Army Act Sections 125–126 in 2026: Criminal Court vs Court-Martial Jurisdiction, BNSS Section 521, CO Choice & 1978 Rules

The key current provisions are the Army Act, 1950 and BNSS Section 521. BNSS Section 521 replaced the old CrPC Section 475 framework from 1 July 2024, subject to repeal-and-savings rules for older proceedings.

1. What Section 125 does

Section 125 applies where a criminal court and a court-martial each have jurisdiction in respect of an offence. It gives the specified military authority discretion to decide before which court proceedings shall be instituted. If the decision is for court-martial, the accused may be directed to be detained in military custody.

The designated authority is not every superior officer. The statutory identity and any prescribed delegation should be verified from the record.

2. What Section 126 does

Section 126 addresses the situation where a criminal court considers that proceedings should be instituted before itself. It may require the military authority either to deliver the offender to the nearest Magistrate or to postpone court-martial proceedings pending reference to the Central Government.

If the military authority does not accept delivery to the criminal court, the question of proper forum can be referred to the Central Government, whose decision under the statutory scheme resolves the conflict.

3. BNSS Section 521 is now the procedural bridge

BNSS Section 521 is the present counterpart of former CrPC Section 475. It authorises Central Government rules governing cases where persons subject to Armed Forces law may be tried by ordinary criminal courts or court-martial. When such a person is brought before a Magistrate for an offence triable by either forum, the Magistrate must have regard to those rules and may, in proper cases, deliver the accused to the appropriate commanding officer for court-martial.

This is a current-law point that older military-law articles frequently miss by continuing to cite CrPC Section 475 as though it remains the operative provision for every post-July-2024 case.

4. The 1978 Adjustment of Jurisdiction Rules

The Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1978 provide the practical machinery. The Rules regulate when the Magistrate may proceed, when notice must go to the Commanding Officer or competent military authority, the waiting period, and the process for delivery or retention of the accused.

In December 2024, the Orissa High Court expressly referred to BNSS Section 521 together with the 1978 Rules while issuing directions concerning defence personnel in criminal cases, confirming the continued practical relevance of the jurisdiction-adjustment framework after BNSS.

5. Military authority has the first choice—but not an unreviewable monopoly

In Som Datt Datta v. Union of India and later authorities, the Supreme Court explained that the statutory scheme leaves the initial choice with the competent military authority. But this is not the end of the legal architecture. If the criminal court considers the case should remain before it, Section 126 creates a formal route rather than permitting informal institutional conflict.

Recent High Court decisions continue to apply this structure.

6. Union of India v. State of Uttarakhand — 3 November 2025

In Union of India v. State of Uttarakhand, the High Court reiterated the primacy of the Section 125 choice where the accused was subject to military law and the offence was within concurrent jurisdiction. The judgment relied on the established Supreme Court framework and examined the interaction with a special criminal statute.

The practical lesson is that a court-martial claim to jurisdiction must be rooted in actual statutory competence; Section 125 does not create jurisdiction where the Army Act does not otherwise permit trial.

7. Baljeet Kaur v. State NCT of Delhi — 26 November 2025

In Baljeet Kaur v. State NCT of Delhi, the Delhi court stressed that the discretion over forum lies with the Commanding Officer under Section 125, while the Magistrate must proceed through the statutory adjustment mechanism if the criminal court considers that it should retain the case.

This is important in practice because a Magistrate should not simply ignore a properly invoked military claim to forum.

8. Ms Anupam v. State of Manipur — 28 February 2025

The Manipur High Court in Ms Anupam v. State of Manipur reviewed Sections 125–126 alongside the jurisdiction-adjustment framework and explained that Section 126 comes into operation when the military authority has exercised the Section 125 choice in favour of court-martial and the criminal court considers otherwise.

9. Section 69 and Section 70 must be checked first

Before debating forum, determine whether the court-martial has substantive jurisdiction at all. Section 69 permits trial of civil offences by court-martial subject to Section 70. Section 70 restricts military trial of certain offences such as murder, culpable homicide and rape against persons not subject to service law, except in specified circumstances including active service, locations outside India or notified frontier posts.

If Section 70 bars court-martial, Section 125 cannot be used to manufacture concurrent jurisdiction.

10. Special statutes can complicate the analysis

POCSO, anti-corruption laws, special security statutes and other special enactments may create exclusive or specially constituted criminal courts. The interaction must be examined statute by statute. A generic statement that Section 125 always overrides every special criminal statute would be unsafe.

The correct question is whether both forums truly have jurisdiction over the particular offence and accused.

11. Arrest by civil police does not automatically settle forum

The fact that an FIR is registered and the service member is arrested by civil police does not necessarily mean the civilian court has irrevocably acquired exclusive trial jurisdiction. Conversely, military custody does not by itself establish that court-martial is legally competent.

Forum turns on the statutory framework and proper exercise of the choice-and-adjustment process.

12. What should a Commanding Officer’s application contain?

Where military authorities seek delivery of the accused, the written application should ordinarily make the jurisdictional basis clear:

• service status of the accused;
• unit/attachment;
• offence alleged;
• Army Act provision making the conduct triable by court-martial;
• competence of the officer invoking the statutory choice;
• decision to proceed by military trial;
• request under the applicable jurisdiction-adjustment rules and BNSS Section 521.

An opaque letter asking merely for “custody” can create avoidable litigation.

13. What should the defence check?

The accused may have strong reasons to prefer one forum, but forum is not ordinarily a personal election. The defence should instead test legality:

1. Was the accused subject to the Army Act at the relevant time?
2. Is the offence triable by court-martial under Sections 69–70?
3. Was the Section 125 decision taken by the competent authority?
4. Were the 1978 Rules and BNSS Section 521 followed?
5. Did the Magistrate record reasons where required?
6. If there was disagreement, was Section 126 followed?
7. Has limitation or loss of service jurisdiction affected the military forum?

14. Court-martial limitation can affect the forum dispute

A military authority cannot necessarily insist on court-martial if the Army Act itself no longer permits lawful commencement of trial. The separate rules under Section 122 limitation therefore need to be checked before or alongside the Section 125 choice.

The old Supreme Court decision in Delhi Special Police Establishment v. Lt Col S.K. Loraiya remains important in understanding how military limitation and civilian jurisdiction can intersect.

15. Court-martial jurisdiction objections at trial

If the case proceeds before court-martial despite a foundational jurisdiction objection, the plea should be raised in the correct procedural form. Our guide to Army Rules 51–53 explains special pleas to general jurisdiction and pleas in bar.

16. Constitutional challenge and judicial review

Section 125 itself has survived constitutional scrutiny. Judicial review ordinarily focuses on statutory competence, compliance with the prescribed process, mala fides, arbitrariness or jurisdictional error rather than substituting the court’s personal preference for one forum.

17. AFT or High Court?

The correct forum depends on the stage and nature of the order. A challenge to an eventual court-martial conviction goes to AFT appellate jurisdiction. A live conflict involving a civilian criminal court, Magistrate or constitutional jurisdiction may require High Court intervention depending on the circumstances.

Do not assume AFT can issue every direction required against a civilian criminal court.

18. Practical document checklist

• FIR and arrest/remand papers;
• service certificate and unit details;
• CO/competent authority’s Section 125 decision;
• application seeking delivery to military custody;
• Magistrate’s orders and reasons;
• notices under the 1978 Rules;
• Section 126 correspondence/reference;
• charge-sheet or proposed military charge;
• documents relevant to Section 70 and active-service status;
• Section 122 limitation chronology.

19. Frequently asked questions

Does the Army always get priority over a criminal court?

No. Section 125 gives the competent military authority the initial statutory choice where both forums have jurisdiction, but Sections 125–126 and the adjustment rules create a complete conflict-resolution mechanism.

What replaced CrPC Section 475?

For the current BNSS regime, the corresponding provision is Section 521 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Can the Magistrate refuse to hand over a soldier?

The Magistrate must act within the statutory adjustment framework. If the criminal court considers that it should proceed, the notice/reference mechanism rather than unilateral disregard of Section 125 is important.

Does Section 125 apply if court-martial has no substantive jurisdiction?

No. Concurrent jurisdiction is the premise. Sections 69–70 and other jurisdictional provisions must first support military trial.

Conclusion

Sections 125–126 are designed to prevent a collision between two lawful justice systems. The most reliable approach is to identify substantive jurisdiction first, then verify the competent military choice, BNSS Section 521 and the 1978 Rules step by step. Forum disputes are won on statutory sequence, not on institutional preference.

Legal information notice: General information only. The applicable procedural law may depend on the date of the offence and stage of the criminal proceeding because BNSS contains repeal-and-savings provisions.