THE STATE OF SIKKIM v. JASBIR SINGH & Anr.

From the Judgment and Order dated 06.04.2019 of the High Court of Sikkim, Gangtok in Criminal Revision Petition No. 02 of 2017. G Vivek Kohli, AG, Raghvendra Kumar, Ms. Yeshi Rinchhen, Anand Kumar Dubey, Narendra Kumar, Advs. for the Appellant. Aman Lekhi, ASG, R. Balasubramanian, Pradeep Kumar Dey, Sr. Advs., Adit Khorana, Ms. Swarupama Chaturvedi, Shantanu Sharma, Balendu Shekhar, Arvind Kumar Sharma, Mrs. Shilpi Dey Auditya, Ms. Shreyasi Chakrabarty, Ms. Shehla Chaudhary, Md. Anas Chaudhary, H THE STATE OF SIKKIM v. JASBIR SINGH & ANR. 247 Sumit Kumar Sharma, Ansar Ahmad Chaudhary, Advs. for the Respondents. A The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J. A B C D Facts........................................................................2* Submissions...............................................................8* Analysis..................................................................14* Conclusion...............................................................42* A Facts

This appeal arises from a judgment of a Single Judge of the High Court of Sikkim. While exercising the revisional jurisdiction under Sections 397 and 401 read with Section 482 of the Code of Criminal Procedure 19731, the High Court has upheld the order of the Sessions Judge, Special Division-II, Sikkim, at Gangtok, directing the Chief Judicial Magistrate, East Sikkim to furnish a written notice to the Commanding Officer of the unit of the respondent-accused and deliver him for trial by a court-martial.

On 14 December 2014, at about 19:40 hours, Lance Naik Rajesh Kumar of 17 Mountain Division of the Indian Army lodged a First Information Report2 before the Station House Officer at the Sadar Police Station in Gangtok stating inter alia that on the relevant date at around 6.00 p.m., when he returned to his barracks, he struck up a conversation with two riflemen for a short while. After that, as he was freshening up, between 6.30 p.m. and 6.45 p.m. he heard sounds of gunshots inside the barracks. He immediately rushed to the barracks and witnessed the respondent-accused, Lance Naik Jasbir Singh, opening fire on a rifleman, Balbir Singh, with an INSAS Rifle. The informant pulled the respondent- accused out of the barracks along with the rifle and simultaneously raised an alarm for help, on which Signalmen Ujjal Sinha and C.H. Anil arrived at the spot. The accused, in the meanwhile, escaped from the clutches of the informant. The informant then immediately rang up the medical 1 “CrPC” 2 FIR No. 409/2014 * Ed. Note: Pagination is as per the original judgment. B C D E F G H 248 SUPREME COURT REPORTS [2022] 8 S.C.R. A B C D E F G H room and returned to check on the injured rifleman, by which time he suspected that the he was already dead. FIR No. 409 of 2014 was registered on 14 December 2014 at the Sadar Police Station, Gangtok.

On 15 December 2014, the custody of the accused was handed over by the competent military authority to the Investigating Officer3 and an arrest/ court surrender memo was issued by the Sub-Inspector of Police at the Sardar Police Station. While conducting the investigation, the IO issued a requisition to the Commanding Officer of the 17 Mountain Division Pro Unit, informing him that an FIR under Section 302 of the Indian Penal Code 18604 had been registered against the respondent- accused. The IO requested certain documents for the purpose of investigation, namely: (i) (ii) The order of appointment of the accused; Duty Deployment Chart of Sunday, 14 December 2014; (iii) Weapon Issue Register of Sunday, 14 December 2014; and (iv) Records of any previous offence.

In response to the above communication, Colonel RR Nair, the Commanding Officer5 of the 17 Mountain Division Pro Unit furnished the following documents by his letter dated 27 December 2014: (i) (ii) Copy of the posting order in respect of No.778224F L/ Nk(MP) Jasbir Singh; CTC of Pilot duty detailment extract as on 14 December 2014; (iii) CTC of Weapon Issue Register, where he informed the IO that the respondent-accused had withdrawn the weapon for piloting duty on 14 December 2014. After completion of the duty however, while committing the offence, the respondent had unauthorizedly accessed the weapon; and (iv) Record of previous offences. A copy of this communication was forwarded by the CO to the Headquarters of the 17 Mountain Division Pro Unit. 3 “IO” 4 “IPC” 5 “CO” THE STATE OF SIKKIM v. JASBIR SINGH & ANR. [DR. DHANANJAYA Y CHANDRACHUD, J.] 249

On 12 January 2015, the IO filed an application before the Chief Judicial Magistrate (East & North), for recording the statement of the informant (Rifleman Rajesh Kumar). On 13 February 2015, the IO submitted a charge-sheet after the completion of investigation against the respondent-accused for offences punishable under Sections 302 and 308 of the IPC. An order of committal was passed by the Chief Judicial Magistrate to the Principal Sessions Judge. On 28 February 2015, a case was registered as Sessions Trial Case No.03/2015. On 15 July 2015, the Sessions Judge framed charges against the respondent under Sections 302 and 308 of the IPC and under Section 25(1-B)(a) of the Arms Act 19596. On 18 November 2015, the Sessions Judge allowed an application filed under Section 216 of the CrPC for alteration of the charge under Section 25(1-B)(a) to Section 27(3) of the Arms Act.

During the course of the trial, on 18 June 2016, the Sessions Judge directed the issuance of fresh summons to Colonel RR Nair returnable on 7 July 2016. On 07 July 2016, the Sessions Judge was informed that a letter had been received from the Army authorities stating that Colonel RR Nair was undergoing a training course and was on leave upto 24 July 2016. During the course of the trial, the CO, Colonel RR Nair was examined as PW19 on 28 July 2016. After the recording of evidence was complete, the Sessions Judge heard the counsel for the parties for final arguments. During the course of the hearing, counsel for the accused inter alia contended that as the respondent-accused and the deceased were both governed by the Army Act 19507 when the incident took place, in view of Section 69 of the Army Act, the accused could be tried only by a General Court-Martial and not by the Sessions Court. Having due regard to the provisions of Section 69 of the Army Act, the Sessions Judge by his order dated 9 March 2017 upheld the objection of the respondent-accused by concluding that given the nature of offence, the accused ought to have been tried by court-martial alone and that the Sessions Court had no jurisdiction. With this conclusion, the Chief Judicial Magistrate was directed to give a written notice to the CO of the respondent’s unit or the competent military authority for his trial by a court-martial.

The order of the Sessions Court was challenged in revision. The Sikkim High Court in its judgment dated 6 April 2019 adverted to 6 “Arms Act” 7 “Army Act” A B C D E F G H 250 SUPREME COURT REPORTS [2022] 8 S.C.R. A B C D E F G the provisions of Section 69 and 70 of the Army Act. The High Court held that the procedure prescribed under Sections 125 and 126 of the Army Act, Section 475 of the CrPC, and Rules 3, 4 and 5 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules19788 had not been observed. While issuing notice to the Army authorities, the High Court held that both the respondent and the deceased were subject to the Army Act. The procedure mandated by the 1978 Rules had to be followed and the submission that the Army authority had exercised their discretion to try the accused in the criminal court was held to bear no weight on the ground that no documentary evidence existed to prove the exercise of the discretion. Moreover, the mere handing over of the accused to the civil authority was held not to be proof of the exercise of the option. While a minute sheet was produced before the High Court where the General Officer Commanding9 had accepted the recommendation that the accused be tried by the Sessions Court, the High Court rejected this on the ground that: (i) the document was not furnished before the Sessions Judge and (ii) the document which was produced was a photocopy and not a certified copy. The revision petition was dismissed.

Pursuant to the impugned judgment of the High Court, the GOC of 17 Mountain Division Pro Unit, Maj. General. RC Tiwari, by an order dated 22 April 2019, exercised his powers under Section 125 of the Army Act and decided that the proceedings against the respondent- accused be instituted before the criminal court and that he be detained in civil custody. An application was filed before the Chief Judicial Magistrate to convey the decision of the GOC. By an order dated 22 April 2019, the Chief Judicial Magistrate rejected the application of the GOC in view of the order of the Sessions Judge dated 9 March 2017, which required that the accused be delivered to the competent military authority. Since this order had been upheld by the High Court, the Chief Judicial Magistrate directed the Superintendent of Prisons, Central Jail, Rongyek to hand over the respondent to the competent military authority. The respondent was handed over to the Army and has been in military custody since 23 April 2019. Meanwhile, the respondent retired from service on 31 March 2020. On the same day, the Army authorities passed an order for extension of the time of detention. 8 “1978 Rules” 9 “GOC” H THE STATE OF SIKKIM v. JASBIR SINGH & ANR. [DR. DHANANJAYA Y CHANDRACHUD, J.] 251 B Submissions

The State of Sikkim is in appeal against the judgment of the High Court. The State has been represented by Mr Vivek Kohli, learned Advocate General. The challenge made by the State of Sikkim has been supported by the Union of India appearing as a respondent through Mr Aman Lekhi, learned Additional Solicitor General. The arguments on behalf of the respondent were made by Mr Pradeep Kumar Dey, learned Senior Counsel.

Mr Vivek Kohli, Advocate General appearing on behalf of the appellant-State made the following submissions: (i) The High Court and Sessions Court have both failed to appreciate that the criminal courts and court-martial have concurrent jurisdiction to try a case, depending on the “discretion” exercised under Section 125 of the Army Act. The “discretion” to decide whether or not the accused is to be tried by court-martial, is solely with the Commanding Officer; (ii) Under Section 125,one of the following three situations may arise: (a) (b) (c) The Commanding Officer may exercise his discretion and affirmatively choose to try the accused through court martial; The Commanding Officer may exercise his discretion and may not choose a trial through court martial; and There may be no overt exercise of discretion by the Commanding Officer, in which event his conduct should determine whether there was an exercise of discretion; (iii) When the Commanding Officer exercises discretion in terms of the first two situations noted above, the procedure under Section 126 of the Army Act and Rules 3, 4 and 5 of the 1978 Rules becomes applicable; (iv) However, when the Commanding Officer does not exercise his discretion as detailed in the last situation, the absence of any objection by the Army authorities to the trial by the A B C D E F G H 252 SUPREME COURT REPORTS [2022] 8 S.C.R. A B C D E F G criminal court can be regarded as a tacit approval of the Commanding Officer for the accused to be tried by the criminal court; (v) As held by this Court in Joginder Singh v.

Mr Aman Lekhi, Additional Solicitor General, has supported the submissions of the State of Sikkim and urged the following propositions: (i) The controversy in the present case is covered by the decision of this Court in Joginder Singh v. State of Himachal Pradesh11, where it was held that the Army authority was aware of the offence committed and decided to handover the custody of the accused to the police and not to hold a court martial; (ii) There are three categories of offences, namely: - (a) Offences which are created by the Army Act, such as those provided under Sections 34, 35, 36 and 37, which are exclusively triable by a court-martial; 11 (1971) 3 SCC 86 B C D E F G H 254 SUPREME COURT REPORTS [2022] 8 S.C.R. A B C D E F G H (b) Offences which are committed under Section 70 of the Army Act which are to be tried by a criminal court subject to exceptions; and (c) Offences involving the exercise of jurisdiction by the court-martial and by an ordinary criminal court (Section 69), where a court martial can be convened if a decision in terms of Section 125 of the Army Act is taken; (iii) In the present case, the Army authorities had taken control of the accused and handed him over to the IO for trial by criminal court. This clearly establishes that the Army did not want to try the accused by court-martial.

Mr Pradeep Kumar Dey, Senior Counsel appearing on behalf of the respondent-accused has supported the decision of the High Court and made the following submissions: (i) (ii) (iii) In view of the provisions of Sections 69 and 70 of the Army Act, a trial is possible only before the court-martial and not by an ordinary criminal court; Sections 125 and 126 operate in different spheres. Section 125 relates to the discretion of the Army authorities to the effect that when a criminal court and a court- martial both have jurisdiction in respect of an offence, it shall be the discretion of the Commanding Officer to decide before which court the proceedings shall be instituted; Section 126 deals with the power of the criminal court to require delivery of an offender. When a criminal court having jurisdiction is of 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, to either deliver the offender to the nearest magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central Government.