval or air force law or such other
law, shall be tried by a court to which the CrPC applies or by a court-martial. The
first part of Section 475(1) recognizes the rule making power of the Central
Government. The latter part of Section 475(1) contemplates an eventuality in which
a person is brought before a Magistrate and is charged with offences for which that
person is liable to be tried either by a court to which the CrPC applies or by a court17 “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, navel 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 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 purposes by the commanding officer of any unit
or body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavours 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 situate within the State be brought before
a Court-martial for trial or to be examined touching any matter pending before the Court-martial.”
17
martial. In such a situation, the Magistrate is to have regard to the rules and shall in
proper cases deliver the person together with a statement of the offences of which
he is accused to the Commanding Officer of the unit of the nearest military, naval or
air force station, for the purpose of being tried by a court-martial.
19 In exercise of the powers which have been conferred by Section 475 of the
CrPC, the Central Government framed the Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules 1952 which were notified and published in the
Gazette of India on 26 April 1952. These Rules were superseded by the Criminal
Courts and Court-Martial (Adjustment of Jurisdiction) Rules 1978. Rules 3, 4, and 5
of the 1978 Rules are extracted below:
“3. Where a person subject to military, naval or air force law,
or any other law relating to the Armed Forces of the Union for
the time being in force is brought before a Magistrate and
charged with an offence for which he is also liable to be tried
by a Court- martial, such Magistrate shall not proceed to try
such person or to commit the case to the Court of Session,
unless—
(a) he is moved thereto by a competent military, naval or air
force authority; or
(b) he is of opinion, for reasons to be recorded, that he should
so proceed or to commit without being moved thereto by such
authority.
4. Before proceeding under clause (b) of rule 3, the
Magistrate shall give a written notice to the Commanding
Officer or the competent military, naval or air force authority,
as the case may be, of the accused and until the expiry of a
period of fifteen days from the date of service of the notice he
shall not-
(a) convict or acquit the accused under section 252, subsections (1) and (2) of section 255 sub-section (1) of section
256 or section 257 of the Code of Criminal Procedure, 1973
18
(2 of 1974), or hear him in his defence under section 254 of
the said Code; or
(b) frame in writing a charge against the accused under
section 240 or sub-section (1) of section 246 of the said
Code; or
(c) make an order committing the accused for trial to the
Court of Session under section 209 of the said Code; or
(d) make over the case for inquiry or trial under section 192 of
the said Code.
5. Where a Magistrate has been moved by the competent
military, naval or air force authority, as the case may be,
under clause (a) of rule 3, and the commanding officer of the
accused or the competent military, naval or air force authority,
as the case may be, subsequently gives notice to such
Magistrate that, in the opinion of such officer or authority, the
accused should be tried by a Court- martial, such Magistrate
if he has not taken any action or made any order referred to in
clauses (a), (b), (c) or (d) of rule 4, before receiving the notice
shall stay the proceedings and, if the accused is in his power
or under his control, shall deliver him together with the
statement referred to in sub-section (1) of section 475 of the
said Code to the officer specified in the said sub-section.”
20 Under Rule 3, where a person who is subject to military, naval or air force law,
(or any other law relating to the Armed Forces of the Union) is brought before a
Magistrate and is charged with an offence liable to tried by a court-martial, the
Magistrate cannot proceed to try such a person or commit the case to the Court of
Session, except in one of the two eventualities specified in clauses (a) and (b).
Clause (a) envisages a situation where the Magistrate is moved by a competent
military, naval, or air force authority. Clause (b) envisages a situation where the
Magistrate is of the opinion that the person should be tried by him or that the case
should be committed to the Court of Session.
19
21 Rule 4(c) provides that before proceeding under clause (b) of Rule 3, the
Magistrate has to give a written notice to the Commanding Officer or the competent
authority of the accused and until the expiry of fifteen days, the Magistrate cannot
make an order committing the accused for trial to the Court of Session under
Section 209 of the CrPC. Rule 5 deals with a situation where the Magistrate has
been moved by the competent military, naval or air force authority under clause (a)
of Rule 3 and subsequently, the Commanding Officer or competent authority gives
notice to the Magistrate that in the opinion of the officer, the accused should be tried
by a court-martial.
22 The purpose underlying Rule 3 and Rule 4 is that unless the Magistrate has
been moved by a competent military, naval or air force authority, the Magistrate must
furnish a written notice to the Commanding Officer or the competent authority, if he
is of the opinion that either the trial should proceed before the Magistrate or an order
of committal of the case to the Court of Sessions should be passed against the
accused held liable to be tried by a court-martial. The object and purpose of giving
the notice is to facilitate an exercise of discretion by the designated officer to
determine whether the accused should be tried by a court-martial or in the
alternative, should be proceeded with before the ordinary criminal court. The above
provisions have been interpreted in several decisions of this Court.
23 In Ram Sarup v. Union of India and another18
, the petitioner, who was a
sepoy subject to the Army Act, was charged under Section 69 of the Army Act read
18 (1964) 4 SCR 931
20
with Section 302 of the IPC. The petitioner was tried by the General Court-Martial for
having shot dead two sepoys, and was found guilty and sentenced to death. The
Central Government confirmed the findings and the sentence awarded by the
General Court-Martial. The petitioner inter alia challenged the provisions of Section
125 of the Army Act on the ground that they were in violation of Article 14 of the
Constitution. While dealing with the constitutional challenge, Justice Raghubar
Dayal, speaking for the Constitution Bench observed as follows:
“17. Section 69 provides for the punishment which can be
imposed on a person tried for committing any civil offence at
any place in or beyond India, if charged under Section 69 and
convicted by a Court Martial. Section 70 provides for certain
persons who cannot be tried by Court Martial, except in
certain circumstances. Such persons are those who commit
an offence of murder, culpable homicide not amounting to
murder or of rape, against a person not subject to Military,
Naval or Air-Force law. They can be tried by Court Martial of
any of those three offences if the offence is committed while
on active service or at any place outside India or at a frontier
post specified by the Central Government by notification in
that behalf. This much therefore is clear that persons
committing other offences over which both the Court Martial
and ordinary criminal courts have jurisdiction can and must be
tried by Courts-Martial if the offences are committed while the
accused be on active service or at any place out-side India or
at a frontier post. This indication of the circumstances in
which it would be better exercise of discretion to have a trial
by Court Martial, is an index as to what considerations should
guide the decision of the officer concerned about the trial
being by a Court Martial or by an ordinary Court. Such
considerations can be based on grounds of [maintenance] of
discipline in the army, the persons against whom the offences
are committed and the nature of the offences. It may be
considered better for the purpose of discipline that offences
which are not of a serious type be ordinarily tried by a Court
Martial, which is empowered under Section 69 to award a
punishment provided by the ordinary law and also such less
punishment as be mentioned in the Act. Chapter VII mentions
the various punishments which can be awarded by Court
21
Martial and Section 72 provides that subject to the provisions
of the Act a Court Martial may, on convicting a person of any
of the offences specified in Sections 31 to 68 inclusive, award
either the particular punishment with which the offence is
stated in the said sections to be punishable or in lieu thereof
any one of the punishments lower in the scale set out in
Section 71, regard being had to the nature and degree of the
offence.”
24 In the above extract, the Court dealt with the considerations which would
ultimately weigh in determining as to whether a trial by a court-martial should be
convened. In that backdrop, the Court noted :
“21. In short, it is clear that there could be a variety of
circumstances which may influence the decision as to
whether the offender be tried by a Court Martial or by an
ordinary criminal court, and therefore it becomes
inevitable that the discretion to make the choice as to
which Court should try the accused be left to responsible
military officers under whom the accused be serving.
Those officers are to be guided by considerations of the
exigencies of the service, maintenance of discipline in the
army, speedier trial, the nature of the offence and the person
against whom the offence is committed.”
(emphasis supplied)
25 Hence in the view of the Constitution Bench, there are a wide variety of
circumstances which may be relevant in deciding whether an accused should be
tried by a court-martial or by an ordinary criminal court. Due to this, the choice of
making this decision is entrusted to the military officer under whom the accused was
serving. The Court also noted that under Section 549 of the Code of Criminal
Procedure 1898 (equivalent to Section 475 of the CrPC), the final choice about the
forum of the trial of a person accused of a ‘civil offence’ rests with the Central
22
Government, whenever there is a difference of opinion between a criminal court and
the military authority.
26 In Som Datt Datta v. Union of India19, the Constitution Bench considered a
challenge under Article 32 to the proceedings before a General Court-Martial,
pursuant to which the petitioner had been found guilty of charges under Section 304
and Section 149 of the IPC and sentenced to rigorous imprisonment of six years and
cashiering. The first question which was considered by the Constitution Bench was
whether the Court-Martial had jurisdiction to try and convict the petitioner for the
offences. Justice V Ramaswami, speaking for the Constitution Bench, elaborated
that under Chapter VI of the Army Act, Sections 34 to 68 define the offences against
the Act which are triable by a court-martial. After alluding to Sections 69 and 70, the
Court observed:
“4. […] Shortly stated, under this Chapter there are three
categories of offences, namely, (1) offences committed by a
person subject to the Act triable by a Court Martial in respect
whereof specific punishments have been assigned; (2) civil
offences committed by the said person at any place in or
beyond India, but deemed to be offences committed under
the Act and, if charged under Section 69 of the Act, triable by
a Court Martial; and (3) offences of murder and culpable
homicide not amounting to murder or rape committed by a
person subject to the Act against a person not subject to the
military law. Subject to a few exceptions, they are not triable
by Court Martial, but are triable only by ordinary criminal
courts. The legal position therefore is that when an offence is
for the first time created by the Army Act, such as those
created by Sections 34, 35, 36, 37 etc., it would be
exclusively triable by a Court Martial; but where a civil offence
is also an offence under the Act or deemed to be an offence
under the Act, both an ordinary Criminal Court as well as a
Court Martial would have jurisdiction to try the person
19 (1969) 2 SCR 177
23
committing the offence. Such a situation is visualized and
provision is made for resolving the conflict under Sections
125 and 126 of the Army Act.”
27 The Court noted that where a civil offence is also an offence under the Army
Act or is deemed to be an offence under the Act, both the ordinary criminal court as
well as the court-martial have jurisdiction to try the accused committing the offence.
In that case, the petitioner argued that the Commanding Officer had not furnished a
notice under Rule 5 to the Magistrate that the petitioner should be tried by a courtmartial and hence the criminal court alone had jurisdiction. This submission was
held to be misconceived for the following reasons:
“7. It was argued on behalf of the petitioner that there was no
notice given by the Commanding Officer to the Magistrate
under Rule 5 that the petitioner should be tried by a Court
Martial and hence the criminal court alone had jurisdiction
under Rule 3 to conduct proceedings against the petitioner for
the offences charged. In our opinion, the argument on behalf
of the petitioner is misconceived. The Rules framed by the
Central Government under Section 549 of the Criminal
Procedure Code apply to a case where the proceedings
against the petitioner have already been instituted in an
ordinary Criminal Court having jurisdiction to try the matter
and not at a stage where such proceedings have not been
instituted. It is clear from the affidavits filed in the present
case that the petitioner was not brought before the
Magistrate and charged with the offences for which he
was liable to be tried by the Court Martial within the
meaning of Rule 3 and so the situation contemplated by
Rule 5 has not arisen and the requirements of that Rule
are therefore not attracted. It was pointed out by Mr Dutta
that after the first information report was lodged at Pallavaran
police station a copy thereof should have been sent to the
Magistrate. But that does not mean that the petitioner “was
brought before the Magistrate and charged with the offences”
within the meaning of Rule 3. It is manifest that Rule 3 only
applies to a case where the police had completed
investigation and the accused is brought before the
Magistrate after submission of a charge-sheet. The
24
provisions of this Rule cannot be invoked in a case
where the police had merely started investigation against
a person subject to military, naval or air force law. With
regard to the holding of the inquest of the dead-body of Spr.
Bishwanath Singh it was pointed out by the Attorney-General
that Regulation 527 of the Defence Services Regulations has
itself provided that in cases of unnatural death that is death
due to suicide, violence or under suspicious circumstances
information should be given under Section 174 of the Criminal
Procedure Code to the civil authorities, and the conduct of
Maj. Agarwal in sending information to the civil police was
merely in accordance with the provisions of this particular
regulation. For these reasons we hold that counsel for the
petitioner is unable to make good his argument on this aspect
of the case.” (emphasis supplied)
28 From the above extract, it is evident that the Constitution Bench held that the
Rules applied in a situation where proceedings had already been instituted in an
ordinary criminal court. In that case, the petitioner was not brought before the
Magistrate and charged with an offence for which he was liable to be tried by the
court-martial. Rule 3 only applied, as the Court noted, where the police had
completed the investigation and the accused was brought before the Magistrate
after the submission of the charge-sheet. The decision in Som Datt Datta (supra),
in other words, dealt with a situation where the offender had been tried by a courtmartial. The argument that the Rules applied but had not been followed by the
competent officer was rejected.
29 In Joginder Singh v. State of Himachal Pradesh20, a two-judge Bench of
this Court dealt with a case where the appellant, who was governed by the Army Act,
challenged the legality of his trial and conviction for committing the offence under
Section 376 of the IPC by the Assistant Sessions Judge, Nahan. Unlike the situation
20 (1971) 3 SCC 86
25
before the Constitution Bench in Som Datt Datta (supra) (where the accused had
been tried by a court-martial), in Joginder Singh (supra) the accused had been
tried and convicted by the Sessions Court. In that case, the appellant who was
subject to the Army Act was alleged to have committed rape in relation to a person
who was not subject to military, naval or air force law and hence under Section 70,
the accused could normally be tried by an ordinary criminal court. However, since
the appellant was in active service at the time of the alleged offence, the courtmartial also had the jurisdiction to try him and the case involved a situation where
both the court-martial and the ordinary criminal court had concurrent jurisdiction.
After considering the earlier judgments of this Court in Major EG Barsay v. State of
Bombay21
, Ram Sarup (supra) and Som Datt Datta (supra), the Court observed:
“22. It is further clear that in respect of an offence which could
be tried both by a criminal court as well as a Court-martial
Sections 125, 126 and the Rules, have made suitable
provisions to avoid a conflict of jurisdiction between the
ordinary criminal courts and the Court-martial. But it is to be
noted that in the first instance, discretion is left to the officer
mentioned in Section 125 to decide before which court the
proceedings should be instituted. Hence the officer
commanding the army, army corps, division or independent
brigade in which the accused person is serving or such other
officer as may be prescribed will have to exercise his
discretion and decide under Section 125 in which court the
proceedings shall be instituted. It is only when he so
exercises his discretion and decides that the
proceedings should be instituted before a Court-martial,
that the provisions of Section 126 (1) come into
operation. If the designated officer does not exercise his
discretion and decides that the proceedings should be
instituted before a Court-martial, the Army Act would not
obviously be in the way of a criminal court exercising its
ordinary jurisdiction in the manner provided by law.”
(emphasis supplied)
21 (1962) 2 SCR 195
26
30 In the above observation, the Court clarified that Sections 125 and 126 have
made provisions to avoid a conflict of jurisdiction between ordinary criminal courts
and a court-martial in respect of an offence which could be tried by both the criminal
court and by a court-martial. The Court observed that Section 125 leaves the
discretion, in the first instance, with the competent officer and it is only when he so
exercises the discretion and decides that the proceedings should be instituted
before a court-martial that Section 126 would come into operation. If the designated
officer does not exercise this discretion to institute proceedings before a courtmartial, the Army Act would not interdict the exercise of jurisdiction by the ordinary
criminal court. After adverting to the provisions of the Rules, the Court noted:
“29. Rule 4 is related to clause (a) of Rule 3 and will be
attracted only when the Magistrate proceeds to conduct the
trial without having been moved by the competent military
authority. It is no doubt true that in this case the Assistant
Sessions Judge has not given a written notice to the
Commanding Officer as envisaged under Rule 4. But, in
our view, that was unnecessary. When the competent
military authorities, knowing full well the nature of the
offence alleged against the appellant, had released him
from military custody and handed him over to the civil
authorities, the Magistrate was justified in proceeding on
the basis that the military authorities had decided that
the appellant need not be tried by the Court-martial and
that he could be tried by the ordinary criminal court.”
31 In Joginder Singh (supra) therefore the Court noted that the absence of a
written notice to the competent officer under Rule 4 was unnecessary where the
competent military authorities, knowing about the nature of the offence alleged
against the appellant, released him from military custody and handed him over to the
27
civil authorities. In such a situation, it was held that the Magistrate was justified in
proceeding on the basis that the military authorities had decided that the appellant
need not be tried by a court-martial and that he should be tried by the ordinary
criminal court.
32 The next decision to which a reference has to be made is that of a three-judge
Bench decision in Delhi Special Police Establishment, New Delhi v. Lt. Col. SK
Loraiya22
. The respondent in that case was a Lieutenant Colonel in the service of
the Army and was charged by the Special Judge, Gauhati for offences punishable
under Section 120B of the IPC read with Section 5(1)(c) and (d) and Section 5(2) of
the Prevention of Corruption Act 1988. A revision against the framing of charges was
allowed by the High Court. The order of the High Court quashing the charges was
assailed before this Court. In that context, the Court held:
“9. As regards the trial of offences committed by army men,
the Army Act draws a threefold scheme. Certain offences
enumerated in the Army Act are exclusively triable by a CourtMartial; certain other offences are exclusively triable by the
ordinary Criminal Courts; and certain other offences are
triable both by the ordinary criminal court and the CourtMartial. In respect of the last category both the courts have
concurrent jurisdiction. Section 549(1) CrPC is designed to
avoid the conflict of jurisdiction in respect of the last category
of offences. The clause “for which he is liable to be tried either
by the court to which this Code applies or by a Court-Martial”
in our view, qualifies the preceding clause “when any person
is charged with an offence” in Section 549(1). Accordingly the
phrase “is liable to be tried either by a court to which this
Code applies or a Court-Martial” imports that the offence for
which the accused is to be tried should be an offence of
which cognizance can be taken by an ordinary criminal court
as well as a Court-Martial. In our opinion, the phrase is
intended to refer to the initial jurisdiction of the two
22 (1972) 2 SCC 692
28
courts to take cognizance of the case and not to their
jurisdiction to decide it on merits. It is admitted that both
the ordinary criminal court and the Court-Martial have
concurrent jurisdiction with respect to the offences for
which the respondent has been charged by the Special
Judge. So, Section 549 and the rules made thereunder
are attracted to the case at hand.”
(emphasis supplied)
33 The Court noted that it was an admitted fact that the procedure specified in
Rule 3 was not followed by the Special Judge, Gauhati before framing the charges.
The Court held that Section 549(1) of the Code of Criminal Procedure 1898
(equivalent to Section 475 of the CrPC) had to be construed in the light of Section
125 of the Army Act and both the provisions had in mind the object of avoiding a
collision between the ordinary criminal court and the court-martial. In this backdrop,
the order of the High Court quashing the framing of charges was sustained.
34 An order of a two-judge Bench of this Court in SK Jha v. State of Kerala23
arose from a case where three naval officers were arrested for offences punishable
under Sections 143, 147, 148, 452, 307, 326 and 427 read with Section 149 of the
IPC. An application was filed by the Commanding Officer of the Naval Unit for
handing over the accused for trial under the Navy Act 1957. The application was
rejected by the Magistrate on the ground that the stage for consideration would only
be on the completion of the police investigation. The order of the Magistrate was
challenged before the High Court in revision and the challenge was rejected. The
two-judge Bench held that the decision in Som Datt Datta (supra) governed the
case and the option as to whether the accused should be tried before the criminal
23 (2011) 15 SCC 492
29
court or by a court-martial could be exercised only after the police had completed
the investigation and submitted the charge-sheet. In that case, the police had merely
commenced the investigation and hence the rejection of the request of the
Commanding Officer by the Magistrate was upheld.
35 In Extra-Judicial Execution Victim Families Association and Another v.
Union of India24
, a submission was urged on behalf of the Union of India that an
offence committed by a member of the Armed Forces must be tried under the
provisions of the Army Act through a court-martial and not under the CrPC. Justice
Madan B Lokur, speaking for the two-judge Bench, inter alia adverted to the
decisions of the Constitution Benches in Ram Sarup (supra) and Som Datt Datta
(supra). The Court also referred to the following extract from the decision in Balbir
Singh and Another v. State of Punjab25:
“240. In para 17 of the Report in Balbir Singh case [Balbir
Singh v. State of Punjab, (1995) 1 SCC 90 : 1995 SCC (Cri)
202] , this was held as follows : (SCC pp. 99-100)
“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
24 (2016) 14 SCC 536
25 (1995) 1 SCC 90
30
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. …
… However, in the event the criminal court is of the opinion,
for reasons to be recorded, that instead of giving option to the
Authorities under the Act, the said court should proceed with
the trial of the accused, without being moved by the
competent authority under the Act and the Authorities under
the Act decide to the contrary, the conflict of jurisdiction shall
be resolved by the Central Government under Section 125(2)
of the Act and the decision as to the forum of trial by the
Central Government in that eventuality shall be final.””
(emphasis supplied)
36 The Court also adverted to the following extract from the decision in the
Additional Director General, Army Headquarters v. Central Bureau of
Investigation26:
“244. This Court in Army Headquarters case [Army
Headquarters v. CBI, (2012) 6 SCC 228 : (2012) 3 SCC (Cri)
88] then recorded its conclusions in para 95 of the Report and
they read as follows : (SCC p. 264)
“95. To sum up:
26 (2012) 6 SCC 228
31
95.1. The conjoint reading of the relevant statutory provisions
and Rules make it clear that the term “institution” contained in
Section 7 of the 1990 Act means taking cognizance of the
offence and not mere presentation of the charge-sheet by the
investigating agency.
95.2. The competent army authority has to exercise his
discretion to opt as to whether the trial could be by a court
martial or criminal court after filing of the charge-sheet and
not after the cognizance of the offence is taken by the court.
95.3. Facts of this case require sanction of the Central
Government to proceed with the criminal prosecution/trial.
95.4. In case option is made to try the accused by a court
martial, sanction of the Central Government is not required.”
37 In this backdrop, the Court held that if an offence is committed even by Army
personnel, there was no concept of absolutely immunity from trial by the criminal
court constituted under the CrPC. Rejecting the submission of the Union of India, the
Court observed:
“246. The result of the interplay between Section 4 and
Section 5 CrPC and Sections 125 and 126 of the Army Act
makes it quite clear that the decision to try a person who has
committed an offence punishable under the Army Act and
who is subject to the provisions of the Army Act does not
always or necessarily lie only with the Army — the criminal
court under CrPC could also try the alleged offender in certain
circumstances in accordance with the procedure laid down by
CrPC.”
38 In the present case, the essence of the submission which has been urged on
behalf of the respondent is:
(i) The stage of the exercise of discretion by the Army authority to either opt for a
court-martial or for trial before the criminal court is after the charge-sheet is
filed and before cognizance has taken;
32
(ii) The Magistrate precluded the exercise of the discretion by the Army
authorities by passing an order of committal to the Court of Sessions
immediately after the charge-sheet was filed;
(iii) There was a failure on part of the Magistrate to follow the mandatory
provisions of the 1978 Rules by issuing a notice under Rule 4 to the
competent officer; and
(iv) All that has transpired prior to the submission of the charge-sheet in terms of
the handing over of the accused by the Army authorities to the police stands
obliterated and in the absence of a notice under Rule 4, the trial would stand
vitiated.
39 Now in evaluating this submission, a survey of the precedent indicates that
Ram Sarup (supra) was a case of a court-martial where there was a challenge to
the validity of Section 125 of the Army Act. The challenge was rejected on the
ground that a variety of circumstances bearing upon the exigencies of the service
would determine the exercise of discretion by the competent authority to opt for a
court-martial.
40 The decision of the Constitution Bench in Som Datt Datta (supra) involved a
challenge to the court-martial proceedings on the ground that no notice had been
issued by the competent officer to the Magistrate notifying the latter that the accused
was to be tried by a court-martial. The argument was rejected on the ground that
Rule 3 only applied to a situation where a person who is charged with an offence is
33
brought before a Magistrate, which was not the case before the Constitution Bench.
In that case, the accused had been tried by the court-martial and there was no
involvement of the Magistrate. Thus, the challenge that there had been a violation of
the procedure mandated under the Criminal Courts and Court Martial (Adjustment of
Jurisdiction) Rules 1952 was rejected.
41 Broadly speaking there are three categories of offences. First, the provisions
of Chapter VI of the Army Act indicate that where an offence is created by the Act
itself it would be exclusively triable by a court-martial. Second, where a ‘civil offence’
is also an offence under the Army Act or is deemed to be an offence under the Act,
both the ordinary criminal court as well as court-martial would have jurisdiction to try
the person committing the offence. The third category (referred to in Section 70)
consists of the offences of murder, culpable homicide not amounting to murder or
rape committed by a person subject to the Army Act against a person who is not
subject to military, naval or air force law. Subject to the three exceptions which are
set out in Section 70, such offences are not triable by a court-martial but by an
ordinary criminal court.
42 The offence in the present case does not fall in the category of those offences
which are triable exclusively by a court-martial (Section 34 to 68) or those offences
which cannot be tried by a court-martial (under Section 70). The offence with which
the respondent-accused is charged falls in the category where there is a concurrent
jurisdiction between the court-martial and the ordinary criminal court. Hence, it
needs to be underscored that there is no inherent lack of jurisdiction in the ordinary
34
criminal court to conduct a trial in accordance with the procedure envisaged in the
CrPC.
43 Section 69 provides when a person who is subject to the Act shall be deemed
to be guilty of an offence against the Act. Section 69 of the Army Act has been made
subject to the provisions of Section 70. When a provision of a statute is made
subject to another provision by the legislature, this evinces an intent that where the
latter provision is attracted, the former would give way. Where the conditions
requisite for the application of Section 70 exist, Section 69 would give way to
Section 70. Section 70 provides for the conditions in which a person who is subject
to the Army Act shall not be deemed to be guilty of an offence under the Act and
shall not be tried by a court-martial. In other words, Section 70 of the Army Act
provides for where the court-martial would not exercise jurisdiction (unless the case
falls under the exceptions to Section 70). When the provisions of Section 70 apply, a
person who is subject to the Army Act is not deemed to be guilty of an offence under
the Act if the ingredients of that provision are fulfilled. The ingredients of Section 70
are:
(i) The offence must be committed by a person subject to the Army Act;
(ii) The offence must be committed against a person who is not subject to
military, naval or air force law; and
(iii) The offence must be of murder, culpable homicide not amounting to murder or
rape.
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Where these conditions apply, the person is not deemed to be guilty of an offence
under the Act and is not to be tried by a court-martial unless the three exceptions
which are carved out in clauses (a), (b) and (c) of Section 70 are attracted.
44 In the present case, the conditions requisite for the application under Section
70 do not stand attracted for the reason that the offence in the present case was
committed against a person who was subject to military law and in any event, the
offence was committed by the respondent while on active service in Sikkim. Since
Section 70 has no application, the respondent who is alleged to have committed a
‘civil offence’ in India would be subject to the provisions of the Army Act as provided
by Section 69. The crucial words of Section 69 however are that an accused “shall
be deemed to be guilty of an offence against this Act” and “if charged therewith
under this section, shall be liable to be tried by a court-martial”. The liability to be
tried by a court-martial arises if the person is charged with an offence under “this
section”, that is Section 69. The language of Section 69 is a clear indicator that it
does not ipso jure oust the jurisdiction of the ordinary criminal court. Where there
exists concurrent jurisdiction in the court-martial and in the ordinary criminal court,
primarily the discretion of conducting the court-martial in preference to a trial by the
ordinary criminal court is entrusted to the designated officer under Section 125. The
designated officer has been conferred with the discretion “to decide before which
court the proceedings shall be instituted”. Moreover, Section 125 has a conjunctive
requirement which is amplified by the expression “and, if that officer decides that
they should be instituted before a court-martial”. Thus, the conjunctive requirement
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under Section 125 is that the competent officer has the discretion to decide before
which court the proceedings shall be instituted and if the officer exercises that
discretion to institute proceedings before a court-martial, then the officer will direct
that the accused be detained in military custody. Section 125, in other words, not
only recognizes that an element of discretion has been vested in the designated
officer, but it also postulates that the designated officer should have decided that the
proceedings be instituted by the court-martial in which event the court-martial would
take place.
45 Significantly, in the present case there was no decision by the designated
officer to institute proceedings before a court-martial in terms of Section 125. The
argument on the absence of compliance with Rule 3 and Rule 4 of the 1978 Rules is
misconceived. The 1978 Rules, which have been made pursuant to Section 126 of
the Army Act and Section 475 of the CrPC, were intended to obviate a conflict of
jurisdiction where both the Army authorities under a court-martial as well as the
ordinary criminal court assert jurisdiction to try a person for the same offence.
Section 126(2) provides the modality for the resolution of a conflict by the Central
Government. The rules which have been framed under Section 475 of the CrPC
provide for the issuance of a notice by the Magistrate to the competent officer in
order to enable the competent officer to take a considered decision on whether the
interest of the service would warrant a trial by a court-martial. But the present case
does not involve a conflict in the exercise of jurisdiction in the first place. The entire
sequence of events both before and after the completion of investigation provides a
37
clear indicator that the Commanding Officer took a conscious decision that the
investigation and trial should be conducted in accordance with the provisions of the
CrPC. In the earlier part of this judgment, we have narrated these circumstances
namely:
(i) the handing over of the accused by the Army to the custody of the police;
(ii) the co-operation of the Commanding Officer, Colonel RR Nair, in meeting the
requisitions of the Investigating Officer;
(iii) the recording of the statement of the informant under Section 164 of the
CrPC;
(iv) the recording of the evidence of the Commanding Officer during the course of
the criminal trial, thereby indicating a clear intent that the trial would proceed
in terms of the jurisdiction of the ordinary criminal court.
46 The respondent-accused has relied on the decision of this Court in Loraiya
(supra), to urge that the provisions of Section 475 of the CrPC are mandatory, that
is, the Magistrate must issue notice to the Commanding Officer to enable him to
exercise the option of a trial by court-martial or by a criminal court. The submission
is that since the procedure under this provision and Rule 4 of the 1978 Rules was
not followed, the trial stands vitiated. We do not find this submission to be
persuasive. The decision in Loraiya (supra) is distinguishable. Loraiya (supra)
involved the framing of charges under the Prevention of Corruption Act 1988 and the
IPC against a person subject to the Army Act. The judgment of this Court does not
contain any indication of a deferral to the jurisdiction of the ordinary criminal court by
the Army authorities, as in the present case.
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47 The High Court has found fault with the prosecution in not producing certified
copies of the decision of the Army authorities to defer to the jurisdiction of the
criminal court. But even keeping that decision aside, it is abundantly clear that far
from there being any decision by the competent officer regarding the institution of
proceedings before the court-martial, there was in the present case an unequivocal
and clear acceptance of the jurisdiction of the ordinary criminal court coupled with
explicit cooperation with the Court of Sessions.
48 The respondent has also submitted that the proceedings before the Sessions
Judge would be in violation of the Section 461(l) of the CrPC. The submission is
thoroughly misconceived as Section 461(l) indicates that if a Magistrate has not
been empowered by law to try an offender, then the proceedings would be void. For
the reasons, we have indicated above, it is clear that the Sessions Judge had the
jurisdiction to try the offender and thus, the provisions of Section 461(l) of the CrPC
have no application.
49 During the course of the proceedings, Mr Pradeep Kumar Dey urged before
this Court that in case the trial is conducted by the ordinary criminal court and not a
court-martial under the Army Act, the respondent would not be able to avail the
benefit of being awarded a lower punishment under the Army Act.
50 Section 69 of the Army Act is reproduced below:
“Subject to the provisions of section 70, any person subject to
this Act who at any place in or beyond India, commits any civil
offence, shall be deemed to be guilty of an offence against
this Act and, if charged therewith under this section, shall be
39
liable to be tried by a court-martial and, on conviction, be
punishable as follows, that is to say,--
(a) if the offence is one which would be punishable under
any law in force in India with death or with transportation,
he shall be liable to suffer any punishment, other than
whipping, assigned for the offence, by the aforesaid law
and such less punishment as is in this Act mentioned;
and
(b) in any other case, he shall be liable to suffer any
punishment, other than whipping, assigned for the offence by
the law in force in India, or imprisonment for a term which
may extend to seven years, or such less punishment as is in
this Act mentioned.” (emphasis supplied)
Sub-section (a) of Section 69 states if a person is convicted of a ‘civil offence’ which
is punishable with death or transportation under the law in force, then he shall be
liable to suffer any punishment, other than whipping, assigned for the offence by the
aforesaid law and such less punishment as is in this Act mentioned. In contrast with
sub-Section (a), sub-Section (b) provides that in all other offences, the person
convicted shall be liable to suffer the punishment assigned under the laws in force or
imprisonment for a term which may extend to seven years, or such less punishment
as provided in the Act. The words of the statute clearly indicate that the legislature
provided different punishments for serious offences which under law are punishable
with death or life imprisonment, and for all other offences. In case of the former, subSection (a) of Section 69 provides that the court-martial may convict him and punish
him with death or life imprisonment. In addition to this, the court-martial may also
give a lesser punishment under the Army Act (such as cashiering, dismissal from
40
service, etc., provided under Section 7127). The use of the word “and” in sub-Section
(a) clarifies the intent of the legislature, which is to ensure that the Army authorities
have sufficient discretion to grant a punishment for serious offences, over and
beyond what is permissible under Penal Code. This however, does not imply that a
person who is otherwise liable for death or life imprisonment can be granted a lesser
punishment under the Army Act. In contrast, sub-Section (b) of Section 69 uses the
term “or” to indicate that for offences that under the Penal Code or any other law are
of less severity, the Army authorities may order a lesser punishment. If the argument
of the respondent is accepted, it would imply that a person who is convicted and
punished by a Court-martial under the Army Act will be in an advantageous position
than a person who, though subject to the Army Act, has been convicted by an
ordinary criminal court. If that was the intent of the legislature - that is to protect
persons subject to the Army Act by awarding them lesser punishment even for
serious offences - then the Act would not have provided for concurrent jurisdiction of
27 “71. Punishments awardable by court-martial. Punishments may be inflicted in respect of offences committed
by persons subject to this Act and convicted by courts-martial, according to the scale following, that is to say,--
(a) death;
(b) transportation for life or for any period not less than seven years;
(c) imprisonment either rigorous or simple, for any period not exceeding fourteen years;
(d) cashiering, in the case of officers;
(e) dismissal from the service;
(f) reduction to the ranks or to a lower rank or grade or place in the list of their rank, in the case of warrant officers;
and reduction to (he ranks or to a lower rank or grade, in the case of non-commissioned officers:
Provided that a warrant officer reduced to the ranks shall not be required to serve in the ranks as a sepoy;
(g) forfeiture of seniority of rank, in the case of officers, junior commissioned officers, warrant officers and noncommissioned officers; and forfeiture of all or any part of their service for the purpose of promotion, in the case of any
of them whose promotion depends upon length of sendee;
(h) forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose;
(i) severe reprimand or reprimand, in the case of officers, junior commissioned officers, warrant officers and noncommissioned officers;
(j) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active
service;
(k) forfeiture in the case of a person sentenced to cashiering or dismissal from the service of all arrears of pay and
allowances and other public money due to him at the time of such cashiering or dismissal:
(l) stoppage of pay and allowances until any proved loss or damage occasioned by (he offence of which he is
convicted is made good.”
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court-martial and ordinary criminal courts at all. Although the Army Act is special law
in this case as compared to the IPC, if the statute in its text does not make any
qualifications or exceptions to the general law, it would be impermissible for the
court to read such qualifications in the Act. Thus, we are unable to accept this
submission of the respondent.
D Conclusion
51 For the above reasons, we find that the High Court was in error in affirming, in
the exercise of its revisional jurisdiction, the decision of the Sessions Judge that the
court-martial alone would have jurisdiction. Both on law and in fact, the position is to
the contrary. The Sessions Judge was competent and there was no error in the
assumption or the exercise of the jurisdiction. The consequence of the decision of
the High Court is to foist an obligation on the Army Authorities to hold a court-martial
despite a clear and unequivocal submission to the jurisdiction of the Court of
Sessions. We accordingly allow the appeal and set aside impugned judgment of the
Single Judge of the High Court of Sikkim dated 6 April 2019 in Criminal Revision
Petition No 2 of 2017. The respondent-accused shall be transferred from military
custody to civil custody to face trial.
52 The trial would proceed from the stage that was reached when the Sessions
Judge decided that there was an absence of jurisdiction. The trial shall be
proceeded with and be concluded in accordance with law. The appeal is allowed in
the above terms.
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53 Pending applications, if any, shall stand dismissed.
………………………………………………J.
[Dr Dhananjaya Y Chandrachud]
………………………………………………J.
[Surya Kant]
New Delhi;
February 01, 2022
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