Intent Of Army Act Is Not To Protect Army Personnel By Awarding Them Lesser Punishment Even For Serious Offences: Supreme Court

The Supreme Court observed that the intent of the Army Act is not to protect army personnel by awarding them lesser punishment even for serious offences

"If that was the intent of the legislature- that is to protect persons subject to the Army 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", the bench comprising Justice DY Chandrachud and Justice Surya Kant observed while allowing an appeal filed by the State of Sikkim against an order passed by the Sikkim High Court which directed that a criminal case against an army officer be handed over to court-martial.

In this case, an FIR under Section 302 of the Indian Penal Code 1860 had been registered against the accused army man who had allegedly shot down a rifleman named Balbir Singh. On 15 December 2014, the custody of the accused was handed over by the competent military authority to the Investigating Officer. On 28 February 2015, a case was registered as Sessions Trial Case No.03/2015 and charges were framed.  The Sessions Court held that since both the accused and the deceased were governed by the Army Act 1950 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. Therefore, the Chief Judicial Magistrate was directed to give written notice to the CO of the respondent's unit or the competent military authority for his trial by a court-martial. The High Court upheld this order of the Sessions Court and this made the State of Sikkim approach the Apex Court.

The Apex Court bench, on the question of jurisdiction of Sessions Court, in this case, held that the criminal court will have jurisdiction to try a case against an army personnel if the Commanding Officer does not exercise the discretion under Section 125 of the Army Act to initiate court-martial with respect to the offence. If the designated officer does not exercise this discretion to institute proceedings before a court-martial, the Army Act would not interdict the exercise of jurisdiction by the ordinary criminal court, the Court held. "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", the court said.

The above observations were made while considering the contention raised on behalf of the accused that if the trial is conducted by the ordinary criminal court and not a court-martial under the Army Act, the accused would not be able to avail the benefit of being awarded a lower punishment under the Army Act.

The court noted that 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 law in force, then 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. 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. Referring to this provision, the bench observed:

"The words of the statute clearly indicate that the legislature provided different punishments for serious offences which under law are punishable with death or life imprisonment, and for all other offences. In case of the former, subSection (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  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 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"

While rejecting the contention raised by the accused, the bench observed thus while allowing the appeal:

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 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 accept this submission of the respondent.

Case Details:

Case Title : State of Sikkim vs Jasbir Singh

Citation : 2022 LiveLaw (SC) 116

Case Number : CrA 85 of 2022 | 1 Feb 2022

Coram : Justices DY Chandrachud and Surya Kant

Appearance : Advocate General Vivek Kohli for appellant state, ASG Aman Lekhi for UoI, Sr. Adv Pradeep Kumar Dey for respondent

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