VERINDER SINGH (CAPT ) Vs. GENERAL OFFICER COMMANDING

JUDGEMENT

(1.) THE petitioner, is an Army Officer and holds the rank of a Captain. He has been charged with an offence under section 161 of the Indian Penal Code read with section 69 of the Army Act and has been put up for trial before a General Court -martial convened by General Officer Commanding Head Quarter Northern Command, This writ petition under section 103 of the Constitution of Jammu and Kashmir, questions the jurisdiction of the General Court -martial on the ground that the offence the petitioner is charged with is not a civil offence within the meaning of section 3 (ii) read with section 69 of the Army Act, hereinafter called "the Act". The circumstances in which the petitioner was charged, the facts which necessitated the present petition and the precise contentions on which the petition is founded, find place in the paras which follow.

(2.) IN May, 1971 the petitioner was posted as Officer -in -Charge Multipurpose Farm at Chhamb. On 15 -5 -1971, the Delhi Special Police Establishment having received a complaint from one, Raghunath Dass, contractor, that the petitioner was demanding a sum of Rs. 5,000 as illegal gratification in the course of discharge of his official duties as officer -in -charge of the. Farm, arranged a trap, which was ultimately laid and a sum of Rs.5,000 recovered from him. it is alleged, after the same had been accepted by him as illegal gratification. A case under section 161 of the Indian Penal Code, hereinafter referred to as "the Code", was accordingly registered by the Delhi Special Police Establishment at Amballa. After having investigated the matter the case was referred to the Army authorities. A summary of evidence was thereafter recorded by the Army authorities and ultimately the petitioner was charged with an offence under section 161 of the Code read with section 69 of the Act and was put up for trial before a General Court -martial convened by the G.O.C. Northern Command, presided over by Brigadier Umrao Singh. Before the General Court -martial a plea in bar of the jurisdiction of the Court -martial was raised by the petitioner on the ground that the alleged offence having been committed by him at chhamb, a place in the State of Jammu and Kashmir ; the Indian Penal Code had no application and the offence, if any, was one under the Ranbir Penal Code, in force in the State of Jammu and Kashmir and was therefore triable by the ordinary courts of Criminal jurisdiction in the State. It was contended before the General Court -martial that an offence under section 161 of the Ranbir Penal Code committed within the territory of the State of Jammu and Kashmir was not triable by an ordinary court of criminal justice in any part of India other than the State of Jammu and Kashmir and therefore did not amount to a civil offence defined in section 3 (ii) and as such was not an offence against the Act by force of section 69 thereof. The plea failed to prevail with the General Court -martial and the trial was proceeded with. This was the background which necessitated the filing of the present petition in this court,

(3.) THE petition came up for hearing before one of us namely Jaswant Singh J, who was of the opinion that the petition involved points of law of general public importance which were likely to arise in a number of cases. He accordingly recommended that the petition be heard by a Full Bench. This is under these circumstances that the petition has come up for hearing before the Full Bench.