SHARMA,J. - (1.) SPECIAL leave is granted.
(2.) THE appellant, Havildar Ratan Singh was tried and convicted by Summary Court martial. He was reduced in rank and sentenced to suffer rigorous imprisonment for one year. He filed an application under Article 226 of the Constitution of India before the Delhi High Court, which was dis- missed by the impugned judgment. Although a number of questions were raised in the writ petition and the special leave petition, the ground urged by the learned counsel for the appellant before us is confined to one point. It has been contended that having regard to the nature of the charge against the appellant, the provisions of section 34 of the Army Act, 1950 (herein- after referred to as the Act) are attracted, and in view of section 120 (2) of the Act, trial by summary not permitted. The learned counsel has placed the relevant provisions of the Act indicating that the appellant would have been entitled to a qualitatively better right of defence before a court martial other than a summary court martial which was denied to him on a wrong assumption that the case was cov- ered by section 36, and not by section 34. The question which arises in this case, is whether the Summary Court Martial had jurisdiction to try the appellant in the facts as alleged in the present case.
(3.) THE charge sheet states that when fired upon by a group of terrorist-militants during an armed operation against them, the appellant quitted his place without orders from his superior officer. Section 120 of the Act states that subject to the provisions of sub-section (2) of the section a summary court martial may try any offence punishable under the Act. Sub-section (2) reads as follows :- "20. (2) When there is no grave reason for immediate action and reference can without detriment to discipline be made to the officer empowered to convene a district court-martial or on active service a summary general court-martial for the trial of the alleged offender, an officer holding a summary court-martial shall not try without such reference any offence punishable under any of' the sections 34, 37 and 69, or any offence against the officer holding the Court." The position, thus, is that if the offence is covered by section 34 and immediate action for the specified reasons is not warranted, the summary court martial shall not have jurisdiction to hold the trial.;