2012 (5) TMI 612 - SC - Indian Laws

Whether any case is made out and if so the offence is triable by whom? Whether a 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? Whether the competent Army Authority has to exercise his discretion to opt as to whether the trial would be by a courtmartial or criminal court after filing of the chargesheet and not after the cognizance of the offence is taken by the court?

Issues Involved:
1. Validity of the chargesheet filed by the CBI without prior sanction of the Central Government.
2. Jurisdiction of the court to take cognizance of the chargesheet.
3. Requirement of sanction under Section 7 of the Armed Forces (Special Powers) Act, 1990 (Act 1990).
4. Option for trial by court-martial or criminal court under Section 125 of the Army Act, 1950.

Issue-Wise Detailed Analysis:

1. Validity of the Chargesheet Filed by the CBI Without Prior Sanction:
The Supreme Court examined whether the chargesheet filed by the CBI against Army personnel could be entertained without prior sanction from the Central Government under Section 7 of the Act 1990. The Court emphasized that Section 7 provides "umbrella protection" to Army personnel for acts done in the exercise of their official duties. The Court concluded that the chargesheet cannot be instituted without prior sanction, as the term "institution" means taking cognizance of the offence, not merely filing the chargesheet.

2. Jurisdiction of the Court to Take Cognizance:
The Court discussed the meaning of "institution" in the context of the Act 1990 and concluded that it refers to taking cognizance of the offence, not the mere presentation of the chargesheet. The Court held that the CJM lacked jurisdiction to take cognizance of the chargesheet without the prior sanction of the Central Government. The Court relied on precedents to establish that "cognizance" involves the court applying its mind to the contents of the complaint or chargesheet.

3. Requirement of Sanction Under Section 7 of the Act 1990:
The Court analyzed the statutory provisions of the Act 1990, emphasizing that no prosecution, suit, or other legal proceeding can be instituted against Army personnel without the previous sanction of the Central Government. The Court highlighted that the protection under Section 7 is mandatory and touches the jurisdiction of launching the prosecution. The Court reiterated that the term "purported to be done" under the Act includes acts done in the course of exercising powers conferred by the Act, even if done mistakenly or in excess of the authority.

4. Option for Trial by Court-Martial or Criminal Court:
The Court discussed the provisions of Section 125 of the Army Act, which allows the competent military authority to opt for a trial by court-martial or criminal court after the chargesheet is filed but before the court takes cognizance. The Court emphasized that the discretion exercised by the Military Officer is subject to the control of the Central Government. The Court further clarified that if the option is made to try the accused by a court-martial, no sanction from the Central Government is required, as the court-martial proceedings are governed by the Army Act.

Conclusion:
The appeals were disposed of with the following directions:
1. The competent authority in the Army must decide within eight weeks whether the trial will be by a court-martial or criminal court and communicate this to the Chief Judicial Magistrate.
2. If the trial is to be by court-martial, proceedings should commence immediately and conclude expeditiously.
3. If the trial is to be by a criminal court, the CBI must apply for sanction from the Central Government within four weeks, and the Central Government must decide on the application within three months.
4. If sanction is granted, the criminal court shall proceed with the trial and conclude it expeditiously.

This judgment underscores the necessity of obtaining prior sanction from the Central Government before prosecuting Army personnel for acts done in the discharge of their official duties, ensuring protection against vexatious litigation.

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