SUBEDAR SURAT SINGH Vs. CHIEF ENGINEER PROJECTS BEACON

JUDGEMENT

(1.) THE petitioner JC-13018, Subedar Surat Singh and G-75829 Pioneer Joginder Singh and G-87982 Pioneer Tahal Singh, all of 1615 PNR COY (GREF) who were subject to the Army Act, 1950 (Act XLVI of 1950 hereinafter called "the Act") were tried by the General Court Martial at Work Shop Base GREF under Section 69 of the Act read with Section 302/109 of the Penal Code for causing the death of G. 87630 Pioneer Suriya Prasad Shanna of 1617 PNR COY on the night intervening 4th and 5th June, 1967, at village Shakti within the jurisdiction of Police Station Leh, District Leh, Jammu and Kashmir State. The Court Martial was convened by the Chief Engineer, Project Beacon Stationed at Srinagar, respondent, herein, who was empowered to do so under Section 109 of the Act. At the conclusion of the trial on 30th May, 1968, the General Court Martial held the petitioner and his aforesaid co-accused "not guilty" and acquitted them of the charges upon which they were arraigned and transmitted the proceedings through proper channel to the respondent for confirmation under Sections 153 and 154 of the Act read with Rule 03 of the Army Rules 1954, hereinafter referred to as "the Rules', Acting under Section 160 of the Act, the respondent vide his order dated 20th July, 1968, sent back the finding of "not guilty" for revision to the General Court Martial, which originally tried the aforesaid accused. Pursuant to the order of the respondent, the General Court Martial reassembled and deliberated again but seeing no reason to depart from its previous finding, reaffirmed the same. This finding was again sent up under Sections 153 and 154 of the Act read with Rule 68 of the rules to the respondent. Being dissatisfied with the finding the respondent refused to confirm the same and by his order dated 6th February, 1969 directed the re-trial of the petitioner and his other two co-accused by another General Court Martial,

(2.) AGGRIEVED by this order, the petitioner has moved this Court under Article 32 (2-A) of the Constitution of India as applied to the State of Jammu and Kashmir and Section 103. of the State Constitution for a writ of Certiorari quashing the order, inter alia on the grounds that there is no provision in the Act or the Rules according to which the confirming authority can refuse to con-firm the verdict of "not guilty" after the same has been re-affirmed on revision under Section 160 of the Act and reconvened the General Court Martial for retrial of the offender.

(3.) IN the affidavits filed on behalf of the respondent in reply to the petition, it is contended, that the finding of "not guilty" has no validity unless it is confirmed under Section 153 of the Act read with Rule 63 of the Rules, that if the confirming authority finds that the finding of "not guilty" is perverse it is empowered under Section 160 of the Act to send back the proceedings to the General Court Martial for revision, that this power can be exercised only once, that if on revision the General Court Martial adheres to its former finding and transmits the proceedings for confirmation and the confirming authority comes to the conclusion that the finding given second time by the General Court Martial on revision is still perverse it can refuse to confirm the finding and order retrial because not to try the offender again would mean allowing the charge against him to remain without valid adjudication which would be against the provisions of Section 153 of the Act that in exercise of the powers conferred under Rule 70 of the Army Rules, the respondent refused to confirm the finding of "not guilty" of the General Court Martial in respect of the petitioner and his co-accused pioneers and ordered their retrial in order to meet the requirements of discipline as well as ends of justice, that in the circumstances the proposed fresh trial of the accused by the General Court Martial for the same offences cannot be said to be against the provisions of the Act and the Rules and that it is not open to the petitioner to seek relief by means of a writ petition as a specific remedy under Section 165 of the Act is available to him,