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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