A Question of Law: Is Section 124 of the Air Force Act and Concurrent Jurisdiction Having Any Ambiguity
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A Question of Law: Is Section 124 of the Air Force Act and Concurrent Jurisdiction Having Any Ambiguity

Civil criminal offenses as specified in the Indian penal code can be tried by a military court or a civil criminal court as per the Army and Air Force act 1950. This is referred to as concurrent jurisdiction. In case of a dispute the matter will be referred to the central government for a decision.

Air Force and military personnel in India are subject to two sets of laws namely the Indian Penal Code 1860 and the Air Force act 1950. In effect it means that that two or more courts have simultaneous jurisdiction over a specific case.

 Section 71 and 72 of the Air force act 1950 spells out the civil offences. These can be tried either by a criminal court or a court martial.  However Section 72 explicitly states that the offence of rape, murder or culpable homicide not amounting to murder will not be tried by a court martial except in the following conditions

a)      When the offence is committed outside India

b)      When the offence is committed on active service

c)      When committed at a frontier post specifically notified by the government.

It is further stated that in case there is any conflict of jurisdiction over an accused, the matter will be referred to the central government for a decision.

Thus in the above 3 cases there is no ambiguity.  But in other cases there are fair grounds of discord.  In the case of Col VK Mehta 14 Corps vs. Ritesh Kumar Vishwakarma and Anr on 20 April 2009 the Delhi high court specifically gave a ruling on this case. The respondent was to be tried by the additional Sessions Judge in a case under section 3/9 of the Official Secrets act. The Commanding officer by a written notice directed the magistrate to hand over the case to the army for a trial by a court martial.

The civil criminal court refused and the Army approached the high court.  A full bench stayed the proceedings of the trial in the civil criminal court and directed that the matter be referred to the Government for a decision.

 In another land mark case Major Gopinathan vs.  The State of Madhya Pradesh on 20 November 1961 the matter of concurrent jurisdiction was dealt by the MP high court at length. The accused Major Gopinathan was charged under section 341, 342, 352 and 500 of the IPC and the first additional sessions Judge at Jabalpur proceeded with framing of the charges and hearing of the case. He however as per Rule 4 of the Rules framed by the Central Government under section 549 of the Criminal Procedure code informed the commanding officer of the accused. The commanding officer replied that as per rule 5 of the rules the accused need be handed over to the army for a trial by Court martial as the offenses could also be tried by a military court as per section 69 of the Army act.

The matter was referred to the high court which stayed the trial by the additional session’s judge and directed that the case be tried by the army authorities. The high court further added that in case the army authorities did not proceed with the trial the magistrate had the option of reporting the matter to the central government under Rule 7. This is a landmark ruling and is generally construed that military officers have greater chance to be tried by a military court in cases where there is concurrent jurisdiction.

The above two cases have established the principles of concurrent jurisdiction between military and civil courts in India. In the USA also military courts are competent to try all offenses except rape and murder against civilians. All offenses are tried under the Uniform code of military justice.

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Comments (1)

Very educational post.

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