Uma Nath Singh, J. - (1.) THIS writ petition has been filed to seek the following reliefs: (i) a writ of certiorari quashing the impugned trial proceedings by the Summary General Court Martial, impugned findings and sentence, dated 10th June, 1998, passed by Summary General Court Martial and impugned order, dated 10th August, 2000 (Annexure P -4); (ii) a write of mandamus directing the Respondents of reinstate the Petitioner with all consequential benefits and reliefs to the Petitioner ; (iii) in the alternative a writ of mandamus directing the Respondents to release Petitioner on bail during pendency of present petition; (iv) any other appropriate writ, order or direction which this Hon'ble Court may deem fit and proper in facts and circumstances of present case ; (v) filing of certified copies of Annexures P -l to P -4 may please be dispensed with ; (vi) service of prior notices on the Respondents may please be dispensed with ; (vii) writ petition may please be allowed with costs throughout in favour of the Petitioner.
(2.) FROM the averments made in this writ petition, it appears that the Petitioner was enrolled in Army on 11th December, 1980 and after a service of more than 18 years, in August, 1996, during his posting with 10 Sikh Regiment of Infantry, he was sent for a field firing exercise on attachment to 6 Armoured Regiment. Thus, for the period of firing exercise, the Petitioner was placed under the Commanding Officer of 6 Armoured Regiment. During course of that exercise, the Petitioner and four other army personnel was directed to move with 6 Armoured Regiment. Other four army personnel who moved with the Petitioner, were Naib Subedar Manjit Singh, Hav. Hardayal Singh, Sepoy Ram Partap and Sepoy Balwinder Singh. While moving for the exercise destination, they reached near a Railway Station known as Bari Brahmana where they camped for night stay on 13th August, 1996. Tents of other units of 6 Armoured Regiment were also pitched side by side in close vicinity. All five companions of the Petitioner had a stay together in the same tent and during that night, they also consumed liquor in heavy quantity. This is also alleged that they picked up quarrel over consumption of liquor and after they were asleep, in the morning of 14th August, 1996, two out of 5 occupants of the tent of Petitioner, namely Naib Subedar Manjit Singh and Hav. Hardayal Singh were found dead with multiple injuries. Having learnt about this incident in the morning, their official Superiors in Army were immediately informed, who rushed to the spot. Civil police of that place was also informed about this incident. After civil police and military police reached the spot, rest other three army personnel who also occupied that tent, namely Sepoy Ram Partap, Sepoy Balwinder Singh and Naik Shinder Singh (Petitioner herein), were taken in custody, and during the pre -trial inquiry of this case, the Petitioner suffered a confessional statement. That apart, statement of Sepoy Ram Partap, who turned to be an approver in this case, was also found to contain a lot of incriminating informations against the Petitioner. After pre -trial investigation of this case was over, accused Petitioner Naik Shinder Singh was read over the charges under Section 69 of the Army Act and 302 of Ranbir Penal Code by Commanding Officer of 10 Sikh Regiment, his parent Army Organization, and tried upon the aforesaid charges by way of a Summary General Court Martial. On conclusion of that trial, the Petitioner was found to be guilty of offences charged with for having committed murder of two fellow army personnel. Consequently, he was visited with a sentence of life imprisonment on both counts, apart from reduction in rank from Naik to Sepoy with an order of dismissal from service. In this background, Petitioner Shinder Singh has filed the instant writ petition to seek the aforesaid reliefs. During the pendency of this writ petition, a learned Single Judge of this Court released the Petitioner on bail by suspending his sentence towards one of the reliefs prayed for in the writ petition. That order of bail seems to have been challenged by way of Special Leave Petition before Hon'ble the Supreme Court which is pending to await disposal of this writ petition. We have heard learned Counsel for parties and perused the writ record.
(3.) DURING the course of arguments, learned Counsel for the Petitioner submitted that this is not a case of that kind which would necessitate invoking of the provisions of Section 112 of Army Act for holding the trial of accused Petitioner by way of Summary General Court Martial. Provisions of Section 112 of the Army Act, on reproduction, read as under: 112. Power to convene a summary general court -martial. - The following authorities shall have power to convene a summary general court -martial, namely: (a) an officer empowered in this behalf by an order of the Central Government or of the [Chief of the Army Staff] ; (b) on active service, the officer commanding the forces in the field, or any officer empowered by him in this behalf; (c) an officer commanding any detached portion of the regular Army in active service, when, in his opinion, it is not practicable, with due regard to discipline and the exigencies of the service, that an offence should be tried by a general court -martial In order of articulate his contention further, learned Counsel also took us to the provisions of Section 3 of Army Act, which contain the definition of active service as: 3. Definitions: In this Act, unless the context otherwise requires, - (i) "active services", as applied to a person subject to this Act, means the time during which such person -(a) is attached to, or forms part of, a force which is engaged in operations against an enemy, or (b) is engaged in military operations in, or is on the line of march to, a country or place wholly or partly occupied by an enemy, or (c) is attached to or forms part of a force which is in military occupation of a foreign,country. According to learned Counsel, the Petitioner was not engaged in an army operation against enemy, for such operation also, there are certain requirements under the Army Act which are contained in the provisions of Section 3(x) thereof as: (x) "enemy" includes all armed mutineers, armed rebels, armed rioters, pirates and any person in arms against whom it is the duty of any person subject to military law to act ; Learned Counsel aslo contends that since charges against the Petitioner were not heard by the Commanding Officer, 6 Armourd Regiment, as provided in Rule 22 of the Army Rules, a serious prejudice has been caused to the right and interest of Petitioner. Rule 22 of the Army Rules is reproduced as: 22. Hearing of charge. - -(1) Every Charge against a person subject to the Act shall be heard by the Commanding Officer in the presence of the accused. The accused shall have full liberty to cross -examine any witness against him and to call such witness and make such statement as may be necessary for his defence: Provided that where the charge against the accused arises as a result of investigation by a Court of inquiry, wherein the provisions of Rule 180 have been complied with in respect of that accused, the Commanding Officer may dispense with the procedure in Sub -rule (1). (2) The Commanding Officer shall dismiss a charge brought before him if, in his opinion the evidence does not show that an offence under the Act has been committed, and may do so if, he is satisfied that the charge ought not to be proceeded with: Provided that the Commanding Officer shall not dismiss a charge which he is debarred to try under Sub -section (2) of Section 120 without reference to superior authority as specified therein. (3) After compliance of Sub -rule (1), if the Commanding Officer is of opinion that the charge ought to be proceeded with, he shall within a reasonable time: (a) dispose of the case under Section 80 in accordance with the manner and form in Appendix -Ill ; or (b) refer the case to the proper superior military authority ; or (c) adjourn the case for the purpose of having the evidence reduced to writing ; or (d) if the accused is below the rank of Warrant Officer, order his trial by a summary court -martial: Provided that the Commanding Officer shall not order trial by a summary court -martial without a reference 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 unless: (a) the offence is one which he can try by a summary court -martial without any reference to that officer; or (b) he consider that there is grave reason for immediate action and such reference cannot be made without detriment to discipline. (4) Where the evidence taken in accordance with Sub -rule (3) this rule discloses an offence other than the offence which was the subject of the investigation, the Commanding Officer may frame suitable charge(s) on the basis of the evidence so taken as well as the investigation of the original charge.;