THE STATE OF SIKKIM versus JASBIR SINGH & ANR. on 1 February 2022

242

[2022] 8 S.C.R. 242

SUPREME COURT REPORTS

[2022] 8 S.C.R.

A

THE STATE OF SIKKIM

v.

JASBIR SINGH & ANR.

(Criminal Appeal No. 85 of 2022 )

BFEBRUARY 01, 2022

[DR. DHANANJAYA Y CHANDRACHUD ANDSURYA KANT, JJ.]

Army Act – ss. 69, 70, 125, 126 – Criminal Courts and CourtMartial (Adjustment of Jurisdiction) Rules, 1978 – ss. 3, 4 and 5 –CConcurrent jurisdiction between the court-martial and the ordinarycriminal court – FIR u/s. 302 of IPC was registered against therespondent-accused – Sessions Judge directed the Chief JudicialMagistrate to furnish a written notice to the Commanding Officerof the unit of the respondent-accused and deliver him for trial by aDCourt-martial – High Court upheld the decision of the Session Judge– Pursuant to the judgment of the High Court, Unit major exercisedhis power u/s.125 of the Army Act and decided that the proceedingsagainst the respondent-accused be instituted before the criminalcourt and that he be detained in the civil custody – However, it wasrejected by the Chief Judicial Magistrate in view of the order passedEby the Sessions Judge – Since that order was upheld by the HighCourt, the respondent was handed over to the Army – Held: Wherethere exists concurrent jurisdiction in the court-martial and in theordinary criminal court, primarily the discretion of conducting thecourt-martial in preference to a trial by the ordinary criminal courtFis entrusted to the designated officer u/s. 125 – The designatedofficer has been conferred with the discretion “to decide beforewhich court the proceedings shall be instituted” – Moreover, s.125has a conjunctive requirement which is amplified by the expression“and, if that officer decides that they should be instituted before acourt-martial” – Thus, the conjunctive requirement u/s. 125 is thatGthe competent officer has the discretion to decide before which courtthe proceedings shall be instituted and if the officer exercises thatdiscretion to institute proceedings before a court-martial, then theofficer will direct that the accused be detained in military custody –In the present case, there was no decision by the designated officerHto institute proceedings before a court-martial in terms of s.125 –

The entire sequence of events both before and after the completionof investigation provides a clear indicator that the CommandingOfficer took a conscious decision that the investigation and trialshould be conducted in accordance with the provisions of the CrPC– High Court was in error in affirming, in the exercise of its revisionaljurisdiction, the decision of the Sessions Judge that the court-martialalone would have jurisdiction – Both on law and in fact, the positionis to the contrary – Sessions Judge was competent and there was noerror 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 inthe category of those offences which are triable exclusively by acourt-martial (Section 34 to 68) or those offences which cannotbe tried by a court-martial (under Section 70). The offence withwhich the respondent-accused is charged falls in the categorywhere there is a concurrent jurisdiction between the court-martialand the ordinary criminal court. Hence, it needs to be underscoredthat there is no inherent lack of jurisdiction in the ordinary criminalcourt to conduct a trial in accordance with the procedureenvisaged in the CrPC. [Para 42][273-A-B]

2. Section 69 provides when a person who is subject to theAct shall be deemed to be guilty of an offence against the Act.Section 69 of the Army Act has been made subject to theprovisions of Section 70. When a provision of a statute is madesubject to another provision by the legislature, this evinces anintent that where the latter provision is attracted, the former wouldgive way. Where the conditions requisite for the application ofSection 70 exist, Section 69 would give way to Section 70. Section70 provides for the conditions in which a person who is subjectto the Army Act shall not be deemed to be guilty of an offenceunder the Act and shall not be tried by a court-martial. In otherwords, Section 70 of the Army Act provides for where the court-martial would not exercise jurisdiction (unless the case falls underthe exceptions to Section 70). When the provisions of Section 70apply, a person who is subject to the Army Act is not deemed tobe guilty of an offence under the Act if the ingredients of thatprovision are fulfilled. [Para 43][273-C-E]

AB

CD

E

F

G

H

A

A3. In the present case, the conditions requisite for theapplication under Section 70 do not stand attracted for the reasonthat the offence in the present case was committed against aperson who was subject to military law and in any event, theoffence was committed by the respondent while on active servicein Sikkim. Since Section 70 has no application, the respondentBwho is alleged to have committed a ‘civil offence’ in India wouldbe subject to the provisions of the Army Act as provided bySection 69. The crucial words of Section 69 however are that anaccused “shall be deemed to be guilty of an offence against thisAct” and “if charged therewith under this section, shall be liableCto 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 “thissection”, that is Section 69. The language of Section 69 is a clearindicator that it does not ipso jure oust the jurisdiction of theordinary criminal court. Where there exists concurrentjurisdiction in the court-martial and in the ordinary criminal court,Dprimarily the discretion of conducting the court-martial inpreference to a trial by the ordinary criminal court is entrustedto the designated officer under Section 125. The designatedofficer has been conferred with the discretion “to decide beforewhich court the proceedings shall be instituted”. Moreover,ESection 125 has a conjunctive requirement which is amplified bythe expression “and, if that officer decides that they should beinstituted before a court-martial”. Thus, the conjunctiverequirement under Section 125 is that the competent officer hasthe discretion to decide before which court the proceedings shallbe instituted and if the officer exercises that discretion to instituteFproceedings before a court-martial, then the officer will directthat the accused be detained in military custody. Section 125, inother words, not only recognizes that an element of discretionhas been vested in the designated officer, but it also postulatesthat the designated officer should have decided that theGproceedings be instituted by the court-martial in which event thecourt-martial would take place. [Para 44][273-H; 274-A-F]

4. Significantly, in the present case there was no decisionby the designated officer to institute proceedings before a court-martial in terms of Section 125. The argument on the absence ofH

compliance with Rule 3 and Rule 4 of the 1978 Rules ismisconceived. The 1978 Rules, which have been made pursuantto Section 126 of the Army Act and Section 475 of the CrPC,were intended to obviate a conflict of jurisdiction where both theArmy authorities under a court-martial as well as the ordinarycriminal court assert jurisdiction to try a person for the sameoffence. Section 126(2) provides the modality for the resolutionof a conflict by the Central Government. The rules which havebeen framed under Section 475 of the CrPC provide for theissuance of a notice by the Magistrate to the competent officer inorder to enable the competent officer to take a considereddecision on whether the interest of the service would warrant atrial by a court-martial. But the present case does not involve aconflict in the exercise of jurisdiction in the first place. The entiresequence of events both before and after the completion ofinvestigation provides a clear indicator that the CommandingOfficer took a conscious decision that the investigation and trialshould be conducted in accordance with the provisions of theCrPC. [Para 45][274-F-H; 275-A-B]

5. The High Court was in error in affirming, in the exerciseof its revisional jurisdiction, the decision of the Sessions Judgethat the court-martial alone would have jurisdiction. Both on lawand in fact, the position is to the contrary. The Sessions Judgewas competent and there was no error in the assumption or theexercise of the jurisdiction. The consequence of the decision ofthe High Court is to foist an obligation on the Army Authoritiesto hold a court-martial despite a clear and unequivocal submissionto the jurisdiction of the Court of Sessions. We accordingly allowthe appeal and set aside impugned judgment of the Single Judgeof the High Court of Sikkim dated 6 April 2019 in CriminalRevision Petition No 2 of 2017. The respondent-accused shallbe transferred from military custody to civil custody to face trial.[Para 51][278-D-F]

Ram Sarup v. Union of India and another AIR 1965SC 247 : [1964] 4 SCR 931; Som Datt Datta v. Unionof India, AIR 1969 SC 414 : [1969] 2 SCR 177 –followed.

ABC

DE

F

G

H

246SUPREME COURT REPORTS

[2022] 8 S.C.R.

ADelhi 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) 3SCC 86 : [1971] 2 SCR 857; Major EG Barsay v. StateBof Bombay [1962] 2 SCR 195; SK Jha v. State of Kerala(2011) 15 SCC 492 : [2011] 1 SCR 295; Extra-JudicialExecution Victim Families Association and Another v.Union of India (2016) 14 SCC 536; Balbir Singh andAnother v. State of Punjab (1995) 1 SCC 90 : [1994] 5Suppl. SCR 422; Additional Director General, ArmyCHeadquarters v. Central Bureau of Investigation (2012)6 SCC 228 : [2012] 5 SCR 599 – referred to.

Case Law Reference

From the Judgment and Order dated 06.04.2019 of the High Courtof Sikkim, Gangtok in Criminal Revision Petition No. 02 of 2017.GVivek Kohli, AG, Raghvendra Kumar, Ms. Yeshi Rinchhen, AnandKumar Dubey, Narendra Kumar, Advs. for the Appellant.

Aman Lekhi, ASG, R. Balasubramanian, Pradeep Kumar Dey,Sr. Advs., Adit Khorana, Ms. Swarupama Chaturvedi, Shantanu Sharma,Balendu Shekhar, Arvind Kumar Sharma, Mrs. Shilpi Dey Auditya, Ms.HShreyasi Chakrabarty, Ms. Shehla Chaudhary, Md. Anas Chaudhary, Sumit Kumar Sharma, Ansar Ahmad Chaudhary, Advs. for theRespondents.

A

The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.

A Facts

1. This appeal arises from a judgment of a Single Judge of theHigh Court of Sikkim. While exercising the revisional jurisdiction underSections 397 and 401 read with Section 482 of the Code of CriminalProcedure 1973[1], the High Court has upheld the order of the SessionsJudge, Special Division-II, Sikkim, at Gangtok, directing the Chief JudicialMagistrate, East Sikkim to furnish a written notice to the CommandingOfficer of the unit of the respondent-accused and deliver him for trial bya court-martial.

D

EF

2. On 14 December 2014, at about 19:40 hours, Lance Naik RajeshKumar of 17 Mountain Division of the Indian Army lodged a FirstInformation Report[2] before the Station House Officer at the Sadar PoliceStation in Gangtok stating inter alia that on the relevant date at around6.00 p.m., when he returned to his barracks, he struck up a conversationwith 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 thebarracks. He immediately rushed to the barracks and witnessed therespondent-accused, 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 raisedan alarm for help, on which Signalmen Ujjal Sinha and C.H. Anil arrivedat the spot. The accused, in the meanwhile, escaped from the clutchesof the informant. The informant then immediately rang up the medical G

1 “CrPC”

2 FIR No. 409/2014

* Ed. Note: Pagination is as per the original judgment.

H

Aroom and returned to check on the injured rifleman, by which time hesuspected that the he was already dead. FIR No. 409 of 2014 wasregistered on 14 December 2014 at the Sadar Police Station, Gangtok.

3. On 15 December 2014, the custody of the accused was handedover by the competent military authority to the Investigating Officer[3]Band an arrest/ court surrender memo was issued by the Sub-Inspectorof Police at the Sardar Police Station. While conducting the investigation,the IO issued a requisition to the Commanding Officer of the 17 MountainDivision Pro Unit, informing him that an FIR under Section 302 of theIndian Penal Code 1860[4] had been registered against the respondent-accused. The IO requested certain documents for the purpose ofCinvestigation, 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 D

(iv) Records of any previous offence.

4. In response to the above communication, Colonel RR Nair, theCommanding Officer[5] of the 17 Mountain Division Pro Unit furnishedthe following documents by his letter dated 27 December 2014:

E(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 December2014;

(iii) CTC of Weapon Issue Register, where he informed the IOFthat the respondent-accused had withdrawn the weaponfor piloting duty on 14 December 2014. After completionof the duty however, while committing the offence, therespondent had unauthorizedly accessed the weapon; and

(iv) Record of previous offences.G

A copy of this communication was forwarded by the CO to theHeadquarters of the 17 Mountain Division Pro Unit.

3 “IO”

4 “IPC”

H5 “CO”

5. On 12 January 2015, the IO filed an application before theChief Judicial Magistrate (East & North), for recording the statement ofthe informant (Rifleman Rajesh Kumar). On 13 February 2015, the IOsubmitted a charge-sheet after the completion of investigation againstthe respondent-accused for offences punishable under Sections 302 and308 of the IPC. An order of committal was passed by the Chief JudicialMagistrate to the Principal Sessions Judge. On 28 February 2015, acase was registered as Sessions Trial Case No.03/2015. On 15 July2015, the Sessions Judge framed charges against the respondent underSections 302 and 308 of the IPC and under Section 25(1-B)(a) of theArms Act 1959[6]. On 18 November 2015, the Sessions Judge allowed anapplication filed under Section 216 of the CrPC for alteration of thecharge 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 SessionsJudge directed the issuance of fresh summons to Colonel RR Nairreturnable on 7 July 2016. On 07 July 2016, the Sessions Judge wasinformed that a letter had been received from the Army authorities statingthat Colonel RR Nair was undergoing a training course and was onleave upto 24 July 2016. During the course of the trial, the CO, ColonelRR Nair was examined as PW19 on 28 July 2016. After the recordingof evidence was complete, the Sessions Judge heard the counsel for theparties for final arguments. During the course of the hearing, counselfor the accused inter alia contended that as the respondent-accusedand the deceased were both governed by the Army Act 1950[7] when theincident took place, in view of Section 69 of the Army Act, the accusedcould be tried only by a General Court-Martial and not by the SessionsCourt. Having due regard to the provisions of Section 69 of the ArmyAct, the Sessions Judge by his order dated 9 March 2017 upheld theobjection of the respondent-accused by concluding that given the natureof offence, the accused ought to have been tried by court-martial aloneand that the Sessions Court had no jurisdiction. With this conclusion, theChief Judicial Magistrate was directed to give a written notice to theCO of the respondent’s unit or the competent military authority for histrial 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 6 “Arms Act”

7 “Army Act”

ABC

D

E

F

G

H

Athe provisions of Section 69 and 70 of the Army Act. The High Courtheld that the procedure prescribed under Sections 125 and 126 of theArmy Act, Section 475 of the CrPC, and Rules 3, 4 and 5 of the CriminalCourts and Court Martial (Adjustment of Jurisdiction) Rules1978[8] hadnot been observed. While issuing notice to the Army authorities, theHigh Court held that both the respondent and the deceased were subjectBto the Army Act. The procedure mandated by the 1978 Rules had to befollowed and the submission that the Army authority had exercised theirdiscretion to try the accused in the criminal court was held to bear noweight on the ground that no documentary evidence existed to prove theexercise of the discretion. Moreover, the mere handing over of theCaccused to the civil authority was held not to be proof of the exercise ofthe option. While a minute sheet was produced before the High Courtwhere the General Officer Commanding[9] had accepted therecommendation that the accused be tried by the Sessions Court, theHigh Court rejected this on the ground that: (i) the document was notfurnished before the Sessions Judge and (ii) the document which wasDproduced was a photocopy and not a certified copy. The revision petitionwas dismissed.

8. Pursuant to the impugned judgment of the High Court, the GOCof 17 Mountain Division Pro Unit, Maj. General. RC Tiwari, by an orderdated 22 April 2019, exercised his powers under Section 125 of theEArmy Act and decided that the proceedings against the respondent-accused be instituted before the criminal court and that he be detained incivil custody. An application was filed before the Chief Judicial Magistrateto convey the decision of the GOC. By an order dated 22 April 2019, theChief Judicial Magistrate rejected the application of the GOC in view ofFthe order of the Sessions Judge dated 9 March 2017, which requiredthat the accused be delivered to the competent military authority. Sincethis order had been upheld by the High Court, the Chief Judicial Magistratedirected the Superintendent of Prisons, Central Jail, Rongyek to handover the respondent to the competent military authority. The respondent was handed over to the Army and has been in military custody since 23GApril 2019. Meanwhile, the respondent retired from service on 31 March2020. On the same day, the Army authorities passed an order for extensionof the time of detention.

8 “1978 Rules”H9 “GOC”

A

B Submissions

9. The State of Sikkim is in appeal against the judgment of theHigh Court. The State has been represented by Mr Vivek Kohli, learnedAdvocate General. The challenge made by the State of Sikkim has beensupported by the Union of India appearing as a respondent through MrAman Lekhi, learned Additional Solicitor General. The arguments onbehalf of the respondent were made by Mr Pradeep Kumar Dey, learnedSenior Counsel.

B

10. Mr Vivek Kohli, Advocate General appearing on behalf of theappellant-State made the following submissions:

C

(i) The High Court and Sessions Court have both failed toappreciate that the criminal courts and court-martial haveconcurrent 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 tobe tried by court-martial, is solely with the CommandingDOfficer;

(ii) Under Section 125,one of the following three situations mayarise:

(a) The Commanding Officer may exercise his discretionEand affirmatively choose to try the accused throughcourt martial; (b)The Commanding Officer may exercise his discretionand may not choose a trial through court martial; and

(c) There may be no overt exercise of discretion by theCommanding Officer, in which event his conductshould determine whether there was an exercise ofdiscretion; F

(iii) When the Commanding Officer exercises discretion in termsof the first two situations noted above, the procedure underGSection 126 of the Army Act and Rules 3, 4 and 5 of the1978 Rules becomes applicable;

(iv) However, when the Commanding Officer does not exercisehis discretion as detailed in the last situation, the absence ofany objection by the Army authorities to the trial by the H

252SUPREME COURT REPORTS

criminal court can be regarded as a tacit approval of theCommanding Officer for the accused to be tried by thecriminal court; A

(v) As held by this Court in Joginder Singh v. State ofHimachal Pradesh[10], if the designated officer does notBexercise his discretion to institute proceedings before a court-martial, then the Army Act would not come in the way ofthe criminal court exercising its ordinary jurisdiction in themanner provided by law;

(vi) On the basis of the above premises, in the present case, theCdiscretion has been exercised by the Commanding Officerby recommending that the trial can be conducted by the‘civil court’ (ie, the criminal court) which, in the presentcase is, the Sessions Judge, Special Division-II, Sikkim,Gangtok. The following circumstances indicate the exerciseof this discretion:

D

(a) The handing over of the accused by the CommandingOfficer to the IO on 15 December 2014, immediatelyafter the incident took place on 14 December 2014;

(b) The letter dated 27 December 2014 by theCommanding Officer in response to the requisitionEmade by the IO (by his letter dated 26 December2014) for furnishing of documents for conducting theinvestigation;

(c) The recording of the statement under Section 164 ofthe CrPC on 12 January 2015of the informant - LanceFNaik Rajesh Kumar; (d)The examination on 28 July 2015 of the CommandingOfficer (Colonel RR Nair) during the course of thetrial, together with the examination of other Armyofficials; G

(e) The participation, right from the institution of the FIRtill the investigation and throughout the trial, by theCommanding Officer and the Army in the proceedingsbefore the criminal court. Thus, the trial has to be H10 (1971) 3 SCC 86

conducted by the criminal court and not the court-martial; A

(f) On 16 January 2015, the Army authoritiesrecommended that the case of the accused be triedby the civil court (criminal court). On 8 March 2015,this recommendation culminated into the CommandingBOfficer exercising “discretion” by deciding that thecase of the accused should be tried by the criminalcourt. On 22 April 2019, the Commanding Officerexercised his discretion under Section 125 of the ArmyAct read with Rule 9 of the 1978 Rules by addressingCa communication to the Chief Judicial Magistrate,East Sikkim (Gangtok), intimating the decision thatthe trial of the accused should be conducted by thecriminal court; and

(vii) The order of the Sessions Judge dated 9 March 2017, turnedback the clock at the stage of final arguments. The HighCourt has failed to consider that under Section 122 of ArmyAct, the period of limitation to commence a trial by court-martial is three years from the date of the offence. In thepresent case, the offence took place on 14 December 2014and immediately thereafter proceedings were initiated beforethe criminal court.

D

E

11. Mr Aman Lekhi, Additional Solicitor General, has supportedthe submissions of the State of Sikkim and urged the following propositions:

(i) The controversy in the present case is covered by thedecision of this Court in Joginder Singh v. State ofHimachal Pradesh[11], where it was held that the Armyauthority was aware of the offence committed and decidedto handover the custody of the accused to the police andnot to hold a court martial; F

G

(ii) There are three categories of offences, namely: - (a)Offences which are created by the Army Act, suchas those provided under Sections 34, 35, 36 and 37,which are exclusively triable by a court-martial; 11 (1971) 3 SCC 86

H

A(b)Offences which are committed under Section 70 ofthe Army Act which are to be tried by a criminalcourt subject to exceptions; and

(c) Offences involving the exercise of jurisdiction by thecourt-martial and by an ordinary criminal courtB(Section 69), where a court martial can be convenedif a decision in terms of Section 125 of the Army Actis taken;

(iii) In the present case, the Army authorities had taken controlof the accused and handed him over to the IO for trial bycriminal court. This clearly establishes that the Army didCnot want to try the accused by court-martial.

12. Mr Pradeep Kumar Dey, Senior Counsel appearing on behalfof the respondent-accused has supported the decision of the High Courtand made the following submissions:

D(i)In view of the provisions of Sections 69 and 70 of the ArmyAct, a trial is possible only before the court-martial and notby an ordinary criminal court;

(ii) Sections 125 and 126 operate in different spheres. Section125 relates to the discretion of the Army authorities to theeffect that when a criminal court and a court- martial bothEhave jurisdiction in respect of an offence, it shall be thediscretion of the Commanding Officer to decide beforewhich court the proceedings shall be instituted;

(iii) Section 126 deals with the power of the criminal court torequire delivery of an offender. When a criminal courtFhaving jurisdiction is of opinion that proceedings shall beinstituted before itself in respect of any alleged offence, itmay, by written notice, require the officer referred to inSection 125, at his option, to either deliver the offender tothe nearest magistrate to be proceeded against accordingGto law, or to postpone proceedings pending a reference tothe Central Government. In every such case the said officershall either deliver the offender in compliance with therequisition, or shall forthwith refer the question as to thecourt before which the proceedings are to be instituted forthe determination by the Central Government, whose orderHupon such reference shall be final;

(iv) Section 475 of the CrPC and Rules 3, 4 and 5 of the 1978ARules indicate that in this case, a trial is only permissiblebefore the court-martial;

(v) It is a settled principle of law that where a statute providesthat a particular thing should be done in the mannerprescribed by law and if it is not done in the same manner,Bfailure to comply with this mandatory requirement wouldlead to severe consequences and any action taken wouldbe a nullity. It will be a mockery of the provisions of Section461(l) of the CrPC and other provisions of the law and thetrial stands vitiated; C

(vi) The trial before the ordinary criminal court will cause seriousprejudice to the accused and will result in a failure of justice.The entire trial before the ordinary criminal court is nulland void as it lacks jurisdiction;

(vii) The decision in Joginder Singh (supra) is contrary to thejudgments of the Constitution Bench in Som Datt Datta v.Union of India and others[12]and Ram Sarup v. Union ofIndia and another[13]; D

(viii) The crucial question is the stage at which the discretionhas to be exercised under Section 125.The decision has tobe taken after the filing of the charge-sheet and beforetaking cognizance. However, in the present case, thedecision was taken by the Army authority to opt for a trialbefore the ordinary criminal court before filing the charge-sheet, which is clear from the cross-examination of theCommanding Officer. Since the decision was taken beforethe submission of the charge-sheet, it is immaterial; E

F

(ix) The Magistrate was required under Rules 3 and 4 of the1978 Rules to issue a notice to the Commanding Officerand to require him to take a decision under Section 125 ofthe Army Act. The Magistrate, however, committed thecase to the Sessions Court on the same day as the filing ofthe charge sheet, as a consequence of which there wasnon-compliance of the provisions of Rules 3, 4 and 5 of the G

12 AIR 1969 SC 414

13 AIR 1965 SC 247

256SUPREME COURT REPORTS

A1978 Rules. In view of the well settled position of law, thediscretion under Section 125 has to be exercised by theCommanding Officer only after filing of the charge-sheet;

(x) The 1978 Rules have been framed in pursuance of thepowers conferred under Section 475 CrPC and the mandateBof issuing a notice is provided under Section 126 of theArmy Act; and

(xi) The respondent can still be tried by a court-martial underSection 123 of the Army Act, having regard to the fact thathis retirement was due on 31 March 2020.C

13. The rival submissions shall now be considered.

C Analysis

14. Chapter VI of the Army Act deals with offences. Theexpression ‘civil offences’ is defined in Section 3(ii) to mean “an offenceDwhich is triable by a criminal court”. Section 69[14] deals with civil offences.Section 70[15] deals with civil offences which are not triable by a court-martial.

14 “69. Civil offences.Subject to the provisions of section 70, any person subject toEthis Act who at any place in or beyond India, commits any civil offence, shall bedeemed to be guilty of an offence against this Act and, if charged therewith under thissection, shall be liable to be tried by a court-martial and, on conviction, be punishableas follows, that is to say,—

(a) if the offence is one which would be punishable under any law in force in India withdeath or with transportation, he shall be liable to suffer any punishment, other thanwhipping, assigned for the offence, by the aforesaid law and such less punishment as isFin 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 whichmay 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 notsubject to military, naval or air force law, or of culpable homicide not amounting toGmurder against such a person or of rape in relation to such a person, shall not be deemedto 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 thisHbehalf.”

15. Section 125[16] deals with a situation where both a criminalcourt and a court-martial have jurisdiction in respect of an offence. Insuch a case, it is the discretion of the Commanding Officer of the unitwhere the accused person is serving to decide before which court theproceedings shall be instituted, and if that officer decides that theproceedings should be instituted before a court-martial, he may directthat the accused be retained in military custody. Section 125, in otherwords, confers the discretion on the designated officer to decide whetherthe accused should be tried by a court martial or by the regular criminalcourt.

16. Section 126, as the marginal note indicates, deals with thepowers of the criminal court “to require delivery of offender”. Section126 provides that when a criminal court having jurisdiction is of the opinionthat the proceedings should be instituted before itself in respect of “anyalleged offence”, it may by written notice require the officer referred toin Section 125 to either deliver over the offender to the nearest magistrateto be dealt with in accordance with law or in the alternative to postponethe proceedings, pending a reference to the Central Government. UnderSection 126, the designated officer has two courses of action open: (i)deliver the offender in compliance with the requisition of the criminalcourt; or (ii) refer the question to the Central Government for determiningthe court before which the proceedings are to be instituted. Thedetermination by the Central Government is to be final.

17. Sections 125 and 126 operate in different domains. Section125 envisages that there is a discretion in the designated officer todetermine as to whether the accused should be tried by a court-martialor by the competent criminal court. Section 126 on the other handrecognises that the criminal court may require the officer designated inSection 125 by a written notice, to deliver the offender to the nearestmagistrate to be proceeded with in accordance with law. Upon theissuance of such a written notice, the designated officer has the discretion 16 “125. Choice between criminal court and court- martial. When a criminal courtand a court- martial have each jurisdiction in respect of an offence, it shall be in thediscretion of the officer commanding the army, army corps, division or independentbrigade in which the accused person is serving or such other officer as may be prescribedto decide before which court the proceedings shall be instituted, and, if that officerdecides that they should be instituted before a court- martial, to direct that the accusedperson shall be detained in military custody.”

AB

C

D

E

F

G

H

Aeither to accept the decision of the criminal court by delivering theoffender or the officer may decide to refer the matter to the CentralGovernment for its decision. Section 126 explicitly recognises that in theevent of a difference of view between the officer designated underSection 125 and the criminal court under Section 126, the matter has tobe referred to the Central Government for resolution, finality beingBattached to the decision of the Central Government. Section 126, in otherwords, has provided the modalities for resolving a situation where acriminal court decides to proceed against the accused, while on the otherhand the designated officer under Section 125 decides to have the accusedtried by a court-martial. It is to resolve a situation of this nature that aCreference is envisaged to the Central Government.

18. Section 475[17] of the CrPC has empowered the CentralGovernment 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 tothe Armed Forces of the Union, as regards the cases in which personsDsubject to military, naval or air force law or such other law, shall be triedby a court to which the CrPC applies or by a court-martial. The first part 17 “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 andthe Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957), and the Air ForceEAct, 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 airforce law, or such other law, shall be tried by a Court to which this Code applies or bya Court-martial, and when any person is brought before a Magistrate and charged withan offence for which he is liable to be tried either by a Court to which this Code appliesor by a Court-martial, such Magistrate shall have regard to such rules, and shall inproper cases deliver him, together with a statement of the offence of which he isFaccused, to the commanding officer of the unit to which he belongs, or to the commandingofficer of the nearest military, naval or air-force station, as the case may be, for purposeof 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.G(2) Every Magistrate shall, on receiving a written application for that purposes by thecommanding officer of any unit or body of soldiers, sailors or airmen stationed oremployed at any such place, use his utmost endeavours to apprehend and secure anyperson accused of such offence.

(3) A High Court may, if it thinks fit, direct that a prisoner detained in any jail situatewithin the State be brought before a Court-martial for trial or to be examined touchingHany matter pending before the Court-martial.”

of Section 475(1) recognizes the rule making power of the CentralGovernment. The latter part of Section 475(1) contemplates an eventualityin which a person is brought before a Magistrate and is charged withoffences for which that person is liable to be tried either by a court towhich the CrPC applies or by a court-martial. In such a situation, theMagistrate is to have regard to the rules and shall in proper cases deliverthe person together with a statement of the offences of which he isaccused 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 bySection 475 of the CrPC, the Central Government framed the CriminalCourts and Court Martial (Adjustment of Jurisdiction) Rules 1952 whichwere 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 1978Rules are extracted below:

“3. Where a person subject to military, naval or air force law, orany other law relating to the Armed Forces of the Union for thetime being in force is brought before a Magistrate and chargedwith 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 tocommit the case to the Court of Session, unless—

(a) he is moved thereto by a competent military, naval or air forceauthority; or (b) he is of opinion, for reasons to be recorded, that he should soproceed or to commit without being moved thereto by suchauthority.

4. Before proceeding under clause (b) of rule 3, the Magistrateshall give a written notice to the Commanding Officer or thecompetent military, naval or air force authority, as the case maybe, of the accused and until the expiry of a period of fifteen daysfrom the date of service of the notice he shall not- (a) convict or acquit the accused under section 252, sub-sections(1) and (2) of section 255 sub-section (1) of section 256 or section257 of the Code of Criminal Procedure, 1973 (2 of 1974), or hearhim in his defence under section 254 of the said Code; or A

B

C

D

E

F

G

H

(b) frame in writing a charge against the accused under section240 or sub-section (1) of section 246 of the said Code; or A

(c) make an order committing the accused for trial to the Court ofSession under section 209 of the said Code; or (d) make over the case for inquiry or trial under section 192 of theBsaid 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 thecompetent military, naval or air force authority, as the case mayCbe, subsequently gives notice to such Magistrate that, in the opinionof such officer or authority, the accused should be tried by a Court-martial, such Magistrate if he has not taken any action or madeany order referred to in clauses (a), (b), (c) or (d) of rule 4, beforereceiving the notice shall stay the proceedings and, if the accusedis in his power or under his control, shall deliver him together withDthe statement referred to in sub-section (1) of section 475 of thesaid Code to the officer specified in the said sub-section.”

20. Under Rule 3, where a person who is subject to military, navalor air force law, (or any other law relating to the Armed Forces of theUnion) is brought before a Magistrate and is charged with an offenceEliable to tried by a court-martial, the Magistrate cannot proceed to trysuch a person or commit the case to the Court of Session, except in oneof the two eventualities specified in clauses (a) and (b). Clause (a)envisages a situation where the Magistrate is moved by a competentmilitary, naval, or air force authority. Clause (b) envisages a situationFwhere the Magistrate is of the opinion that the person should be tried byhim or that the case should be committed to the Court of Session.

21. Rule 4(c) provides that before proceeding under clause (b) ofRule 3, the Magistrate has to give a written notice to the CommandingOfficer or the competent authority of the accused and until the expiry offifteen days, the Magistrate cannot make an order committing the accusedGfor trial to the Court of Session under Section 209 of the CrPC. Rule 5deals with a situation where the Magistrate has been moved by thecompetent military, naval or air force authority under clause (a) of Rule3 and subsequently, the Commanding Officer or competent authoritygives notice to the Magistrate that in the opinion of the officer, the accusedHshould be tried by a court-martial.

22. The purpose underlying Rule 3 and Rule 4 is that unless theMagistrate has been moved by a competent military, naval or air forceauthority, the Magistrate must furnish a written notice to the CommandingOfficer or the competent authority, if he is of the opinion that either thetrial should proceed before the Magistrate or an order of committal ofthe case to the Court of Sessions should be passed against the accusedheld liable to be tried by a court-martial. The object and purpose ofgiving the notice is to facilitate an exercise of discretion by the designatedofficer to determine whether the accused should be tried by a court-martial or in the alternative, should be proceeded with before the ordinarycriminal court. The above provisions have been interpreted in severaldecisions of this Court.

23. In Ram Sarup v. Union of India and another[18], the petitioner,who was a sepoy subject to the Army Act, was charged under Section69 of the Army Act read with Section 302 of the IPC. The petitionerwas tried by the General Court-Martial for having shot dead two sepoys,and was found guilty and sentenced to death. The Central Governmentconfirmed the findings and the sentence awarded by the General Court-Martial. The petitioner inter alia challenged the provisions of Section125 of the Army Act on the ground that they were in violation of Article14 of the Constitution. While dealing with the constitutional challenge,Justice Raghubar Dayal, speaking for the Constitution Bench observedas follows:

“17. Section 69 provides for the punishment which can be imposedon a person tried for committing any civil offence at any place inor beyond India, if charged under Section 69 and convicted by aCourt Martial. Section 70 provides for certain persons who cannotbe tried by Court Martial, except in certain circumstances. Suchpersons are those who commit an offence of murder, culpablehomicide not amounting to murder or of rape, against a person notsubject to Military, Naval or Air-Force law. They can be tried byCourt Martial of any of those three offences if the offence iscommitted while on active service or at any place outside India orat a frontier post specified by the Central Government bynotification in that behalf. This much therefore is clear that personscommitting other offences over which both the Court Martial andordinary criminal courts have jurisdiction can and must be tried by AB

C

D

E

F

G

H

SUPREME COURT REPORTS

AB

C

D

E

F

G

H

SUPREME COURT REPORTS

ACourts-Martial if the offences are committed while the accusedbe on active service or at any place out-side India or at a frontierpost. This indication of the circumstances in which it would bebetter exercise of discretion to have a trial by Court Martial, is anindex as to what considerations should guide the decision of theofficer concerned about the trial being by a Court Martial or byBan ordinary Court. Such considerations can be based on groundsof [maintenance] of discipline in the army, the persons againstwhom the offences are committed and the nature of the offences.It may be considered better for the purpose of discipline thatoffences which are not of a serious type be ordinarily tried by aCCourt Martial, which is empowered under Section 69 to award apunishment provided by the ordinary law and also such lesspunishment as be mentioned in the Act. Chapter VII mentions thevarious punishments which can be awarded by Court Martial andSection 72 provides that subject to the provisions of the Act aCourt Martial may, on convicting a person of any of the offencesDspecified in Sections 31 to 68 inclusive, award either the particularpunishment with which the offence is stated in the said sectionsto be punishable or in lieu thereof any one of the punishmentslower in the scale set out in Section 71, regard being had to thenature and degree of the offence.”

E24. In the above extract, the Court dealt with the considerationswhich would ultimately weigh in determining as to whether a trial by acourt-martial should be convened. In that backdrop, the Court noted :

“21. In short, it is clear that there could be a variety ofcircumstances which may influence the decision as toFwhether the offender be tried by a Court Martial or by anordinary criminal court, and therefore it becomes inevitablethat the discretion to make the choice as to which Courtshould try the accused be left to responsible military officersunder whom the accused be serving. Those officers are to beGguided by considerations of the exigencies of the service,maintenance of discipline in the army, speedier trial, the nature ofthe offence and the person against whom the offence iscommitted.”

H

25. Hence in the view of the Constitution Bench, there are a widevariety of circumstances which may be relevant in deciding whether anaccused should be tried by a court-martial or by an ordinary criminalcourt. Due to this, the choice of making this decision is entrusted to themilitary officer under whom the accused was serving. The Court alsonoted that under Section 549 of the Code of Criminal Procedure 1898(equivalent to Section 475 of the CrPC), the final choice about the forumof the trial of a person accused of a ‘civil offence’ rests with the CentralGovernment, whenever there is a difference of opinion between a criminalcourt and the military authority.

26. In Som Datt Datta v. Union of India[19], the ConstitutionBench considered a challenge under Article 32 to the proceedings beforea General Court-Martial, pursuant to which the petitioner had been foundguilty of charges under Section 304 and Section 149 of the IPC andsentenced to rigorous imprisonment of six years and cashiering. Thefirst question which was considered by the Constitution Bench waswhether the Court-Martial had jurisdiction to try and convict the petitionerfor the offences. Justice V Ramaswami, speaking for the ConstitutionBench, elaborated that under Chapter VI of the Army Act, Sections 34to 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 threecategories of offences, namely, (1) offences committed by a personsubject to the Act triable by a Court Martial in respect whereofspecific punishments have been assigned; (2) civil offencescommitted by the said person at any place in or beyond India, butdeemed to be offences committed under the Act and, if chargedunder Section 69 of the Act, triable by a Court Martial; and (3)offences of murder and culpable homicide not amounting to murderor rape committed by a person subject to the Act against a personnot subject to the military law. Subject to a few exceptions, theyare not triable by Court Martial, but are triable only by ordinarycriminal courts. The legal position therefore is that when an offenceis for the first time created by the Army Act, such as those createdby Sections 34, 35, 36, 37 etc., it would be exclusively triable by aCourt Martial; but where a civil offence is also an offence underthe Act or deemed to be an offence under the Act, both an ordinary AB

CD

EF

G

H

ACriminal Court as well as a Court Martial would have jurisdictionto try the person committing the offence. Such a situation isvisualized and provision is made for resolving the conflict underSections 125 and 126 of the Army Act.”

27. The Court noted that where a civil offence is also an offenceBunder the Army Act or is deemed to be an offence under the Act, boththe ordinary criminal court as well as the court-martial have jurisdictionto try the accused committing the offence. In that case, the petitionerargued that the Commanding Officer had not furnished a notice underRule 5 to the Magistrate that the petitioner should be tried by a court-martial and hence the criminal court alone had jurisdiction. ThisCsubmission was held to be misconceived for the following reasons:

“7. It was argued on behalf of the petitioner that there was nonotice given by the Commanding Officer to the Magistrate underRule 5 that the petitioner should be tried by a Court Martial andhence the criminal court alone had jurisdiction under Rule 3 toDconduct proceedings against the petitioner for the offencescharged. In our opinion, the argument on behalf of the petitioneris misconceived. The Rules framed by the Central Governmentunder Section 549 of the Criminal Procedure Code apply to acase where the proceedings against the petitioner have alreadyEbeen instituted in an ordinary Criminal Court having jurisdiction totry the matter and not at a stage where such proceedings havenot been instituted. It is clear from the affidavits filed in thepresent case that the petitioner was not brought before theMagistrate and charged with the offences for which he wasliable to be tried by the Court Martial within the meaningFof Rule 3 and so the situation contemplated by Rule 5 hasnot arisen and the requirements of that Rule are thereforenot attracted. It was pointed out by Mr Dutta that after the firstinformation report was lodged at Pallavaran police station a copythereof should have been sent to the Magistrate. But that doesGnot mean that the petitioner “was brought before the Magistrateand charged with the offences” within the meaning of Rule 3. Itis manifest that Rule 3 only applies to a case where thepolice had completed investigation and the accused isbrought before the Magistrate after submission of a charge-sheet. The provisions of this Rule cannot be invoked in aH

case where the police had merely started investigationagainst 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 thatRegulation 527 of the Defence Services Regulations has itselfprovided that in cases of unnatural death that is death due to suicide,violence or under suspicious circumstances information should begiven under Section 174 of the Criminal Procedure Code to thecivil authorities, and the conduct of Maj. Agarwal in sendinginformation to the civil police was merely in accordance with theprovisions of this particular regulation. For these reasons we holdthat counsel for the petitioner is unable to make good his argumenton this aspect of the case.”

28. From the above extract, it is evident that the Constitution Benchheld that the Rules applied in a situation where proceedings had alreadybeen instituted in an ordinary criminal court. In that case, the petitionerwas not brought before the Magistrate and charged with an offence forwhich he was liable to be tried by the court-martial. Rule 3 only applied,as the Court noted, where the police had completed the investigationand the accused was brought before the Magistrate after the submissionof the charge-sheet. The decision in Som Datt Datta (supra), in otherwords, dealt with a situation where the offender had been tried by acourt-martial. The argument that the Rules applied but had not beenfollowed by the competent officer was rejected.

29. In Joginder Singh v. State of Himachal Pradesh[20], a two-judge Bench of this Court dealt with a case where the appellant, whowas governed by the Army Act, challenged the legality of his trial andconviction for committing the offence under Section 376 of the IPC bythe Assistant Sessions Judge, Nahan. Unlike the situation before theConstitution Bench in Som Datt Datta (supra) (where the accusedhad been tried by a court-martial), in Joginder Singh (supra) the accusedhad been tried and convicted by the Sessions Court. In that case, theappellant who was subject to the Army Act was alleged to have committedrape in relation to a person who was not subject to military, naval or airforce law and hence under Section 70, the accused could normally be A

B

C

D

E

F

G

H

Atried by an ordinary criminal court. However, since the appellant was inactive service at the time of the alleged offence, the court-martial alsohad the jurisdiction to try him and the case involved a situation whereboth the court-martial and the ordinary criminal court had concurrentjurisdiction. After considering the earlier judgments of this Court in MajorEG Barsay v. State of Bombay[21], Ram Sarup (supra) and Som DattBDatta (supra), the Court observed:

“22. It is further clear that in respect of an offence which couldbe tried both by a criminal court as well as a Court-martial Sections125, 126 and the Rules, have made suitable provisions to avoid aconflict of jurisdiction between the ordinary criminal courts andCthe Court-martial. But it is to be noted that in the first instance,discretion is left to the officer mentioned in Section 125 to decidebefore which court the proceedings should be instituted. Hencethe officer commanding the army, army corps, division orindependent brigade in which the accused person is serving orDsuch other officer as may be prescribed will have to exercise hisdiscretion and decide under Section 125 in which court theproceedings shall be instituted. It is only when he so exerciseshis discretion and decides that the proceedings should beinstituted before a Court-martial, that the provisions ofSection 126 (1) come into operation. If the designated officerEdoes not exercise his discretion and decides that theproceedings should be instituted before a Court-martial,the Army Act would not obviously be in the way of a criminalcourt exercising its ordinary jurisdiction in the mannerprovided by law.”F(emphasis supplied)

30. In the above observation, the Court clarified that Sections125 and 126 have made provisions to avoid a conflict of jurisdictionbetween ordinary criminal courts and a court-martial in respect of anoffence which could be tried by both the criminal court and by a court-Gmartial. The Court observed that Section 125 leaves the discretion, inthe first instance, with the competent officer and it is only when he soexercises the discretion and decides that the proceedings should beinstituted before a court-martial that Section 126 would come intooperation. If the designated officer does not exercise this discretion to H21 (1962) 2 SCR 195

institute proceedings before a court-martial, the Army Act would notinterdict the exercise of jurisdiction by the ordinary criminal court. Afteradverting to the provisions of the Rules, the Court noted:

“29. Rule 4 is related to clause (a) of Rule 3 and will be attractedonly when the Magistrate proceeds to conduct the trial withouthaving been moved by the competent military authority. It is nodoubt true that in this case the Assistant Sessions Judgehas not given a written notice to the Commanding Officeras envisaged under Rule 4. But, in our view, that wasunnecessary. When the competent military authorities,knowing full well the nature of the offence alleged againstthe appellant, had released him from military custody andhanded him over to the civil authorities, the Magistratewas justified in proceeding on the basis that the militaryauthorities had decided that the appellant need not be triedby the Court-martial and that he could be tried by theordinary criminal court.”

31. In Joginder Singh (supra) therefore the Court noted thatthe absence of a written notice to the competent officer under Rule 4was unnecessary where the competent military authorities, knowing aboutthe nature of the offence alleged against the appellant, released himfrom military custody and handed him over to the civil authorities. Insuch a situation, it was held that the Magistrate was justified in proceedingon the basis that the military authorities had decided that the appellantneed not be tried by a court-martial and that he should be tried by theordinary criminal court.

32. The next decision to which a reference has to be made is thatof a three-judge Bench decision in Delhi Special PoliceEstablishment, New Delhi v. Lt. Col. SK Loraiya[22]. The respondentin that case was a Lieutenant Colonel in the service of the Army andwas charged by the Special Judge, Gauhati for offences punishable underSection 120B of the IPC read with Section 5(1)(c) and (d) and Section5(2) of the Prevention of Corruption Act 1988. A revision against theframing of charges was allowed by the High Court. The order of theHigh Court quashing the charges was assailed before this Court. In thatcontext, the Court held:

22 (1972) 2 SCC 692

A

B

C

D

E

F

G

H

22 (1972) 2 SCC 692

A

B

C

D

E

F

G

H

A“9. As regards the trial of offences committed by army men, theArmy Act draws a threefold scheme. Certain offences enumeratedin the Army Act are exclusively triable by a Court-Martial; certainother offences are exclusively triable by the ordinary CriminalCourts; and certain other offences are triable both by the ordinarycriminal court and the Court-Martial. In respect of the last categoryBboth the courts have concurrent jurisdiction. Section 549(1) CrPCis designed to avoid the conflict of jurisdiction in respect of thelast category of offences. The clause “for which he is liable to betried either by the court to which this Code applies or by a Court-Martial” in our view, qualifies the preceding clause “when anyCperson is charged with an offence” in Section 549(1). Accordinglythe phrase “is liable to be tried either by a court to which thisCode applies or a Court-Martial” imports that the offence forwhich the accused is to be tried should be an offence of whichcognizance can be taken by an ordinary criminal court as well asa Court-Martial. In our opinion, the phrase is intended toDrefer to the initial jurisdiction of the two courts to takecognizance of the case and not to their jurisdiction to decideit on merits. It is admitted that both the ordinary criminalcourt and the Court-Martial have concurrent jurisdictionwith respect to the offences for which the respondent hasEbeen charged by the Special Judge. So, Section 549 andthe rules made thereunder are attracted to the case athand.”

33. The Court noted that it was an admitted fact that the procedureFspecified in Rule 3 was not followed by the Special Judge, Gauhati beforeframing the charges. The Court held that Section 549(1) of the Code ofCriminal Procedure1898 (equivalent to Section 475 of the CrPC) had tobe construed in the light of Section 125 of the Army Act and both theprovisions had in mind the object of avoiding a collision between the ordinary criminal court and the court-martial. In this backdrop, the orderGof 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 Kerala[23]arose from a case where three naval officers werearrested for offences punishable under Sections 143, 147, 148, 452, 307,

326 and 427 read with Section 149 of the IPC. An application was filedby the Commanding Officer of the Naval Unit for handing over theaccused for trial under the Navy Act 1957. The application was rejectedby the Magistrate on the ground that the stage for consideration wouldonly be on the completion of the police investigation. The order of theMagistrate was challenged before the High Court in revision and thechallenge was rejected. The two-judge Bench held that the decision inSom Datt Datta (supra) governed the case and the option as to whetherthe accused should be tried before the criminal court or by a court-martial could be exercised only after the police had completed theinvestigation and submitted the charge-sheet. In that case, the policehad merely commenced the investigation and hence the rejection of therequest of the Commanding Officer by the Magistrate was upheld.

35. In Extra-Judicial Execution Victim Families Associationand Another v. Union of India[24], a submission was urged on behalf ofthe Union of India that an offence committed by a member of the ArmedForces must be tried under the provisions of the Army Act through acourt-martial and not under the CrPC. Justice Madan B Lokur, speakingfor the two-judge Bench, inter alia adverted to the decisions of theConstitution Benches in Ram Sarup (supra) and Som Datt Datta(supra). The Court also referred to the following extract from the decisionin Balbir Singh and Another v. State of Punjab[25]:

“240. In para 17 of the Report in Balbir Singh case [BalbirSingh 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 whena criminal court and court martial each have jurisdiction in respectof the trial of the offence, it shall be in the discretion of the officercommanding the group, wing or station in which the accused isserving or such other officer as may be prescribed, in the firstinstance, to decide before which court the proceedings shall beinstituted and if that officer decides that they should be institutedbefore a “court martial”, to direct that the accused persons shallbe detained in air force custody. Thus, the option to try a personsubject to the Air Force Act who commits an offence while on“active service” is in the first instance with the Air Force 24 (2016) 14 SCC 536

25 (1995) 1 SCC 90

AB

C

D

E

F

G

H

AAuthorities. The criminal court, when such an accused isbrought before it shall not proceed to try such a person orto inquire with a view to his commitment for trial and shallgive a notice to the Commanding Officer of the accused, todecide whether they would like to try the accused by a courtmartial or allow the criminal court to proceed with the trial.BIn case, the Air Force Authorities decide either not to trysuch a person by a court martial or fail to exercise the optionwhen intimated by the criminal court within the periodprescribed by Rule 4 of the 1952 Rules (supra), the accusedcan be tried by the ordinary criminal court in accordanceCwith the Code of Criminal Procedure. On the other hand ifthe Authorities under the Act opt to try the accused by the“court martial”, the criminal court shall direct delivery ofthe custody of the accused to the Authorities under the Actand to forward to the Authorities a statement of the offenceof which he is accused. It is explicit that the option to tryDthe accused subject to the Act by a court martial is with theAir Force Authorities and the accused person has no optionor right to claim trial by a particular forum. …

… However, in the event the criminal court is of the opinion, forreasons to be recorded, that instead of giving option to theEAuthorities under the Act, the said court should proceed with thetrial of the accused, without being moved by the competent authorityunder the Act and the Authorities under the Act decide to thecontrary, the conflict of jurisdiction shall be resolved by the CentralGovernment under Section 125(2) of the Act and the decision asto the forum of trial by the Central Government in that eventualityFshall be final.””

36. The Court also adverted to the following extract from thedecision in the Additional Director General, Army Headquarters v.Central Bureau of Investigation[26]:G

“244. This Court in Army Headquarters case [ArmyHeadquarters v. CBI, (2012) 6 SCC 228 : (2012) 3 SCC (Cri) 88]then recorded its conclusions in para 95 of the Report and theyread as follows : (SCC p. 264)

H26 (2012) 6 SCC 228

“95. To sum up:

95.1. The conjoint reading of the relevant statutory provisionsand Rules make it clear that the term “institution” contained inSection 7 of the 1990 Act means taking cognizance of the offenceand not mere presentation of the charge-sheet by the investigatingagency.

95.2. The competent army authority has to exercise his discretionto opt as to whether the trial could be by a court martial or criminalcourt after filing of the charge-sheet and not after the cognizanceof the offence is taken by the court.

95.3. Facts of this case require sanction of the CentralGovernment 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 committedeven by Army personnel, there was no concept of absolutely immunityfrom trial by the criminal court constituted under the CrPC. Rejectingthe submission of the Union of India, the Court observed:

“246. The result of the interplay between Section 4 and Section 5CrPC and Sections 125 and 126 of the Army Act makes it quiteclear that the decision to try a person who has committed anoffence punishable under the Army Act and who is subject to theprovisions of the Army Act does not always or necessarily lieonly with the Army — the criminal court under CrPC could alsotry the alleged offender in certain circumstances in accordancewith the procedure laid down by CrPC.”

38. In the present case, the essence of the submission which hasbeen urged on behalf of the respondent is:

(i) The stage of the exercise of discretion by the Army authorityto either opt for a court-martial or for trial before the criminalcourt is after the charge-sheet is filed and before cognizancehas taken;

(ii) The Magistrate precluded the exercise of the discretion bythe Army authorities by passing an order of committal tothe Court of Sessions immediately after the charge-sheetwas filed; A

B

C

D

E

F

G

H

A(iii)There was a failure on part of the Magistrate to follow themandatory provisions of the 1978 Rules by issuing a noticeunder 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 theBArmy authorities to the police stands obliterated and in theabsence of a notice under Rule 4, the trial would standvitiated.

39. Now in evaluating this submission, a survey of the precedentindicates that Ram Sarup (supra) was a case of a court-martial wherethere was a challenge to the validity of Section 125 of the Army Act.CThe challenge was rejected on the ground that a variety of circumstancesbearing upon the exigencies of the service would determine the exerciseof 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 theDground that no notice had been issued by the competent officer to theMagistrate notifying the latter that the accused was to be tried by acourt-martial. The argument was rejected on the ground that Rule 3only applied to a situation where a person who is charged with an offenceis brought before a Magistrate, which was not the case before theConstitution Bench. In that case, the accused had been tried by theEcourt-martial and there was no involvement of the Magistrate. Thus, thechallenge that there had been a violation of the procedure mandatedunder the Criminal Courts and Court Martial (Adjustment of Jurisdiction)Rules 1952 was rejected.

41. Broadly speaking there are three categories of offences. First,Fthe provisions of Chapter VI of the Army Act indicate that where anoffence is created by the Act itself it would be exclusively triable by acourt-martial. Second, where a ‘civil offence’ is also an offence underthe Army Act or is deemed to be an offence under the Act, both theordinary criminal court as well as court-martial would have jurisdictionGto try the person committing the offence. The third category (referred toin Section 70) consists of the offences of murder, culpable homicide notamounting to murder or rape committed by a person subject to the ArmyAct against a person who is not subject to military, naval or air forcelaw. 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 criminalHcourt.

42. The offence in the present case does not fall in the categoryof those offences which are triable exclusively by a court-martial (Section34 to 68) or those offences which cannot be tried by a court-martial(under Section 70). The offence with which the respondent-accused ischarged falls in the category where there is a concurrent jurisdictionbetween the court-martial and the ordinary criminal court. Hence, itneeds to be underscored that there is no inherent lack of jurisdiction inthe ordinary criminal court to conduct a trial in accordance with theprocedure envisaged in the CrPC.

43. Section 69 provides when a person who is subject to the Actshall be deemed to be guilty of an offence against the Act. Section 69 ofthe 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 thelegislature, this evinces an intent that where the latter provision isattracted, the former would give way. Where the conditions requisite forthe application of Section 70 exist, Section 69 would give way to Section70. Section 70 provides for the conditions in which a person who issubject to the Army Act shall not be deemed to be guilty of an offenceunder 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 wouldnot exercise jurisdiction (unless the case falls under the exceptions toSection 70). When the provisions of Section 70 apply, a person who issubject to the Army Act is not deemed to be guilty of an offence underthe Act if the ingredients of that provision are fulfilled. The ingredientsof Section 70 are:

(i) The offence must be committed by a person subject to theArmy Act;

(ii) The offence must be committed against a person who isnot subject to military, naval or air force law; and

(iii) The offence must be of murder, culpable homicide notamounting to murder or rape.

Where these conditions apply, the person is not deemed to beguilty 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 applicationunder Section 70 do not stand attracted for the reason that the offence AB

C

D

E

F

G

H

Ain the present case was committed against a person who was subject tomilitary law and in any event, the offence was committed by therespondent while on active service in Sikkim. Since Section 70 has noapplication, the respondent who is alleged to have committed a ‘civiloffence’ in India would be subject to the provisions of the Army Act asprovided by Section 69. The crucial words of Section 69 however areBthat an accused “shall be deemed to be guilty of an offence againstthis Act” and “if charged therewith under this section, shall be liableto 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 “thissection”, that is Section 69. The language of Section 69 is a clear indicatorCthat it does not ipso jure oust the jurisdiction of the ordinary criminalcourt. Where there exists concurrent jurisdiction in the court-martialand in the ordinary criminal court, primarily the discretion of conductingthe court-martial in preference to a trial by the ordinary criminal court isentrusted to the designated officer under Section 125. The designatedofficer has been conferred with the discretion “to decide before whichDcourt the proceedings shall be instituted”. Moreover, Section 125has 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 thatthe competent officer has the discretion to decide before which courtEthe proceedings shall be instituted and if the officer exercises thatdiscretion to institute proceedings before a court-martial, then the officerwill direct that the accused be detained in military custody. Section 125,in other words, not only recognizes that an element of discretion hasbeen vested in the designated officer, but it also postulates that thedesignated officer should have decided that the proceedings be institutedFby the court-martial in which event the court-martial would take place.

45. Significantly, in the present case there was no decision by thedesignated officer to institute proceedings before a court-martial in termsof Section 125. The argument on the absence of compliance with Rule 3and Rule 4 of the 1978 Rules is misconceived. The 1978 Rules, whichGhave been made pursuant to Section 126 of the Army Act and Section475 of the CrPC, were intended to obviate a conflict of jurisdiction whereboth the Army authorities under a court-martial as well as the ordinarycriminal court assert jurisdiction to try a person for the same offence.Section 126(2) provides the modality for the resolution of a conflict byHthe Central Government. The rules which have been framed under Section 475 of the CrPC provide for the issuance of a notice by the Magistrateto the competent officer in order to enable the competent officer to takea considered decision on whether the interest of the service wouldwarrant a trial by a court-martial. But the present case does not involvea conflict in the exercise of jurisdiction in the first place. The entiresequence of events both before and after the completion of investigationprovides a clear indicator that the Commanding Officer took a consciousdecision that the investigation and trial should be conducted in accordancewith the provisions of the CrPC. In the earlier part of this judgment, wehave narrated these circumstances namely:

(i) the handing over of the accused by the Army to the custodyof the police;

(i) the handing over of the accused by the Army to the custodyof the police;

(ii) the co-operation of the Commanding Officer, Colonel RRNair, in meeting the requisitions of the Investigating Officer;

(iii) the recording of the statement of the informant under Section164 of the CrPC;

(iv) the recording of the evidence of the Commanding Officerduring the course of the criminal trial, thereby indicating aclear intent that the trial would proceed in terms of thejurisdiction of the ordinary criminal court.

46. The respondent-accused has relied on the decision of thisCourt in Loraiya (supra), to urge that the provisions of Section 475 ofthe CrPC are mandatory, that is, the Magistrate must issue notice to theCommanding Officer to enable him to exercise the option of a trial bycourt-martial or by a criminal court. The submission is that since theprocedure under this provision and Rule 4 of the 1978 Rules was notfollowed, the trial stands vitiated. We do not find this submission to bepersuasive. The decision in Loraiya (supra) is distinguishable. Loraiya(supra) involved the framing of charges under the Prevention ofCorruption Act 1988 and the IPC against a person subject to the ArmyAct. The judgment of this Court does not contain any indication of adeferral to the jurisdiction of the ordinary criminal court by the Armyauthorities, as in the present case.

47. The High Court has found fault with the prosecution in notproducing certified copies of the decision of the Army authorities todefer to the jurisdiction of the criminal court. But even keeping thatdecision aside, it is abundantly clear that far from there being any decision A

B

C

D

E

F

G

H

Aby the competent officer regarding the institution of proceedings beforethe court-martial, there was in the present case an unequivocal and clearacceptance of the jurisdiction of the ordinary criminal court coupled withexplicit cooperation with the Court of Sessions.

48. The respondent has also submitted that the proceedings beforeBthe Sessions Judge would be in violation of the Section 461(l) of theCrPC. The submission is thoroughly misconceived as Section 461(l)indicates that if a Magistrate has not been empowered by law to try anoffender, then the proceedings would be void. For the reasons, we haveindicated above, it is clear that the Sessions Judge had the jurisdiction totry the offender and thus, the provisions of Section 461(l) of the CrPCChave no application.

49. During the course of the proceedings, Mr Pradeep KumarDey urged before this Court that in case the trial is conducted by theordinary criminal court and not a court-martial under the Army Act, therespondent would not be able to avail the benefit of being awarded aDlower 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 thisAct 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, ifEcharged therewith under this section, shall be liable to be tried bya court-martial and, on conviction, be punishable as follows, thatis to say,—

(a) if the offence is one which would be punishable underany law in force in India with death or with transportation,Fhe shall be liable to suffer any punishment, other thanwhipping, assigned for the offence, by the aforesaid law andsuch 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 forceGin India, or imprisonment for a term which may extend to sevenyears, or such less punishment as is in this Act mentioned.”

Sub-section (a) of Section 69 states if a person is convicted of a‘civil offence’ which is punishable with death or transportation under theHlaw in force, then he shall be liable to suffer any punishment, other than

whipping, assigned for the offence by the aforesaid law andsuch lesspunishment as is in this Act mentioned. In contrast with sub-Section (a),sub-Section (b) provides that in all other offences, the person convictedshall be liable to suffer the punishment assigned under the laws in forceorimprisonment for a term which may extend to seven years, or such lesspunishment as provided in the Act. The words of the statute clearly indicatethat the legislature provided different punishments for serious offenceswhich under law are punishable with death or life imprisonment, and forall other offences. In case of the former, sub-Section (a) of Section 69provides that the court-martial may convict him and punish him with deathor life imprisonment. In addition to this, the court-martial may also give alesser punishment under the Army Act (such as cashiering, dismissal fromservice, etc., provided under Section 71[27]). The use of the word “and” insub-Section (a) clarifies the intent of the legislature, which is to ensurethat the Army authorities have sufficient discretion to grant a punishment 27 “71. Punishments awardable by court-martial. Punishments may be inflicted inrespect 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 notless than seven years;

(c) imprisonment either rigorous or simple, for any period not exceeding fourteenyears; (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, inthe case of warrant officers; and reduction to (he ranks or to a lower rank or grade, in thecase of non-commissioned officers:Provided that a warrant officer reduced to the ranks shall not be required to serve in theranks as a sepoy; (g) forfeiture of seniority of rank, in the case of officers, junior commissioned officers,warrant officers and non-commissioned officers; and forfeiture of all or any part oftheir service for the purpose of promotion, in the case of any of them whose promotiondepends upon length of sendee; (h) forfeiture of service for the purpose of increased pay, pension or any other prescribedpurpose;

(i) severe reprimand or reprimand, in the case of officers, junior commissioned officers,warrant officers and non-commissioned officers; (j) forfeiture of pay and allowances for a period not exceeding three months for anoffence committed on active service; (k) forfeiture in the case of a person sentenced to cashiering or dismissal from theservice of all arrears of pay and allowances and other public money due to him at thetime of such cashiering or dismissal:

(l) stoppage of pay and allowances until any proved loss or damage occasioned by (heoffence of which he is convicted is made good.”

A

B

C

D

E

F

G

H

Afor serious offences, over and beyond what is permissible under PenalCode. This however, does not imply that a person who is otherwise liablefor death or life imprisonment can be granted a lesser punishment underthe 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 otherlaw are of less severity, the Army authorities may order a lesser punishment.BIf the argument of the respondent is accepted, it would imply that a personwho is convicted and punished by a Court-martial under the Army Act willbe in an advantageous position than a person who, though subject to theArmy Act, has been convicted by an ordinary criminal court. If that wasthe intent of the legislature- that is to protect persons subject to the Army CAct by awarding them lesser punishment even for serious offences - thenthe Act would not have provided for concurrent jurisdiction of court-martialand ordinary criminal courts at all. Although the Army Act is special law inthis case as compared to the IPC, if the statute in its text does not makeany qualifications or exceptions to the general law, it would be impermissiblefor the court to read such qualifications in the Act. Thus, we are unable toDaccept this submission of the respondent.

D Conclusion

51. For the above reasons, we find that the High Court was in errorin affirming, in the exercise of its revisional jurisdiction, the decision of theSessions Judge that the court-martial alone would have jurisdiction. BothEon law and in fact, the position is to the contrary. The Sessions Judge wascompetent and there was no error in the assumption or the exercise of thejurisdiction. The consequence of the decision of the High Court is to foistan obligation on the Army Authorities to hold a court-martial despite aclear and unequivocal submission to the jurisdiction of the Court of Sessions.FWe accordingly allow the appeal and set aside impugned judgment of theSingle Judge of the High Court of Sikkim dated 6 April 2019 in CriminalRevision Petition No 2 of 2017. The respondent-accused shall be transferredfrom military custody to civil custody to face trial.

52. The trial would proceed from the stage that was reachedwhen the Sessions Judge decided that there was an absence ofGjurisdiction. The trial shall be proceeded with and be concluded inaccordance with law. The appeal is allowed in the above terms.

53. Pending applications, if any, shall stand dismissed.

HAnkit Gyan