Army Act, 1950 – Section 3(x), 34(a)(h), 36 and 120 – Summary Court Martial – Jurisdiction of – Havildar engaged 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 jurisdiction – Held, offence covered by Section 34 and not by section 36 – Trial by Summary Court Martial held without jurisdiction.
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
SHARMA, L.M. (J), VERMA, JAGDISH SARAN (J), AGRAWAL, S.C. (J)
PETITIONER: EX-HAVILDAR RATAN SINGH
RESPONDENT: UNION OF INDIA AND ORS.
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 Constitution of India before the Delhi High Court, which was dismissed by the impugned judgment.
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 (hereinafter 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 entitled 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 covered 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 punishable under the Act. Sub-section (2) reads as follows :-
“(2) When there is no grave reason for immediate 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 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….”