- (1.) THIS is a habeas corpus petition filed by Major Y.S. Nagar presently attached with the 8th Mountain Division, INGS Company, c/o 56 A.P.O. He is facing summary General Court Martial trial on the charges mentioned in the petition. The chargers have emanated on the basis of registration of FIR Nos.: 20/97 and 21/ 97 (P/S Kothibagh) as well as FIR No: 18/97 in P/S Kral -Khud Srinagar. The petitioner was arrested by the police and investigation completed in respect of the offences mentioned in Cr.P.C were submitted before the competent judicial Magistrate with the allegations that he was found to have committed abductions, robberies and possessed un -authorised arms etc. The Officer Commanding exercised his discretion under section 126 of the Army Act and directed that the accused be delivered to the Army to be tried by Summary General Court Martial. Written request was made on behalf of the Officer Commanding before the trial court (First Addl. Munsiff -Magistrate, Srinagar) who vide his order dated: 12 -02 -1998 transferred the record of the case of FIR No. 20/97 (offences under section 397, 365, 201 RFC read with section 7/25 of the Arms Act) for trial to the Court Martial. Vide order dated: 20 -02 -1998, the record of FIR No -18/97 was transferred and similarly the record of FIR No. 21/97 was also transferred.
(2.) FROM the morass of facts set out sketchy in the memorandum of writ petition it could be gathered that challenge has been thrown to the vires of Section 125 and 126 of the Army Act that they are unconstitutional as they give the power to a Commanding Officer to take away the trial of an accused who is a member of the Armed Forces for facing Trial in a competent court of Criminal jurisdiction. Under Section 113 of the Constitution of J&K (which is at para materia with Article 235 of the Indian Constitution) read with Section 104 of the Constitution of J&K the control over subordinate courts in the J&K State vests in the High Court and an Officer Commanding of the concerned Army Unit cannot take away this control by ordering the trial before a court martial. The petitioner has a right to life and liberty and to preserve these fundamental rights, the question of jurisdiction of his trial requires judicial adjudication. Relief is prayed that summary General Court Martial at Zirin Tangmarg constituted by Officer Commanding, 8th Mountain Division be declared without jurisdiction and after quashing the proceedings, the petitioner may be set at liberty. It is also prayed that sections 125 and 126 of the Army may be declared as violative of Sections 111 and 104 of the Constitution of J&K and Article 235 of the Constitution of India.
(3.) HEARD the arguments. The learned counsel of the petitioner has contended that under section 104 of the Constitution of J&K, the High Court has the superintendence and control over all courts and all courts are subordinate to the High Court. Section 111 of the Constitution of J&K empowers the High Court to have control over District Courts and courts subordinate thereto including the posting and promotion and grant of leave to persons belonging to the Judicial service. That section 125 of the Army Act gives choice to the Officer Commanding of the accused person where he is serving to decide whether the accused (who is an army personnel) should be tried before the court martial or not when a criminal court and court martial have each jurisdiction in respect of an offence. That this discretion takes away the control of the High Court of the subordinate courts and section is thus violative of section 104 and 111 of the Constitution of J&K. According to him, the direction to decide the matter lies with the High Court and since in the present case such a direction has not been exercised so the proceedings pending before the Court Martial requires to be quashed In rebuttal, it has been contended by the learned counsel of respondents that Section 549 of Cr.P.C regulates the trial of accused who can be tried by court martial. That in aid of this Section rules were framed under SRO No: 73 by the Government on 02 -08 -1984 and rule 3 provides as under: - 3. where a person subject to Military, naval or air force law, or any other law relating to the Armed Forces of the Union for the time being in force is brought before a Magistrate and charged with an offfence for which he is also liable to be tried by a Court Martial, such Magistrate shall not proceed to try such person or to commit the case to the court of Sessions unless; a) he is moved thereto by a competent military, naval or air force authorities, or b) he is of opinion, for reasons to be recorded, that he should so proceed or commit without being moved thereto by such authority. ;