Criminal Court Can Try A Case Against Army Man If Commanding Officer Does Not Exercise Discretion U/Sec 125 Army Act To Initiate Court-Martial
Case: State of Sikkim vs Jasbir Singh
Coram: Justices DY Chandrachud and Surya Kant
Case No.: CrA 85 of 2022
Court Observation: “Where there exists concurrent jurisdiction in the court-martial and in the ordinary criminal court, primarily the discretion of conducting the court-martial in preference to a trial by the ordinary criminal court is entrusted to the designated officer under Section 125. The designated officer has been conferred with the discretion “to decide before which court the proceedings shall be instituted”. Moreover, Section 125 has a conjunctive requirement which is amplified by the expression “and, if that officer decides that they should be instituted before a court-martial”. Thus, the conjunctive requirement under Section 125 is that the competent officer has the discretion to decide before which court the proceedings shall be instituted and if the officer exercises that discretion to institute proceedings before a court-martial, then the officer will direct that the accused be detained in military custody. Section 125, in other words, not only recognizes that an element of discretion has been vested in the designated officer, but it also postulates that the designated officer should have decided that the proceedings be instituted by the court-martial in which event the court-martial would take place.”
“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-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 institute proceedings before a courtmartial, the Army Act would not interdict the exercise of jurisdiction by the ordinary criminal court”
“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”
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