RACHPAL SINGH Vs. SUMMARY GENERAL COURT MARTIAL

JUDGEMENT

(1.) THIS petition which challenges the trial and conviction of the petitioner under Section 302 of the Indian Penal Code by a Summary General Court Martial has been referred to this bench by one of us for it raises an important question relating to the interpretation of Section 70 of the Army Act, 1950 (Act XLVI of 1950), hereinafter called "the Act", on which there is no authoritative pronouncement either of the Supreme Court or of this Court.

(2.) IT appears that the petitioner who was a Rifle Man belonging to 9 J. and K. Rifles, a part of the Defence Services of the Union of India, and as such subject to the Act, was charged with the offence of murder under Section 302 of the Indian Penal Code for causing the death while on active service, at field, of one Mohamad Hussain, a civilian, on the night intervening 12th and 13th of June, 1968. He was tried by a Summary General Court Martial (consisting of three officers viz. , respondents Nos. 1 to 3) convened by the General Officer Commanding 25, Infantry Division, respondent No. 5, vide his order dated 12th March, 1969. The Court Martial vide its order dated 3rd April, 1969, found the petitioner guilty of the said offence and sentenced him to imprisonment for life. The finding and sentence of the Court Martial were confirmed by respondent No. 5 by his order dated 1st May, 1969,

(3.) AGGRIEVED by this conviction and sentence the petitioner filed the aforesaid petition before this Court on 22nd July, 1970, challenging the jurisdiction of the Summary General Court Martial to try him and praying that a writ of certiorari quashing the aforesaid orders dated 3rd April, 1969, and 1st May, 1969, of the Summary General Court Martial and of the confirming authority respectively, and a writ in the nature of Habeas Corpus directing his release from the Central Jail, Jammu, where he is detained, be issued.