To Protect Persons Subject To Army Act By Awarding Them Lesser Punishment Even For Serious Offences Is Not The Intention Of Legislature: SC

The Court noted, if this was the intention, the Act would not have provided for concurrent jurisdiction of Court-Martial and ordinary Criminal Courts at all.

The Court was considering, in appeal, a judgment of the Single Judge of the Sikkim High Court via which, while exercising revisional jurisdictional under Sections 397, 401, 482 CrPC, the High Court had upheld the order of Session Judge direction CJM to furnish a written notice to the Commanding Officer of the unit of the accused and deliver him for trial by a court-martial.

Mr. Vivek Kohli, Advocate General appeared on behalf of the State of Sikkim. The challenge of the State was supported by the Union via Mr. Aman Lekhi, ASG. The arguments on behalf of the respondent/accused were made by Mr Pradeep Kumar Dey, Senior Counsel.

The Court noted that Chapter VI of the Army Act deals with offences. The Court noted that Section 125 deals with a situation where both a criminal court and a court-martial have jurisdiction in respect of an offence.

The Court held that "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, in other words, 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."

The Court noted that Sections 125 and 126 operate in different domains. The Court noted that Section 126 recognizes that in the event of a difference of view between the officer designated under Section 125 and the criminal court under 126, the matter has to be referred to the Central Government for resolution.

The Court noted that Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules 1952 were framed under Section 475 of CrPC.

The Court noted that there were three categories of offences. The Court made the following observations:

"First, the provisions of Chapter VI of the Army Act indicate that where an offence is created by the Act itself it would be exclusively triable by a court-martial. Second, 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. 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."

The Court noted that Section 70 of the Army Act provides for where the Court-Martial would not exercise jurisdiction and when the provisions would apply, the person who is subject to the Army Act is not deemed to be guilty of an offence under the Act if ingredients of that provision are fulfilled.

The Court noted that in the present case the conditions requisite for the application under Section 70 did not stand attracted for the reason that the offence in the present case was committed against a person who was subject to military law and in any event, the offence was committed by the respondent while on active service in Sikkim.

The Court noted that the liability of the court-martial would rise if the person is charged with an offence under "this section", i.e., Section 69.

The Court held that the language of Section 69 was a clear indicator that it did not ipso jure oust the jurisdiction of the ordinary criminal court.

The Court held that Section 125 not only recognizes that an element of discretion has been bested in the designated officer but also postulates that the designated officer should have decided that the proceedings be instituted by the court-martial in which event the court-martial would take place.

The Court noted that in this case there was no decision by the designated officer to institute proceedings before a court-martial in terms of Section 125.

The Court made the following crucial observations:

"If the argument of the respondent is accepted, it would imply that a person who is convicted and punished by a Court-martial under the Army Act will be in an advantageous position than a person who, though subject to the Army Act, has been convicted by an ordinary criminal court. If that was the intent of the legislature - that is to protect persons subject to the Army Act by awarding them lesser punishment even for serious offences - then the Act would not have provided for concurrent jurisdiction of court-martial and ordinary criminal courts at all. Although the Army Act is special law in this case as compared to the IPC, if the statute in its text does not make any qualifications or exceptions to the general law, it would be impermissible for the court to read such qualifications in the Act. Thus, we are unable to accept this submission of the respondent."

The Court, therefore, held that the High Court fell in error in affirming the exercise of revisional jurisdiction and the decision of Sessions Judge that only court-martial would have jurisdiction alone.

The Court noted that "The Sessions Judge was competent and there was no error in the assumption or the exercise of the jurisdiction. The consequence of the decision of the High Court is to foist an obligation on the Army Authorities to hold a court-martial despite a clear and unequivocal submission to the jurisdiction of the Court of Sessions. We accordingly allow the appeal and set aside impugned judgment of the Single Judge of the High Court of Sikkim dated 6 April 2019 in Criminal Revision Petition No 2 of 2017. The respondent-accused shall be transferred from military custody to civil custody to face trial."

The Court noted that the trial would proceed from the stage that was reached when Sessions Judge decided there was no jurisdiction.

The appeal was accordingly allowed.