[Air Force Act] Choice Between Court Martial & Criminal Court Can Only Be Exercised After Probe & Before Magistrate's Cognizance: J&K High Court

The Jammu and Kashmir and Ladakh High Court has clarified that discretion under Section 124 of the Air Force Act, 1950, to choose between a court-martial and a criminal court, can only be exercised after the police investigation is complete and before the Magistrate takes cognizance of the case.Section 124 grants discretion to Air Force authorities to decide whether an offence involving Air Force personnel should be tried by a court-martial or a civilian criminal court. This discretion is triggered when both courts have concurrent jurisdiction over the offence.Ruling out the exercise of discretion by the Designated authority during the investigation Justice Javed Iqbal Wani reasoned, “” .. if it is held that the Designated Officer can exercise the discretion under Section 124 supra at the stage of investigation, it would effectively preclude the police from completing the investigation, thereby preventing the preparation and submission of police report/charge sheet before the Magistrate and in absence of such report/charge sheet, the Magistrate would have no basis of forming an opinion under Section 125 supra, thus rendering the same redundant”Case Background:The case traces back to December 31, 2023, when a female officer alleged sexual assault by a Wing Commander during a New Year's celebration. Internal inquiries, including a Court of Inquiry and an Internal Committee under the Prevention of Sexual Harassment (POSH) Act, failed to yield conclusive findings. This prompted the complainant to lodge an FIR on September 8, 2024, with the Budgam police.The Wing Commander through senior advocate Z.A. Shah, sought to quash the FIR under Section 528 of BNSS, arguing that the Internal Committee's inconclusive findings made the FIR unnecessary. The Union of India filed a parallel petition invoking Section 124, asserting that jurisdiction should lie with the military authorities given the concurrent jurisdiction.Representing Police Sr AAG Mohsin Qadri contested the plea by arguing that the investigation had revealed prima facie involvement of the commander in the crime and urged the court to let the investigation proceed without interference. Court's Observations:In order to adjudicate the matter Justice Wani first addressed the petitioner's argument that the FIR constituted an abuse of the court's process as it was contended that both the Court of Inquiry and the Internal Committee had already investigated the matter and found no conclusive evidence of misconduct. The Court, however, noted that neither inquiry had exonerated the petitioner as the Internal Committee's report explicitly stated that the allegations remained inconclusive, and no decisive action was recommended. Justice Wani emphasized that such inconclusive findings could not be a basis for quashing the FIR as criminal prosecution requires a higher standard of proof, and mere administrative inquiries cannot substitute for a police investigation.Further, Justice Wani observed that the police investigation, which had progressed substantially, revealed evidence implicating Sehrawat. Since FIR itself disclosed sufficient grounds for continuing the investigation the Court stressed that it is not within the purview of judicial review to assess the sufficiency of evidence at this stage, reaffirming the principle that the police must be allowed to complete their investigation without judicial interference.Jurisdictional Issues Under Section 124 & 125 Of Air Force Act Delving into the jurisdictional conflict, Justice Wani explained the framework of Sections 124 and 125 of the Air Force Act. Section 124 grants the designated officer discretion to decide whether a case involving Air Force personnel should be tried by a court-martial or a civilian criminal court. However, the Court clarified that this discretion can only be exercised after the police submit their investigation report under Section 173 of the Code of Criminal Procedure (CrPC), now Section 193 of BNSS, but before the Magistrate takes cognizance. In order to fortify this interpretation the court pressed into action a Supreme Court's ruling in General Officer Commanding v. CBI (2012), where it was held that “institution” of proceedings refers to the Magistrate's act of taking cognizance, not merely the filing of an FIR.Justice Wani highlighted that allowing discretion under Section 124 at the investigation stage would render Section 125 redundant. Section 125 enables the criminal court to retain jurisdiction or defer proceedings pending a decision by the Central Government. If discretion under Section 124 were exercised prematurely, it would preclude the police from completing their investigation and prevent the Magistrate from forming an opinion under Section 125, thereby disrupting the procedural balance, he explained. Role Of Magistrate Under 521 BNSSThe Court further emphasized the role of the Magistrate under Section 521 of BNSS, equivalent to Section 475 of the CrPC. This provision empowers the...

[Air Force Act] Choice Between Court Martial & Criminal Court Can Only Be Exercised After Probe & Before Magistrate's Cognizance: J&K High Court

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