Army Act Sections 125–126: Criminal Court vs Court-Martial, Choice of Forum, Magistrate Requisition & Central Government Reference

See the Army Act on India Code and our Army Act Section 69 civil-offence guide.

1. When concurrent jurisdiction arises

Concurrent jurisdiction usually arises where the alleged conduct is both an offence under ordinary criminal law and triable by court-martial through Army Act Section 69 or another applicable provision. The first task is to establish that both forums actually possess jurisdiction over the person and offence.

2. Section 125: initial military choice

Section 125 places the initial discretion with the officer commanding the army, army corps, division or independent brigade in which the accused is serving, or another prescribed officer. That authority decides whether proceedings should be instituted before the criminal court or court-martial.

If court-martial is chosen, the authority may direct that the accused be detained in military custody.

3. The discretion is statutory, not personal

Although Section 125 uses the language of discretion, the choice should be exercised for legally relevant reasons. Seriousness of offence, military discipline, location, evidence, victims, operational context, and the administration of justice may all be relevant. Arbitrary forum selection or a decision based on irrelevant considerations can become reviewable.

4. Section 126: criminal court can intervene

Where a criminal court having jurisdiction considers that proceedings should be instituted before itself, it may issue written notice requiring the Section 125 officer either to deliver the offender to the nearest magistrate for proceedings according to law or to postpone military proceedings pending a reference to the Central Government.

5. Reference to Central Government

If the military authority does not deliver the offender, it must refer the question of forum to the Central Government. The Central Government’s order on the reference is final within the statutory mechanism.

The existence of this reference route is important because a forum dispute should not be resolved through informal correspondence alone when Section 126 has been validly invoked.

6. Relationship with ordinary criminal procedure

The Army Act does not operate in isolation. Rules framed under criminal procedure governing delivery of persons subject to military law, and Army Rules concerning forum choice, may also apply. The defence should obtain all notices, requisitions, decisions and acknowledgments passing between the magistrate and military authorities.

7. Civil offence under Section 69

Section 69 deems a civil offence committed by a person subject to the Army Act to be an offence against the Act, subject to Section 70 restrictions. This is the principal bridge by which many offences under the Bharatiya Nyaya Sanhita and other criminal laws can come before a court-martial.

8. Section 70 restrictions

Before assuming the military forum is available, check Section 70. Certain civil offences are restricted from court-martial trial except in the statutory circumstances, including where committed on active service, outside India, or at specified frontier posts depending on the provision.

9. FIR first does not always decide the forum

The mere registration of an FIR does not necessarily extinguish court-martial jurisdiction. Likewise, military custody or a disciplinary inquiry does not necessarily exclude criminal-court jurisdiction. The statutory forum-choice mechanism remains central.

10. Charge-sheet by police and military proceedings

If police investigation has progressed substantially, counsel should verify whether the magistrate has taken cognizance, whether Section 126 procedure was invoked, and whether the military authority has formally exercised Section 125 discretion. Parallel procedural steps can create serious jurisdictional complications if the statutory choice has not been regularised.

11. Double jeopardy implications

Once there has been a qualifying acquittal, conviction or summary disposal, Army Act Section 121 may bar a second trial for the same offence in the circumstances specified. Forum choice should therefore be resolved before one jurisdiction reaches final adjudication.

12. Evidence already collected by civil police

Civil-police statements, seizure records, forensic reports and electronic evidence can become relevant in a court-martial, subject to the applicable law of evidence and Army Rules. The defence should insist on the chain of custody and formal proof rather than assume civil-police paperwork is automatically admissible.

13. Arrest and custody issues

Where the accused moves between civil and military custody, obtain arrest memo, remand orders, military custody directions and the Section 125 decision. Time in custody may also affect sentence set-off and other rights.

14. How to challenge an improper forum choice

A challenge may be raised before trial where the military forum lacks jurisdiction or the statutory process was bypassed. Depending on the stage, the issue may be taken through a special plea to jurisdiction, Section 164 petition, AFT appeal or constitutional review.

15. Common defence questions

• Did both forums actually have jurisdiction?
• Who exercised the Section 125 discretion?
• Was that officer competent?
• Was a reasoned choice recorded?
• Did a criminal court issue a Section 126 notice?
• Was the offender delivered or was a Central Government reference made?
• Did one forum already reach a final result attracting Section 121?

16. Documents to obtain

1. FIR and police case diary extracts available to accused;
2. military complaint/charge-sheet;
3. Section 125 forum-choice order;
4. military custody direction;
5. magistrate’s written requisition under Section 126, if any;
6. reply of military authority;
7. Central Government reference and decision;
8. civil charge-sheet/cognizance order;
9. court-martial convening order;
10. all custody and remand records.

17. AFT remedy

If court-martial proceeds and conviction follows, forum-choice defects can form part of a Section 164 petition and AFT appeal where they go to jurisdiction or have caused miscarriage of justice. The pleading should reproduce the entire forum chronology rather than merely allege “civil court had jurisdiction”.

18. Frequently asked questions

Who initially decides between criminal court and court-martial?

The military authority specified in Section 125 or prescribed under the Rules.

Can a magistrate insist on the case?

Section 126 allows a competent criminal court to issue a written notice requiring delivery or a reference to the Central Government.

Does an FIR prevent court-martial?

Not automatically. The question depends on jurisdiction and the statutory forum-choice process.

Can both forums convict for the same offence?

Army Act Section 121 creates a prohibition against a second trial in the circumstances it specifies.

19. Conclusion

Sections 125 and 126 are not technical footnotes; they are the statutory traffic-control mechanism where military and ordinary criminal jurisdiction overlap. A proper defence audit should reconstruct every step from FIR or military complaint through forum choice, custody, any magistrate requisition, Central Government reference and eventual trial. Jurisdiction should be settled by statute before the merits are decided.