Regular criminal court competent to try soldiers for offences committed during active service, court-martial not mandatory: Supreme Court of India

The Supreme Court of India has handed down an important judgement on military law recently. The editor of this blog has already noted it in this post.

The Apex Court has held that a regular criminal court would have jurisdiction to try a ‘civil offence’ in case the military opts not to take over the case (Must clarify to the readers here that the term ‘civil’ above does not refer to the concept of civil vis-à-vis criminal law but a criminal offence in the civilian world which falls under the regular penal code as applicable to all citizens).

The Army Act provides that the military can try ‘civil offences’ by way of a court-martial (Section 69). There is, however, an exception in Section 70 that the offences of murder, culpable homicide and rape committed against a person not subject to military law shall not be tried by a court-martial and shall be amenable to a regular criminal court unless the crime was committed outside India, while in active service or on a frontier post specified as such through a notification by the Govt.

For taking over a case by the military, the prescribed officer has to exercise his/her choice for trial by a court-martial if the jurisdiction is concurrent between a regular criminal court and a court-martial (Section 125). The practical reality however is that though a court-martial can try criminal offences under the regular penal provisions under various laws, the military does not usually take over a case unless the same displays some military-nexus or service-connection. The military also does not take over a case if it requires some specialized kind of investigation or many civilian witnesses.

In the case before the Supreme Court, though the offence of murder was committed by a service-member against another service-member, that too on active service, the military had not taken over the trial and the same commenced in a regular criminal court.

It was the case of the accused soldier that it was mandatory for the military to take over the trial as per the provisions of Section 70 of the Act. His Petition was allowed by the Sikkim High Court which ruled that he could only be tried by a court-martial.

The Supreme Court, however, overruled the judgment of the High Court on an appeal by the State of Sikkim. The State was also supported in its arguments by the Union of India. The Supreme Court has held that a regular criminal court would have jurisdiction to try the offence since the military authorities had opted not to take over the case and that the applicability of the Army Act would not ouster the jurisdiction of a regular criminal court.

The entire judgment can be accessed here.