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Intent of Army Act is Not to Protect Army Personnel by Awarding Them Lesser Punishment Even for Serious Offences: Supreme Court

Team SoOLEGAL 4 Feb 2022 7:12pm

Intent of Army Act is Not to Protect Army Personnel by Awarding Them Lesser Punishment Even for Serious Offences: Supreme Court

NEW DELHI: The Supreme Court observed that the Army Act's intent is not to protect army personnel by imposing lesser punishments 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 – material and ordinary criminal courts at all”. The bench of Justices DY Chandrachud and Surya Kant made the observation while hearing an appeal filed by the State of Sikkim against an order passed by the Sikkim High Court directing that a criminal case against an army officer be sent to court-martial.

In this case, a FIR was filed under Section 302 of the Indian Penal Code 1860 against the accused army man who was accused of shooting down a rifleman named Balbir Singh. The accused's custody was transferred to the Investigating Officer by the competent military authority on December 15, 2014.

A case was registered as Sessions Trial Case No.03/2015 on February 28, 2015, and charges were framed. The Sessions Court ruled that because both the accused and the deceased were subject to the Army Act 1950 at the time of the incident, the accused could only be tried by a General Court-Martial and not by the Sessions Court. As a result, the Chief Judicial Magistrate was directed to serve written notice on the CO of the respondent's unit or the competent military authority for his court-martial trial.

The High Court upheld the Sessions Court's order, prompting the State of Sikkim to petition the Supreme Court. In this case, the Apex Court bench 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. The Army Act does not preclude the ordinary criminal court from exercising jurisdiction if the designated officer does not exercise this discretion to institute proceedings before a court-martial, 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 foregoing observations were made in light of the accused's contention that if the trial is conducted by an ordinary criminal court rather than a court-martial under the Army Act, the accused will not be able to benefit from a lower punishment under the Army Act.

The court noted that if a person is convicted of a "civil offence" punishable by death or transportation under the law in force, 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 mentioned in this Act.

Subsection (b) states that for all other offences, the person convicted is subject to the punishment assigned under the laws in force, or to imprisonment for a term of up to seven years, or to the lesser punishment provided in the Act. In reference to this provision, the bench stated:

“The words of the statute clearly indicate that the legislature provided different punishments for serious offences which under law are punishable with deaths or life imprisonment, and for all other offences. In case of the former, subsection (a) of section 69 provides that the court – material may convict him and punish him with death or life imprisonment. In addition to this, the court – material may also gives a lesser punishment under the Army Act (such as cashiering, dismissal from service, etc., provide 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 accused’s contention, the bench noted the following 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 the 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.”



Tagged: Supreme Court   Army Act   Justice DY Chandrachud   Justice Surya Kant  
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