Criminal Court Can Try A Case Against Army Man If Commanding Officer Does Not Exercise Discretion U/Sec 125 Army Act To Initiate Court-Martial : Supreme Court

The Supreme 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 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 Court held.A bench comprising Justice DY Chandrachud and Justice Surya Kant was deciding an appeal filed by the State of Sikkim against an order passed by the Sikkim High Court which directed that a criminal case against an army officer be handed over to court-martial.In this case, an FIR under Section 302 of the Indian Penal Code 1860 had been registered against the accused army man who had allegedly shot down a rifleman named Balbir Singh. On 15 December 2014, the custody of the accused was handed over by the competent military authority to the Investigating Officer. On 28 February 2015, a case was registered as Sessions Trial Case No.03/2015 and charges were framed. The Sessions Court held that since both the accused and the deceased were governed by the Army Act 1950 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. Therefore, the Chief Judicial Magistrate was directed to give written notice to the CO of the respondent's unit or the competent military authority for his trial by a court-martial. The High Court upheld this order of the Sessions Court.Three Kind Of Offences Under the Army ActWhere an offence is created by the Army Act(Sections 34 to 68) itself, it would be exclusively triable by a court-martial. 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(Section 69). The offence with which the accused army man in this case is charged falls in this category.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.Section 125 deals with a situation where both a criminal court and a court-martial 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 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.Rival Contentions Challenging the High Court judgment, the State of Sikkim contended that 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. The Union Government supported the stand of Sikkim Government.On the other hand, the accused contended that 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.To address these contentions, the court referred to various provisions of the Army Act and the judgments in this regard. It noted that 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...

Criminal Court Can Try A Case Against Army Man If Commanding Officer Does Not Exercise Discretion U/Sec 125 Army Act To Initiate Court-Martial : Supreme Court

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