Army Act – ss. 69, 70, 125, 126 – Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 – ss. 3, 4 and 5 – Concurrent jurisdiction between the court-martial and the ordinary criminal court – FIR u/s. 302 of IPC was registered against the respondent-accused – Sessions Judge directed the Chief Judicial Magistrate 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 – High Court upheld the decision of the Session Judge – Pursuant to the judgment of the High Court, Unit major exercised his power u/s.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 the civil custody – However, it was rejected by the Chief Judicial Magistrate in view of the order passed by the Sessions Judge – Since that order was upheld by the High Court, the respondent was handed over to the Army – Held: 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 u/s. 125 – The designated officer has been conferred with the discretion “to decide before which court the proceedings shall be instituted” – Moreover, s.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 u/s. 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 – In the present case, there was no decision by the designated officer to institute proceedings before a court-martial in terms of s.125 – The entire sequence of events both before and after the completion of investigation provides a 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 – 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 – Sessions Judge was competent and there was no error in the assumption or the exercise of the jurisdiction.
Allowing the appeal, the Court
HELD: 1. 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. [Para 42][273-A-B]
2. 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 courtmartial 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. [Para 43][273-C-E]
3. 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 courtmartial 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 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. [Para 44][273-H; 274-A-F]
4. Significantly, in the present case there was no decision by the designated officer to institute proceedings before a courtmartial 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 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. [Para 45][274-F-H; 275-A-B]
5. 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. [Para 51][278-D-F]
Ram Sarup v. Union of India and another AIR 1965 SC 247 : [1964] 4 SCR 931; Som Datt Datta v. Union of India, AIR 1969 SC 414 : [1969] 2 SCR 177 –
followed.
Delhi Special Police Establishment, New Delhi v. Lt. Col. SK Loraiya (1972) 2 SCC 692 : [1973] 1 SCR 1010 – distinguished.
Joginder Singh v. State of Himachal Pradesh (1971) 3 SCC 86 : [1971] 2 SCR 857; Major EG Barsay v. State of Bombay [1962] 2 SCR 195; SK Jha v. State of Kerala (2011) 15 SCC 492 : [2011] 1 SCR 295; Extra-Judicial Execution Victim Families Association and Another v. Union of India (2016) 14 SCC 536; Balbir Singh and Another v. State of Punjab (1995) 1 SCC 90 : [1994] 5 Suppl. SCR 422; Additional Director General, Army Headquarters v. Central Bureau of Investigation (2012)
6 SCC 228 : [2012] 5 SCR 599 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.