Holding

The offence is covered by section 34 of the Army Act, and therefore, under section 120(2), a Summary Court Martial lacks jurisdiction to try the case.

Summary

Havildar Ratan Singh was charged with cowardly abandonment of his post during an armed operation against militants and was tried by a Summary Court Martial under the Army Act, 1950. The trial court held that the offence fell under section 36 of the Act, allowing summary jurisdiction, and convicted him, reducing his rank and sentencing him to one year of rigorous imprisonment. The appellant challenged the jurisdiction, arguing that the charge attracted sections 34(a) and 34(h), which, under section 120(2), preclude trial by a summary court when no grave reason for immediate action exists. The Supreme Court examined the nature of the alleged offence, the scope of sections 34 and 36, and the requirement of section 120(2), concluding that the offence was indeed covered by section 34 and that the summary court lacked jurisdiction. Consequently, the Court set aside the conviction and ordered a fresh trial before a proper court‑martial, allowing the appeal.

Issues considered

Whether the offence alleged against Havildar Ratan Singh is covered by section 34 of the Army Act, 1950 or by section 36.
Whether, under section 120(2) of the Army Act, a Summary Court Martial has jurisdiction to try an offence falling under section 34 when there is no grave reason for immediate action.

Legislation cited

Army Act, 1950s. 120, s. 34(a), s. 34(h), s. 36, s. 3(x)

Subjects

Army Actsummary court martialjurisdictionsection 34section 36military lawcourt martialappeal

Judgment

A EX-HA VILDAR RAT AN SINGH
v.
UNION OF INDIA AND ORS.

NOVEMBER 19, 1991

B [L.M.SHARMA, ~.S. VERMA AN.D S.C.AGRA WAL, JJ.]

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
C 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.

The appellant, a Havildar, was charge-sheeted on the gro~d
that during an armed action against a group of militants whenithe
D 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 ac-
cordingly section 120 (1) of the Act was applicable. Consequently,
E he was tried by a summary court Martial and was convicted and
reduced in rank and imprisoned for one year. He filed an applica-
tion under Article 226 before the Delhi High Court which was dis-
missed.

In appeal to this Court it was contended on behalf of the ap-
F pellant that having regard to the nature of the charge against him
seetion 34 of the Army Act was attracted and in view of section
120(2) of ~he Act trial by summary Court was not permitted. I
'
Allowing the apeal and setting aside the judgment of the High
Court, this Court,
G
HELl}1: 1. Under section 120 (2) of the Army Act, 1950 if an
offence is c'overed by section 34 and immediate action for the speci- l-

fied reasons is not warranted, the summary court martial shall not
have jurisdiction to hold the trial. [372 D-F]

H 2. Section 36 covers a wide range of offences and the scope of

370

-
RATIAN SINGH v. U.0.1. [SHARMA, J.) 371

section 34 is limited to a smaller area where the offence is more A
serious attracting more severe punishments. 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). 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 B
(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. [373 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 c
justify trial by an officer holding summary court martial. Conse-
quently the impugned 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]
D
3. The respondents-authorities can proc~ed to hold a fresh
trial of the appellant in accordance with law. [374-C] ·

CRIMINAL. APPELLATE JURISDICTION: Criminal Appeal No.
710of1991.
E
From the Judgment and Order dated 29 .1.1991 of the Delhi High
Court in Cr. W. P. No. 9of1991.

B.Pajha and Manoj Prasad for the Appellant.
F
V.C.Mahajan, S.D.Sharma and S.N.Terde for the Respondents.
/

The Judgment of the Court was delivered by

SHAl,J.MA, J. Special leave is granted.
I G
,..
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 wa5
dismissed by the impugned judgment: H
372 SUPREME COURT REPORTS (1991) SUPP. 2 S.C.R.

A 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 apJ>ellant before us is confined to one point. It has bee~ contended that
having regard to the· nature of the charge against the appellant, 1he provi- J
sions 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
B summary not permitted. The learned counsel has placed the relevant pro-
visions of the.· Act indicating that the appellant would have been entitled to
a qualitatively better right o'f 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
C 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
D , 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
E 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-~ar
tial 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."
F
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 juri.sdiction to hold the trial.

5. Section 34 states that any person subject to the Act, who com-
G . mits any of the offences enumerated thereunder, shail on conviction by
court-martial, be liable to suffer death or such less punishment as pre-
scribed. 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,
H 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
RATIAN SINGH v. U.0.1. [SHARMA, J.] 373

commanding officer or other person to commit any or the said A
acts; or

••••••••••••••••••••••••••••••••••
(h) in time of action leaves his commanding officer or his
post,guard, picquet, patrol or party without being regularly,
B
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 militants is alleged to have run away when the
militants opened fire and he, thus, in a cowardly manner left his post
.without pennission of his superior officer. The allegations included in the
c
charge sheet on the basis of which the appellant was tried are also to the
sanie effect. The appellant is, therefore, right in his stand that if the
prosecution 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
D
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 provi-
sions 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 E
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 F
present case. The issue is whether the offence is punishabfo 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 aban-
doned the place committed to his charge and which he was under a duty to
G
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 mentioned in the
writ petition or in the special leave petition. They are finally rejected. H
374 SUPREME COURT.REPORTS (1991) SUPP. 2 S.C.R.

A 9. During the course of the hwiog we drew the pointed attention
of the learned c;ounsel for the appellant that if he succeeded on the basis
that the Summary Court Martial was without jurisdiction, he (the appel-
lant} 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 counsel for the reespondents
B stated that a fresh proceeding may now be barred by the law of Limita-
tion, 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 Article 136.
In reply the learned counsel for the apellant 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
C 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.