It must be stated at the outset that the Apex Court has in a learned, laudable, landmark and latest judgment titled The State of Sikkim vs Jasbir Singh & Anr. in Criminal Appeal No. 85 of 2022 delivered as recently as on February 1, 2022 in exercise of its criminal appellate jurisdiction has held that criminal court will have jurisdiction to try a case against an army personnel if the Commanding Officer does not exercise the discretion under Section 125 of the Army Act to initiate court-martial with respect to the offence. The Court held that if the designated officer does not exercise this discretion to institute proceedings before a court-martial, the Army Act would not interdict the exercise of jurisdiction by the ordinary criminal court. It must be apprised here that a Bench of Justice Dr DY Chandrachud and Justice Surya Kant was deciding an appeal filed by the State of Sikkim against an order passed by the Sikkim High Court which directed that a criminal case against an army officer be handed over to court-martial.

To start with, this commendable judgment authored by Justice Dr Dhananjaya Y Chandrachud for a Bench of Apex Court comprising of himself and Justice Surya Kant first and foremost observes in para 1 that:
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 1973 ("CrPC") , 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."

While elaborating on facts of the case, the Bench envisages in para 2 that:
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 Report (FIR No. 409/2014) 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 respondent-accused 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 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."

While continuing in the same vein, the Bench then enunciates in para 3 that:
On 15 December 2014, the custody of the accused was handed over by the competent military authority to the Investigating Officer ("IO") 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 1860 ("IPC") had been registered against the respondent-accused. The IO requested certain documents for the purpose of investigation, namely:

1. The order of appointment of the accused;
2. Duty Deployment Chart of Sunday, 14 December 2014;
3. Weapon Issue Register of Sunday, 14 December 2014; and
4. Records of any previous offence.

As it turned out, the Bench then mentions in para 5 that:
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 1959 ("Arms Act"). 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."

Be it noted, the Bench then points out in para 6 that:
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 up to 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 1950(Army Act") 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."

To put things in perspective, the Bench then discloses in para 7 that:
The order of the Sessions Court was challenged in revision. The Sikkim High Court in its judgment dated 6 April 2019 adverted to 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) Rules 1978 "1978 Rules") 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 Commanding ("GOC") 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.

Furthermore, the Bench then discloses in para 8 that:
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 respondent-accused 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."

Most significantly, the Bench then holds in para 59 that:
Section 69 of the Army Act is reproduced below:

"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." (emphasis supplied)

Sub-section (a) of Section 69 states if a person is convicted of a 'civil offence' which is punishable with death or transportation under the law in force, then 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. In contrast with sub-Section (a), sub-Section (b) provides that in all other offences, the person convicted shall be liable to suffer the punishment assigned under the laws in force or imprisonment for a term which may extend to seven years, or such less punishment as provided in the Act.

The words of the statute clearly indicate that the legislature provided different punishments for serious offences which under law are punishable with death or life imprisonment, and for all other offences. In case of the former, sub-Section (a) of Section 69 provides that the court-martial may convict him and punish him with death or life imprisonment. In addition to this, the court-martial may also give a lesser punishment under the Army Act (such as cashiering, dismissal from service, etc., provided under Section 71 "71. Punishments awardable by court-martial. Punishments may be inflicted in respect of offences committed by persons subject to this Act and convicted by courts-martial, according to the scale following, that is to say:

1. death;
2. transportation for life or for any period not less than seven years;
3. imprisonment either rigorous or simple, for any period not exceeding fourteen years;
4. cashiering, in the case of officers;
5. dismissal from the service;
6. reduction to the ranks or to a lower rank or grade or place in the list of their rank, in the case of warrant officers; and reduction to (he ranks or to a lower rank or grade, in the case of non-commissioned officers: Provided that a warrant officer reduced to the ranks shall not be required to serve in the ranks as a sepoy;
7. forfeiture of seniority of rank, in the case of officers, junior commissioned officers, warrant officers and noncommissioned officers; and forfeiture of all or any part of their service for the purpose of promotion, in the case of any of them whose promotion depends upon length of sendee;
8. forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose;
9. severe reprimand or reprimand, in the case of officers, junior commissioned officers, warrant officers and noncommissioned officers;
10. forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active service;
11. forfeiture in the case of a person sentenced to cashiering or dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such cashiering or dismissal;
12. stoppage of pay and allowances until any proved loss or damage occasioned by (the offence of which he is convicted is made good.").

The use of the word "and" in sub-Section (a) clarifies the intent of the legislature, which is to ensure that the Army authorities have sufficient discretion to grant a punishment for serious offences, over and beyond what is permissible under Penal Code. This however, does not imply that a person who is otherwise liable for death or life imprisonment can be granted a lesser punishment under the 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 other law are of less severity, the Army authorities may order a lesser punishment.

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."

As a corollary, the Bench then held in para 51that:
For the above reasons, we find that 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."

For clarity's sake, the Bench then holds in para 52 that:
The trial would proceed from the stage that was reached when the Sessions Judge decided that there was an absence of jurisdiction. The trial shall be proceeded with and be concluded in accordance with law. The appeal is allowed in the above terms."

Finally, the Bench holds in para 53 that:
Pending applications, if any, shall stand dismissed."

In essence, the Apex Court makes it indubitably clear that criminal court can try a case against army man if commanding officer does not exercise discretion under Section 125 of Army Act to initiate court-martial. This has been discussed also in detail hereinabove. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh