IMPORTANT POINT
When a provision of a statute is made subject to another provision by Legislature, this evinces an intent that where latter provision is attracted, former would give way.

JUDGMENT :

Dhananjaya Y. Chandrachud, J.

A. Facts

1. This appeal arises from a judgment of a Single Judge of the High Court of Sikkim. While exercising the revisional jurisdiction under Sections 397 and 401 read with Section 482 of the Code of Criminal Procedure 1973¹[“CrPC”], the High Court has upheld the order of the Sessions Judge, Special Division-II, Sikkim, at Gangtok, directing the Chief Judicial Magistrate, East Sikkim 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.

2. On 14 December 2014, at about 19:40 hours, Lance Naik Rajesh Kumar of 17 Mountain Division of the Indian Army lodged a First Information Report²[FIR No. 409/2014] before the Station House Officer at the Sadar Police Station in Gangtok stating inter alia that on the relevant date at around 6.00 p.m., when he returned to his barracks, he struck up a conversation with two riflemen for a short while. After that, as he was freshening up, between 6.30 p.m. and 6.45 p.m. he heard sounds of gunshots inside the barracks. He immediately rushed to the barracks and witnessed the respondent-accused, Lance Naik Jasbir Singh, opening fire on a rifleman, Balbir Singh, with an INSAS Rifle. The informant pulled the respondent-accused out of the barracks along with the rifle and simultaneously raised an alarm for help, on which Signalmen Ujjal Sinha and C.H. Anil arrived at the spot. The accused, in the meanwhile, escaped from the clutches of the informant. The informant then immediately rang up the medical room and returned to check on the injured rifleman, by which time he suspected that the he was already dead. FIR No. 409 of 2014 was registered on 14 December 2014 at the Sadar Police Station, Gangtok.

3. On 15 December 2014, the custody of the accused was handed over by the competent military authority to the Investigating Officer³[“IO”] and an arrest/ court surrender memo was issued by the Sub-Inspector of Police at the Sardar Police Station. While conducting the investigation, the IO issued a requisition to the Commanding Officer of the 17 Mountain Division Pro Unit, informing him that an FIR under Section 302 of the Indian Penal Code 1860⁴[“IPC”] had been registered against the respondent-accused. The IO requested certain documents for the purpose of investigation, namely:

(i) The order of appointment of the accused;

(ii) Duty Deployment Chart of Sunday, 14 December 2014;

(iii) Weapon Issue Register of Sunday, 14 December 2014; and

(iv) Records of any previous offence.

4. In response to the above communication, Colonel RR Nair, the Commanding Officer⁵[“CO”] of the 17 Mountain Division Pro Unit furnished the following documents by his letter dated 27 December 2014:

(i) Copy of the posting order in respect of No. 778224F L/Nk(MP) Jasbir Singh;

(ii) CTC of Pilot duty detailment extract as on 14 December 2014;

(iii) CTC of Weapon Issue Register, where he informed the IO that the respondent-accused had withdrawn the weapon for piloting duty on 14 December 2014. After completion of the duty however, while committing the offence, the respondent had unauthorizedly accessed the weapon; and

(iv) Record of previous offences.

A copy of this communication was forwarded by the CO to the Headquarters of the 17 Mountain Division Pro Unit.

5. On 12 Janu