SURINDER SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) The only point involved in this petition under Article 226 of the Constitution of India which is filed by a member of the Indian Army, is whether he having once been convicted and sentenced on 'plea of guilty' in a summary Court-martial held under the provisions of the Army Act and the Rules, be retried in General Court-martial for the same offences.

(2.) The question arises on the following facts: In a summary Court-martial held on 17-12-90 (Annexure P-1) the petitioner, who is a Havaldar, pleaded guilty to the charge of sodomy under Section 377 of the Indian Penal Code, for other charges under Section 46(a) and Section 38(a) of the Army Act (shortly referred to as the Act). The petitioner was convicted and sentenced to six months' rigorous imprisonment apart from his reduction to rank and dismissal from service. By a warrant (Annexure P-2) issued on 17-12-1990 he was sent to civil prison to suffer the sentence of imprisonment.

(3.) In accordance with the provisions contained in Section 162 of the Act read with Army Rule 133, the summary Court-martial proceedings were sent to the Officer Commanding, who by communication sent to the jail authorities through a warrant issued on 23-2-91 (Annexure P-4) set aside the Court-martial proceedings and directed release of the petitioner.