EX-HAVILDAR RAT AN SINGH versus UNION OF INDIA AND ORS.

Citation: [1991] SUPP. 2 S.C.R. 370 · Decided: 19-11-1991 · Supreme Court of India · Bench: L.M. SHARMA · Disposal: Appeal(s) allowed

Judgment (excerpt)

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. 
F 
G 
H 
In appeal to this Court it was contended on behalf of the ap-
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. 
Allowing the apeal and setting aside the judgment of the High 
Court, this Court, 
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-
fied 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 
370 
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RATIAN SINGH v. U.0.1. [SHARMA, J.) 
371 
section 34 is limited to a smaller area where the offence is more 
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 
(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 
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] 
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. 
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. 
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. 
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: 
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B 
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G 
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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-
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 r

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