Supreme Court Clarifies Jurisdiction in Army Act Cases: State of Sikkim vs. Jasbir Singh (01 February 2022)

Date of the Judgment: 01 February 2022
Citation: Criminal Appeal No. 85 of 2022
Judges: Dr. Dhananjaya Y Chandrachud, J, Surya Kant, J
Can a member of the armed forces, accused of a crime, be tried in a regular criminal court or only by a court-martial? This was the core question before the Supreme Court in a recent case. The Supreme Court of India has clarified the circumstances under which a member of the armed forces can be tried by a regular criminal court instead of a court-martial, focusing on the discretion of the commanding officer and the importance of procedural compliance. The judgment was authored by Justice Dr. Dhananjaya Y Chandrachud, with Justice Surya Kant concurring.

Case Background

On December 14, 2014, Lance Naik Rajesh Kumar of the Indian Army filed a First Information Report (FIR) at the Sadar Police Station in Gangtok. He reported that he heard gunshots in the barracks and found Lance Naik Jasbir Singh firing an INSAS rifle at Rifleman Balbir Singh. The incident occurred between 6:30 PM and 6:45 PM. Jasbir Singh escaped after being confronted but was later apprehended. Balbir Singh was suspected to be dead at the scene.

On December 15, 2014, the military authorities handed over Jasbir Singh to the police. The Investigating Officer (IO) informed the Commanding Officer (CO) of the 17 Mountain Division Pro Unit that an FIR under Section 302 of the Indian Penal Code 1860 (IPC) had been registered against Jasbir Singh. The IO requested documents related to Jasbir Singh’s appointment, duty chart, weapon issue register, and any previous offenses.

In response, on December 27, 2014, the CO provided the requested documents, stating that Jasbir Singh had withdrawn the weapon for piloting duty on December 14, 2014, but had unauthorizedly accessed it to commit the offense. On January 12, 2015, the IO recorded the statement of Lance Naik Rajesh Kumar. On February 13, 2015, a charge sheet was submitted against Jasbir Singh for offenses under Sections 302 and 308 of the IPC. The case was then committed to the Principal Sessions Judge, and on July 15, 2015, charges were framed against Jasbir Singh under Sections 302 and 308 of the IPC and Section 25(1-B)(a) of the Arms Act 1959. The charge under the Arms Act was later altered to Section 27(3) on November 18, 2015.

During the trial, on June 18, 2016, the Sessions Judge summoned Colonel RR Nair, the CO. On July 7, 2016, the court was informed that Colonel Nair was on leave. Colonel Nair was finally examined as PW19 on July 28, 2016. After the evidence was recorded, the counsel for the accused argued that since both the accused and the deceased were subject to the Army Act 1950, the accused should be tried by a General Court-Martial, not the Sessions Court. On March 9, 2017, the Sessions Judge agreed, stating that the court lacked jurisdiction and directed the Chief Judicial Magistrate to notify the CO for a court-martial.

Timeline:

Course of Proceedings

The Sessions Court, after hearing final arguments, concluded that it lacked jurisdiction to try the case because the accused was subject to the Army Act. The court directed the Chief Judicial Magistrate to notify the Commanding Officer (CO) of the accused’s unit for a court-martial. This decision was challenged in revision before the Sikkim High Court.

The Sikkim High Court upheld the Sessions Court’s decision, emphasizing that the procedure under Sections 125 and 126 of the Army Act, Section 475 of the Code of Criminal Procedure 1973 (CrPC), and the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules 1978 had not been followed. The High Court noted that both the accused and the deceased were subject to the Army Act and that the Army had not provided sufficient evidence that it had exercised its discretion to try the accused in the criminal court. The High Court rejected a minute sheet produced by the Army, stating it was not presented before the Sessions Judge and was a photocopy, not a certified copy. Consequently, the High Court dismissed the revision petition.

Following the High Court’s judgment, the General Officer Commanding (GOC) of the 17 Mountain Division Pro Unit, Maj. General. RC Tiwari, exercised his powers under Section 125 of the Army Act and decided that the proceedings against Jasbir Singh should be instituted in the criminal court. However, the Chief Judicial Magistrate rejected this application, citing the Sessions Judge’s order, which had been upheld by the High Court. The Magistrate directed that Jasbir Singh be handed over to the military authorities, which occurred on April 23, 2019. Jasbir Singh retired from service on March 31, 2020, and the Army authorities extended his detention on the same day.

Legal Framework

The case revolves around the interpretation of several key legal provisions:

• Section 69 of the Army Act 1950: This section states that any person subject to the Army Act who commits a civil offense is deemed guilty of an offense against the Act and can be tried by a court-martial. “Subject to the provisions of section 70, any person subject to this Act 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, if charged therewith under this section, shall be liable to be tried by a court-martial…”
• Section 70 of the Army Act 1950: This section specifies that certain civil offenses, such as murder, culpable homicide, and rape against non-military personnel, are not triable by court-martial unless committed under specific circumstances. “A person subject to this Act who commits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to 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 this behalf.”
• Section 125 of the Army Act 1950: This section grants the Commanding Officer discretion to decide whether an offense should be tried by a criminal court or a court-martial when both have jurisdiction. “When a criminal court and a court- martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer commanding the army, army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which court the proceedings shall be instituted, and, if that officer decides that they should be instituted before a court- martial, to direct that the accused person shall be detained in military custody.”
• Section 126 of the Army Act 1950: This section outlines the powers of a criminal court to require the delivery of an offender. It allows a criminal court to notify the officer mentioned in Section 125 to either deliver the offender to the nearest magistrate or postpone proceedings pending a reference to the Central Government. “When a criminal court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged offence, it may, by written notice, require the officer referred to in section 125 at his option, to either deliver the offender to the nearest magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central Government. In every such case the said officer shall either deliver the offender in compliance with the requisition, or shall forthwith refer the question as to the court before which the proceedings are to be instituted for the determination by the Central Government, whose order upon such reference shall be final.”
• Section 475 of the CrPC: This section empowers the Central Government to make rules regarding the cases in which persons subject to military law shall be tried by a criminal court or a court-martial. “(1) The Central Government may make rules consistent with this Code and the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957), and the Air Force Act, 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 air force law, or such other law, shall be tried by a Court to which this Code applies or by a Court-martial, and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which this Code applies or by a Court-martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the commanding officer of the unit to which he belongs, or to the commanding officer of the nearest military, naval or air-force station, as the case may be, for purpose of being tried by a Court-martial.”
• Rules 3, 4, and 5 of the Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules 1978: These rules specify the procedure to be followed when a person subject to military law is brought before a Magistrate and is charged with an offense triable by a court-martial. These rules mandate that the Magistrate must give a notice to the Commanding Officer before proceeding with the trial.

These provisions are crucial for understanding the jurisdictional conflict between the criminal courts and court-martials in cases involving armed forces personnel.

Arguments

Arguments by the State of Sikkim:

• The State argued that both criminal courts and court-martials have concurrent jurisdiction, with the discretion lying with the Commanding Officer under Section 125 of the Army Act.
  
• The State contended that the Commanding Officer can exercise discretion in three ways: affirmatively choosing a court-martial, choosing not to have a court-martial, or by conduct indicating the exercise of discretion.
  
• The State asserted that when the Commanding Officer does not explicitly choose a court-martial, the absence of objection to a criminal court trial indicates tacit approval.
  
• The State relied on the Supreme Court’s decision in Joginder Singh v. State of Himachal Pradesh, stating that if the designated officer does not choose a court-martial, the criminal court can exercise its jurisdiction.
  
• The State argued that in this case, the Commanding Officer exercised discretion by handing over the accused to the IO, cooperating with the investigation, and participating in the criminal court proceedings.
  
• The State pointed out that the Sessions Judge’s order reversed the proceedings at the final argument stage and that the limitation period for a court-martial under Section 122 of the Army Act had expired.
  

Arguments by the Union of India:

• The Union of India supported the State’s arguments, citing Joginder Singh v. State of Himachal Pradesh, where the Army authorities handed over custody of the accused to the police.
  
• The Union of India categorized offenses under the Army Act into those triable exclusively by court-martial, those triable by criminal court (with exceptions), and those with concurrent jurisdiction.
  
• The Union of India argued that the Army authorities, by handing over the accused to the IO, indicated they did not want a court-martial.
  

Arguments by the Respondent:

• The respondent argued that Sections 69 and 70 of the Army Act mandate a trial by court-martial, not by an ordinary criminal court.
  
• The respondent contended that Sections 125 and 126 operate in different spheres, with Section 125 relating to the discretion of the Army authorities and Section 126 dealing with the criminal court’s power to require delivery of an offender.
  
• The respondent argued that the procedure under Section 475 of the CrPC and the 1978 Rules had not been followed, making the trial before the criminal court null and void.
  
• The respondent claimed that the trial before the criminal court would cause serious prejudice and result in a failure of justice.
  
• The respondent argued that Joginder Singh was contrary to the Constitution Bench judgments in Som Datt Datta v. Union of India and Ram Sarup v. Union of India.
  
• The respondent argued that the discretion under Section 125 must be exercised after the charge sheet is filed but before cognizance is taken, and that the Army’s decision was taken before the charge sheet.
  
• The respondent argued that the Magistrate failed to issue a notice to the Commanding Officer under the 1978 Rules and committed the case to the Sessions Court prematurely.
  
• The respondent contended that he could still be tried by a court-martial under Section 123 of the Army Act, given his retirement date.
  

Submissions of Parties

Issues Framed by the Supreme Court

The Supreme Court addressed the following key issues:

1. Whether the Sessions Court had the jurisdiction to try the accused, who was subject to the Army Act, for offenses under the IPC and the Arms Act.
2. Whether the High Court was correct in holding that the procedure mandated under the Army Act, CrPC, and the 1978 Rules was not followed.
3. Whether the discretion under Section 125 of the Army Act was correctly exercised by the Army authorities.
4. Whether the trial conducted by the Sessions Court was valid given the provisions of Section 461(l) of the CrPC.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

On Concurrent Jurisdiction and Discretion

• Ram Sarup v. Union of India, AIR 1965 SC 247, Supreme Court of India: The Court discussed the considerations that should guide the decision of the officer regarding trial by court-martial or an ordinary court. It noted that the choice is with the military officer based on the exigencies of the service and maintenance of discipline.
  
• Som Datt Datta v. Union of India, AIR 1969 SC 414, Supreme Court of India: The Court clarified that both ordinary criminal courts and court-martials have jurisdiction when a civil offense is also an offense under the Army Act. It also clarified that the rules apply when proceedings have already been instituted in an ordinary criminal court.
  
• Joginder Singh v. State of Himachal Pradesh, (1971) 3 SCC 86, Supreme Court of India: The Court held that if the designated officer does not exercise discretion to institute proceedings before a court-martial, the Army Act does not prevent a criminal court from exercising its jurisdiction. It also clarified that the absence of a written notice under Rule 4 was unnecessary when the military authorities had handed over the accused to civil authorities.
  
• Delhi Special Police Establishment, New Delhi v. Lt. Col. SK Loraiya, (1972) 2 SCC 692, Supreme Court of India: The Court noted that Section 549(1) of the Code of Criminal Procedure 1898 (equivalent to Section 475 of the CrPC) had to be construed in the light of Section 125 of the Army Act to avoid conflict between criminal courts and court-martials.
  
• Extra-Judicial Execution Victim Families Association and Another v. Union of India, (2016) 14 SCC 536, Supreme Court of India: The Court reiterated that there is no absolute immunity for Army personnel from trial by criminal courts under the CrPC.
  

On Interpretation of Section 69 and 70 of the Army Act

• Section 69 of the Army Act 1950: The Court interpreted this section to mean that a person committing a civil offense is deemed guilty under the Army Act and liable to be tried by a court-martial, but this does not oust the jurisdiction of the ordinary criminal court.
  
• Section 70 of the Army Act 1950: The Court clarified that this section applies when an offense is committed against a person not subject to military law, and it would not apply in the present case as the offense was committed against a person subject to military law.
  

On the Procedure under CrPC and 1978 Rules

• Section 475 of the CrPC: The Court discussed the rule-making power of the Central Government and the procedure when a person is charged with an offense triable by both a criminal court and a court-martial.
  
• Rules 3, 4, and 5 of the Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules 1978: The Court clarified that these rules are intended to avoid conflicts of jurisdiction, and the Magistrate is required to issue a notice to the Commanding Officer to enable them to decide on the forum of trial.
  

Authorities Considered by the Court

Judgment

How each submission made by the Parties was treated by the Court?

Reasoning of the Court

The Supreme Court’s reasoning was based on the following key points:

• Concurrent Jurisdiction: The Court reiterated that both criminal courts and court-martials have concurrent jurisdiction over offenses committed by army personnel.
  
• Discretion of the Commanding Officer: The Court emphasized that the discretion under Section 125 of the Army Act lies with the Commanding Officer. This discretion can be exercised affirmatively by choosing a court-martial, negatively by choosing not to have a court-martial, or by conduct indicating the exercise of discretion.
  
• Tacit Approval: The Court held that when the Commanding Officer does not explicitly choose a court-martial and hands over the accused to the police, cooperates with the investigation, and participates in the criminal court proceedings, it indicates a tacit approval for the criminal court to exercise jurisdiction.
  
• Purpose of the 1978 Rules: The Court clarified that the 1978 Rules were intended to avoid conflicts of jurisdiction. Since the Commanding Officer had implicitly consented to the criminal court’s jurisdiction, the rules were not applicable in this case.
  
• Interpretation of Sections 69 and 70: The Court interpreted Section 69 to mean that a person committing a civil offense is deemed guilty under the Army Act, but this does not oust the jurisdiction of the ordinary criminal court. It clarified that Section 70 applies when an offense is committed against a person not subject to military law, which was not the case here.
  
• Validity of Trial: The Court held that the proceedings before the Sessions Judge were valid, as the Sessions Judge had the jurisdiction to try the offender.
  

The Court concluded that the High Court had erred in holding that the Sessions Court lacked jurisdiction and that the procedure under the Army Act, CrPC, and the 1978 Rules had not been followed. The Supreme Court set aside the High Court’s order and allowed the criminal court to proceed with the trial.

Conclusion

The Supreme Court’s judgment in State of Sikkim v. Jasbir Singh clarified the jurisdictional issues between criminal courts and court-martials in cases involving armed forces personnel. The Court emphasized the discretion of the Commanding Officer under Section 125 of the Army Act and held that this discretion can be exercised implicitly through conduct. This judgment underscores the principle that the Army Act does not provide absolute immunity to military personnel from trial by ordinary criminal courts and that procedural rules should not be interpreted to impede the course of justice when the intent of the relevant authorities is clear. The Supreme Court’s decision allows the criminal trial to proceed, ensuring that justice is served and that the accused is held accountable for the alleged offenses.