# THE STATE OF SIKKIM v. JASBIR SINGH & ANR

- **Citation:** [2022] 8 S.C.R. 242
- **Court:** Supreme Court of India
- **Decided:** 2022-02-01
- **Case number:** Criminal Appeal No. 85 of 2022
- **Bench:** Dr. Dhananjaya Y Chandrachud, Surya Kant
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-sikkim-v-jasbir-singh-anr-36419
- **Pages:** 37

## Headnote

Army Act - ss. 69, 70, 125, 126 - Criminal Courts and Court
Martial (Adjustment of Jurisdiction) Rules, 1978 - ss. 3, 4 and 5 -
Concurrent jurisdiction between the court-martial and the ordinary
criminal court - FIR u/s. 302 of IPC was registered against the
respondent-accused - Sessions Judge directed the Chief Judicial
Magistrate to furnish a written notice to the Commanding Officer
of the unit of the respondent-accused and deliver him for trial by a
Court-martial - High Court upheld the decision of the Session Judge
- Pursuant to the judgment of the High Court, Unit major exercised
his power u/s.125 of the Army Act and decided that the proceedings
against the respondent-accused be instituted before the criminal
court and that he be detained in the civil custody - However, it was
rejected by the Chief Judicial Magistrate in view of the order passed
by the Sessions Judge - Since that order was upheld by the High
Court, the respondent was handed over to the Army - Held: Where
there exists concurrent jurisdiction in the court-martial and in the
ordinary criminal court, primarily the discretion of conducting the
court-martial in preference to a trial by the ordinary criminal court
is entrusted to the designated officer u/s. 125 - The designated
officer has been conferred with the discretion "to decide before
which court the proceedings shall be instituted" - Moreover, s.125
has a conjunctive requirement which is amplified by the expression
"and, if that officer decides that they should be instituted before a
court-martial" - Thus, the conjunctive requirement u/s. 125 is that
the competent officer has the discretion to decide before which court
the proceedings shall be instituted and if the officer exercises that
discretion to institute proceedings before a court-martial, then the
officer will direct that the accused be detained in military custody -
In the present case, there was no decision by the designated officer
to institute proceedings before a court-martial in terms of s.125 -
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The entire sequence of events both before and after the completion
of investigation provides a clear indicator that the Commanding
Officer took a conscious decision that the investigation and trial
should be conducted in accordance with the provisions of the CrPC
- High Court was in error in affirming, in the exercise of its revisional
jurisdiction, the decision of the Sessions Judge that the court-martial
alone would have jurisdiction - Both on law and in fact, the position
is to the contrary - Sessions Judge was competent and there was no
error 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 in
the category of those offences which are triable exclusively by a
court-martial (Section 34 to 68) or those offences which cannot
be tried by a court-martial (under Section 70). The offence with
which the respondent-accused is charged falls in the category
where there is a concurrent jurisdiction between the court-martial
and the ordinary criminal court. Hence, it needs to be underscored
that there is no inherent lack of jurisdiction in the ordinary criminal
court to conduct a trial in accordance with the procedure
envisaged in the CrPC. [Para 42][273-A-B]
2. Section 69 provides when a person who is subject to the
Act shall be deemed to be guilty of an offence against the Act.
Section 69 of the 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 the legislature, this evinces an
intent that where the latter provision is attracted, the former would
give way. Where the conditions requisite for the application of
Section 70 exist, Section 69 would give way to Section 70. Section
70 provides for the conditions in which a person who is subject
to the Army Act shall not be deemed to be guilty of an offence
under the Act and shall not be tried by a court-martial. In other

## Text

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[2022] 8 S.C.R. 242
242
THE STATE OF SIKKIM
v.
JASBIR SINGH & ANR.
(Criminal Appeal No. 85 of 2022 )
FEBRUARY 01, 2022
[DR. DHANANJAYA Y CHANDRACHUD AND
SURYA KANT, JJ.]
Army Act - ss. 69, 70, 125, 126 - Criminal Courts and Court
Martial (Adjustment of Jurisdiction) Rules, 1978 - ss. 3, 4 and 5 -
Concurrent jurisdiction between the court-martial and the ordinary
criminal court - FIR u/s. 302 of IPC was registered against the
respondent-accused - Sessions Judge directed the Chief Judicial
Magistrate to furnish a written notice to the Commanding Officer
of the unit of the respondent-accused and deliver him for trial by a
Court-martial - High Court upheld the decision of the Session Judge
- Pursuant to the judgment of the High Court, Unit major exercised
his power u/s.125 of the Army Act and decided that the proceedings
against the respondent-accused be instituted before the criminal
court and that he be detained in the civil custody - However, it was
rejected by the Chief Judicial Magistrate in view of the order passed
by the Sessions Judge - Since that order was upheld by the High
Court, the respondent was handed over to the Army - Held: Where
there exists concurrent jurisdiction in the court-martial and in the
ordinary criminal court, primarily the discretion of conducting the
court-martial in preference to a trial by the ordinary criminal court
is entrusted to the designated officer u/s. 125 - The designated
officer has been conferred with the discretion "to decide before
which court the proceedings shall be instituted" - Moreover, s.125
has a conjunctive requirement which is amplified by the expression
"and, if that officer decides that they should be instituted before a
court-martial" - Thus, the conjunctive requirement u/s. 125 is that
the competent officer has the discretion to decide before which court
the proceedings shall be instituted and if the officer exercises that
discretion to institute proceedings before a court-martial, then the
officer will direct that the accused be detained in military custody -
In the present case, there was no decision by the designated officer
to institute proceedings before a court-martial in terms of s.125 -
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The entire sequence of events both before and after the completion
of investigation provides a clear indicator that the Commanding
Officer took a conscious decision that the investigation and trial
should be conducted in accordance with the provisions of the CrPC
- High Court was in error in affirming, in the exercise of its revisional
jurisdiction, the decision of the Sessions Judge that the court-martial
alone would have jurisdiction - Both on law and in fact, the position
is to the contrary - Sessions Judge was competent and there was no
error 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 in
the category of those offences which are triable exclusively by a
court-martial (Section 34 to 68) or those offences which cannot
be tried by a court-martial (under Section 70). The offence with
which the respondent-accused is charged falls in the category
where there is a concurrent jurisdiction between the court-martial
and the ordinary criminal court. Hence, it needs to be underscored
that there is no inherent lack of jurisdiction in the ordinary criminal
court to conduct a trial in accordance with the procedure
envisaged in the CrPC. [Para 42][273-A-B]
2. Section 69 provides when a person who is subject to the
Act shall be deemed to be guilty of an offence against the Act.
Section 69 of the 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 the legislature, this evinces an
intent that where the latter provision is attracted, the former would
give way. Where the conditions requisite for the application of
Section 70 exist, Section 69 would give way to Section 70. Section
70 provides for the conditions in which a person who is subject
to the Army Act shall not be deemed to be guilty of an offence
under the Act and shall not be tried by a court-martial. In other
words, Section 70 of the Army Act provides for where the courtmartial would not exercise jurisdiction (unless the case falls under
the exceptions to Section 70). When the provisions of Section 70
apply, a person who is subject to the Army Act is not deemed to
be guilty of an offence under the Act if the ingredients of that
provision are fulfilled. [Para 43][273-C-E]
THE STATE OF SIKKIM v. JASBIR SINGH & ANR.
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3. In the present case, the conditions requisite for the
application under Section 70 do 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. Since Section 70 has no application, the respondent
who is alleged to have committed a 'civil offence' in India would
be subject to the provisions of the Army Act as provided by
Section 69. The crucial words of Section 69 however are that an
accused "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". The liability to be tried by a courtmartial arises if the person is charged with an offence under "this
section", that is Section 69. The language of Section 69 is a clear
indicator that it does not ipso jure oust the jurisdiction of the
ordinary criminal court. Where there exists concurrent
jurisdiction in the court-martial and in the ordinary criminal court,
primarily the discretion of conducting the court-martial in
preference to a trial by the ordinary criminal court is entrusted
to the designated officer under Section 125. The designated
officer has been conferred with the discretion "to decide before
which court the proceedings shall be instituted". Moreover,
Section 125 has a conjunctive requirement which is amplified by
the expression "and, if that officer decides that they should be
instituted before a court-martial". Thus, the conjunctive
requirement under Section 125 is that the competent officer has
the discretion to decide before which court the proceedings shall
be instituted and if the officer exercises that discretion to institute
proceedings before a court-martial, then the officer will direct
that the accused be detained in military custody. Section 125, in
other words, not only recognizes that an element of discretion
has been vested in the designated officer, but it 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. [Para 44][273-H; 274-A-F]
4. Significantly, in the present case there was no decision
by the designated officer to institute proceedings before a courtmartial in terms of Section 125. The argument on the absence of
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compliance with Rule 3 and Rule 4 of the 1978 Rules is
misconceived. The 1978 Rules, which have been made pursuant
to Section 126 of the Army Act and Section 475 of the CrPC,
were intended to obviate a conflict of jurisdiction where both the
Army authorities under a court-martial as well as the ordinary
criminal court assert jurisdiction to try a person for the same
offence. Section 126(2) provides the modality for the resolution
of a conflict by the Central Government. The rules which have
been framed under Section 475 of the CrPC provide for the
issuance of a notice by the Magistrate to the competent officer in
order to enable the competent officer to take a considered
decision on whether the interest of the service would warrant a
trial by a court-martial. But the present case does not involve a
conflict in the exercise of jurisdiction in the first place. The entire
sequence of events both before and after the completion of
investigation provides a clear indicator that the Commanding
Officer took a conscious decision that the investigation and trial
should be conducted in accordance with the provisions of the
CrPC. [Para 45][274-F-H; 275-A-B]
5. The High Court was in error in affirming, in the exercise
of its revisional jurisdiction, the decision of the Sessions Judge
that the court-martial alone would have jurisdiction. Both on law
and in fact, the position is to the contrary. 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.
[Para 51][278-D-F]
Ram Sarup v. Union of India and another AIR 1965
SC 247 : [1964] 4 SCR 931; Som Datt Datta v. Union
of India, AIR 1969 SC 414 : [1969] 2 SCR 177 -
followed.
THE STATE OF SIKKIM v. JASBIR SINGH & ANR.
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Delhi 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) 3
SCC 86 : [1971] 2 SCR 857; Major EG Barsay v. State
of Bombay [1962] 2 SCR 195; SK Jha v. State of Kerala
(2011) 15 SCC 492 : [2011] 1 SCR 295; Extra-Judicial
Execution Victim Families Association and Another v.
Union of India (2016) 14 SCC 536; Balbir Singh and
Another v. State of Punjab (1995) 1 SCC 90 : [1994] 5
Suppl. SCR 422; Additional Director General, Army
Headquarters v. Central Bureau of Investigation (2012)
6 SCC 228 : [2012] 5 SCR 599 - referred to.
Case Law Reference
[1971] 2 SCR 857
referred to
Para 10(v)
[1964] 4 SCR 931
followed
Para 23
[1969] 2 SCR 177
followed
Para 26
[1962] 2 SCR 195
referred to
Para 29
[1973] 1 SCR 1010
distinguished
Para 32
[2011] 1 SCR 295
referred to
Para 34
(2016) 14 SCC 536
referred to
Para 35
[1994] 5 Suppl. SCR 422
referred to
Para 35
[2012] 5 SCR 599
referred to
Para 36
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
85 of 2022.
From the Judgment and Order dated 06.04.2019 of the High Court
of Sikkim, Gangtok in Criminal Revision Petition No. 02 of 2017.
Vivek Kohli, AG, Raghvendra Kumar, Ms. Yeshi Rinchhen, Anand
Kumar 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.
Shreyasi Chakrabarty, Ms. Shehla Chaudhary, Md. Anas Chaudhary,
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Sumit Kumar Sharma, Ansar Ahmad Chaudhary, Advs. for the
Respondents.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
A
Facts........................................................................2*
B
Submissions...............................................................8*
C
Analysis..................................................................14*
D
Conclusion...............................................................42*
A Facts
1. This appeal arises from a judgment of a Single Judge of the
High Court of Sikkim. While exercising the revisional jurisdiction under
Sections 397 and 401 read with Section 482 of the Code of Criminal
Procedure 19731, the High Court has upheld the order of the Sessions
Judge, Special Division-II, Sikkim, at Gangtok, directing the Chief Judicial
Magistrate, East Sikkim to furnish a written notice to the Commanding
Officer of the unit of the respondent-accused and deliver him for trial by
a court-martial.
2. On 14 December 2014, at about 19:40 hours, Lance Naik Rajesh
Kumar of 17 Mountain Division of the Indian Army lodged a First
Information Report2 before the Station House Officer at the Sadar Police
Station in Gangtok stating inter alia that on the relevant date at around
6.00 p.m., when he returned to his barracks, he struck up a conversation
with 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 the
barracks. He immediately rushed to the barracks and witnessed the
respondent-accused, Lance Naik Jasbir Singh, opening fire on a rifleman,
Balbir Singh, with an INSAS Rifle. The informant pulled the respondentaccused out of the barracks along with the rifle and simultaneously raised
an alarm for help, on which Signalmen Ujjal Sinha and C.H. Anil arrived
at the spot. The accused, in the meanwhile, escaped from the clutches
of the informant. The informant then immediately rang up the medical
1 "CrPC"
2 FIR No. 409/2014
* Ed. Note: Pagination is as per the original judgment.
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room and returned to check on the injured rifleman, by which time he
suspected that the he was already dead. FIR No. 409 of 2014 was
registered on 14 December 2014 at the Sadar Police Station, Gangtok.
3. On 15 December 2014, the custody of the accused was handed
over by the competent military authority to the Investigating Officer3
and an arrest/ court surrender memo was issued by the Sub-Inspector
of Police at the Sardar Police Station. While conducting the investigation,
the IO issued a requisition to the Commanding Officer of the 17 Mountain
Division Pro Unit, informing him that an FIR under Section 302 of the
Indian Penal Code 18604 had been registered against the respondentaccused. The IO requested certain documents for the purpose of
investigation, 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
(iv)
Records of any previous offence.
4. In response to the above communication, Colonel RR Nair, the
Commanding Officer5 of the 17 Mountain Division Pro Unit furnished
the following documents by his letter dated 27 December 2014:
(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 December
2014;
(iii)
CTC of Weapon Issue Register, where he informed the IO
that the respondent-accused had withdrawn the weapon
for piloting duty on 14 December 2014. After completion
of the duty however, while committing the offence, the
respondent had unauthorizedly accessed the weapon; and
(iv)
Record of previous offences.
A copy of this communication was forwarded by the CO to the
Headquarters of the 17 Mountain Division Pro Unit.
3 "IO"
4 "IPC"
5 "CO"
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5. On 12 January 2015, the IO filed an application before the
Chief Judicial Magistrate (East & North), for recording the statement of
the informant (Rifleman Rajesh Kumar). On 13 February 2015, the IO
submitted a charge-sheet after the completion of investigation against
the respondent-accused for offences punishable under Sections 302 and
308 of the IPC. An order of committal was passed by the Chief Judicial
Magistrate to the Principal Sessions Judge. On 28 February 2015, a
case was registered as Sessions Trial Case No.03/2015. On 15 July
2015, the Sessions Judge framed charges against the respondent under
Sections 302 and 308 of the IPC and under Section 25(1-B)(a) of the
Arms Act 19596. On 18 November 2015, the Sessions Judge allowed an
application filed under Section 216 of the CrPC for alteration of the
charge 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 Sessions
Judge directed the issuance of fresh summons to Colonel RR Nair
returnable on 7 July 2016. On 07 July 2016, the Sessions Judge was
informed that a letter had been received from the Army authorities stating
that Colonel RR Nair was undergoing a training course and was on
leave upto 24 July 2016. During the course of the trial, the CO, Colonel
RR Nair was examined as PW19 on 28 July 2016. After the recording
of evidence was complete, the Sessions Judge heard the counsel for the
parties for final arguments. During the course of the hearing, counsel
for the accused inter alia contended that as the respondent-accused
and the deceased were both governed by the Army Act 19507 when the
incident took place, in view of Section 69 of the Army Act, the accused
could be tried only by a General Court-Martial and not by the Sessions
Court. Having due regard to the provisions of Section 69 of the Army
Act, the Sessions Judge by his order dated 9 March 2017 upheld the
objection of the respondent-accused by concluding that given the nature
of offence, the accused ought to have been tried by court-martial alone
and that the Sessions Court had no jurisdiction. With this conclusion, the
Chief Judicial Magistrate was directed to give a written notice to the
CO of the respondent's unit or the competent military authority for his
trial 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"
THE STATE OF SIKKIM v. JASBIR SINGH & ANR.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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the provisions of Section 69 and 70 of the Army Act. The High Court
held that the procedure prescribed under Sections 125 and 126 of the
Army Act, Section 475 of the CrPC, and Rules 3, 4 and 5 of the Criminal
Courts and Court Martial (Adjustment of Jurisdiction) Rules19788 had
not been observed. While issuing notice to the Army authorities, the
High Court held that both the respondent and the deceased were subject
to the Army Act. The procedure mandated by the 1978 Rules had to be
followed and the submission that the Army authority had exercised their
discretion to try the accused in the criminal court was held to bear no
weight on the ground that no documentary evidence existed to prove the
exercise of the discretion. Moreover, the mere handing over of the
accused to the civil authority was held not to be proof of the exercise of
the option. While a minute sheet was produced before the High Court
where the General Officer Commanding9 had accepted the
recommendation that the accused be tried by the Sessions Court, the
High Court rejected this on the ground that: (i) the document was not
furnished before the Sessions Judge and (ii) the document which was
produced was a photocopy and not a certified copy. The revision petition
was dismissed.
8. Pursuant to the impugned judgment of the High Court, the GOC
of 17 Mountain Division Pro Unit, Maj. General. RC Tiwari, by an order
dated 22 April 2019, exercised his powers under Section 125 of the
Army Act and decided that the proceedings against the respondentaccused be instituted before the criminal court and that he be detained in
civil custody. An application was filed before the Chief Judicial Magistrate
to convey the decision of the GOC. By an order dated 22 April 2019, the
Chief Judicial Magistrate rejected the application of the GOC in view of
the order of the Sessions Judge dated 9 March 2017, which required
that the accused be delivered to the competent military authority. Since
this order had been upheld by the High Court, the Chief Judicial Magistrate
directed the Superintendent of Prisons, Central Jail, Rongyek to hand
over the respondent to the competent military authority. The respondent
was handed over to the Army and has been in military custody since 23
April 2019. Meanwhile, the respondent retired from service on 31 March
2020. On the same day, the Army authorities passed an order for extension
of the time of detention.
8 "1978 Rules"
9 "GOC"
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B Submissions
9. The State of Sikkim is in appeal against the judgment of the
High Court. The State has been represented by Mr Vivek Kohli, learned
Advocate General. The challenge made by the State of Sikkim has been
supported by the Union of India appearing as a respondent through Mr
Aman Lekhi, learned Additional Solicitor General. The arguments on
behalf of the respondent were made by Mr Pradeep Kumar Dey, learned
Senior Counsel.
10. Mr Vivek Kohli, Advocate General appearing on behalf of the
appellant-State made the following submissions:
(i)
The High Court and Sessions Court have both failed to
appreciate that the criminal courts and court-martial have
concurrent 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 to
be tried by court-martial, is solely with the Commanding
Officer;
(ii)
Under Section 125,one of the following three situations may
arise:
(a)
The Commanding Officer may exercise his discretion
and affirmatively choose to try the accused through
court martial;
(b)
The Commanding Officer may exercise his discretion
and may not choose a trial through court martial; and
(c)
There may be no overt exercise of discretion by the
Commanding Officer, in which event his conduct
should determine whether there was an exercise of
discretion;
(iii)
When the Commanding Officer exercises discretion in terms
of the first two situations noted above, the procedure under
Section 126 of the Army Act and Rules 3, 4 and 5 of the
1978 Rules becomes applicable;
(iv)
However, when the Commanding Officer does not exercise
his discretion as detailed in the last situation, the absence of
any objection by the Army authorities to the trial by the
THE STATE OF SIKKIM v. JASBIR SINGH & ANR.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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criminal court can be regarded as a tacit approval of the
Commanding Officer for the accused to be tried by the
criminal court;
(v)
As held by this Court in Joginder Singh v. State of
Himachal Pradesh10, if the designated officer does not
exercise his discretion to institute proceedings before a courtmartial, then the Army Act would not come in the way of
the criminal court exercising its ordinary jurisdiction in the
manner provided by law;
(vi)
On the basis of the above premises, in the present case, the
discretion has been exercised by the Commanding Officer
by recommending that the trial can be conducted by the
'civil court' (ie, the criminal court) which, in the present
case is, the Sessions Judge, Special Division-II, Sikkim,
Gangtok. The following circumstances indicate the exercise
of this discretion:
(a)
The handing over of the accused by the Commanding
Officer to the IO on 15 December 2014, immediately
after the incident took place on 14 December 2014;
(b)
The letter dated 27 December 2014 by the
Commanding Officer in response to the requisition
made by the IO (by his letter dated 26 December
2014) for furnishing of documents for conducting the
investigation;
(c)
The recording of the statement under Section 164 of
the CrPC on 12 January 2015of the informant - Lance
Naik Rajesh Kumar;
(d)
The examination on 28 July 2015 of the Commanding
Officer (Colonel RR Nair) during the course of the
trial, together with the examination of other Army
officials;
(e)
The participation, right from the institution of the FIR
till the investigation and throughout the trial, by the
Commanding Officer and the Army in the proceedings
before the criminal court. Thus, the trial has to be
10 (1971) 3 SCC 86
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conducted by the criminal court and not the courtmartial;
(f)
On 16 January 2015, the Army authorities
recommended that the case of the accused be tried
by the civil court (criminal court). On 8 March 2015,
this recommendation culminated into the Commanding
Officer exercising "discretion" by deciding that the
case of the accused should be tried by the criminal
court. On 22 April 2019, the Commanding Officer
exercised his discretion under Section 125 of the Army
Act read with Rule 9 of the 1978 Rules by addressing
a communication to the Chief Judicial Magistrate,
East Sikkim (Gangtok), intimating the decision that
the trial of the accused should be conducted by the
criminal court; and
(vii)
The order of the Sessions Judge dated 9 March 2017, turned
back the clock at the stage of final arguments. The High
Court has failed to consider that under Section 122 of Army
Act, the period of limitation to commence a trial by courtmartial is three years from the date of the offence. In the
present case, the offence took place on 14 December 2014
and immediately thereafter proceedings were initiated before
the criminal court.
11. Mr Aman Lekhi, Additional Solicitor General, has supported
the submissions of the State of Sikkim and urged the following propositions:
(i)
The controversy in the present case is covered by the
decision of this Court in Joginder Singh v. State of
Himachal Pradesh11, where it was held that the Army
authority was aware of the offence committed and decided
to handover the custody of the accused to the police and
not to hold a court martial;
(ii)
There are three categories of offences, namely: -
(a)
Offences which are created by the Army Act, such
as those provided under Sections 34, 35, 36 and 37,
which are exclusively triable by a court-martial;
11 (1971) 3 SCC 86
THE STATE OF SIKKIM v. JASBIR SINGH & ANR.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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(b)
Offences which are committed under Section 70 of
the Army Act which are to be tried by a criminal
court subject to exceptions; and
(c)
Offences involving the exercise of jurisdiction by the
court-martial and by an ordinary criminal court
(Section 69), where a court martial can be convened
if a decision in terms of Section 125 of the Army Act
is taken;
(iii)
In the present case, the Army authorities had taken control
of the accused and handed him over to the IO for trial by
criminal court. This clearly establishes that the Army did
not want to try the accused by court-martial.
12. Mr Pradeep Kumar Dey, Senior Counsel appearing on behalf
of the respondent-accused has supported the decision of the High Court
and made the following submissions:
(i)
In view of the provisions of Sections 69 and 70 of the Army
Act, a trial is possible only before the court-martial and not
by an ordinary criminal court;
(ii)
Sections 125 and 126 operate in different spheres. Section
125 relates to the discretion of the Army authorities to the
effect that when a criminal court and a court- martial both
have jurisdiction in respect of an offence, it shall be the
discretion of the Commanding Officer to decide before
which court the proceedings shall be instituted;
(iii)
Section 126 deals with the power of the criminal court to
require delivery of an offender. 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;
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(iv)
Section 475 of the CrPC and Rules 3, 4 and 5 of the 1978
Rules indicate that in this case, a trial is only permissible
before the court-martial;
(v)
It is a settled principle of law that where a statute provides
that a particular thing should be done in the manner
prescribed by law and if it is not done in the same manner,
failure to comply with this mandatory requirement would
lead to severe consequences and any action taken would
be a nullity. It will be a mockery of the provisions of Section
461(l) of the CrPC and other provisions of the law and the
trial stands vitiated;
(vi)
The trial before the ordinary criminal court will cause serious
prejudice to the accused and will result in a failure of justice.
The entire trial before the ordinary criminal court is null
and void as it lacks jurisdiction;
(vii)
The decision in Joginder Singh (supra) is contrary to the
judgments of the Constitution Bench in Som Datt Datta v.
Union of India and others12 and Ram Sarup v. Union of
India and another13;
(viii) The crucial question is the stage at which the discretion
has to be exercised under Section 125.The decision has to
be taken after the filing of the charge-sheet and before
taking cognizance. However, in the present case, the
decision was taken by the Army authority to opt for a trial
before the ordinary criminal court before filing the chargesheet, which is clear from the cross-examination of the
Commanding Officer. Since the decision was taken before
the submission of the charge-sheet, it is immaterial;
(ix)
The Magistrate was required under Rules 3 and 4 of the
1978 Rules to issue a notice to the Commanding Officer
and to require him to take a decision under Section 125 of
the Army Act. The Magistrate, however, committed the
case to the Sessions Court on the same day as the filing of
the charge sheet, as a consequence of which there was
non-compliance of the provisions of Rules 3, 4 and 5 of the
12 AIR 1969 SC 414
13 AIR 1965 SC 247
THE STATE OF SIKKIM v. JASBIR SINGH & ANR.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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1978 Rules. In view of the well settled position of law, the
discretion under Section 125 has to be exercised by the
Commanding Officer only after filing of the charge-sheet;
(x)
The 1978 Rules have been framed in pursuance of the
powers conferred under Section 475 CrPC and the mandate
of issuing a notice is provided under Section 126 of the
Army Act; and
(xi)
The respondent can still be tried by a court-martial under
Section 123 of the Army Act, having regard to the fact that
his retirement was due on 31 March 2020.
13. The rival submissions shall now be considered.
C Analysis
14. Chapter VI of the Army Act deals with offences. The
expression 'civil offences' is defined in Section 3(ii) to mean "an offence
which is triable by a criminal court". Section 6914 deals with civil offences.
Section 7015 deals with civil offences which are not triable by a courtmartial.
14 "69. Civil offences.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."
15 "70. Civil offence not triable by court-martial.
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."
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15. Section 12516 deals with a situation where both a criminal
court and a court-martial have jurisdiction in respect of an offence. In
such a case, it is the discretion of the Commanding Officer of the unit
where the accused person is serving to decide before which court the
proceedings shall be instituted, and if that officer decides that the
proceedings should be instituted before a court-martial, he may direct
that the accused be retained in military custody. Section 125, 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.
16. Section 126, as the marginal note indicates, deals with the
powers of the criminal court "to require delivery of offender". Section
126 provides that when a criminal court having jurisdiction is of the opinion
that the proceedings should be instituted before itself in respect of "any
alleged offence", it may by written notice require the officer referred to
in Section 125 to either deliver over the offender to the nearest magistrate
to be dealt with in accordance with law or in the alternative to postpone
the proceedings, pending a reference to the Central Government. Under
Section 126, the designated officer has two courses of action open: (i)
deliver the offender in compliance with the requisition of the criminal
court; or (ii) refer the question to the Central Government for determining
the court before which the proceedings are to be instituted. The
determination by the Central Government is to be final.
17. Sections 125 and 126 operate in different domains. Section
125 envisages that there is a discretion in the designated officer to
determine as to whether the accused should be tried by a court-martial
or by the competent criminal court. Section 126 on the other hand
recognises that the criminal court may require the officer designated in
Section 125 by a written notice, to deliver the offender to the nearest
magistrate to be proceeded with in accordance with law. Upon the
issuance of such a written notice, the designated officer has the discretion
16 "125. Choice between criminal court and court- martial. 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."
THE STATE OF SIKKIM v. JASBIR SINGH & ANR.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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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 126 explicitly recognises that in the
event of a difference of view between the officer designated under
Section 125 and the criminal court under Section 126, the matter has to
be referred to the Central Government for resolution, finality being
attached to the decision of the Central Government. Section 126, in other
words, has provided the modalities for resolving a situation where a
criminal court decides to proceed against the accused, while on the other
hand the designated officer under Section 125 decides to have the accused
tried by a court-martial. It is to resolve a situation of this nature that a
reference is envisaged to the Central Government.
18. Section 47517 of the CrPC has empowered the Central
Government 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 to
the Armed Forces of the Union, as regards the cases in which persons
subject to military, naval or air force law or such other law, shall be tried
by 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 Courtmartial- (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.
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 Courtmartial constituted under the relevant law applicable to the Armed Forces of the Union.
(2) Every Magistrate shall, on receiving a written application for that purposes by the
commanding officer of any unit or body of soldiers, sailors or airmen stationed or
employed at any such place, use his utmost endeavours to apprehend and secure any
person accused of such offence.
(3) A High Court may, if it thinks fit, direct that a prisoner detained in any jail situate
within the State be brought before a Court-martial for trial or to be examined touching
any matter pending before the Court-martial."
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of Section 475(1) recognizes the rule making power of the Central
Government. The latter part of Section 475(1) contemplates an eventuality
in which a person is brought before a Magistrate and is charged with
offences for which that person is liable to be tried either by a court to
which the CrPC applies or by a court-martial. In such a situation, the
Magistrate is to have regard to the rules and shall in proper cases deliver
the person together with a statement of the offences of which he is
accused to the Commanding Officer of the unit of the nearest military,
naval or air force station, for the purpose of being tried by a courtmartial.
19. In exercise of the powers which have been conferred by
Section 475 of the CrPC, the Central Government framed the Criminal
Courts and Court Martial (Adjustment of Jurisdiction) Rules 1952 which
were 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 1978
Rules are extracted below:
"3. Where a person subject to military, naval or air force law, or
any other law relating to the Armed Forces of the Union for the
time being in force is brought before a Magistrate and charged
with an offence for which he is also liable to be tried by a Courtmartial, such Magistrate shall not proceed to try such person or to
commit the case to the Court of Session, unless-
(a) he is moved thereto by a competent military, naval or air force
authority; or
(b) he is of opinion, for reasons to be recorded, that he should so
proceed or to commit without being moved thereto by such
authority.
4.