- (1.) J. C. Gupta, J. This petition under Article 226 and 227 of the Constitution of India has been filed with the prayers to issue a writ in the nature of certiorari quashing the charge-sheet dated 5-10-77 (Annexure-1), the finding of guilty dated 7-11-77 (Annexure 3-A) sentence order dated 7-11-77 the confirmation order dated 3rd December, 1977 (Annexure-6) and appellate order dated 31st January, 1979 (Annexure-8) and to issue a writ of mandamus directing the opposite parties to treat the petitioner in service.
(2.) THE petitioner was appointed as 'sepoy' on 12-7-65 in the Army Medical Cor. and was posted at Lucknow. He was promoted on the post of Paid Acting Naik in the year 1975. While serving as Laboratory Assistant in the Military Hospital, Fatehgarh, the petitioner was duly tried by the District Court Martial for the following charge for committing a civil offence under Section 69 of the Army Act. in the he, at Fatehgarh, on 14th June 77, while working as Lab Assistant Military Hospital, directly accepted for himself from No. 4445174 Sep Saroop Singh of Depot Coy Sikh Li Regimental Centre, Fatehgarh, the sum of Rs. 100/- (Rupees one hundred only) a gratification other than legal remuneration as a motive for doing anofficial set, to with, to give normal blood report in respect of Shri Autar Singh, a civilian, for favour of enrolment. Place: Fatehgarh (U. P.) Dated 3-11-1977 Sd. /- (Nabasu) Ltd. Col. Commanding Military Hospital Fatehgarh. " "the accused No. 13905006 Sepoy/lab Assistant (Paid Acting Naik) Ram Ashish Singh, Military Hospital, Fatehgarh is charged with: - COMMITTING A CIVIL OFFENCE, THAT IS TO SAY, BEING A PUBLIC SER VANT TAKING GRATIFICATION OTHER THAN LEGAL REMUNERATION IN RESPECT OF AN OFFICIAL ACT CON TRARY TO SECTION 161 OF THE IN DIAN PENAL CODE. The District Court Martial was held on 24-10-77. Lt. Col. A. K. Arora of Sikh Light Infantry Regimental Centre presided the District Court Martial. The two other members were Major Behat Sureshwar and Major Devendra Pratap Singh. Major Satya Kumar Singh was ap pointed as Judge Advocate. The petitioner was also provided a defence Counsel Sri S. S. Chauhan. The Defending Officer Capt. Vijay Pal Singh was also provided by the competent authority. The petitioner was served with a copy of the charge- sheet to which he pleaded not guilty. Before the District Court Martial a number of wit nesses were examined, who were duly cross-examined on behalf of the petitioner. The petitioner also examined Sepoy/aa/shayam Lal Ram in his defence. The prosecution submitted a written closing Address to the District Court Martial and the petitioner's Coun sel also submitted his written Closing Ad dress in support of the defence case, copy of which has been annexed with the peti tion. The District Court Martial found the petitioner guilty of the above mentioned charge and the findings were announced in 'open Court. The District Court Martial vide order dated 7-11-77 passed the order of sentence in the following terms: (1 ). To be reduced to the ranks: (2 ). To suffer rigorous imprisonment for one year; and (3 ). To be dismissed from the service. The sentence was announced in open Court and was subject to confirma tion. Brigadier Commander Lucknow Sub Area confirmed the finding and sen tence of the District Court Martial, but set aside that part of the sentence which directed the petitioner to be reduced to the ranks. The rest of the order of sentence was confirmed. The petitioner then filed a petition under Section 164 (2) of the Army Act, 1950 (Act for short), praying that the sentence awarded by the District Court Martial as confirmed by the Brigadier Commander Lucknow Sub-Area, be set aside. This petition was, however, rejected by the Chief of the Army Staff, which order was communicated to the petitioner through letter dated 31-1-79. Aggrieved by the said action, the petitioner has ap proached this Court through this petition. The orders of the District Court Martial and of other authorities have been chal lenged on various grounds.
(3.) FIRSTLY, it is alleged that the petitioner was not a public servant within the definition of Section 21 of the Indian Penal Code and this fact is admitted in paragraph 9 of the counter-affidavit, wherein it is stated that the petitioner was not a public servant and as such no prior sanction for holding District Court Mar tial from the Central Government was re quired. Since the charge mentioned that the petitioner committed the civil offence being a public servant taking gratification other than legal remuneration in respect of an official act contrary to Section 161 of the Indian Penal Code, trial stood vitiated because of this defect. The learned Stand ing Counsel appearing for the respon dents argued that in the charge-sheet it is clearly mentioned that charge was framed in respect of Section 69 of the Army Act. Section 69 of the Army Act permits trial by the Court Martial of persons subject to the Act, who at any place in or beyond India commits any civil offence and the said person would be deemed to be guilty of an offence under this Act, if charged under this Section. Civil Offence has been defined in Section 3 (2) of the Act as an offence, which is triable by a criminal Court. Civil offence can be sub-divided into three classes, viz. (a) civil offences covered by Section 69 of the Army Act which may be tried by a Court martial; (b) civil offences not ordinarily triable by a Court martial (Section 70); (c) civil offen ces over which the civil and military Courts have concurrent jurisdiction. They are covered Sections 125 and 126of the Act.;