Indian military law was codified during the days of the Raj by the British government Similarly the civil laws led by the Indian Penal Code and the Criminal Procedure Code also trace their genesis to the days of the Raj. After India gained independence in 1947, in substance except for some minor amendments the laws enacted by the British have re issued by the Indian parliament.
In India a soldier or airman in addition to the laws of the land is also subject to the Military code `epitomised by the Army Act 1950 and the Air Force Act 1950. Thus a question can well arise as to which court, the civil or the military has jurisdiction over a person subject to military law for a crime committed under the IPC.
The word jurisdiction is derived from the Latin language, where Juris means “law”. In real terms it means the practical authority to a court to try an offender under the laws of the land. Section 71 of the Air Force Act 1950 and corresponding section of the Army act lays down the principle of concurrent jurisdiction. This section says that a person subject the Army act or Air Force act will be tried by a military court (Court martial or summary disposal) for all crimes committed under the Air Force and Army Act. The section further states that a person subject to the act and accused under the Indian Penal code will also be tried by a Military court unless for reasons of administrative convenience (Like being co-accused with civilians) he cannot be tried by a Court martial or summary disposal of Charges.
The act and section of military law further specifies that an act of rape, culpable homicide or culpable homicide not amounting to murder will not be tried by a military court but only by a civil court, unless the crime is against a person subject to military law. This is a severe limitation and means that for crimes of rape and murder a service personal will be tried by a civil court unless the charge of rape or murder is against a person who is also a serviceman and subject to the act.
Section 72 of the act also mentions that there could be a difference of opinion between the magistrate and the military authorities as to the jurisdiction to try a particular offence. In such a case the matter will be referred to the Central Government whose decision will be final and binding on both parties.