BAKHSHISH SINGH Vs. COURT MARTIAL

JUDGEMENT

(1.) THE petitioner, Corporal Airman. Bakhshish Singh and leading Aircraftman Burman Anil Chander belonging to 23rd wing of the Air Force are alleged to have imported in Air Force Service Vehicle No. VD 38915 from the State of the Punjab into the State of Jammu and Kashmir on December 11. 1967. 14 bags of gram Dal and 46 bags of Kabli Grams, the export of which from the former State was banned by virtue of G. S. R. No. 575 dated April 18. 1967, issued by the Central Government. Ministry of Food, Agriculture, Community Development and Cooperation. While the vehicle on entering the territories of our State was being checked by Lance Naik Jacob at the Madhopur Check Post the petitioner is alleged to have improperly placed currency notes of the value of Rs. 20/-in the pocket of the short coat of the former. After some investigation a complaint under Section 165-A, R. P. C. for offering bribe to Lance Naik Jacob was filed in May 1969, by the Public Prosecutor, Special Police Establishment, Ambala. Branch in the court of the Special Judge, (Sessions Judge) Kathua On June 10. 1969 when the case was still at its initial stage, the Wing Commander. Commanding Officer No. 23 Wing Air Force, respondent No. 5. herein wrote to the Special Judge. Kathua. informing him that the competent Air Force Authority had decided that the petitioner should be tried by Court Martial and requesting him to deliver the petitioner with the statement of the offence with which he was charged to the Officer Commanding Air Force station, Jammu for being tried by court-martial. On receipt of the communication the Special Judge surrendered the petitioner without any demur for trial by a court-martial. On the petitioner being made over to the Air Force Authorities, a District court martial consisting of respondents Nos. 2 to 5 herein was constituted to try the petitioner on the following charges:

(2.) THE Court Martial commenced the trial on January 17. 1970, and on july 28. 1971 when the trial was nearing completion the petitioner moved this Court for issue of an appropriate writ. direction, or an order quashing the aforesaid charges framed against him by the court- martial and directing his release on the ground that the aforesaid offences for which he has been charged by the court martial are exclusively triable by criminal courts, that under Section 71 of the Air Force Act. the Court martial can only try "civil offences" that the offences with which the petitioner has been charged, not being "civil offences" according to the definition of the term as contained in Section 4 of the Air Force Act are not triable by the court martial and that order dated June 11. 1969 of the Special Judge. Kathua, respondent' No: 7, herein, is illegal and without jurisdiction. It has been further averred by the petitioner that he made an application before respondents Nos. 2 to 5 for quashing the charges but they rejected his application on July 5, 1970.

(3.) A notice in regard to the petition was issued to respondents. Pursuant to the notice respondents Nos. 1 to 5 have filed a return averring inter alia that the offences for which the petitioner has been charged are exclusively triable by the court martial, that he has not been charged for an offence under Section 165-A of the Ranbir Penal Code and that the trial is almost over and only the findings recorded by the court martial remain to be announced.