A Madras High Court bench has held that defence personnel accused of committing
murder, rape and other such crimes could be tried in a criminal court, and not necessarily through court martials.
The court's observation came while dismissing a revision petition filed by a lance havildar accused of killing his wife while on leave, challenging the order of a magistrate who refused to transfer the case to an Army court. The petitioner was accused of killing his wife on August 25 last year during a visit to Usilampatti near Chennai, while on leave.
In his order yesterday, justice A Selvam said both criminal courts as well as Army courts enjoyed concurrent jurisdiction to try criminal offences.
The judge said that as per Section 70 of the Army Act, a person accused of murder, culpable homicide or rape should not be tried through court martial unless the offence had been committed while he was in active service, or at any place outside the country or at a frontier post.
The petitioner had claimed that he should be tried only through court martial because casual leave comes within the purview of "active service" as held by the Supreme Court in 1995.
While justice Selvam agreed that a soldier on casual leave could be considered to be in active service, he said that neither the Army Act nor the Criminal Procedure Code (CrPC) prevented a criminal court from conducting a trial against servicemen.
Justice Selvam said Section 475 of the CrPC states that if a person was charged with an offence for which he was liable to be tried either by a criminal court or a court martial, the magistrate should in "proper cases" hand him over to the commanding officer concerned.
"From a close reading of the section, one can easily discern that if a person working in Army, Navy or Air Force commits any offence, he can be tried either by a court to
which code of criminal procedure applies or though a court martial", he said.
