Criminal Court Can Try A Case Against Army Man If Commanding Officer Does Not Exercise Discretion Under Section 125...
Jurisdiction over Army Personnel
Army personnel are governed by the Army Act, 1950.
However, if they commit an offence which is also an offence under the Indian Penal Code (IPC), then a question arises:
→ Should the case be tried by a Court-Martial or by a Civil Criminal Court?
This is where Section 125 of the Army Act, 1950 comes into play.
Section 125 of the Army Act, 1950
“Choice between criminal court and court-martial.”
If a person subject to the Army Act commits an offence triable both by a criminal court and a court-martial, then the Commanding Officer (CO) has the discretion to decide before which forum (civil court or court-martial) the accused shall be tried.
However, once the CO decides, he has to communicate the decision.
If he does not exercise this discretion, then the ordinary criminal court can proceed with the trial.
Judicial Interpretation
Case Law
1. Som Datt Datta v. Union of India (1969)
The Court clarified that the Army Act provides a separate code for trial of offences by Army personnel.
However, jurisdictional conflicts between criminal courts and court-martial must be resolved through the scheme of Sections 125–127 of the Army Act.
2. Union of India v. State of Punjab (1996)
The Punjab and Haryana High Court held that where the Commanding Officer does not exercise discretion under Section 125, the civil criminal court is competent to try the case.
In this case, an army man was accused of murder; since no CO’s decision was conveyed, the Sessions Court retained jurisdiction.
3. Ram Sarup v. Union of India (1965 SC)
Supreme Court recognized that civil courts are not completely ousted of jurisdiction over army personnel.
Where the Army chooses not to exercise court-martial jurisdiction, the civil court trial is valid.
4. General Principle (as laid down in case law)
If an army man commits a civil offence (like murder, theft, rape, etc.):
Both criminal courts and court-martial have jurisdiction.
But under Section 125, it is for the Commanding Officer to decide the forum.
If he does not decide or fails to act, the ordinary criminal court proceeds with the trial.
Key Takeaways
| Point | Explanation |
|---|---|
| Governing Law | Army Act, 1950 + IPC/CrPC |
| Section 125 | Commanding Officer has discretion to choose forum (civil court or court-martial) |
| If CO Acts | Case goes to forum chosen (court-martial or criminal court) |
| If CO Silent | Criminal Court assumes jurisdiction |
| Case Law | Som Datt Datta (1969), Ram Sarup (1965), Union of India v. State of Punjab (1996) |
✅ In short:
A criminal court can try a case against an Army man if the Commanding Officer does not exercise his discretion under Section 125 of the Army Act. Both forums have jurisdiction, but unless the CO specifically decides on a court-martial, the civil court is free to proceed.
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