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Army Act cannot be a hinderance in order of criminal court, if the Army officer does not exercise discretion

The Supreme Court has observed that if the designated officer does not exercise this discretion to institute proceedings before a court-martial, the Army Act would not interdict the exercise of jurisdiction by the ordinary criminal court.

The Division Bench comprising Justice D.Y. Chandrachud and Justice Surya Kant heard an appeal arising from a verdict passed by Sikkim High Court. 

While exercising the revisional jurisdiction under Sections 397 and 401 read with Section 482 of the Code of Criminal Procedure 1973, the Single- Bench of High Court had 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. 

On December 14, 2014, at about 19:40 hrs, Lance Naik Rajesh Kumar of 17 Mountain Division of the Indian Army lodged a First Information Report before the Station House Officer at the Sadar Police Station in Gangtok, stating inter alia that around 6.00 pm, when he returned to his barracks, he struck up a conversation with two riflemen for a short while.

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 respondent accused, Lance Naik Jasbir Singh, opening fire on 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 suspected that he was already dead. An FIR was registered on December 14, 2014 at Sadar Police Station, Gangtok. 

During the course of the trial, having due regard to the provisions of Section 69 of the Army Act, the Sessions Judge by his order dated March 9, 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 April 6, 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 CrPC, and Rules 3, 4 and 5 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules 1978 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 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. 

The respondent was handed over to the Army and has been in military custody since April 23, 2019. Meanwhile, the respondent retired from service on March 31, 2020. On the same day, the Army authorities passed an order for extension of the time of detention.

The Supreme 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.

The Court clarified that Sections 125 and 126 of the Army Act 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 court martial, the Army Act would not interdict the exercise of jurisdiction by the 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”,said the Bench.

The Court has held that criminal court will have jurisdiction to try a case against an army personnel if the Commanding Officer does not exercise the discretion under Section 125 of the Army Act to initiate court-martial with respect to the offence.

“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 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”, the Court said, while allowing the appeal and setting aside the judgment of the Single Judge of the High Court of Sikkim.

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