Militants : The Supreme Court of India in Ex-Havildar Ratan Singh Vs. Union of India, AIR 1992 SC 415 : 1991 (2) SCR Supl. 370 : (1992) 1 SCC Supl. 716 : JT 1991 (4) SC 427 : 1991 (2) SCALE 1047 : 1992 CriLJ 287 : 1991 (3) Crimes 822 : 1992 CAR 1 : 1992 (1) CCR 267 : 1992 SCC (Cr) 358 held that a militant is an enemy within the definition of Section 3(x) of the Army Act, 1950.
A bench comprising of Justice L.M. SHarma, Justice Jagdish Saran Verma and Justice S.C. Agrawal observed that 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 appellant, a Havildar, was charge-sheeted on the ground that during an armed action against a group of militants when the militants opened fire he ran away in a cowardly 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 Apex 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, the Apex Court held that 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.
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. 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 appellant was therefore guilty of a more serious offence under clauses (a) and (h) of section 34 of the Act than under section 36. 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, held 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.
The respondents-authorities can proceed to hold a fresh trial of the appellant in accordance with law.