PRITAM SINGH Vs. STATE

JUDGEMENT

(1.) THIS revision petition which calls into question an order of the learned Chief Judicial Magistrate, Kathua, dated 19-2-1979, where by he rejected an application for handing over the custody of the petitioner to the Military Authorities for the -trial of the petitioner by a Court Martial, came up for hearing before my learned brother Kotwal J. , who being of the opinion that important questions of interpretation of some provisions of the Indian Army Act were involved in the case, referred it "to a larger Bench for an authoritative pronouncement" and that is how this revision petition has been placed before this Bench for its disposal.

(2.) THE basic question which arises for consideration in this petition is: Whether a person, subject to the Army Act while on 'casual leave' is deemed to be on 'active service' within the meaning of Section 3 (1) of the Army Act read with Section 70 thereof? The backdrop in which the above question of law arises is as follows :

(3.) THE petitioner, along with respondent No. 1, was challaned by the Kathua Police for an offence under Section 302/34 RPC on 6-11-1978 for the alleged murder of a civilian (person not subject to military law ). The case related to an occurrence dated 3-10-1878. The petitioner was arrested by. the Kathua Police on 9-10-1978, During the pendency of the proceedings in the committing court, the Commanding Officer of the petitioner, Lt Col. G. S. Somal, presented an application before the learned Chief Judicial Magistrate requesting therein that since the petitioner is an Army personnel, his custody be handed over to the Military Authorities, along with the charge-sheet, so that he may be tried by a court martial as envisaged by the provisions of Section 70 of the Army Act. The application was resisted by the prosecution on the ground that since the petitioner, at the time of the commission of the offence, was on 'casual leave', he could not be treated to be on 'active service' and as such the ordinary criminal courts alone had the jurisdiction to try him. The learned Chief Judicial Magistrate, vide the impugned order, held that since the petitioner was on 'casual leave' on the date of occurrence and was not 'actually performing his duty' the proper forum for his trial was the ordinary criminal court and rejected the application of the Commanding Officer. In this Court also, the Commanding Officer, has once again filed, an application for the transfer of the custody of the petitioner to the Military Authorities.