Full Judgment Text
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PETITIONER:
EX-HAVILDAR RATAN SINGH
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT19/11/1991
BENCH:
SHARMA, L.M. (J)
BENCH:
SHARMA, L.M. (J)
VERMA, JAGDISH SARAN (J)
AGRAWAL, S.C. (J)
CITATION:
1992 AIR 415 1991 SCR Supl. (2) 370
1992 SCC Supl. (1) 716 JT 1991 (4) 427
1991 SCALE (2)1047
ACT:
Army Act, 1950.’ Section 3(x), 34(a)(h), 36 and 120.
Summary Court Martial--Jurisdiction of---Havildar en-
gaged in armed action against militants---Charge of running
away in a cowardly manner and leaving the post without
permission of superior---Nature of offence and jurisdic-
tion----Held offence covered by Section 34 and not by sec-
tion 36--Trial by Summary Court Martial held without juris-
diction.
HEADNOTE:
The appellant, a Havildar, was charge-sheeted on the
ground that during an armed action against a group of mili-
tants when the militants opened fire he ran away in a cow-
ardly manner and left his post without permission of his
superior.
The respondent-authorities proceeded on the ground that
his offence was covered by section 36 of the Army Act, 1950
and accordingly section 120 (1) of the Act was applicable.
Consequently, he was tried by a summary court Martial and
was convicted and reduced in rank and imprisoned for one
year. He filed an application under Article 226 before the
Delhi High Court which was dismissed.
In appeal to this Court it was contended on behalf of
the appellant that having regard to the nature of the charge
against him section 34 of the Army Act was attracted and in
view of section 120(2) of the Act trial by summary Court was
not permitted.
Allowing the apeal and setting aside the judgment of the
High Court, this Court,
HELD: 1. Under section 120 (2) of the Army Act, 1950 if
an offence is covered by section 34 and immediate action for
the specified reasons is not warranted, the summary court
martial shall not have jurisdiction to hold the trial. [372
D-F]
2. Section 36 covers a wide range of offences and the
scope of
371
section 34 is limited to a smaller area where the offence is
more serious attracting more severe punishments. The opera-
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tion in which the appellant was engaged was directed against
the militants who were undisputedly included in the expres-
sion ’enemy within section 3 (x). If the allegations are
assumed to be true, than the appellant, on the militants’
opening fire shamefully abandoned the place comitted to his
charge and which he was under a duty to defend. Both clauses
(a) and (h) of section 34 are clearly attracted. The appel-
lant was therefore guilty of a more serious offence under
clauses (a) and (h) of section 34 of the Act than under
section 36. 1373 D-G]
It is also not suggested on behalf of the respondents
that there was in existence any grave reason for immediate
action so as to justify trial by an officer holding summary
court martial. Consequently the impugned, hed trial by
Summary Court Martial and the decision thereby must be held
to be without jurisdiction and is quashed. The conviction
and sentence passed against the appellant is set aside. [373
E-G]
3. The respondents-authorities can proceed to hold a
fresh trial of the appellant in accordance with law. [374.-
C]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 710
of 1991.
From the Judgment and Order dated 29.1. 1991 of the
Delhi High Court in Cr. W.P. No. 9 of 1991.
B.Pajha and Manoj Prasad for the Appellant.
V.C.Mahajan, S.D.Sharma and S.N.Terde for the Respondents.
The Judgment of the Court was delivered by
SHARMA, J. Special leave is granted.
2. The appellant, Havildar Ratan Singh was tried and
convicted by Summary Court martial. He was reduced in rank
and sentenced to suffer rigorous imprisonment for one year.
He filed an application under Article 226 of the Constitu-
tion of India before the Delhi High Court, which was dis-
missed by the impugned judgment.
372
3. Although a number of questions were raised in the
writ petition and the special leave petition, the ground
urged by the learned counsel for the appellant before us is
confined to one point. It has been contended that having
regard to the nature of the charge against the appellant,
the provisions of section 34 of the Army Act, 1950 (herein-
after referred to as the Act) are attracted, and in view of
section 120 (2) of the Act, trial by summary not permitted.
The learned counsel has placed the relevant provisions of
the Act indicating that the appellant would have been enti-
tled to a qualitatively better right of defence before a
court martial other than a summary court martial which was
denied to him on a wrong assumption that the case was cov-
ered by section 36, and not by section 34. The question
which arises in this case, is whether the Summary Court
Martial had jurisdiction to try the appellant in the facts
as alleged in the present case.
4. The charge sheet states that when fired upon by a
group of terrorist-militants during an armed operation
against them, the appellant quitted his place without orders
from his superior officer. Section 120 of the Act states
that subject to the provisions of sub-section (2) of the
section a summary court martial may try any offence punisha-
ble under the Act. Sub-section (2) reads as follows :-
"(2) When there is no grave reason for immedi-
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ate action and reference can without detriment
to discipline be made to the officer empowered
to convene a district court-martial or on
active service a summary general court-martial
for the trial of the alleged offender, an
officer holding a summary court-martial shall
not try without such reference any offence
punishable under any of’ the sections 34, 37
and 69, or any offence against the officer
holding the Court."
The position, thus, is that if the offence is covered by
section 34 and immediate action for the specified reasons is
not warranted, the summary court martial shall not have
jurisdiction to hold the trial.
5. Section 34 states that any person subject to the
Act, who commits any of the offences enumerated thereunder,
shall on conviction by court-martial, be liable to suffer
death or such less punishment as prescribed. The offences
are detailed in 12 clauses and clauses (a) and (h) appear to
be relevant in the present context. They are quoted below:-
"(a) shamefully abandons or delivers up any
garrison, fortress, post, place or guard,
committed to his charge, or which it is his
duty to defend or uses any means to compel or
induce any
373
commanding officer or other person to commit
any or the said acts; or
(h) in time of action leaves his commanding
officer or his post,guard, picquet, patrol or
party without being regularly, relived or
without leave; or...."
6. The evidence in the case, included in the paper book
prepared by the appellant, indicates that the appellant
while engaged in an armed action against a group of mili-
tants is alleged to have run away when the militants opened
fire and he, thus, in a cowardly manner left his post with-
out permission of his superior officer. The allegations
included in the charge sheet on the basis of which the
appellant was tried are also to the same effect. The appel-
lant is, therefore, right in his stand that if the prosecu-
tion case be assumed to be correct (which he denies) he was
guilty of a more serious offence under clauses (a) and (h)
of section 34 of the Act than under section 36. In reply it
is contended on behalf of the respondents that the case is
covered by section 36, and, therefore, the Summary Court
Martial was fully authorised to try the appellant under
section 120 (1).
7. There is no dispute that the appellant is governed
by the provisions of the Act. It is also not suggested on
behalf of the respondents that there was in existence any
grave reason for immediate action so as to justify trial by
an officer holding summary court martial. The Operation in
which the appellant was engaged was directed against the
militants who were undisputedly included in the expression
’enemy’ within section 3(x). The impugned order is attempted
to be justified solely on the ground that section 36 covers
the case. The argument overlooks the position that it is not
the scope of section 36 which can answer the question raised
in the present case. The issue is whether the offence is
punishable under section 34 or not. Section 36 covers a wide
range of offences and the scope of section 34 is limited to
a smaller area where the offence is more serious attracting
more severe punishments. If the allegations are assumed to
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be true then the appellant, on the militants opening fire,
shamefully abandoned the place committed to his charge and
which he was under a duty to defend. Both clauses (a) and
(h) are, therefore, clearly attracted. The impugned trial by
summary court martial and the decision thereby must be held
to be without jurisdiction and have to be quashed.
8. We do not find any merit in the other points men-
tioned in the writ petition or in the special leave peti-
tion. They are finally rejected.
374
9. During the course of the hearing we drew the pointed
attention of the learned counsel for the appellant that if
he succeeded on the basis that the Summary Court Martial was
without jurisdiction, he (the appellant) may have to be
retired and awarded a more severe punishment, The learned
counsel, however, decided to press the point even at the
risk of a second trial of the. appellant. The learned coun-
sel for the respondents stated that a fresh proceeding may
now be barred by the law of Limitation, and in view of the
fact that the appellant is guilty of a very serious charge,
this Court should decline to exercise its power under Arti-
cle 136. In reply the learned counsel for the appellant
pointed out that the period of limitation for commencing a
fresh proceeding against the appellant shall not expire
before 05.02.92 and the apprehension expressed on behalf of
the respondents that the appellant, even if guilty, may
escape a trial is misconceived. We hold that the appellant
is correct. Accordingly we set aside the impugned judgment
of the High Court as also the conviction and sentence passed
against the appellant by the Summary Court Martial, but
allow the respondents-authorities to proceed to hold a fresh
trial of the appellant in accordance with law. The appeal is
accordingly allowed.
T.N.A. Appeal
allowed.
375