Case: General Officer Commanding &amp; Another Vs. CBI &amp; Another

Central Govt. Such matter is being governed by the provisions of Section 475 Cr.P.C. read with the provisions of the J & K Criminal Courts and court-martial (Adjustment of Jurisdiction) Rules, 1983. Rule 6 of the said Rules, 1983, provides that in case the accused has been handed over to the Army authorities to be tried by a court-martial, the proceedings of the criminal court shall remain stayed. Rule 7 thereof, further provides that when an accused has been delivered by the criminal court to the Army authorities, the authority concerned shall inform the criminal court whether the accused has been tried by a court-martial or other effectual proceedings have been taken or ordered to be taken against him. If the Magistrate is informed that the accused has not been tried or other effectual proceedings have not been taken, the Magistrate shall report the circumstances to the State Government which may, in consultation with the Central Government, take appropriate steps to ensure that the accused person is dealt with in accordance with law. 59. Constitution Bench of this Court in Som Datt Datta v. Union of India & Ors., AIR 1969 SC 414 , held that option as to whether the accused be tried by a criminal court or court-martial could be exercised after the police has completed the investigation and submitted the chargesheet. Therefore, for making such an option, the Army Authorities do not have to wait till the criminal court takes cognizance of the offence or frames the charges, which commences the trial. 60. In Delhi Special Police Establishment, New Delhi v. Lt. Col. S.K. Loraiya, AIR 1972 SC 2548 , a similar view has been reiterated by this Court observing that relevant Rules require that an option be given as to whether the accused be tried by a court-martial or by ordinary criminal court. The Magistrate has to give notice to the Commanding Officer and is not to make any order of conviction or acquittal or frame charges or commit the accused until the expiry of 7 days from the service of notice. 61. In Balbir Singh & Anr. v. State of Punjab, (1995) 1 SCC 90 , this Court dealt with the provisions of the Air Force Act, 1950; provisions of Cr.P.C. and criminal court and court-martial (Adjustment of Jurisdiction) Rules, 1952 and reiterated the same view relying upon its earlier judgment in Ram Sarup v. Union of India & Anr., AIR 1965 SC 247 , wherein it has been held that there could be variety of circumstances which may influence the justification as to whether the offender be tried by a court-martial or by criminal court, and therefore, it becomes inevitable that the discretion to make such a choice be left to the Military Officers. Military Officer is 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 persons against whom the offence is committed. 62. Thus, the law on the issue is clear that under Section 125 of the Army Act, the stage of making option to try an accused by a court- martial and not by the criminal court is after filing of the chargesheet and before taking cognizance or framing of the charges. 63. A question has further been raised by learned counsel for the appellant that the Act 1990 is a special Act and Section 7 thereof, provides full protection to the persons who are subject to the Army Act from any kind of suit, prosecution and legal proceedings unless the sanction of the Central Government is obtained . Thus, in such a fact- situation, even if the Commanding Officer exercises his discretion and opts that the accused would be tried by the court-martial, the proceedings of court-martial cannot be taken unless the Central Government accords sanction. 64. Learned counsel for the CBI and interveners have opposed the submission contending that in case the accused are tried in the court- martial, sanction is not required at all. The provisions of the Act 1990 would apply in consonance with the provisions of the Army Act. Section 7 of the Act 1990 does not contain non-obstante clause. Therefore, once the option is made that accused is to be tried by a court-martial, further proceedings would be in accordance with the provisions of Section 70 of the Army Act and for that purpose, sanction of the Central Government is not required. The court-martial has been defined under Section 3(VII) of the Army Act which is definitely different from the suit and prosecution as explained hereinabove, and has not been referred to in the Act 1990. 65. Undoubtedly, the court-martial proceedings are akin to criminal prosecution and this fact has been dealt with elaborately by this Court in Union of India & Ors. v. Major A. Hussain, AIR 1998 SC 577 . However, once the matter stands transferred to the Army for conducting a court-martial, the court-martial has to be as per the provisions of the Army Act. The Army Act does not provide for sanction of the Central Government. Thus, we do not find any force in the contention raised by the appellant and the same is rejected. 66. Sum up:i) The conjoint reading of the relevant statutory provisions and rules make it clear that the term “institution” contained in Section 7 of the Act 1990 means taking cognizance of the offence and not mere presentation of the chargesheet by the investigating agency.ii) The competent Army Authority has to exercise his discretion to opt as to whether the trial would be by a court-martial or criminal court after filing of the chargesheet and not after the cognizance of the offence is taken by the court. iii) Facts of this case require sanction of the Central Government to proceed with the criminal prosecution/trial.iv) In case option is made to try the accused by a court-martial, sanction of the Central Government is not required.67. In view of the above, the

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]66. Sum up:i) The conjoint reading of the relevant statutory provisions and rules make it clear that the termcontained in Section 7 of the Act 1990 means taking cognizance of the offence and not mere presentation of the chargesheet by the investigating agency.ii) The competent Army Authority has to exercise his discretion to opt as to whether the trial would be by a court-martial or criminal court after filing of the chargesheet and not after the cognizance of the offence is taken by theFacts of this case require sanction of the Central Government to proceed with the criminal prosecution/trial.iv) In case option is made to try the accused by a court-martial, sanction of the Central Government is not required.