- In the case of State Of Sikkim vs Jasbir Singh the Hon’ble SC has held that a criminal Court will have the jurisdiction to try a case against an army personnel when the Commanding Officer has not exercised his discretion under section 125 of the Army Act to initiate the proceedings of Court Martial.
- In the instant case, an army man was accused of shooting a rifle man named Balbir Singh. An FIR was registered under section 302 of IPC. On 15 December, his custody was handed over to the investigating officer, and later a case was instituted in the Sessions Court and charges were framed.
- The Sessions Court held that since the accused as well as the deceased were governed by the provisions of the Army Act, according to section 69 of the same, the accused could be tried only by the Court Martial. The same was upheld by the High Court.
- Section 125 of the Army Act states that when both the Criminal court as well as the Court Martial have jurisdiction in respect of the offence committed, then the Commanding Officer of the unit where the accused is serving has the power to decide in which court the case would be tried.
- The State of Sikkim appealed against the order of the HC and argued that if the Commanding Officer does not exercise his discretion under section 125, then the Army Act would not stop the criminal Court from exercising its ordinary criminal jurisdiction. This stand was also supported by the Union Government.
- The accused, on the other hand, argued that in view of the provisions of section 69 and 70 of the Army Act, a trial could only be possible by the Court Martial and not by the criminal court.
- The Apex Court observed that under section 125, the Commanding Officer has, when there exists a concurrent jurisdiction, the discretion to choose whether the trial would be conducted by Court Martial or in the ordinary criminal court. The section further goes on to say that if the Commanding Officer chooses to exercise his discretion, then the proceedings shall be instituted in the forum of his choice.
- The Court relied on the case of Joginder Singh vs State of Himachal Pradesh where it was held that if the commanding officer does not exercise his discretion then the Army Act would not contradict the provisions of CrPC and there would not be an overlapping of jurisdiction.
- The Court further observed that in the present case, the entire sequence of events clearly indicates that the Commanding Officer made a conscious decision that the investigation and trial should be done according to the provisions of CrPC.
- Thus, while allowing the appeal, the Apex Court held that the sessions court had the jurisdiction to try the case and the decision of the HC was set aside.
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