Holding

When an offence is triable by both a court‑martial and a civil court, the discretion to prefer a court‑martial lies with the designated officer under Section 125, and in the absence of such a decision the ordinary criminal court has jurisdiction.

Summary

The State of Sikkim appealed against a High Court order that directed the accused army personnel, Jasbir Singh and another, to be tried by a court‑martial for a murder under IPC sections 302 and 308. The Supreme Court examined whether the offence fell within the exclusive jurisdiction of a court‑martial or within the concurrent jurisdiction of both a court‑martial and an ordinary criminal court. It held that the offence was a civil offence falling under Section 69 of the Army Act, subject to Section 70, and that Section 70 did not apply; therefore both courts had jurisdiction. The Court clarified that the discretion to prefer a court‑martial rests with the designated officer under Section 125, and no such decision was taken in this case. Consequently, the ordinary criminal court retained jurisdiction, the High Court’s decision was erroneous, and the appeal was allowed, ordering the accused’s transfer from military to civil custody for trial.

Issues considered

Whether the offence alleged against the accused is triable exclusively by a court‑martial, exclusively by a civil court, or falls within the category of concurrent jurisdiction.
Whether the designated officer exercised the discretion under Section 125 of the Army Act to institute proceedings before a court‑martial.
Whether non‑compliance with the Criminal Courts and Court‑Martial (Adjustment of Jurisdiction) Rules, 1978 and Section 475 of the CrPC invalidates the criminal trial.
Whether the High Court erred in upholding the Sessions Judge’s order directing trial by a court‑martial.

Legislation cited

Arms Act, 1959s. 25(1-B)(a), s. 27(3)
Army Acts. 125, s. 126, s. 3, s. 34, s. 68, s. 69, s. 70
Code of Criminal Procedure, 1973s. 209, s. 216, s. 461(l), s. 475
Indian Penal Code, 1860s. 302, s. 308

Subjects

Army Actcourt‑martialconcurrent jurisdictionSection 125 discretionCriminal Procedure Code1978 Rulescivil offencemilitary custodycivil trial

Judgment

242 [2022]REPORTS
SUPREME COURT 8 S.C.R. 242 [2022] 8 S.C.R.

A THE STATE OF SIKKIM
v.
JASBIR SINGH & ANR.
(Criminal Appeal No. 85 of 2022 )
B 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 –
C
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
D 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
E
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
F 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
G
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
H to institute proceedings before a court-martial in terms of s.125 –
242
THE STATE OF SIKKIM v. JASBIR SINGH & ANR. 243

The entire sequence of events both before and after the completion A
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
B
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 C
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 D
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. E
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 F
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 court-
martial would not exercise jurisdiction (unless the case falls under G
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]
H
244 SUPREME COURT REPORTS [2022] 8 S.C.R.

A 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
B
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
C to be tried by a court-martial”. The liability to be tried by a court-
martial 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,
D
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,
E 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
F
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
G 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 court-
martial in terms of Section 125. The argument on the absence of
H
THE STATE OF SIKKIM v. JASBIR SINGH & ANR. 245

compliance with Rule 3 and Rule 4 of the 1978 Rules is A
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
B
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 C
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
D
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 E
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 F
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]
G
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.

H
246 SUPREME COURT REPORTS [2022] 8 S.C.R.

A 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
B 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
C 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)
D [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
E [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
F
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.
G 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.
H Shreyasi Chakrabarty, Ms. Shehla Chaudhary, Md. Anas Chaudhary,
THE STATE OF SIKKIM v. JASBIR SINGH & ANR. 247

Sumit Kumar Sharma, Ansar Ahmad Chaudhary, Advs. for the A
Respondents.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
A Facts........................................................................2* B
B Submissions...............................................................8*
C Analysis..................................................................14*
D Conclusion...............................................................42*
C
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 D
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 E
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, F
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 G
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. H
248 SUPREME COURT REPORTS [2022] 8 S.C.R.

A 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
B 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 respondent-
accused. The IO requested certain documents for the purpose of
C 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
D
(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:
E (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
F 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.
G
A copy of this communication was forwarded by the CO to the
Headquarters of the 17 Mountain Division Pro Unit.

3
“IO”
4
“IPC”
H 5
“CO”
THE STATE OF SIKKIM v. JASBIR SINGH & ANR. 249
[DR. DHANANJAYA Y CHANDRACHUD, J.]

5. On 12 January 2015, the IO filed an application before the A
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
B
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 C
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 D
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 E
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 F
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. G

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” H
250 SUPREME COURT REPORTS [2022] 8 S.C.R.

A 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) Rules1978 8 had
not been observed. While issuing notice to the Army authorities, the
High Court held that both the respondent and the deceased were subject
B
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
C 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 9 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
D
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
E 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
F 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
G 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”
H 9
“GOC”
THE STATE OF SIKKIM v. JASBIR SINGH & ANR. 251
[DR. DHANANJAYA Y CHANDRACHUD, J.]

B Submissions A
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 B
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 C
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 D
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 E
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 F
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 G
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
H
252 SUPREME COURT REPORTS [2022] 8 S.C.R.

A 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
B exercise his discretion to institute proceedings before a court-
martial, 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
C 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:
D
(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
E
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
F 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;
G
(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
H (1971) 3 SCC 86
THE STATE OF SIKKIM v. JASBIR SINGH & ANR. 253
[DR. DHANANJAYA Y CHANDRACHUD, J.]

conducted by the criminal court and not the court- A
martial;
(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 B
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, C
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 D
Court has failed to consider that under Section 122 of Army
Act, the period of limitation to commence a trial by court-
martial 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 E
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 F
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: - G
(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 H
254 SUPREME COURT REPORTS [2022] 8 S.C.R.

A (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
B (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
C
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:
D (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
E 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
F 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
G 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
H upon such reference shall be final;
THE STATE OF SIKKIM v. JASBIR SINGH & ANR. 255
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(iv) Section 475 of the CrPC and Rules 3, 4 and 5 of the 1978 A
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, B
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;
C
(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 D
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 E
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 charge-
sheet, which is clear from the cross-examination of the
Commanding Officer. Since the decision was taken before F
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 G
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 H
256 SUPREME COURT REPORTS [2022] 8 S.C.R.

A 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
B 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.
C
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
D 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 court-
martial.

14
“69. Civil offences.Subject to the provisions of section 70, any person subject to
E 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
F 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
G
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
H behalf.”
THE STATE OF SIKKIM v. JASBIR SINGH & ANR. 257
[DR. DHANANJAYA Y CHANDRACHUD, J.]

15. Section 12516 deals with a situation where both a criminal A
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
B
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 C
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 D
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. E

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 F
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
G
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.” H
258 SUPREME COURT REPORTS [2022] 8 S.C.R.

A 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
B
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
C reference is envisaged to the Central Government.
18. Section 475 17 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
D 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 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
E 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
F 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 Court-
martial constituted under the relevant law applicable to the Armed Forces of the Union.
G (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
H any matter pending before the Court-martial.”
THE STATE OF SIKKIM v. JASBIR SINGH & ANR. 259
[DR. DHANANJAYA Y CHANDRACHUD, J.]

of Section 475(1) recognizes the rule making power of the Central A
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
B
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 court-
martial.
19. In exercise of the powers which have been conferred by
Section 475 of the CrPC, the Central Government framed the Criminal C
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: D
“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 Court-
martial, such Magistrate shall not proceed to try such person or to E
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 F
authority.
4. Before proceeding under clause (b) of rule 3, the Magistrate
shall give a written notice to the Commanding Officer or the
competent military, naval or air force authority, as the case may
be, of the accused and until the expiry of a period of fifteen days G
from the date of service of the notice he shall not-
(a) convict or acquit the accused under section 252, sub-sections
(1) and (2) of section 255 sub-section (1) of section 256 or section
257 of the Code of Criminal Procedure, 1973 (2 of 1974), or hear
him in his defence under section 254 of the said Code; or H
260 SUPREME COURT REPORTS [2022] 8 S.C.R.

A (b) frame in writing a charge against the accused under section
240 or sub-section (1) of section 246 of the said Code; or
(c) make an order committing the accused for trial to the Court of
Session under section 209 of the said Code; or
(d) make over the case for inquiry or trial under section 192 of the
B said Code.
5. Where a Magistrate has been moved by the competent military,
naval or air force authority, as the case may be, under clause (a)
of rule 3, and the commanding officer of the accused or the
competent military, naval or air force authority, as the case may
C be, subsequently gives notice to such Magistrate that, in the opinion
of such officer or authority, the accused should be tried by a Court-
martial, such Magistrate if he has not taken any action or made
any order referred to in clauses (a), (b), (c) or (d) of rule 4, before
receiving the notice shall stay the proceedings and, if the accused
is in his power or under his control, shall deliver him together with
D
the statement referred to in sub-section (1) of section 475 of the
said Code to the officer specified in the said sub-section.”
20. Under Rule 3, where a person who is subject to military, naval
or air force law, (or any other law relating to the Armed Forces of the
Union) is brought before a Magistrate and is charged with an offence
E liable to tried by a court-martial, the Magistrate cannot proceed to try
such a person or commit the case to the Court of Session, except in one
of the two eventualities specified in clauses (a) and (b). Clause (a)
envisages a situation where the Magistrate is moved by a competent
military, naval, or air force authority. Clause (b) envisages a situation
F where the Magistrate is of the opinion that the person should be tried by
him or that the case should be committed to the Court of Session.
21. Rule 4(c) provides that before proceeding under clause (b) of
Rule 3, the Magistrate has to give a written notice to the Commanding
Officer or the competent authority of the accused and until the expiry of
fifteen days, the Magistrate cannot make an order committing the accused
G
for trial to the Court of Session under Section 209 of the CrPC. Rule 5
deals with a situation where the Magistrate has been moved by the
competent military, naval or air force authority under clause (a) of Rule
3 and subsequently, the Commanding Officer or competent authority
gives notice to the Magistrate that in the opinion of the officer, the accused
H should be tried by a court-martial.
THE STATE OF SIKKIM v. JASBIR SINGH & ANR. 261
[DR. DHANANJAYA Y CHANDRACHUD, J.]

22. The purpose underlying Rule 3 and Rule 4 is that unless the A
Magistrate has been moved by a competent military, naval or air force
authority, the Magistrate must furnish a written notice to the Commanding
Officer or the competent authority, if he is of the opinion that either the
trial should proceed before the Magistrate or an order of committal of
the case to the Court of Sessions should be passed against the accused
B
held liable to be tried by a court-martial. The object and purpose of
giving the notice is to facilitate an exercise of discretion by the designated
officer to determine whether the accused should be tried by a court-
martial or in the alternative, should be proceeded with before the ordinary
criminal court. The above provisions have been interpreted in several
decisions of this Court. C
23. In Ram Sarup v. Union of India and another18, the petitioner,
who was a sepoy subject to the Army Act, was charged under Section
69 of the Army Act read with Section 302 of the IPC. The petitioner
was tried by the General Court-Martial for having shot dead two sepoys,
and was found guilty and sentenced to death. The Central Government D
confirmed the findings and the sentence awarded by the General Court-
Martial. The petitioner inter alia challenged the provisions of Section
125 of the Army Act on the ground that they were in violation of Article
14 of the Constitution. While dealing with the constitutional challenge,
Justice Raghubar Dayal, speaking for the Constitution Bench observed
as follows: E

“17. Section 69 provides for the punishment which can be imposed
on a person tried for committing any civil offence at any place in
or beyond India, if charged under Section 69 and convicted by a
Court Martial. Section 70 provides for certain persons who cannot
be tried by Court Martial, except in certain circumstances. Such F
persons are those who commit an offence of murder, culpable
homicide not amounting to murder or of rape, against a person not
subject to Military, Naval or Air-Force law. They can be tried by
Court Martial of any of those three offences if the offence is
committed while on active service or at any place outside India or G
at a frontier post specified by the Central Government by
notification in that behalf. This much therefore is clear that persons
committing other offences over which both the Court Martial and
ordinary criminal courts have jurisdiction can and must be tried by
18
(1964) 4 SCR 931 H
262 SUPREME COURT REPORTS [2022] 8 S.C.R.

A Courts-Martial if the offences are committed while the accused
be on active service or at any place out-side India or at a frontier
post. This indication of the circumstances in which it would be
better exercise of discretion to have a trial by Court Martial, is an
index as to what considerations should guide the decision of the
officer concerned about the trial being by a Court Martial or by
B
an ordinary Court. Such considerations can be based on grounds
of [maintenance] of discipline in the army, the persons against
whom the offences are committed and the nature of the offences.
It may be considered better for the purpose of discipline that
offences which are not of a serious type be ordinarily tried by a
C Court Martial, which is empowered under Section 69 to award a
punishment provided by the ordinary law and also such less
punishment as be mentioned in the Act. Chapter VII mentions the
various punishments which can be awarded by Court Martial and
Section 72 provides that subject to the provisions of the Act a
Court Martial may, on convicting a person of any of the offences
D
specified in Sections 31 to 68 inclusive, award either the particular
punishment with which the offence is stated in the said sections
to be punishable or in lieu thereof any one of the punishments
lower in the scale set out in Section 71, regard being had to the
nature and degree of the offence.”
E 24. In the above extract, the Court dealt with the considerations
which would ultimately weigh in determining as to whether a trial by a
court-martial should be convened. In that backdrop, the Court noted :
“21. In short, it is clear that there could be a variety of
circumstances which may influence the decision as to
F whether the offender be tried by a Court Martial or by an
ordinary criminal court, and therefore it becomes inevitable
that the discretion to make the choice as to which Court
should try the accused be left to responsible military officers
under whom the accused be serving. Those officers are to be
G guided by considerations of the exigencies of the service,
maintenance of discipline in the army, speedier trial, the nature of
the offence and the person against whom the offence is
committed.”
(emphasis supplied)
H
THE STATE OF SIKKIM v. JASBIR SINGH & ANR. 263
[DR. DHANANJAYA Y CHANDRACHUD, J.]

25. Hence in the view of the Constitution Bench, there are a wide A
variety of circumstances which may be relevant in deciding whether an
accused should be tried by a court-martial or by an ordinary criminal
court. Due to this, the choice of making this decision is entrusted to the
military officer under whom the accused was serving. The Court also
noted that under Section 549 of the Code of Criminal Procedure 1898
B
(equivalent to Section 475 of the CrPC), the final choice about the forum
of the trial of a person accused of a ‘civil offence’ rests with the Central
Government, whenever there is a difference of opinion between a criminal
court and the military authority.
26. In Som Datt Datta v. Union of India19, the Constitution
Bench considered a challenge under Article 32 to the proceedings before C
a General Court-Martial, pursuant to which the petitioner had been found
guilty of charges under Section 304 and Section 149 of the IPC and
sentenced to rigorous imprisonment of six years and cashiering. The
first question which was considered by the Constitution Bench was
whether the Court-Martial had jurisdiction to try and convict the petitioner D
for the offences. Justice V Ramaswami, speaking for the Constitution
Bench, elaborated that under Chapter VI of the Army Act, Sections 34
to 68 define the offences against the Act which are triable by a court-
martial. After alluding to Sections 69 and 70, the Court observed:
“4. […] Shortly stated, under this Chapter there are three E
categories of offences, namely, (1) offences committed by a person
subject to the Act triable by a Court Martial in respect whereof
specific punishments have been assigned; (2) civil offences
committed by the said person at any place in or beyond India, but
deemed to be offences committed under the Act and, if charged
under Section 69 of the Act, triable by a Court Martial; and (3) F
offences of murder and culpable homicide not amounting to murder
or rape committed by a person subject to the Act against a person
not subject to the military law. Subject to a few exceptions, they
are not triable by Court Martial, but are triable only by ordinary
criminal courts. The legal position therefore is that when an offence G
is for the first time created by the Army Act, such as those created
by Sections 34, 35, 36, 37 etc., it would be exclusively triable by a
Court Martial; but where a civil offence is also an offence under
the Act or deemed to be an offence under the Act, both an ordinary
19
(1969) 2 SCR 177 H
264 SUPREME COURT REPORTS [2022] 8 S.C.R.

A Criminal Court as well as a Court Martial would have jurisdiction
to try the person committing the offence. Such a situation is
visualized and provision is made for resolving the conflict under
Sections 125 and 126 of the Army Act.”
27. The Court noted that where a civil offence is also an offence
B under the Army Act or is deemed to be an offence under the Act, both
the ordinary criminal court as well as the court-martial have jurisdiction
to try the accused committing the offence. In that case, the petitioner
argued that the Commanding Officer had not furnished a notice under
Rule 5 to the Magistrate that the petitioner should be tried by a court-
martial and hence the criminal court alone had jurisdiction. This
C submission was held to be misconceived for the following reasons:
“7. It was argued on behalf of the petitioner that there was no
notice given by the Commanding Officer to the Magistrate under
Rule 5 that the petitioner should be tried by a Court Martial and
hence the criminal court alone had jurisdiction under Rule 3 to
D conduct proceedings against the petitioner for the offences
charged. In our opinion, the argument on behalf of the petitioner
is misconceived. The Rules framed by the Central Government
under Section 549 of the Criminal Procedure Code apply to a
case where the proceedings against the petitioner have already
E been instituted in an ordinary Criminal Court having jurisdiction to
try the matter and not at a stage where such proceedings have
not been instituted. It is clear from the affidavits filed in the
present case that the petitioner was not brought before the
Magistrate and charged with the offences for which he was
liable to be tried by the Court Martial within the meaning
F of Rule 3 and so the situation contemplated by Rule 5 has
not arisen and the requirements of that Rule are therefore
not attracted. It was pointed out by Mr Dutta that after the first
information report was lodged at Pallavaran police station a copy
thereof should have been sent to the Magistrate. But that does
G not mean that the petitioner “was brought before the Magistrate
and charged with the offences” within the meaning of Rule 3. It
is manifest that Rule 3 only applies to a case where the
police had completed investigation and the accused is
brought before the Magistrate after submission of a charge-
sheet. The provisions of this Rule cannot be invoked in a
H
THE STATE OF SIKKIM v. JASBIR SINGH & ANR. 265
[DR. DHANANJAYA Y CHANDRACHUD, J.]

case where the police had merely started investigation A
against a person subject to military, naval or air force law.
With regard to the holding of the inquest of the dead-body of Spr.
Bishwanath Singh it was pointed out by the Attorney-General that
Regulation 527 of the Defence Services Regulations has itself
provided that in cases of unnatural death that is death due to suicide,
B
violence or under suspicious circumstances information should be
given under Section 174 of the Criminal Procedure Code to the
civil authorities, and the conduct of Maj. Agarwal in sending
information to the civil police was merely in accordance with the
provisions of this particular regulation. For these reasons we hold
that counsel for the petitioner is unable to make good his argument C
on this aspect of the case.”
(emphasis supplied)
28. From the above extract, it is evident that the Constitution Bench
held that the Rules applied in a situation where proceedings had already
been instituted in an ordinary criminal court. In that case, the petitioner D
was not brought before the Magistrate and charged with an offence for
which he was liable to be tried by the court-martial. Rule 3 only applied,
as the Court noted, where the police had completed the investigation
and the accused was brought before the Magistrate after the submission
of the charge-sheet. The decision in Som Datt Datta (supra), in other E
words, dealt with a situation where the offender had been tried by a
court-martial. The argument that the Rules applied but had not been
followed by the competent officer was rejected.
29. In Joginder Singh v. State of Himachal Pradesh20, a two-
judge Bench of this Court dealt with a case where the appellant, who F
was governed by the Army Act, challenged the legality of his trial and
conviction for committing the offence under Section 376 of the IPC by
the Assistant Sessions Judge, Nahan. Unlike the situation before the
Constitution Bench in Som Datt Datta (supra) (where the accused
had been tried by a court-martial), in Joginder Singh (supra) the accused
had been tried and convicted by the Sessions Court. In that case, the G
appellant who was subject to the Army Act was alleged to have committed
rape in relation to a person who was not subject to military, naval or air
force law and hence under Section 70, the accused could normally be

20
(1971) 3 SCC 86 H
266 SUPREME COURT REPORTS [2022] 8 S.C.R.

A tried by an ordinary criminal court. However, since the appellant was in
active service at the time of the alleged offence, the court-martial also
had the jurisdiction to try him and the case involved a situation where
both the court-martial and the ordinary criminal court had concurrent
jurisdiction. After considering the earlier judgments of this Court in Major
EG Barsay v. State of Bombay21, Ram Sarup (supra) and Som Datt
B
Datta (supra), the Court observed:
“22. It is further clear that in respect of an offence which could
be tried both by a criminal court as well as a Court-martial Sections
125, 126 and the Rules, have made suitable provisions to avoid a
conflict of jurisdiction between the ordinary criminal courts and
C the Court-martial. But it is to be noted that in the first instance,
discretion is left to the officer mentioned in Section 125 to decide
before which court the proceedings should be instituted. Hence
the officer commanding the army, army corps, division or
independent brigade in which the accused person is serving or
D such other officer as may be prescribed will have to exercise his
discretion and decide under Section 125 in which court the
proceedings shall be instituted. It is only when he so exercises
his discretion and decides that the proceedings should be
instituted before a Court-martial, that the provisions of
Section 126 (1) come into operation. If the designated officer
E does not exercise his discretion and decides that the
proceedings should be instituted before a Court-martial,
the Army Act would not obviously be in the way of a criminal
court exercising its ordinary jurisdiction in the manner
provided by law.”
F (emphasis supplied)
30. In the above observation, the Court clarified that Sections
125 and 126 have made provisions to avoid a conflict of jurisdiction
between ordinary criminal courts and a court-martial in respect of an
offence which could be tried by both the criminal court and by a court-
G martial. The Court observed that Section 125 leaves the discretion, in
the first instance, with the competent officer and it is only when he so
exercises the discretion and decides that the proceedings should be
instituted before a court-martial that Section 126 would come into
operation. If the designated officer does not exercise this discretion to
21
H (1962) 2 SCR 195
THE STATE OF SIKKIM v. JASBIR SINGH & ANR. 267
[DR. DHANANJAYA Y CHANDRACHUD, J.]

institute proceedings before a court-martial, the Army Act would not A
interdict the exercise of jurisdiction by the ordinary criminal court. After
adverting to the provisions of the Rules, the Court noted:
“29. Rule 4 is related to clause (a) of Rule 3 and will be attracted
only when the Magistrate proceeds to conduct the trial without
having been moved by the competent military authority. It is no B
doubt true that in this case the Assistant Sessions Judge
has not given a written notice to the Commanding Officer
as envisaged under Rule 4. But, in our view, that was
unnecessary. When the competent military authorities,
knowing full well the nature of the offence alleged against
the appellant, had released him from military custody and C
handed him over to the civil authorities, the Magistrate
was justified in proceeding on the basis that the military
authorities had decided that the appellant need not be tried
by the Court-martial and that he could be tried by the
ordinary criminal court.” D
31. In Joginder Singh (supra) therefore the Court noted that
the absence of a written notice to the competent officer under Rule 4
was unnecessary where the competent military authorities, knowing about
the nature of the offence alleged against the appellant, released him
from military custody and handed him over to the civil authorities. In E
such a situation, it was held that the Magistrate was justified in proceeding
on the basis that the military authorities had decided that the appellant
need not be tried by a court-martial and that he should be tried by the
ordinary criminal court.
32. The next decision to which a reference has to be made is that F
of a three-judge Bench decision in Delhi Special Police
Establishment, New Delhi v. Lt. Col. SK Loraiya22. The respondent
in that case was a Lieutenant Colonel in the service of the Army and
was charged by the Special Judge, Gauhati for offences punishable under
Section 120B of the IPC read with Section 5(1)(c) and (d) and Section
5(2) of the Prevention of Corruption Act 1988. A revision against the G
framing of charges was allowed by the High Court. The order of the
High Court quashing the charges was assailed before this Court. In that
context, the Court held:

22
(1972) 2 SCC 692 H
268 SUPREME COURT REPORTS [2022] 8 S.C.R.

A “9. As regards the trial of offences committed by army men, the
Army Act draws a threefold scheme. Certain offences enumerated
in the Army Act are exclusively triable by a Court-Martial; certain
other offences are exclusively triable by the ordinary Criminal
Courts; and certain other offences are triable both by the ordinary
criminal court and the Court-Martial. In respect of the last category
B
both the courts have concurrent jurisdiction. Section 549(1) CrPC
is designed to avoid the conflict of jurisdiction in respect of the
last category of offences. The clause “for which he is liable to be
tried either by the court to which this Code applies or by a Court-
Martial” in our view, qualifies the preceding clause “when any
C person is charged with an offence” in Section 549(1). Accordingly
the phrase “is liable to be tried either by a court to which this
Code applies or a Court-Martial” imports that the offence for
which the accused is to be tried should be an offence of which
cognizance can be taken by an ordinary criminal court as well as
a Court-Martial. In our opinion, the phrase is intended to
D
refer to the initial jurisdiction of the two courts to take
cognizance of the case and not to their jurisdiction to decide
it on merits. It is admitted that both the ordinary criminal
court and the Court-Martial have concurrent jurisdiction
with respect to the offences for which the respondent has
E been charged by the Special Judge. So, Section 549 and
the rules made thereunder are attracted to the case at
hand.”
(emphasis supplied)
33. The Court noted that it was an admitted fact that the procedure
F specified in Rule 3 was not followed by the Special Judge, Gauhati before
framing the charges. The Court held that Section 549(1) of the Code of
Criminal Procedure1898 (equivalent to Section 475 of the CrPC) had to
be construed in the light of Section 125 of the Army Act and both the
provisions had in mind the object of avoiding a collision between the
ordinary criminal court and the court-martial. In this backdrop, the order
G of the High Court quashing the framing of charges was sustained.
34. An order of a two-judge Bench of this Court in SK Jha v.
State of Kerala23 arose from a case where three naval officers were
arrested for offences punishable under Sections 143, 147, 148, 452, 307,
23
H (2011) 15 SCC 492
THE STATE OF SIKKIM v. JASBIR SINGH & ANR. 269
[DR. DHANANJAYA Y CHANDRACHUD, J.]

326 and 427 read with Section 149 of the IPC. An application was filed A
by the Commanding Officer of the Naval Unit for handing over the
accused for trial under the Navy Act 1957. The application was rejected
by the Magistrate on the ground that the stage for consideration would
only be on the completion of the police investigation. The order of the
Magistrate was challenged before the High Court in revision and the
B
challenge was rejected. The two-judge Bench held that the decision in
Som Datt Datta (supra) governed the case and the option as to whether
the accused should be tried before the criminal court or by a court-
martial could be exercised only after the police had completed the
investigation and submitted the charge-sheet. In that case, the police
had merely commenced the investigation and hence the rejection of the C
request of the Commanding Officer by the Magistrate was upheld.
35. In Extra-Judicial Execution Victim Families Association
and Another v. Union of India24, a submission was urged on behalf of
the Union of India that an offence committed by a member of the Armed
Forces must be tried under the provisions of the Army Act through a D
court-martial and not under the CrPC. Justice Madan B Lokur, speaking
for the two-judge Bench, inter alia adverted to the decisions of the
Constitution Benches in Ram Sarup (supra) and Som Datt Datta
(supra). The Court also referred to the following extract from the decision
in Balbir Singh and Another v. State of Punjab25:
E
“240. In para 17 of the Report in Balbir Singh case [Balbir
Singh v. State of Punjab, (1995) 1 SCC 90 : 1995 SCC (Cri)
202] , this was held as follows : (SCC pp. 99-100)
“17. A conjoint reading of the above provisions shows that when
a criminal court and court martial each have jurisdiction in respect
F
of the trial of the offence, it shall be in the discretion of the officer
commanding the group, wing or station in which the accused is
serving or such other officer as may be prescribed, in the first
instance, 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 persons shall G
be detained in air force custody. Thus, the option to try a person
subject to the Air Force Act who commits an offence while on
“active service” is in the first instance with the Air Force
24
(2016) 14 SCC 536
25
(1995) 1 SCC 90 H
270 SUPREME COURT REPORTS [2022] 8 S.C.R.

A Authorities. The criminal court, when such an accused is
brought before it shall not proceed to try such a person or
to inquire with a view to his commitment for trial and shall
give a notice to the Commanding Officer of the accused, to
decide whether they would like to try the accused by a court
martial or allow the criminal court to proceed with the trial.
B
In case, the Air Force Authorities decide either not to try
such a person by a court martial or fail to exercise the option
when intimated by the criminal court within the period
prescribed by Rule 4 of the 1952 Rules (supra), the accused
can be tried by the ordinary criminal court in accordance
C with the Code of Criminal Procedure. On the other hand if
the Authorities under the Act opt to try the accused by the
“court martial”, the criminal court shall direct delivery of
the custody of the accused to the Authorities under the Act
and to forward to the Authorities a statement of the offence
of which he is accused. It is explicit that the option to try
D the accused subject to the Act by a court martial is with the
Air Force Authorities and the accused person has no option
or right to claim trial by a particular forum. …
… However, in the event the criminal court is of the opinion, for
reasons to be recorded, that instead of giving option to the
E Authorities under the Act, the said court should proceed with the
trial of the accused, without being moved by the competent authority
under the Act and the Authorities under the Act decide to the
contrary, the conflict of jurisdiction shall be resolved by the Central
Government under Section 125(2) of the Act and the decision as
to the forum of trial by the Central Government in that eventuality
F
shall be final.””
(emphasis supplied)
36. The Court also adverted to the following extract from the
decision in the Additional Director General, Army Headquarters v.
Central Bureau of Investigation26:
G
“244. This Court in Army Headquarters case [Army
Headquarters v. CBI, (2012) 6 SCC 228 : (2012) 3 SCC (Cri) 88]
then recorded its conclusions in para 95 of the Report and they
read as follows : (SCC p. 264)
26
H (2012) 6 SCC 228
THE STATE OF SIKKIM v. JASBIR SINGH & ANR. 271
[DR. DHANANJAYA Y CHANDRACHUD, J.]

“95. To sum up: A
95.1. The conjoint reading of the relevant statutory provisions
and Rules make it clear that the term “institution” contained in
Section 7 of the 1990 Act means taking cognizance of the offence
and not mere presentation of the charge-sheet by the investigating
agency. B
95.2. 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.
95.3. Facts of this case require sanction of the Central C
Government to proceed with the criminal prosecution/trial.
95.4. In case option is made to try the accused by a court martial,
sanction of the Central Government is not required.”
37. In this backdrop, the Court held that if an offence is committed
D
even by Army personnel, there was no concept of absolutely immunity
from trial by the criminal court constituted under the CrPC. Rejecting
the submission of the Union of India, the Court observed:
“246. The result of the interplay between Section 4 and Section 5
CrPC and Sections 125 and 126 of the Army Act makes it quite
E
clear that the decision to try a person who has committed an
offence punishable under the Army Act and who is subject to the
provisions of the Army Act does not always or necessarily lie
only with the Army — the criminal court under CrPC could also
try the alleged offender in certain circumstances in accordance
with the procedure laid down by CrPC.” F
38. In the present case, the essence of the submission which has
been urged on behalf of the respondent is:
(i) The stage of the exercise of discretion by the Army authority
to either opt for a court-martial or for trial before the criminal
court is after the charge-sheet is filed and before cognizance G
has taken;
(ii) The Magistrate precluded the exercise of the discretion by
the Army authorities by passing an order of committal to
the Court of Sessions immediately after the charge-sheet
was filed; H
272 SUPREME COURT REPORTS [2022] 8 S.C.R.

A (iii) There was a failure on part of the Magistrate to follow the
mandatory provisions of the 1978 Rules by issuing a notice
under Rule 4 to the competent officer; and
(iv) All that has transpired prior to the submission of the charge-
sheet in terms of the handing over of the accused by the
B Army authorities to the police stands obliterated and in the
absence of a notice under Rule 4, the trial would stand
vitiated.
39. Now in evaluating this submission, a survey of the precedent
indicates that Ram Sarup (supra) was a case of a court-martial where
there was a challenge to the validity of Section 125 of the Army Act.
C The challenge was rejected on the ground that a variety of circumstances
bearing upon the exigencies of the service would determine the exercise
of discretion by the competent authority to opt for a court-martial.
40. The decision of the Constitution Bench in Som Datt Datta
(supra) involved a challenge to the court-martial proceedings on the
D ground that no notice had been issued by the competent officer to the
Magistrate notifying the latter that the accused was to be tried by a
court-martial. The argument was rejected on the ground that Rule 3
only applied to a situation where a person who is charged with an offence
is brought before a Magistrate, which was not the case before the
Constitution Bench. In that case, the accused had been tried by the
E
court-martial and there was no involvement of the Magistrate. Thus, the
challenge that there had been a violation of the procedure mandated
under the Criminal Courts and Court Martial (Adjustment of Jurisdiction)
Rules 1952 was rejected.
41. Broadly speaking there are three categories of offences. First,
F the provisions of Chapter VI of the Army Act indicate that where an
offence is created by the Act itself it would be exclusively triable by a
court-martial. Second, where a ‘civil offence’ is also an offence under
the Army Act or is deemed to be an offence under the Act, both the
ordinary criminal court as well as court-martial would have jurisdiction
G to try the person committing the offence. The third category (referred to
in Section 70) consists of the offences of murder, culpable homicide not
amounting to murder or rape committed by a person subject to the Army
Act against a person who is not subject to military, naval or air force
law. Subject to the three exceptions which are set out in Section 70,
such offences are not triable by a court-martial but by an ordinary criminal
H court.
THE STATE OF SIKKIM v. JASBIR SINGH & ANR. 273
[DR. DHANANJAYA Y CHANDRACHUD, J.]

42. The offence in the present case does not fall in the category A
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
B
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.
43. 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. C
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 D
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 court-martial 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 E
the Act if the ingredients of that provision are fulfilled. The ingredients
of Section 70 are:
(i) The offence must be committed by a person subject to the
Army Act;
F
(ii) The offence must be committed against a person who is
not subject to military, naval or air force law; and
(iii) The offence must be of murder, culpable homicide not
amounting to murder or rape.
Where these conditions apply, the person is not deemed to be G
guilty of an offence under the Act and is not to be tried by a court-
martial unless the three exceptions which are carved out in clauses (a),
(b) and (c) of Section 70 are attracted.
44. In the present case, the conditions requisite for the application
under Section 70 do not stand attracted for the reason that the offence H
274 SUPREME COURT REPORTS [2022] 8 S.C.R.

A 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
B
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 court-
martial 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
C 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
D
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
E 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
F
by the court-martial in which event the court-martial would take place.
45. Significantly, in the present case there was no decision by the
designated officer to institute proceedings before a court-martial in terms
of Section 125. The argument on the absence of compliance with Rule 3
and Rule 4 of the 1978 Rules is misconceived. The 1978 Rules, which
G 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
H the Central Government. The rules which have been framed under Section
THE STATE OF SIKKIM v. JASBIR SINGH & ANR. 275
[DR. DHANANJAYA Y CHANDRACHUD, J.]

475 of the CrPC provide for the issuance of a notice by the Magistrate A
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
B
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. In the earlier part of this judgment, we
have narrated these circumstances namely:
(i) the handing over of the accused by the Army to the custody
of the police; C

(ii) the co-operation of the Commanding Officer, Colonel RR
Nair, in meeting the requisitions of the Investigating Officer;
(iii) the recording of the statement of the informant under Section
164 of the CrPC; D
(iv) the recording of the evidence of the Commanding Officer
during the course of the criminal trial, thereby indicating a
clear intent that the trial would proceed in terms of the
jurisdiction of the ordinary criminal court.
46. The respondent-accused has relied on the decision of this E
Court in Loraiya (supra), to urge that the provisions of Section 475 of
the CrPC are mandatory, that is, the Magistrate must issue notice to the
Commanding Officer to enable him to exercise the option of a trial by
court-martial or by a criminal court. The submission is that since the
procedure under this provision and Rule 4 of the 1978 Rules was not F
followed, the trial stands vitiated. We do not find this submission to be
persuasive. The decision in Loraiya (supra) is distinguishable. Loraiya
(supra) involved the framing of charges under the Prevention of
Corruption Act 1988 and the IPC against a person subject to the Army
Act. The judgment of this Court does not contain any indication of a
deferral to the jurisdiction of the ordinary criminal court by the Army G
authorities, as in the present case.
47. The High Court has found fault with the prosecution in not
producing certified copies of the decision of the Army authorities to
defer to the jurisdiction of the criminal court. But even keeping that
decision aside, it is abundantly clear that far from there being any decision H
276 SUPREME COURT REPORTS [2022] 8 S.C.R.

A by the competent officer regarding the institution of proceedings before
the court-martial, there was in the present case an unequivocal and clear
acceptance of the jurisdiction of the ordinary criminal court coupled with
explicit cooperation with the Court of Sessions.
48. The respondent has also submitted that the proceedings before
B the Sessions Judge would be in violation of the Section 461(l) of the
CrPC. The submission is thoroughly misconceived as Section 461(l)
indicates that if a Magistrate has not been empowered by law to try an
offender, then the proceedings would be void. For the reasons, we have
indicated above, it is clear that the Sessions Judge had the jurisdiction to
try the offender and thus, the provisions of Section 461(l) of the CrPC
C have no application.
49. During the course of the proceedings, Mr Pradeep Kumar
Dey urged before this Court that in case the trial is conducted by the
ordinary criminal court and not a court-martial under the Army Act, the
respondent would not be able to avail the benefit of being awarded a
D lower punishment under the Army Act.
50. 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
E 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,
F 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
G 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
H law in force, then he shall be liable to suffer any punishment, other than
THE STATE OF SIKKIM v. JASBIR SINGH & ANR. 277
[DR. DHANANJAYA Y CHANDRACHUD, J.]

whipping, assigned for the offence by the aforesaid law and such less A
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 B
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 C
service, etc., provided under Section 7127). 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
27
“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- D
martial, according to the scale following, that is to say,—
(a) death;
(b) transportation for life or for any period notless than seven years;
(c) imprisonment either rigorous or simple, for any period not exceeding fourteen
years;
(d) cashiering, in the case of officers;
(e) dismissal from the service; E
(f) 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;
(g) forfeiture of seniority of rank, in the case of officers, junior commissioned officers,
warrant officers and non-commissioned officers; and forfeiture of all or any part of
F
their service for the purpose of promotion, in the case of any of them whose promotion
depends upon length of sendee;
(h) forfeiture of service for the purpose of increased pay, pension or any other prescribed
purpose;
(i) severe reprimand or reprimand, in the case of officers, junior commissioned officers,
warrant officers and non-commissioned officers; G
(j) forfeiture of pay and allowances for a period not exceeding three months for an
offence committed on active service;
(k) 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:
(l) stoppage of pay and allowances until any proved loss or damage occasioned by (he
offence of which he is convicted is made good.” H
278 SUPREME COURT REPORTS [2022] 8 S.C.R.

A 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.
B 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
C 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
D accept this submission of the respondent.
D Conclusion
51. 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
E 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.
F 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.
52. The trial would proceed from the stage that was reached
when the Sessions Judge decided that there was an absence of
G jurisdiction. The trial shall be proceeded with and be concluded in
accordance with law. The appeal is allowed in the above terms.
53. Pending applications, if any, shall stand dismissed.

Ankit Gyan Appeal allowed.
H