The Court observed that the Army Act gives lesser punishment even for serious offences. But, it is not intended to protect military personnel.
Some time back, an appeal was filed by the State of Sikkim; in the Sikkim High Court. In which, there was a demand to hand over an accused army officer to the court-martial. So, this appeal was dismissed. Which, while allowing Justice DY Chandrachud and Justice Surya Kant, directed that a criminal case be referred to a court-martial.
This is the whole matter:
In this, an army officer was accused of shooting a rifleman named Balbir Singh. Against whom, an FIR was registered under Section 302 of the Indian Penal Code 1860. On 15 December 2014, the accused was handed over to the investigating officer by another army officer. On February 28, 2015, a case was registered in the session trial as No. 03/2015.
The Sessions Court held that both the accused and the deceased were covered under the Army Act 1950 at the time of the incident, keeping in view Section 69 of the Army Act, the accused can be tried only by a General Court-martial and not by the Sessions Court. Therefore, the Chief Judicial directed the magistrate to give notice to the CO of the respondent’s unit or the competent military officer to sue him by court-martial. The High Court also further upheld this order of the Sessions Court and it then approached the Supreme Court of the State of Sikkim. Then in this case the Division Bench of the Court said that if the discretionary power under Section 125 of the Officers’ Army Act is not exercised on the military officer, then the criminal court should have the power to prosecute the army personnel.
“It was held that the sessions were competent and there was no error in the exercise of jurisdiction. The High Court’s decision indicates that the officers of the Army should be held court-martial despite the apparent submission, the court observed.
The court submitted that sub-section (a) of section 69 provides that if a person is convicted of a ‘civil offence’ which is punishable under the applicable law with death or transportation, he shall be liable to suffer punishment, except with whipping, such less punishment as is provided for in this Act. Sub-section (b) provides that in all other offences, the guilty shall be liable to be punished by the applicable laws or imprisonment.
“The wording of the law climates that the legislature has made provisions for different punishments for serious offences, such as death or imprisonment for life. In this case, sub-section (a) of section 69 applies, whereby the court-martial can convict him and sentence him to death or life imprisonment. In addition, the court-martial can also reduce the sentence.
The Army Act provides for punishment (such as cashiering, dismissal from service, etc., as provided under section 127). The use of the word “and” in subsection (a) brings out the intention of the legislature to ensure that the officers of the army have sufficient authority to impose severe punishment. But it does not mean that the person who is liable to death or life imprisonment is given less punishment under the Army Act. Conversely, the use of the word “or” in subsection (b) of section 69 indicates that for offences that are of lesser severity under the Penal Code or any other law, officers of the Army may order less punishment.
The argument made by the accused was rejected. Allowing the appeal, the bench said:
If the defendant’s argument is taken to be true, it would mean that a person who has been convicted by a court-martial under the Army Act and punished thereunder would be in an advantageous position in comparison to that person. , who is subject to the Army Act, but has been convicted. It was held by an ordinary criminal court that the intention of the legislature was not to protect persons under the Army Act by giving them severe punishment.
The IPC, if compared to this, does not make any qualifications or exceptions to the particular law in this case, then does not allow for the court to read such qualifications in the Act. Thus, we cannot accept this submission of the respondent. “We cannot accept this submission of the respondent,” Supreme Court