Uttarakhand High Court
Union Of India vs State Of Uttarakhand And Another on 3 November, 2025
Author: Alok Kumar Verma
Bench: Alok Kumar Verma
2025:UHC:9676
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
3RD NOVEMBER, 2025
CRIMINAL MISCELLANEOUS APPLICATION NO. 1752 OF 2025
Union of India
Through General Officer Commanding
14 Infantry Division, PIN 908414 c/o 56 APO
..... Applicant
Versus
State of Uttarakhand and Another .....Respondents
Counsel for the Applicant : Mr. Lalit Sharma, Deputy
Solicitor General.
Counsel for the Respondent : Mr. Akshay Latwal,
No.1 Assistant Government Advocate.
Hon'ble Alok Kumar Verma,J.
This Application has been filed by the Union of
India through General Officer Commanding 14 Infantry
Division under Section 528 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 challenging the impugned order
dated 11.08.2025, passed by learned Special Judge
(POCSO) / Additional District and Sessions Judge,
Dehradun in Special Sessions Trial No. 107 of 2025,
"State Vs. Havildar A. Thaha", by which the learned
Special Judge has dismissed the application of the
applicant for transferring the accused to the military
authorities for the purpose of trial of the accused under
2025:UHC:9676
the Army Act, 1950.
2. According to the First Information Report dated
09.05.2025, on 09.05.2025 at around 9:30 a.m. to 10:00
a.m., the accused forcefully entered in the house of the
informant on the pretext of collecting RWA monthly fee
and molested and sexually harassed his daughter (aged
about 13 years) who was alone in the house due to which
the informant became devastated and his daughter is in
trauma and is scared.
3. Charge-sheet has been filed against the
accused for the offence punishable under Section 75 of
the Bharatiya Nyaya Sanhita, 2023 and Section 7 read
with Section 8 of the Protection of Children from Sexual
Offences Act, 2012 (in short, "Act, 2012").
4. Heard Mr. Lalit Sharma, learned Deputy Solicitor
General of India and Mr. Akshay Latwal, learned Assistant
Government Advocate for the respondent no.1.
5. Mr. Lalit Sharma, Deputy Solicitor General,
appearing for the applicant, has contended that the accused
was serving in the Indian Army when he was named as an
accused in the FIR and was arrested in the said offence.
The said offence was committed in the premises of the
Defence Officer's Colony. The impugned order dated
11.08.2025 has been passed on the ground that the
offences under the Act, 2012 can only be tried by a Special
Court, established for the purpose of providing a speedy
2025:UHC:9676
trial under Section 28 of the Act, 2012. The applicant is
competent authority by virtue of power vested under
Section 125 of the Army Act, 1950 read in conjunction with
the Army Rules and Rule 5 of the Criminal Courts and
Court-Martial (Adjustment of Jurisdiction) Rules, 1978,
made in exercise of the powers conferred by sub-section (1)
of Section 475 of the Code of Criminal Procedure, 1973.
6. Mr. Lalit Sharma, Advocate, has relied on a
judgment of the Hon'ble High Court of Jammu, Kashmir and
Ladakh at Jammu in Naik Bibhu Prasad Vs. Union of
India and Others.
7. In WP(C) No.947 of 2022, "Naik Bibhu Prasad
Vs. Union of India and Others", the Hon'ble High Court
of Jammu, Kashmir and Ladakh at Jammu held on
02.06.2022 that there is no bar upon a Court-martial to try
the offences under the Act, 2012.
8. The Court No.3, Armed Forces Tribunal, Principal
Bench, New Delhi dismissed the challenge to the jurisdiction
of the Court-martial to try the offences punishable under
the Act, 2012 on 22.12.2014. The order dated 22.12.2024
was challenged before the Hon'ble Supreme Court in CRLMP
No.1196 of 2016 in Criminal Appeal No. D 22766 of 2015,
"NK Kolekar Dhanagi Hindu Vs. Union of India and
Ors.". The Hon'ble Supreme Court declined the prayer for
leave to appeal and the application for leave to appeal was
dismissed on 05.02.2016.
2025:UHC:9676
9. It is not disputed by the respondent-State that
the accused is subject to the military law under Section 125
of the Army Act, 1950.
10. Section 125 of the Army Act, 1950 says, "Choice
between criminal court and court-martial. - When a
criminal court and a court-martial have each jurisdiction in
respect of an offence, it shall be in the discretion of the
officer commanding the army, army corps, division or
independent brigade in which the accused person is serving
or such other officer as may be prescribed to decide before
which court the proceedings shall be instituted, and, if that
officer decides that they should be instituted before a court-
martial, to direct that the accused person shall be detained
in military custody".
11. Section 125 of the Army Act, 1950 gives primacy
of jurisdiction to the Army authorities to try a person, who
is subject to Army Act and accused of an offence, which is
triable by a Court-martial and also by a criminal court.
12. In "Som Datt Datta Vs. Union of India", AIR
1969 SC 414, it was held that under the Scheme of the
two Sections 125 and 126 of the Army Act, in the first
instance, it is left to the discretion of the officer mentioned
in Section 125 to decide before which court the proceedings
shall be instituted, and, if the officer decides that they
should be instituted before a Court-martial, the accused is
to be detained in military custody.
2025:UHC:9676
13. The applicant has already exercised the
discretion of selecting the forum of trial. Since the applicant
(Commanding Officer) has exercised its discretion and
decided that the proceedings should be instituted before the
Court-martial, it was obligatory on the part of the learned
Special Judge to deliver the accused to the military
authorities for his trial by a Court-martial.
14. Resultantly, the impugned order is liable to be
quashed.
15. Consequently, the Application, filed under
Section 528 of the Bharatiya Nagarik Suraksha Sanhita,
2023, is allowed. The impugned order dated 11.08.2025 is
quashed. The learned Special Judge (POCSO) / Additional
District and Sessions Judge, Dehradun is directed to deliver
the accused to the Commanding Officer, together with a
statement of the offence of which he is accused, for his trial
by a Court-martial.
16. The Court-martial must protect the identity and
dignity of the victim child.
___________________
ALOK KUMAR VERMA, J.
Date: 03.11.2025
Shiv/
