Ratan Singh Vs. Union of India & Ors  INSC 300
(19 November 1991)
L.M. (J) Sharma, L.M. (J) Verma, Jagdish Saran (J) Agrawal, S.C. (J)
1992 AIR 415 1991 SCR Supl. (2) 370 1992 SCC Supl. (1) 716 JT 1991 (4) 427 1991
Act, 1950.' Section 3(x), 34(a)(h), 36 and 120.
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.
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
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
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.
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
the apeal and setting aside the judgment of the High Court, this Court,
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]
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- 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]
respondents-authorities can proceed to hold a fresh trial of the appellant in
accordance with law. [374.- C]
APPELLATE JURISDICTION: Criminal Appeal No. 710 of 1991.
the Judgment and Order dated 29.1. 1991 of the Delhi High Court in Cr. W.P. No. 9 of 1991.
and Manoj Prasad for the Appellant.
S.D.Sharma and S.N.Terde for the Respondents.
Judgment of the Court was delivered by SHARMA, J. Special leave is granted.
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.
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.
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.
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.
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- 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.
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...."
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).
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
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.
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.
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