Supreme Court settles jurisdiction of Criminal Court vs. Court Martial under Army Act in murder case: State of Sikkim vs. Jasbir Singh (2022)

Date of the Judgment: 01 February 2022
Citation: Criminal Appeal No. 85 of 2022
Judges: Dr Dhananjaya Y Chandrachud, J and Surya Kant, J
Can a civil court try a member of the armed forces for an offense that could also be tried by a court-martial? The Supreme Court of India addressed this crucial question in a recent judgment, clarifying the interplay between criminal courts and court-martials under the Army Act, 1950. This case involved a soldier accused of murder, and the central issue was whether he should be tried by a civil court or a court-martial. The Supreme Court, in a two-judge bench comprising of Dr. Dhananjaya Y Chandrachud, J, and Surya Kant, J, has now settled this issue.

Case Background

On December 14, 2014, Lance Naik Rajesh Kumar of the Indian Army filed a First Information Report (FIR) at Sadar Police Station, Gangtok. He reported that he had witnessed Lance Naik Jasbir Singh firing upon Rifleman Balbir Singh inside their barracks. The incident occurred between 6:30 PM and 6:45 PM. Following the incident, the accused, Jasbir Singh, escaped, but was later apprehended.

The custody of the accused was handed over to the Investigating Officer (IO) on December 15, 2014. The IO requested various documents from the Commanding Officer (CO) of the 17 Mountain Division Pro Unit for the investigation. These documents included the accused’s appointment order, duty chart, weapon issue register, and records of any previous offenses.

In response, on December 27, 2014, the CO provided the requested documents, noting that while the accused had legitimately withdrawn the weapon for duty, he had unauthorizedly accessed it when committing the offense. On January 12, 2015, the IO recorded the statement of the informant, Rajesh Kumar. Subsequently, on February 13, 2015, the IO filed a charge-sheet against Jasbir Singh under Sections 302 and 308 of the Indian Penal Code (IPC), 1860.

The Chief Judicial Magistrate then committed the case to the Principal Sessions Judge, who framed charges against the accused on July 15, 2015, 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).

During the trial, the Sessions Judge, on March 9, 2017, concluded that the accused should have been tried by a court-martial, not the Sessions Court, given that both the accused and the deceased were governed by the Army Act, 1950. The Sessions Judge directed the Chief Judicial Magistrate to notify the CO of the accused’s unit for a court-martial trial.

This order was challenged in revision before the Sikkim High Court, which upheld the Sessions Court’s decision on April 6, 2019. The High Court emphasized that the procedure under Sections 125 and 126 of the Army Act, Section 475 of the Code of Criminal Procedure (CrPC), 1973 and the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978, had not been followed.

Following the High Court’s decision, the General Officer Commanding (GOC) of the 17 Mountain Division Pro Unit, on April 22, 2019, decided that the proceedings against the accused should be before the criminal court. However, the Chief Judicial Magistrate rejected this application, citing the previous orders. The accused was then handed over to the Army and has been in military custody since April 23, 2019. He retired from service on March 31, 2020, and the Army extended his detention on the same day.

Timeline

Course of Proceedings

The Sessions Judge, after hearing final arguments, concluded that the accused, being subject to the Army Act, should be tried by a court-martial. This decision was based on Section 69 of the Army Act, which states that individuals subject to the Act who commit civil offenses are liable to be tried by a court-martial.

The Sikkim High Court upheld this decision, emphasizing that the procedures outlined in Sections 125 and 126 of the Army Act, Section 475 of the CrPC, and the 1978 Rules had not been followed. The High Court noted that the Army authorities had not provided evidence of exercising their discretion to try the accused in a criminal court.

Legal Framework

Several key legal provisions are central to this case:

• 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 and, on conviction, be punishable as follows, that is to say,– (a) if the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and such 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 force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned.”
• Section 70 of the Army Act, 1950: This section specifies that certain civil offenses, such as murder or rape against a non-military person, are not triable by a court-martial unless committed while on active service, outside India, or at a frontier post.
  “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 the 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 power of a criminal court to require the delivery of an offender to the nearest magistrate. It also provides that the designated officer has the discretion either to accept the decision of the criminal court by delivering the offender or the officer may decide to refer the matter to the Central Government for its decision.
• Section 475 of the CrPC, 1973: This section empowers the Central Government to make rules regarding the cases in which persons subject to military law should be tried by a criminal court or a court-martial.
  “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.”
• Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978: These rules, framed under Section 475 of the CrPC, outline the procedure for determining jurisdiction when both a criminal court and a court-martial have jurisdiction.
  • Rule 3: Specifies that a Magistrate cannot proceed to try a person subject to military law if they are also liable to be tried by a court-martial, unless moved by a military authority or the Magistrate believes they should proceed.
  • Rule 4: Requires the Magistrate to give written notice to the Commanding Officer before proceeding under clause (b) of Rule 3.
  • Rule 5: Mandates that if the Commanding Officer subsequently decides the accused should be tried by a court-martial, the Magistrate must stay proceedings and deliver the accused to the military authorities.

Arguments

The State of Sikkim, supported by the Union of India, argued that the criminal courts and court-martials have concurrent jurisdiction, with the discretion to decide the forum of trial resting with the Commanding Officer under Section 125 of the Army Act.

The State contended that the Commanding Officer had implicitly exercised this discretion by handing over the accused to the police, cooperating with the investigation, and participating in the trial. The State also argued that the High Court failed to consider that the limitation period for a court-martial under Section 122 of the Army Act is three years from the date of the offense.

The Additional Solicitor General, Mr. Aman Lekhi, supported the State’s arguments, stating that the Army authorities had taken control of the accused and handed him over to the IO for trial by the criminal court, indicating that the Army did not want to try the accused by court-martial.

Mr. Pradeep Kumar Dey, representing the respondent-accused, argued that a trial is only possible before a court-martial, not by an ordinary criminal court, given Sections 69 and 70 of the Army Act. He contended that the discretion under Section 125 must be exercised after the charge-sheet is filed and before cognizance is taken. He also stated that the Magistrate failed to issue a notice under Rules 3 and 4 of the 1978 Rules to the Commanding Officer, which vitiated the trial.

The respondent also argued that the decision in Joginder Singh v. State of Himachal Pradesh, (1971) 3 SCC 86, is contrary to the judgments of the Constitution Bench in Som Datt Datta v. Union of India, AIR 1969 SC 414, and Ram Sarup v. Union of India, AIR 1965 SC 247.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the core issue before the court was:

1. Whether the Sessions Court had the jurisdiction to try the accused, given that he was subject to the Army Act, or whether the trial should have been conducted by a court-martial.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following cases and legal provisions:

Judgment

The Supreme Court held that the High Court erred in affirming the Sessions Judge’s decision that only a court-martial had jurisdiction. The Court clarified that the Sessions Judge was competent to try the case and had not erred in assuming or exercising jurisdiction.

The Court emphasized that there was no decision by the designated officer to institute proceedings before a court-martial under Section 125 of the Army Act. Instead, the Commanding Officer had implicitly accepted the jurisdiction of the ordinary criminal court by handing over the accused to the police, cooperating with the investigation, and participating in the trial.

Treatment of Submissions

How Each Authority was Viewed by the Court

• Ram Sarup v. Union of India, AIR 1965 SC 247: The Supreme Court discussed this case to highlight the considerations that guide the decision between a court-martial and a criminal court.
• Som Datt Datta v. Union of India, AIR 1969 SC 414: The Supreme Court discussed this case to clarify that the Rules apply when proceedings are instituted in an ordinary criminal court.
• Joginder Singh v. State of Himachal Pradesh, (1971) 3 SCC 86: The Supreme Court followed this case, stating 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 jurisdiction.
• Delhi Special Police Establishment, New Delhi v. Lt. Col. SK Loraiya, (1972) 2 SCC 692: The Supreme Court distinguished this case, clarifying it did not involve a situation where the Army authorities had deferred to the jurisdiction of the ordinary criminal court.
• SK Jha v. State of Kerala, (2011) 15 SCC 492: The Supreme Court discussed this case to note that the option to try before a criminal court or court-martial can be exercised after the charge-sheet is filed.
• Extra-Judicial Execution Victim Families Association and Another v. Union of India, (2016) 14 SCC 536: The Supreme Court discussed this case to emphasize that there is no absolute immunity for army personnel from trial by a criminal court.
• Balbir Singh and Another v. State of Punjab, (1995) 1 SCC 90: The Supreme Court discussed this case to note that the option to try a person subject to the Air Force Act is with the Air Force Authorities.
• Additional Director General, Army Headquarters v. Central Bureau of Investigation, (2012) 6 SCC 228: The Supreme Court discussed this case to note that the competent army authority has to exercise his discretion to opt as to whether the trial could be by a court martial or criminal court after filing of the charge-sheet and not after the cognizance of the offence is taken by the court.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• Lack of Decision for Court-Martial: The Court emphasized that there was no explicit decision by the designated officer to institute proceedings before a court-martial, as required by Section 125 of the Army Act.
• Tacit Approval of Criminal Court Jurisdiction: The Court noted that the actions of the Commanding Officer and the Army authorities, including handing over the accused to the police, cooperating with the investigation, and participating in the trial, indicated a clear acceptance of the criminal court’s jurisdiction.
• No Conflict of Jurisdiction: The Court clarified that the 1978 Rules were intended to resolve conflicts between the jurisdictions of the court-martial and the ordinary criminal court. In this case, there was no conflict, as the Army authorities had implicitly deferred to the criminal court’s jurisdiction.
• Competence of Sessions Judge: The Court reiterated that the Sessions Judge had the jurisdiction to try the case, and there was no error in the assumption or exercise of that jurisdiction.

Sentiment Analysis

Fact:Law Ratio

Logical Reasoning

The Supreme Court’s reasoning was based on a careful analysis of the facts and the relevant legal provisions. The Court emphasized that while the Army Act provides for the possibility of court-martials, it does not preclude the jurisdiction of ordinary criminal courts in cases where the Army authorities implicitly defer to that jurisdiction. The court also clarified that the discretion to choose between a criminal court and a court-martial lies with the Commanding Officer, and in this case, that discretion was exercised in favor of the criminal court.

Conclusion

The Supreme Court’s judgment in State of Sikkim vs. Jasbir Singh (2022) is a significant clarification of the jurisdictional interplay between criminal courts and court-martials under the Army Act, 1950. The Court’s decision underscores that while the Army Act provides for court-martials, it does not create an absolute bar on the jurisdiction of ordinary criminal courts. In cases where the Army authorities implicitly defer to the jurisdiction of the criminal court, that jurisdiction is valid. The judgment reinforces the principle that the discretion to choose the forum of trial rests with the Commanding Officer, and that this discretion can be exercised through the actions of the Army authorities in cooperating with the criminal justice system.