- (1.) B. Dikshit, J. This writ petition has been filed by a Sepoy (Lance Naik), who has been sentenced to death at trial by General Court-martial under Section 302 of the Indian Penal Code for committing murder of No. 12204403 CHM BS Rathore and that of No. 15359746y Singh K Parthasarathi, and for attempting to murder No. 14238239m NK P Subhash Bablo and No. 14279745m Hav Tuki Ram passed by Commanding Officer 1, Corps, Artillery Brigade, Signal Company, C/o 56 A. P. O. on 12-9-1991, which has been con firmed by Chief of the Army Staff, Army Headquarters, South Block, New Delhi (in short "chief of the Army Staff) by order dated 13-9-1992. The petitioner has filed this writ petition challenging his convic tion and sentence.
(2.) THE prosecution case, detailed in counter-affidavit, is that on 15-6-1991, while petitioner was on quarter guard duty, the following persons went to quarter guard at about 20. 20 hours for entering "lights out OK Report" in the register held in the guard room:- 1. 14279745m Havildar Tuki Ram 2. 14238239m Naik Parab Subhash Bablo 746 Y Singalman K. Parathasarathi 3. The petitioner did not allow them to enter the "lights out OK report" in the register blaming them that they were in civil dress and without identity cards. Upon report from No. 14234181h Lance Naik Yogendra Prasad, B. S. Rathore, who was on the duty Non- commissioned Of ficer of the day, arrived immediately in the quarter guard and enquired from petitioner about the happening and as to why he was harassing the three persons. On this the petitioner told that they were in civil dress and not in possession of identity cards. CHM B. S. Rathore then ques tioned the petitioner if everything was well with him? On this, the petitioner aimed his rifle at CHM B. S. Rathore and fired. The petitioner then turned towards three per sons mentioned earlier, who were sitting on the bench and fired at them and imme diately switched off the lights of. quarter guard. The prosecution case further is that No. l4241830llancenaikg. S. Pandeyof the quarter guard, who was wearing pouches inside the guard room, who wit nessed the incident shouted at sentry to run away. The duty clerk No. 14255747y Lance Naik S. S. Pathania, who heard the sound of fire from the quarter guard, rang up the Officer Commanding Signal Com pany and Subedar Major immediately. After receiving the message, Officer Com manding Signal Company and Subedar Major rushed to the site of incident at once. Officer Commanding Lieutenant Colonel H. S. Teotia, alongwith Subedar Major and other ranks of the Company reached near the Quarter Guard at about 20. 40 hours, who took shelter behind the three ton vehicle parked near the quarter guard and asked petitioner to surrender. The Commanding Officer repeated it three or four times after which petitioner came out of quarter guard with his hands up and sur rendered himself at about 20. 45 hours. The four victims were immediately sent to the military hospital where CHM B. S. Rathore and Signalman K. Parthasarathi were declared dead and Havildar Tuki Ram and Naik Parab Subhash Bagla, who were ad mitted in hospital, survived. At General Court-martial the petitioner was found guilty for the murder of CHM B. S. Rathore and Signalman K. Parthasarathi and found guilty for attempt to murder Havildar Tuki Ram and Naik Parab Subhash Bagla and by order dated 12-9-1999 passed death sentence with the occurrence of six out of seven members of the Court, the sentence being subject to confirmation by Chief of the Army Staff. The petitioner preferred an appeal under Section 164 (2) of the Army Act before Chief of the Army Staff. Before the appeal and reference for confirmation of death sentence could be heard and disposed of, the petitioner filed this writ petition pray ing for quashing of proceedings and sen tence awarded, besides certain other general reliefs. The petitioner's appeal has been rejected during the pendency of this writ petition and the sentence of death awarded has been confirmed by Chief of the Army Staff on 13-9- 1992. The petitioner, feeling aggrieved, has challenged by this petition the General Court-martial proceedings, his conviction and sentences awarded by Chief of the Army Staff.
(3.) THE learned counsel for the petitioner argued that the trial by General Court-martial is vitiated as the offences in question are civil offences for which decision under Section 125 of the Army Act to try by General Court-martial was taken by Commanding Officer, 1 Corps Artillery Brigade, Signal Company. Ac cording to petitioner, the said Command ing Officer was not competent to take the decision. He further contended that the petitioner was not allowed to be present during Court of inquiry proceedings though it was essential under law as petitioner's character and military reputa tion was to be affected and has been af fected on conviction. He contended that under law, every accused, whose character and military reputation was likely to be affected in case of conviction is entitled to be present during proceedings. It has also been contended that appellate order passed by Chief of Army Staff is bad in law for want of reasons. Lastly, he contended that it is not a rarest of rare case for awarding death sen tence under Section 3021. P. C. THE Senior Standing Counsel, ap pearing for opposite parties, contended that as petitioner and victims were subject to Army Act at the time of commission of offence in question, therefore, the petitioner has been rightly tried by General Court-martial in view of Section 69 of the Army Act and irrespective of fact whether decision to try by General Court-martial was taken by a competent authority or not, no interference is called for in discretionary jurisdiction of this Court. In alternative, he contended that even if such a determination was necessary then the decision, to try petitioner by Court-martial, was taken by General Of ficer Commanding, who was competent to determine that petitioner be tried by General Court-martial. THE Senior Stand ing Counsel also contended that recording of reason was not necessary while dismissing appeal. Lastly, he contended that con sidering the circumstances of the case and in absence of mitigating circumstances, the death sentence has been rightly awarded. A petitioner has questioned the validity of trial on the ground that the decision to try him by General Court-mar tial was not taken by a competent authority while respondents' case is that though no such decision was necessary as the petitioner could be tried under Section 69 of the Army Act only by general Court-martial, the respondents have also claimed, in alternate, that the petitioner was directed to be tried by general Court-martial by an authority competent to take decision. This gives rise to two questions, which are to be answered for determining the argument raised. THE two questions are as to whether the decision by a com petent authority under Section 125 of Army Act as to whether petitioner is to be tried by general Court-martial was neces sary and if the answer is yes, then another question which is to be answered is as to whether decision to try petitioner by general Court-martial was taken by an authority competent to take such decision? THE learned counsel for parties have referred to Sections 3 (ii), 69,70 and 125 of Army Act, which are as under:- "3. Definitions.-In this Act, unless the context otherwise requires:- (ii) "civil offence" means an offence which is triable by a Criminal Court;" xxxx xxxx xxxx xxxx "69. Civil offences.-Subject to the provisions of Section 70, any person subject to this Act who at any place in or beyond India commits any civil offence shall be deemed tote guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be tried by a Court-martial, and on conviction, be punishable as follows, that is to say,- (a) if the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and such less punishment as is in this Act men tioned; and (b) in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned. " xxxx xxxx xxxx xxxx "70. Civil offences not triable by Court-martial.-A person subject to this Act who com mits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be tried by a Court-martial, unless he commits any of the said offences- (a) while on active service, or (b) at any place outside India, or (c) at a frontier post specified by the Central Government by notification in this be half. " xxxx xxxx xxxx xxxx "125. Choice between criminal Court and Court-martial-When a criminal Court and a Court-martial have each jurisdiction in respect of an offence it shall be in the discretion of the officer commanding the army, army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which Court the proceedings shall be instituted, and if that officer decides that they should be instituted before a Court-martial, to direct that the ac cused person shall be detained in military cus tody. " The learned counsel for petitioner has contended that the petitioner was to be tried for a civil offence under Section 70 of the Act. We do not find any substance in the argument. Section 70 of Army Act permits trial by criminal Court where ac cused is a person to whom Army Act ap plies while the victim is not subject to military, naval or air force law. There are some exceptions also under Section 70 where even an offence of murder against a person, not subject to military, naval or air ffrce law cannot be tried by criminal Court. The exceptions are not relevant as it is an admitted case of parties that petitioner as well as victims were subject to military law at relevant time. The learned Senior Standing Counsel appearing for respondents has relied on Section 69 in support of his contention that as charge against petitioner was of murder and ac cused as well as victims were subject to military law, the counsel for petitioner is not right in contending that petitioner could not be tried by criminal Court. There is much force in the argument of Senior Standing Counsel. The application of Sec tion 70 of Army Act stands excluded for trial by Criminal Court where accused and victims are subject to military law. The only other provision for trial is Section 69, which requires trial to be any general Court-martial in cases for which trial can not be held under Section 70 before criminal Court. As the case of petitioner in respect of offence for which he has been charged cannot be tried by criminal Court, he has been rightly tried by general Court-martial.;