The court made his observation while dismissing a review petition that challenged the the order of a Magistrate who refused to transfer the case to an Army court.
The petition that was filed by a Lance Havildar has been accused of killing his wife. He is allegedly killed his wife on Aug 25, 2008 during his visit home while on leave.
Justice A Selvam said that the according to Section 70 of the Army Act, a person accused of murder, culpable homicide or rape should not be tried through court martial unless the offence had been committed while he was in active service or at any place outside the country or at a frontier post.
The petitioner however, claimed that his case should be dealt with in Army court as his casual leave comes under the purview of 'active service'. The judge who agreed on the petitioners argument pointed out that neither the army law or code of criminal procedure could actually prevent a criminal court from conduction trial against him or any other servicemen.