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Judgment
Elipe Dharma Rao, J.—Challenge in this writ petition is to the order dated 2-8-2005 passed by the first respondent, convening a General
Court Martial under the Army Act to try the petitioner in respect of the offences alleged against him under Sections 306 and 498-A of I.P.C.
The petitioner in the affidavit filed in support of the writ petition has in great detail narrated the facts which culminated in the passing of the orders
impugned in this writ petition, but for the purpose of disposal of this writ petition the following brief facts alone are necessary.
The facts in brief as culled out from the affidavit filed in support of the writ petition are that the petitioner is a Major in the Indian Army. His
deceased wife at the relevant time was working as an Instructor in the Officers'' Training Academy (OTA), Chennai. On 23-12-2002 petitioner''s
wife sustained severe burn injuries all over her body when she was in her house. The petitioner also suffered burn injuries. According to the
petitioner, the incident was on account of his wife''s attempt to commit suicide. Both of them were taken to the Military Hospital by the neighbours
and from there, they were shifted to Kilpauk Medical College Hospital. In respect of the said incident, a complaint was given to the Inspector of
Police and the same was registered in Crime No. 774 of 2002 on 23-12-2002 and the First Information Report was sent to the Judicial
Magistrate on 24-12-2002. On 24-12-2002, dying declaration of the petitioner''s wife as well as the petitioner was recorded. Petitioner''s wife
succumbed to the severe burn injuries on 24-12-2002. On 26-12-2002 the Revenue Divisional Officer, Chinglepet conducted an enquiry and
recorded the statements of the relatives of the petitioner''s wife. The jurisdictional police continued the investigation and recorded the statements of
witnesses, etc. as required under the Code of Criminal Procedure. In the mean time, the case registered u/s 285 IPC was altered to one u/s 306
and 498-A I.P.C. The Commanding Officer, O.T.A. by his letter dated 20-7-2004 addressed the Judicial Magistrate to submit the case files and
accordingly the case papers were sent to the Commanding Officer, O.T.A. On receipt of the case file, the first respondent, exercising his powers
u/s 109 of the Army Act, by order dated 25-7-2004, convened a General Court Martial consisting of seven Army Officers as Members to try the
petitioner for the offences alleged against him. Subsequently, by order dated 2-8-2005, the first respondent modified the the composition of the
said General Court Martial with five Army Officers as Members. The writ petitioner in this writ petition challenges the validity of the order dated 2-
8-2005 passed by the first respondent.
Learned counsel for the petitioner submitted that in the present case, the first respondent has failed to exercise the discretion vested in him u/s
125 of the Army Act in a judicious manner. Without applying his mind to the nature of the offences alleged to have been committed by the
petitioner, he passed the impugned order in a mechanical manner. No reason has been assigned in the impugned orders as to why the first
respondent has chosen court-martial as the proper forum to try the petitioner, especially when the case alleged against the petitioner rests entirely
on circumstantial evidence and several intricate questions of criminal law are involved. Therefore, the exercise of discretion by the first respondent
is injudicious.
Learned counsel also submitted that the first respondent, while passing the impugned orders, has failed to take into account the guidelines given
in the Manual of Military Law Volume I, Chapter VI civil Offences, Item No. 3, dealing with the principles on which the jurisdiction of General
Court Martial is to be exercised, and, therefore, the impugned order is liable to be set aside.
Learned counsel further submitted that the Commanding Officer of the O.T.A. made an endorsement in the letter addressed to the Deputy
Superintendent of Police, Chengalpet (East) informing him that the Inspector of the jurisdictional police station has been informed that the petitioner
would be in the custody of the Army till disciplinary process is over and thereafter, the Army will have no jurisdiction. Further, the criminal case
was pending before the Judicial Magistrate Court between 23-12-2002 and 23-7-2004 and during this period, the Army never opted to exercise
their discretion u/s 125 of the Army Act to try the petitioner before the Court Martial but allowed the criminal court to proceed with the criminal
case filed against the petitioner. Therefore, the respondents by their conduct acquiesced and implicitly conceded their jurisdiction to try the
petitioner before a court-martial. Having done so, after lapse of one year, the army authorities cannot now seek to exercise their discretion u/s 125
of the Army Act, which they have conceded by their conduct to the criminal court.
Learned counsel further submitted that the criminal court should not have abdicated its'' statutory duty cast on it u/s 126 of the Army Act. When
the offence alleged to have been committed by the petitioner was allowed to be taken cognisance of by the Police authorities and a criminal case
has also been allowed to be filed before the jurisdictional magistrate and the regular criminal law was thus set in motion, the criminal court ought to
have discharged their statutory obligation u/s 126 of the Army Act.
Learned counsel further submitted that not only respondents have acted arbitrarily and illegally while passing the impugned order, but also the
regular criminal courts, viz. Chief Judicial Magistrate/ Sessions Court have committed illegality in failing to judicially decide the issue whether the
petitioner should be tried by the regular criminal court or by the Court Martial. The said two courts have also committed the gross violation of the
provisions of Section 125 and 126 of the Army Act. Learned counsel submitted that the Chief Judicial Magistrate ought not to have entertained the
requisition given by the Commanding Officer as he has no jurisdiction and, therefore, he ought not to have delivered the case file and the
documents to the respondents. It is only the District and Sessions Judge, who is having the concurrent jurisdiction, is the competent authority to
direct for the delivery of the case file and documents to the respondents.
Learned counsel also submitted that in the facts and circumstances of the case General Court Martial may not be a competent forum to try the
petitioner, who is charged with serious offences under Sections 306 and 498-A of I.P.C., as the case involves intricate questions of criminal law
and evidence and that none of the Members of the General Court Martial and Judge Advocate possess legal knowledge and expertise in criminal
law and procedure and they solely depend on the expertise and knowledge of the Judge-Advocate and in such circumstances the proper forum
would be the competent criminal court to try the petitioner in respect of the offences alleged against him.
On the other hand, learned counsel for the respondents, reiterated the contentions raised in the counter-affidavit, that the first respondent, on
receipt of the entire case materials from the jurisdictional Magistrate and considering the nature of the offence, status of the victim and the
pendency of the criminal case against the petitioner, who is on active service of the Army, exercised his discretion u/s 125 of the Army Act and
passed the impugned order to try the petitioner by a court-martial. Pursuant to the impugned order, the court-martial began to proceed with the
trial. Learned counsel further submitted that if the petitioner is aggrieved, he should have challenged the impugned order before the commencement
of the trial before the court-martial. He did not do so. He allowed the recording of summary evidence of some of the witnesses, who are also army
subjects. Learned counsel submitted that the impugned order is legal and valid and does not call for any interference by this Court under Article
226 of the Constitution.
The petitioner is in active service of the Indian Army. His deceased wife was also at the relevant time in the active service of the Army. The
offences alleged against the petitioner do not fall under any of the the excepted categories of civil offences not triable by court-martial u/s 70 of the
Army Act. Therefore, in respect of the offences alleged to have been committed by the petitioner, he can be dealt with under the Army Act as well
as under the regular criminal law. Under the Army Act, general court-martial is the forum before which the petitioner could be tried and under the
Code of Criminal Procedure, it is the Court of Sessions/Court of Chief Judicial Magistrate is the competent criminal court. Therefore, the court-
martial and the criminal court each have jurisdiction to try the petitioner.
Before dealing with the contentions raised by the learned counsel for the petitioner, it would be relevant to understand the nature and extent of
the jurisdiction of the Army Authorities under the Army Act to try a person who is in active service of army before a courtmartial in respect of the
offences alleged against him.
The source of power to convene a court-martial to try an army subject in respect of an offence alleged to have been committed by him springs
from Section 125 of the Army Act, which reads as follows:
When a criminal court and a court-martial have each jurisdiction in respect of an offence, the officer commanding the Army is vested with a
discretion to decide before which forum the proceedings shall be instituted. If the said officer exercises the discretion to institute the proceedings
before a court-martial, the accused shall be detained in the military custody. If he decides otherwise, the accused may be handed over before the
criminal court to stand the trial.
Therefore, the competent authority under the Army Act is vested with a discretion to decide the forum before which the proceedings are to be
instituted against the accused.
Section 125 of the Army Act, however, does not divest the inherent jurisdiction of the criminal court to take cognizance of the criminal offence
under the Code. The inherent jurisdiction of the criminal court is protected by the provisions of Section 126(1) of the Army Act, which reads as
follows:
(1) When the criminal court, having jurisdiction to try the accused, is of the opinion that proceedings shall be instituted before itself in respect of any
alleged offence, it may, by written notice, require the officer referred to in section 125 at his option, either to deliver over the offender to the
nearest magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central Government.
In view of the discretion vested with the competent authority u/s 125 and the protection of the inherent jurisdiction of the criminal courts u/s
126(1), conflict of jurisdiction may arise in the event the criminal court is of the opinion, for reasons to be recorded, that instead of giving option to
the authorities under the Army Act, the said court should proceed with the trial of the accused, without being moved by the competent authority
under the Army Act.
The conflict of jurisdiction between the court-martial and the criminal court is well taken care of by the provisions of Section 126(2) of the
Army Act and Rules 3, 4, 5 and 6 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952. Sub-section (2) of Section
126 reads as follows:
(2) In every such case the said officer shall either deliver over the offender in compliance with the requisition, or shall forthwith refer the question as
to the court before which the proceedings are to be instituted for the determination of the Central Government, whose order upon such reference
shall be final.
Therefore, when a conflict of jurisdiction arises between the competent authority under the Army Act and the competent criminal court, the
competent authority u/s 126(2) shall forthwith refer the jurisdictional issue for the determination of the Central Government and the order of the
Central Government upon such reference is final.
Section 475 of the Code of Criminal Procedure is also relevant for deciding the issue. Section 475 of the Code reads as follows:
When any person is brought before a Magistrate is charged with an offence for which he is liable to be tried either by a court to which this Code
applies or by a court-martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the
offence of which he is accused, to the Commanding Officer of the unit to which he belongs, or to the Commanding Officer of the nearest military,
naval or air force station, as the case may be, for the purpose of being tried by a court-martial.
The competent authority under the Army Act will cease to have jurisdiction to try an army subject before the court-martial under the following
circumstances, viz. (i) when the alleged offence falls under the any one of the categories mentioned in Section 70 of the Army Act; (ii) when the
period of limitation (three years from the date of commission of the alleged offence) has expired for initiation of proceedings as contemplated u/s
122 of the Army Act; and (iii) on a reference made u/s 126(1) of the Act, the Central Government determines that the proceedings shall be
instituted before the criminal court.
A conjoint reading of the above statutory provisions and the relevant rules makes it clear that the choice of the forum to try the accused is in
the first instance within the discretion of the competent authority under the Army Act. Even on receipt of the writen requisition from the criminal
court as contemplated u/s 126(1), if the competent authority is of the opinion to try the accused before a court-martial, he may refuse to deliver
over the accused before the criminal court, but shall refer the jurisdictional issue to the Central Government for determination, whose opinion shall
be final. The phraseology ""it shall be in the discretion of the officer commanding the army"" employed in Section 125 and the phraseology ""require
the officer concerned in section 125 at his option"" used in Section 126(1) read with the relevant rules framed under the Act clarify the position that
the option to try a person subject to Army Act who commits an offence while in active service is in the first instance with the competent authority
under the Army Act. In case, the said competent authority decides not to try such a person before a court-martial or fails to exercise the option
when intimated by the criminal court within the period prescribed under Rule 4 of the Rules, then only the accused can be tried before the
competent criminal court. It is therefore explicit that the option to try the accused subject to the Army Act by a courtmartial is with the Army
Authorities and the accused person has no option or right to claim trial by a particular forum.
In Balbir Singh and Anr. v. State of Punjab 1995 [1] SCC 90, the Supreme Court, while dealing with Sections 125 and 126 of the Army read
with the relevant rules under the said Act and Section 475 of the Code of Criminal Procedure, held as follows:
When a criminal court and court-martial each have jurisdiction in respect of the trial of the offence, it shall be in the discretion of the officer
commanding the group, wing or station in which the accused is serving or such other officer as may be prescribed, in the first instance, to decide
before which court the proceedings shall be instituted and if that officer decides that they should be instituted before a court-martial, to direct that
the accused persons shall be detained in Air Force custody. Thus, the option to try a person subject to the Air Force Act who commits an offence
while on ""active service"" is in the first instance with the Air Force Authorities.
The Supreme Court further observed as follows:
It is explicit that the option to try the accused subject to the Act by a court-martial is with the Air Force Authorities and the accused person has no
option or right to claim trial by a particular forum. The option appears to have been left with the Air Force Authorities for good and proper
reasons. There may be variety of circumstances which may influence the decision of the Air Force Authorities as to whether the accused be tried
by a court or by a criminal court.
In Ram Sarup Vs. The Union of India (UOI) and Another, , the Supreme Court observed as follows:
In short, it is clear that there could be a variety of circumstances which may influence the decision as to whether the offender be tried by a court-
martial or by an ordinary criminal court, and therefore it becomes inevitable that the discretion to make the choice as to which Court should try the
accused be left to responsible military officers under whom the accused be serving. Those officers are to be guided by considerations of the
exigencies of the service, maintenance of discipline in the army, speedier trial, the nature of the offence and the person against whom the offence is
committed.
Thus, the jurisdiction of the competent authority under the Army Act, in view of the discretion vested in him u/s 125 of the Army Act, is put on
a higher pedestal vis-a-vis the jurisdiction of the criminal court. Further, the inherent jurisdiction of the criminal court is tinkered with to a certain
extent inasmuch as the exercise of jurisdiction by the criminal court is qualified by the compliance of mandatory procedure prescribed u/s 126(1) of
the Army Act. The criminal court without following th e mandatory procedure of issuing a notice in writing as contemplated u/s 126(1) cannot
exercise the inherent jurisdiction.
In view of the above discussion, it is clear that under the scheme of the Army Act, the choice of deciding the forum before which the
proceedings are to be instituted, in the first instance, is left to the discretion of the first respondent. Once it is found that the first respondent was
well within his jurisdiction to pass the impugned order, it cannot be said that the impugned order suffers from any jurisdictional error, and in fact it is
not the contention of the learned counsel for the petitioner also, warranting interference by this Court under Article 226 of the Constitution. The
main-stay of the argument of the learned counsel for the petitioner is that the first respondent has failed to exercise the statutory discretion in a
judicious manner and the exercise of discretion was arbitrary. 24. On this backdrop, let us now test the contentions raised by the learned counsel
for the petitioner. The main contentions raised by the learned counsel, in brief, are as follows:
That the first respondent has exercised his discretion vested in him u/s 125 of the Act in an injudicious and arbitrary manner.
That the army authorities by their conduct have implicitly conceded their jurisdiction under the Army Act to try the petitioner before the court-
martial.
That the criminal court has also committed an illegality by abdicating the statutory duty cast on it u/s 126 of the Army Act. 4. That the delay on
the part of the competent authority in exercising his option has vitiated the impugned order.
In so far as the first contention of the learned counsel is concerned, the petitioner in respect of the offences alleged against him can be tried
before a court-martial under the Army Act. As already discussed in the foregoing paragraphs, the first respondent exercising his statutory
discretion vested in him u/s 125 of the Army Act has decided to try the petitioner before a court-martial and accordingly passed the order
constituting a court-martial. It is trite principle in constitutional jurisprudence that when once the competent authority has exercised his discretion
vested in him under a statute, the High Court, in exercise of its jurisdiction under Article 226, cannot and should not interfere unless it is shown to
the satisfaction of the Court that such exercise was arbitrary, whimsical and capricious. No material is placed on record to show that the first
respondent has exercised his discretion in an arbitrary, whimsical and capricious manner. The plea that exercise of statutory discretion was
arbitrary and capricious should be well founded and supported by tangible material on record. The first respondent after scrutinising the entire case
records received from the jurisdictional magistrate as well as from the jurisdictional police, formed an opinion that the petitioner should be tried
before a court-martial and accordingly exercised his statutory discretion under the Act. Such exercise of discretion, in the facts and circumstances
of the case, cannot be said to be injudicious and arbitrary. The first contention is, therefore, rejected.
The second contention of the learned counsel is that the army authorities by lodging the complaint before the jurisdictional police and thereby
allowing the jurisdictional police to take cognizance of the case and investigate into the matter have implicitly, if not explicitly, conceded their
jurisdiction under the Army Act to try the petitioner before the court- martial. If the Army Authorities wanted to exercise their option u/s 125 of the
Act to try the petitioner before a court-martial, they should not have allowed the jurisdictional police to take cognisance of the offence.
It is no doubt true that in the present case the offences alleged to have been committed by the petitioner were taken cognisance of by the
jurisdictional police, who after conducting investigation forwarded entire case materials to the jurisdictional magistrate. But that does not mean that
the army authorities have conceded their jurisdiction to try the petitioner before a court-martial. In Som Datt Dutta v. Union of India AIR 1969 SC
414, the Supreme Court held that the order passed by the authority u/s 125 of the Army Act for trial of the accused by a court-martial was not
illegal merely because police officer had started the investigation in the matter. In the said case, in a scuffle between army jawans in a dining hall
one of them was injured and later on died and on an intimation by one officer, the Police Inspector started investigation, sent the dead body for
post mortem and forwarded the seized articles to Government laboratory for chemical analysis but later on, the General Officer Commanding of
the area passed an order constituting a court martial and the case was tried by them and the accused were convicted. In the factual situation, the
Supreme Court observed as follows:
merely because the police officer conducted the inquest of the dead body or because he seized certain exhibits and sent them to the State
Laboratory for chemical examination, it could not be reasonably argued that there was a decision of the competent military authority u/s 125 of the
Army Act for handing over the inquiry to the Criminal Court. On the other hand, the action of the General Officer Commanding indicated that there
was a decision taken u/s 125 of the Army Act that the proceedings should be instituted before the Court Martial
The third contention of the learned counsel for the petitioner that the criminal court has also committed an illegality by abdicating its statutory
duty cast upon it u/s 126 of the Army Act is also without any substance. As already stated, the inherent jurisdiction of the criminal court is not
automatic. If the criminal court was of the opinion that proceedings should be instituted before itself in respect of the offence alleged against the
petitioner, it could have sent a written notice to the competent authority, i.e. the first respondent, to deliver over the petitioner to the nearest
magistrate for being proceeded against according to law. No such opinion was formed by the criminal court till 20-7-2004 when the Commanding
Officer of the O.T.A. requested the jurisdictional magistrate to submit the case papers. On the other hand, the jurisdictional magistrate, on the
instructions received from the Chief Judicial Magistrate, transferred the entire case papers to the respondents and on receipt of which, by passing
the impugned order dated 25-07-2004, the first respondent convened the court-martial. In a case of this nature, it is not mandatory that the
criminal court should exercise its inherent jurisdiction by complying with the mandatory procedure contemplated u/s 126 of the Army Act. This
contention is also rejected.
Learned counsel for the petitioner assailed the impugned order on the ground that no reason has been assigned by the first respondent for
convening the court martial. This contention is also liable to be rejected since it is not mentioned in Section 125 of the Act that reasons must be
assigned by the competent authority as to why he has chosen the court martial instead of the ordinary criminal court to try the accused. As
observed by the Supreme Court in Balbir Singh case, cited supra, the option appears to have been left with the army authorities for good and
proper reasons and there may be a variety of circumstances which may influence the decision of the army authorities as to whether the petitioner be
tried by a court martial or by a criminal court. This contention is also rejected.
Learned counsel for the petitioner also contended that the first respondent failed to take into account the instructions given in the Manual of
Indian Military while exercising his discretion u/s 125 of the Army Act. The instructions given in the Manual of Military Law is not a part of the
Army Act or the Rules, nor such instructions have any statutory force of any kind. The said manual only contains certain administrative instructions.
It has not been issued in exercise of powers conferred by any statute. These instructions cannot be placed on the pedestal of statutory rules or
regulations. They are merely executive instructions for the guidance of the officers of the department. No rights can flow from them. The contention
is, therefore, rejected.
Learned counsel also contended that if the competent authority was of the opinion that the petitioner should be tried before a court-martial, he
should have exercised the option u/s 125 of the Act at the earliest point of time and the delay in exercising the option by the competent authority
vitiates the validity and legality of the impugned orders.
In the present case, the alleged occurrence took place on 23/24 -12-2002 and the first respondent exercised his option to try the petitioner
before a court-martial on 25-7-2004, which was well within the period of limitation prescribed u/s 122 of the Act. As seen from the counter-
affidavit filed by the first respondent, the petitioner was taking treatment as in-patient in the Military Hospital for the burn-injuries suffered by him
and this could be a factor for the delay in exercising the option by the first respondent. In the facts and circumstances of the case, the delay in
exercising the option does not go to the root of the matter to vitiate the impugned orders especially so when the competent authority has taken the
decision within the period of limitation. This contention is also rejected.
It is also pertinent here to be noticed that the first respondent initially by order dated 25-7-2005 convened a court-martial, consisting of seven
members, u/s 113 of the Army Act and later on, by order dated 2-8-2005, he restructured the composition of the court-martial by reducing the
number of members to five. The petitioner has not challenged the initial order dated 25-7-2005. On the other hand, he allowed the court-martial
proceedings to commence and continue and in fact has also participated in the recording of summary evidence proceedings before the court
martial. When once the petitioner has accepted the convening of the court-martial, allowed the proceedings before the court martial to commence
and has also having participated in the said proceedings, he cannot later on turn around and challenge the court-martial proceedings on the ground
of jurisdiction and other issues. Therefore, on this ground also the petition is liable to be rejected.
In view of my findings on the above core contentions raised by the learned counsel for the petitioner, the other contention of the learned
counsel that since the case alleged against the petitioner rests entirely on circumstantial evidence and several intricate questions of criminal law are
involved and that none of the Members of the court-martial and the Judge-Advocate possess knowledge of law and judicious reasoning, the
proper forum to try the petitioner is criminal court rather than court-martial pale into insignificance and in any event, under the scheme of the Act
the said authorities are presumed to have such expertise in law and judicious reasoning. This contention is also rejected.
The writ petition is devoid of merits. Accordingly it is dismissed. Connected W.P.M.P. No. 38012 of 2005 is closed.