JAGDISH SINGH Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) The petitioner serving as Rifleman (Cook) in 16 Assam Rifles, was tried by Summary Court Martial on 09.05.2001 for a offence under Section 38 (1) for Deserting the Service and was dismissed from service on 09.05.2001 itself after he had offered plea of guilty to the charge preferred against him. The petitioner has filed this writ petition to impugn the said finding and sentence imposed on him.

(2.) The petitioner has challenged the said finding on number of counts. At the outset, however, counsel for the petitioner submits that since the petitioner has been subjected to trial by Court Martial, this writ petition may be transferred to Tribunal constituted under the Armed Forces Tribunal Act, 2007 (for short 'Act'), which would now have jurisdiction to deal with the present writ petition and the challenge raised to the Summary Court Martial.

(3.) The applicability of the Act is regulated by Section 2 of the Act, which provides that the provisions of this Act shall apply to all persons subject to the Army Act 1950, the Navy Act, 1951 and the Air Force Act, 1950. Sub section 2 of Section 2 of the Act further provides that provisions of this Act shall also apply to retired personnel subject to the Army Act or the Navy Act and the Air Force Act including their dependents, heirs and successors, in so far as it relates to their service matters. As to what would constitute the service matter is defined in Section 3(o) of the Act. Sub Section 3 (o) is as under:-