The discretion to choose between a criminal court and a court-martial lies with the Officer Commanding the army, army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed. The Magistrate shall give a notice to the Commanding Officer or the competent military authority before proceeding to frame the charge against the accused. The non-compliance of Rules 3 and 4 of Court-Martial (Adjustment of Jurisdiction) Rules, 1978, which are mandatory in nature, may vitiate the trial. The competent Commanding Officer can exercise the discretion/choice about the forum where the accused should be tried for the particular offence committed by him, if the case is covered under Section 125 of the Act and this power can be exercised by him before the commencement of the trial even though the case stood committed to the Court of Sessions.

Headnote:
ARMY ACT - SECTION 125, 127, 475 CR. PC - CHOICE BETWEEN CRIMINAL COURT AND COURT MARTIAL - DISCRETION OF OFFICER COMMANDING - JURISDICTION - RULES 3 AND 4 OF COURT-MARTIAL (ADJUSTMENT OF JURISDICTION) RULES, 1978 - NON-COMPLIANCE - POWER OF HIGH COURT UNDER SECTION 482 CR. PC - SUMMARY
Fact of the Case:

The petitioner, an army personnel, was accused of committing an offence under Sections 307, 323, 352 (PC and 21/25 Arms Act. The case was registered against him at P.S. G.R.P., Bharatpur. The petitioner was serving in 18th Guard Battalion under Major General, Officer Commanding, 33 Mechanised Division. He was on temporary duty at Ammunition Depot, Bharatpur. After the submission of the charge sheet, the petitioner was handed over to Offg., Station Commander, Station Headquarters, Bharatpur on his request. The Station Commander intimated the concerned Magistrate to proceed with the case under Cr. PC. The petitioner was committed to the Court of Sessions Judge, Kota, as the offence under Section 307 IPC is triable exclusively by the Court of Sessions. General Officer Commanding, 33 Mechanised Division decided to take over and possess the case under the Army Act 1950. A letter was addressed to the Sessions Judge, Bharatpur, along with the order of General Officer Commanding, 33 Mechanised Division by the Major, Offg. AAO (Legal) for GOC, HQ 33 Mechanised Division C/o 56 APO, with a request to hand over all the connected trial papers including investigating reports and weapons etc. so as to proceed against the petitioner under the Army Act. The prayer was declined by the learned Additional Sessions Judge No. 1, Bharatpur on the ground that the powers under Section 475 Cr. PC could be exercised only by the concerned Magistrate and not by the Court of Sessions.
Finding of the Court:

The court held that the discretion to choose between a criminal court and a court-martial lies with the Officer Commanding the army, army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed. The court further held that the Magistrate shall give a notice to the Commanding Officer or the competent military authority before proceeding to frame the charge against the accused. The court also held that the non-compliance of Rules 3 and 4 of Court-Martial (Adjustment of Jurisdiction) Rules, 1978, which are mandatory in nature, may vitiate the trial. The court further held that the competent Commanding Officer can exercise the discretion/choice about the forum where the accused should be tried for the particular offence committed by him, if the case is covered under Section 125 of the Act and this power can be exercised by him before the commencement of the trial even though the case stood committed to the Court of Sessions.
Issues: 1. Whether the Officer Commanding has the discretion to choose between a criminal court and a court-martial? 2. Whether the Magistrate is required to give a notice to the Commanding Officer or the competent military authority before proceeding to frame the charge against the accused? 3. Whether the non-compliance of Rules 3 and 4 of Court-Martial (Adjustment of Jurisdiction) Rules, 1978, may vitiate the trial? 4. Whether the competent Commanding Officer can exercise the discretion/choice about the forum where the accused should be tried for the particular offence committed by him, if the case is covered under Section 125 of the Act and this power can be exercised by him before the commencement of the trial even though the case stood committed to the Court of Sessions?
Ratio Decidendi: 1. The court relied on Sections 125 and 127 of the Army Act, 1950, and Rules 3 and 4 of Court-Martial (Adjustment of Jurisdiction) Rules, 1978, to hold that the discretion to choose between a criminal court and a court-martial lies with the Officer Commanding the army, army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed. 2. The court relied on Rule 4 of Court-Martial (Adjustment of Jurisdiction) Rules, 1978, to hold that the Magistrate shall give a notice to the Commanding Officer or the competent military authority before proceeding to frame the charge against the accused. 3. The court relied on the mandatory nature of Rules 3 and 4 of Court-Martial (Adjustment of Jurisdiction) Rules, 1978, to hold that the non-compliance of these rules may vitiate the trial. 4. The court relied on Sections 125 and 127 of the Army Act, 1950, to hold that the competent Commanding Officer can exercise the discretion/choice about the forum where the accused should be tried for the particular offence committed by him, if the case is covered under Section 125 of the Act and this power can be exercised by him before the commencement of the trial even though the case stood committed to the Court of Sessions.
Final Decision: The court allowed the petition and directed that in pursuance to the request made by General Officer Commanding 33 Mechanised Division the accused petitioner be handed over to the said authority along with all connected papers for his trial in Court-martial under the provisions of Army Act. The learned Sessions Judge shall intimate to the concerned authority in this connection. It is however made clear that in case the concerned authority declines to try the accused petitioner under the provisions of the Army Act after the notice by the learned Additional Sessions Judge, then he shall be tried in accordance with Cr. PC.

JUDGMENT

1. - The petitioner is in the Indian Army. A criminal case was registered against him under Sections 307, 323, 352 (PC and 21/25 Arms Act at P.S. G.R.P., Bharatpur. At the relevant time he was serving in 18th Guard Battalion which is under Major General, Officer Commanding, 33 Mechanised Division. He was on temporary duty at Ammunition Depot, Bharatpur.

2. The accusation against the petitioner is that he made a gun fire on a person causing injuries to him while on duty. After submission of the charge sheet in the Court of Additional Magistrate (Railways) Kota, he was handed over to Offg., Station Commander, Station Headquarters, Bharatpur on his request. It appears that Station Commander, Station Headquarters, Bharatpur, vide its letter dated 18-12-89 intimated to the concerned Magistrate to proceed with the case under Cr. PC. Thereafter, the petitioner was committed to the Court of Sessions Judge, Kota, vide order dated 19-11-90 as the offence under Section 307 IPC is triable exclusively by the Court of Sessions.

3. After the commitment of the case, General Officer Commanding, 33 Mechanised Division decided that the case be taken over and possessed under the Army Act 1950. Hence a letter dated 9-6-90 was addressed to the Sessions Judge, Bharatpur, in this connection along with the order of General Officer Commanding, 33 Mechanised Division by the Major, Offg. AAO (Legal) for GOC, HQ 33 Mechanised Division C/o 56 APO, with a request to hand over all the connected trial papers including investigating reports and weapons etc. so as to proceed against the petitioner under the Army Act, as the army authorities opted for a trial of the petitioner by a Court Marshal. However, this prayer was declined by the learned Additional Sessions Judge No. 1, Bharatpur vide impugned order dated 11-7-90 on a simple ground that the powers under Section 475 Cr. PC could be exercised only by the concerned Magistrate and not by the Court of Sessions.

4. Feeling aggrieved against the said order, the petitioner has approached to this Court under Section 482 Cr. PC.

5. The learned counsel for the petitioner contended that the petitioner was serving in 18th Guard Battalion which is under General Officer Commanding 33 Mechanised Division, as such, choice between Criminal Court and Court Marshal lies in the discretion of the said Officer Commanding alone who has opted for a trial of the petitioner by a Court Marshal. He further submitted that the Station Commander, Station HQs Bharatpur was not competent to exercise the discretion as to whether the petitioner should be tried by a Criminal Court or Court Marshal. He further argued that even if the Station Commander Station HQs Bharatpur having intimated to the Railway Magistrate to proceed with the case, the power could be exercised by the Officer Commanding with whom the petitioner was serving. According to the learned counsel, the power could be exercised by such officer even after the case was committed to the Court of Sessions. He further argued that it was mandatory for the concerned Magistrate to have intimated to the concerned Officer Commanding 33 Mechanised Division, as the final choice lay with him. Lastly it was argued that the powers can be exercised by this Court under Section 475 Cr. PC.

6. On the other hand the learned P.P. supported the order of the learned Additional Sessions Judge.

7. The Army Act, 1950 (hereinafter referred to as 'the Act') was enacted to consolidate and amend the law relating to the Government of the regular army. Under the Act, there are certain offences which are peculiar to the army and they are triable by Court Martial alone. In clause (xvii) of Section 3 of the Act, the word 'offence' is defined as "any act or omission punishable under this Act and includes a civil offence". The expression "civil offence" is defined in clause (ii) of said, Section 3 as "offence which is triable by a criminal .court". Clauses (vii) and (viii) of the said section read as follows:

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1991 Supreme(Raj) 663

RAJASTHAN HIGH COURT AT JAIPUR BENCHN.L.Tibrewal, J.Amresh Bahadur Singh - AppellantVersusThe State of Rajasthan - RespondentS.B. Cr. Misc. Petition No. 721 of 1990.Decided On : 24-04-1991

RAJASTHAN HIGH COURT AT JAIPUR BENCH
N.L.Tibrewal, J.
Amresh Bahadur Singh - Appellant
Versus
The State of Rajasthan - Respondent
S.B. Cr. Misc. Petition No. 721 of 1990.
Decided On : 24-04-1991