DEVENDRA NATH RAI Vs. UNION OF INDIA

JUDGEMENT

(1.) B. Dikshit, J. This writ petition has been filed by a Sepoy (Lance Naik), who has been sentenced to death at trial by General Court-martial under Section 302 of the Indian Penal Code for committing murder of No. 12204403 CHM BS Rathore and that of No. 15359746y Singh K Parthasarathi, and for attempting to murder No. 14238239m NK P Subhash Bablo and No. 14279745m Hav Tuki Ram passed by Commanding Officer 1, Corps, Artillery Brigade, Signal Company, C/o 56 A. P. O. on 12-9-1991, which has been con firmed by Chief of the Army Staff, Army Headquarters, South Block, New Delhi (in short "chief of the Army Staff) by order dated 13-9-1992. The petitioner has filed this writ petition challenging his convic tion and sentence.

(2.) THE prosecution case, detailed in counter-affidavit, is that on 15-6-1991, while petitioner was on quarter guard duty, the following persons went to quarter guard at about 20. 20 hours for entering "lights out OK Report" in the register held in the guard room:- 1. 14279745m Havildar Tuki Ram 2. 14238239m Naik Parab Subhash Bablo

(3.) THE learned counsel for the petitioner argued that the trial by General Court-martial is vitiated as the offences in question are civil offences for which decision under Section 125 of the Army Act to try by General Court-martial was taken by Commanding Officer, 1 Corps Artillery Brigade, Signal Company. Ac cording to petitioner, the said Command ing Officer was not competent to take the decision. He further contended that the petitioner was not allowed to be present during Court of inquiry proceedings though it was essential under law as petitioner's character and military reputa tion was to be affected and has been af fected on conviction. He contended that under law, every accused, whose character and military reputation was likely to be affected in case of conviction is entitled to be present during proceedings. It has also been contended that appellate order passed by Chief of Army Staff is bad in law for want of reasons. Lastly, he contended that it is not a rarest of rare case for awarding death sen tence under Section 3021. P. C. THE Senior Standing Counsel, ap pearing for opposite parties, contended that as petitioner and victims were subject to Army Act at the time of commission of offence in question, therefore, the petitioner has been rightly tried by General Court-martial in view of Section 69 of the Army Act and irrespective of fact whether decision to try by General Court-martial was taken by a competent authority or not, no interference is called for in discretionary jurisdiction of this Court. In alternative, he contended that even if such a determination was necessary then the decision, to try petitioner by Court-martial, was taken by General Of ficer Commanding, who was competent to determine that petitioner be tried by General Court-martial. THE Senior Stand ing Counsel also contended that recording of reason was not necessary while dismissing appeal. Lastly, he contended that con sidering the circumstances of the case and in absence of mitigating circumstances, the death sentence has been rightly awarded. A petitioner has questioned the validity of trial on the ground that the decision to try him by General Court-mar tial was not taken by a competent authority while respondents' case is that though no such decision was necessary as the petitioner could be tried under Section 69 of the Army Act only by general Court-martial, the respondents have also claimed, in alternate, that the petitioner was directed to be tried by general Court-martial by an authority competent to take decision. This gives rise to two questions, which are to be answered for determining the argument raised. THE two questions are as to whether the decision by a com petent authority under Section 125 of Army Act as to whether petitioner is to be tried by general Court-martial was neces sary and if the answer is yes, then another question which is to be answered is as to whether decision to try petitioner by general Court-martial was taken by an authority competent to take such decision? THE learned counsel for parties have referred to Sections 3 (ii), 69,70 and 125 of Army Act, which are as under:- "3. Definitions.-In this Act, unless the context otherwise requires:- (ii) "civil offence" means an offence which is triable by a Criminal Court;" xxxx xxxx xxxx xxxx "69. Civil offences.-Subject to the provisions of Section 70, any person subject to this Act who at any place in or beyond India commits any civil offence shall be deemed tote guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be tried by a Court-martial, and on conviction, be punishable as follows, that is to say,- (a) if the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and such less punishment as is in this Act men tioned; and (b) in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned. " xxxx xxxx xxxx xxxx "70. Civil offences not triable by Court-martial.-A person subject to this Act who com mits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be tried by a Court-martial, unless he commits any of the said offences- (a) while on active service, or (b) at any place outside India, or (c) at a frontier post specified by the Central Government by notification in this be half. " xxxx xxxx xxxx xxxx "125. Choice between criminal Court and Court-martial-When a criminal Court and a Court-martial have each jurisdiction in respect of an offence it shall be in the discretion of the officer commanding the army, army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which Court the proceedings shall be instituted, and if that officer decides that they should be instituted before a Court-martial, to direct that the ac cused person shall be detained in military cus tody. "