THE STATE OF SIKKIM versus JASBIR SINGH & ANR.

Citation: [2022] 8 S.C.R. 242 · Decided: 01-02-2022 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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242
SUPREME COURT REPORTS
[2022] 8 S.C.R.
[2022] 8 S.C.R. 242
242
THE STATE OF SIKKIM
v.
JASBIR SINGH & ANR.
(Criminal Appeal No. 85 of 2022 )
FEBRUARY 01, 2022
[DR. DHANANJAYA Y CHANDRACHUD AND
SURYA KANT, JJ.]
Army Act – ss. 69, 70, 125, 126 – Criminal Courts and Court
Martial (Adjustment of Jurisdiction) Rules, 1978 – ss. 3, 4 and 5 –
Concurrent jurisdiction between the court-martial and the ordinary
criminal court – FIR u/s. 302 of IPC was registered against the
respondent-accused – Sessions Judge directed the Chief Judicial
Magistrate to furnish a written notice to the Commanding Officer
of the unit of the respondent-accused and deliver him for trial by a
Court-martial – High Court upheld the decision of the Session Judge
– Pursuant to the judgment of the High Court, Unit major exercised
his power u/s.125 of the Army Act and decided that the proceedings
against the respondent-accused be instituted before the criminal
court and that he be detained in the civil custody – However, it was
rejected by the Chief Judicial Magistrate in view of the order passed
by the Sessions Judge – Since that order was upheld by the High
Court, the respondent was handed over to the Army – Held: Where
there exists concurrent jurisdiction in the court-martial and in the
ordinary criminal court, primarily the discretion of conducting the
court-martial in preference to a trial by the ordinary criminal court
is entrusted to the designated officer u/s. 125 – The designated
officer has been conferred with the discretion “to decide before
which court the proceedings shall be instituted” – Moreover, s.125
has a conjunctive requirement which is amplified by the expression
“and, if that officer decides that they should be instituted before a
court-martial” – Thus, the conjunctive requirement u/s. 125 is that
the competent officer has the discretion to decide before which court
the proceedings shall be instituted and if the officer exercises that
discretion to institute proceedings before a court-martial, then the
officer will direct that the accused be detained in military custody –
In the present case, there was no decision by the designated officer
to institute proceedings before a court-martial in terms of s.125 –
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The entire sequence of events both before and after the completion
of investigation provides a clear indicator that the Commanding
Officer took a conscious decision that the investigation and trial
should be conducted in accordance with the provisions of the CrPC
– High Court was in error in affirming, in the exercise of its revisional
jurisdiction, the decision of the Sessions Judge that the court-martial
alone would have jurisdiction – Both on law and in fact, the position
is to the contrary – Sessions Judge was competent and there was no
error in the assumption or the exercise of the jurisdiction.
Allowing the appeal, the Court
HELD: 1. The offence in the present case does not fall in
the category of those offences which are triable exclusively by a
court-martial (Section 34 to 68) or those offences which cannot
be tried by a court-martial (under Section 70). The offence with
which the respondent-accused is charged falls in the category
where there is a concurrent jurisdiction between the court-martial
and the ordinary criminal court. Hence, it needs to be underscored
that there is no inherent lack of jurisdiction in the ordinary criminal
court to conduct a trial in accordance with the procedure
envisaged in the CrPC. [Para 42][273-A-B]
2. Section 69 provides when a person who is subject to the
Act shall be deemed to be guilty of an offence against the Act.
Section 69 of the Army Act has been made subject to the
provisions of Section 70. When a provision of a statute is made
subject to another provision by the legislature, this evinces an
intent that where the latter provision is attracted, the former would
give way. Where the conditions requisite for the application of
Section 70 exist, Section 69 would give way to Section 70. Section
70 provides for the conditions in which a person who is subject
to the Army Act shall not be deemed to be guilty of an offence
under the Act and shall not be tried by a court-martial. In other
words, Section 70 of the Army Act provides for where the 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 o

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