LexJOGINDER SINGH versus STATE OF HIMACHAL PRADESH
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A B c D E F G H JOGINDER SINGH v. STATE OF HIMACHAL PRADESH November 30, 1970 [J. M. SHELAT AND C. A. VA!D!AL!NGAM, JJ.] 857 Army Act, 1950, .u. 70, 125 & 126(1)-Criminal Cburt and Court• Martial (Adjustment of Jurisdiction) Rules 1952, r. 4-Army man· charged 1vith rape-Concurrent jurisdiction of Court Mt+-rtial and Criminal Court-Offender handed orer b,v military authorities to Civil Authorities -Tried and convicted hy Assistant Sessions Judge-Trial is legal and ra/itl-When c/i.1cretion under s. 125 to hold Court Martial Is not exer- cised by n1ilitar;v authorities and offender i') handed oVer to Civil authori- ties provision• of s. 126(1) and r. 4 are not attracted. The appellant was a Lance Naik in a military regiment. He was appointed as Granthi of a temple used by military personnel. While working as such he was charged with an offence under s. 376 of the Indian Penal Code.. The police officer investigating offence held an iden- tification parade with the permission of the military authorities and there- after the appellant was handed over to the civil authorities to stand his trial. The Assistant Sessions Judge convicted him. The Sessions Judge dismissed his appeal. The appellant then filed a criminal revision in the High Court where it was contended on his behalf that according to noti- fication dated November 28, 1962 issued by the Ministry of Defence, Government of India, the appellant mllst be considered to have been oo active service on the material date and consequently the appellants' trial should have been before a court martial. It was further urged that it the Assistant Sessions Judge decided to proceed with the trial it was obligatory on him to have given notices to the Commanding Officer of the Army under s. 126(1) of the Army Act read with 'r. 4, and since these provisions had not been complied with the appellant's trial and con- viction were null and void. The High Court dismissed the revision l)eti- :ion. With certificate the appellant appealed to this Court. HELD : Since the appellant was alleged to have committed rape in relation to a pefson who was not subject to military, naval or air law, under s. 70 of the Army Act he would be normally triable by the ordi- nary criminal court but by virtue of notification dated November 28, 1962 he must be deemed to have been on active service on the material date. Therefore. this was a case where both the court martial and the ordinary criminal court had concurrent jurisdiction to try the appellant. [863 H] The provisions of the Army Act and the decisions of this Court make it clear that in respect of an offence whicl1 could be fried both by a criminal court as well as a court martial, ss. 125, 126 and the rules have made suitable provisions to avoid a conflict of jurisdiction between the ordinary criminal court and the court martial. But it is to be not~d that in the first instance the discretion is left to the officer mentloned m s. 125 to decide before which court the proceedings should be instituted .. Hence the officer commaoding the army, army corps. division or inde- pendent brigade io which the ac.cused person is ~ervill!l, o~ su~h other officer as may be prescribed, will hav.e to exer_Cise hIS d1Scr~t1on and decide under s. 125 in which court the proceedmgs shall be mstituted. 858 SUPREME COURT REPORTS [l 971 J 2 S.C.R. It is only when he has so exercises his discretion and. decides that the proceedings should be instituted before the court martial that the pro- visions of s. 126 ( 1) come into operation. If the designated officer does not exercise his discretion and decide that the proceedings should be instituted before a court martial the Army Act would not b~ in the way .of criminal court exercising its ofllinary jurisdiction in the manner pro~ vided by law. [865 H-866 CJ In the present case surrender of the accused by the military authorities .to the civil authorities to be dealt with the latter, after being made aware of the nature of the offence alleged against the appellant was clear indica- ti0n that the decision of the military authorities was that the appellant need not be tried by a court martial and that his trial could take place. before the criminal court. U oder these circumstances there was no occa· sion to follow the procedure under s. 126 or r. 4 as the military authori- ties had made abundantly clear that the appellant need not be tried by the court ma
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