The petitioner serving as Rifleman (Cook) in 16 Assam Rifles, was tried by Summary Court Martial on 09.05.2001 for a offence under Section 38 (1) for Deserting the Service and was dismissed from service on 09.05.2001 itself after he had offered plea of guilty to the charge preferred against him. The petitioner has filed this writ petition to impugn the said finding and sentence imposed on him.

The petitioner has challenged the said finding on number of counts. At the outset, however, counsel for the petitioner submits that since the petitioner has been subjected to trial by Court Martial, this writ petition may be transferred to Tribunal constituted under the Armed Forces Tribunal Act, 2007 (for short Act), which would now have jurisdiction to deal with the present writ petition and the challenge raised to the Summary Court Martial.

The applicability of the Act is regulated by Section 2 of the Act, which provides that the provisions of this Act shall apply to all persons subject to the Army Act 1950, the Navy Act, 1951 and the Air Force Act, 1950. Sub section 2 of Section 2 of the Act further provides that provisions of this Act shall also apply to retired personnel subject to the Army Act or the Navy Act and the Air Force Act including their dependents, heirs and successors, in so far as it relates to their service matters. As to what would constitute the service matter is defined in Section 3(o) of the Act. Sub Section 3 (o) is as under:-

(o) "service matters", in relation to the persons subject to the Army Act, 1950 (46 of 1950) the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950) mean all matters relating to the conditions of their service and shall include--

(i) remuneration (including allowances), pension and other retirement benefits;

(ii) tenure, including commission, appointment, enrolment, probation, confirmation, seniority, training, promotion, reversion, premature retirement, superannuation, termination of service and penal deductions;

(iii) summary disposal and trials where the punishment of dismissal is awarded;

(iv) any other matter, whatsoever, but shall not include matters relating to--

(i) orders issued under section 18 of the Army Act, 1950 (46 of 1950) sub-section (1) of section 15 of the Navy Act, 1957 (62 of 1957) and section 18 of the Air Force Act, 1950; (45 of 1950) and

(ii)transfers and postings including the change of place or unit on posting whether individually or as a part of unit, formation or ship in relation to the persons subject to the Army Act, 1950 (46 of 1950) the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950);

(iii)leave of any kind;

(iv)summary court martial except where the punishment is of dismissal or imprisonment for more than three months;

Thus, the service matter in relation to to the persons subject to the Army Act, the Navy Act and the Air Force Act mean all matters relating to the conditions of their service and shall include remuneration, tenure, summary disposal and trials where the punishment of dismissal is awarded. If the petitioner can be construed to be a person, who is subject to the Act definitely the challenge raised against the sentence of dismissal imposed on the petitioner would be maintainable before Armed Forces Tribunal.

The case of the petitioner, however, is not such, where it can straightway be held that these proceedings be transferred to Armed Forces Tribunal. The petitioner is not a person, who is subject to Army Act but is a person who belongs to Assam Rifles, which is force raised and maintained under the authority of the Central Government. Assam Rifle is a force, to which provisions of Army Act are applied. The power to apply the provisions of Army Act to any force raised or maintained under the authority of the Central Government is regulated by Section 4 of the Army Act. This Section provides that the Central Government may by notification, apply, with or without modifications, all or any of the provisions of the Act to any force raised and maintained in India under the authority of that Government and suspend the operation of any other enactment for the time being applicable to the said force. Sub section 2 of Section 4 provides that the provisions of this Act so applied shall also have effect in respect of persons belonging to the said force as they have effect in respect of persons subject to this Act holding in the regular Army the same or equivalent rank as the aforesaid persons hold for the time being in the said force. Sub section 3 of Section 4 then provides that provisions of this Act so applied shall also have effect in respect of the person, who are employed by or are in service of or are followers of or accompany any portion of the said force as they have effect in respect of the persons subject to this Act. Sub Section 4 of Section 4 further empowers the Central Government to direct by what authority any jurisdiction, powers or duties incident to the operation of these provisions shall be exercised or performed in respect of said force by way of notification.

It is in exercise of this power that the Central Government had issued notification applying the provisions of Army Act to this Force, which is raised by the Central Government and is known as Assam Rifles. It is, thus, clear that the petitioner is not one of the person, who is subject to the Act but is a person who belongs to the Force, to which the provisions of this Act have been applied by virtue of Section 4 of the Army Act. The issue, therefore, would be to see whether the trial of such persons to whom the provisions of the Army Act are so applied has also to be dealt with by the Tribunal constituted under the Act or not. There may seem to be some grey area in this regard. There is no clear provision made in the Armed Forces Tribunal to resolve this aspect.

The jurisdiction, powers and authority of the Tribunal constituted under the Act is regulated by Sections 14 and 15 of the Act. Sections 14 and 15 reads as under:-

14. Jurisdiction, powers and authority in service matters : (1) Save as otherwise expressly provided in this Act, the Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority, exercisable immediately before that day by all courts (except the Supreme Court or a High Court exercising jurisdiction under articles 226 and 227 of the Constitution) in relation to all service matters.

(2) Subject to the other provisions of this Act, a person aggrieved by an order pertaining to any service matter may make an application to the Tribunal in such form and accompanied by such documents or other evidence and on payment of such fee as may be prescribed.

(3) On receipt of an application relating to service matters, the Tribunal shall, if satisfied after due inquiry, as it may deem necessary, that it is fit for adjudication by it, admit such application; but where the Tribunal is not so satisfied, it may dismiss the application after recording its reasons in writing.

(4) For the purpose of adjudicating an application, the Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, (5 of 1908) while trying a suit in respect of the following matters, namely--

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavits;

(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, (1 of 1872) requisitioning any public record or document or copy of such record or document from any office;

(e) issuing commissions for the examination of witnesses or documents;

(f) reviewing its decisions;

(g) dismissing an application for default or deciding it exparte;

(h) setting aside any order of dismissal of any application for default or any order passed by it exparte; and

(i) any other matter which may be prescribed by the Central Government.

(5) The Tribunal shall decide both questions of law and facts that may be raised before it.

15. Jurisdiction powers and authority in matters of appeal against court martial : (1) Save as otherwise expressly provided in this Act, the Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable under this Act in relation to appeal against any order, decision, finding or sentence passed by a court martial or any matter connected therewith or incidental thereto.

(2) Any person aggrieved by an order, decision, finding or sentence passed by a court martial may prefer an appeal in such form, manner and within such time as may be prescribed.

(3) The Tribunal shall have power to grant bail to any person accused of an offence and in military custody, with or without any conditions which it considers necessary:

Provided that no accused person shall be so released if there appears reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life.

(4) The Tribunal shall allow an appeal against conviction by a court martial where --

(a) the finding of the court martial is legally not sustainable due to any reason whatsoever; or

(b) the finding involves wrong decision on a question of law; or

(c) there was a material irregularity in the course of the trial resulting in miscarriage of justice, but, in any other case, may dismiss the appeal where the Tribunal considers that no miscarriage of justice is likely to be caused or has actually resulted to the appellant:

Provided that no order dismissing the appeal by the Tribunal shall be passed unless such order is made after recording reasons therefor in writing.

(5) The Tribunal may allow an appeal against conviction, and pass appropriate order thereon.

(6) Notwithstanding anything contained in the foregoing provisions of this section, the Tribunal shall have the power to--

(a) substitute for the findings of the court martial, a finding of guilty for any other offence for which the offender could have been lawfully found guilty by the court martial and pass a sentence afresh for the offence specified or involved in such findings under the provisions of the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957) or the Air Force Act, 1950, (45 of 1950) as the case may be; or

(b) if sentence is found to be excessive, illegal or unjust, the Tribunal may--

(i) remit the whole or any part of the sentence, with or without conditions;

(ii)mitigate the punishment awarded;

(iii)commute such punishment to any lesser punishment or punishments mentioned in the Army Act, 1950, (46 of 1950) the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950, (45 of 1950) as the case may be;

(c) enhance the sentence awarded by a court martial:

Provided that no such sentence shall be enhanced unless the appellant has been given an opportunity of being heard;

(d) release the appellant, if sentenced to imprisonment, on parole with or without conditions;

(e) suspend a sentence of imprisonment;

(f) pass any other order as it may think appropriate.

(7) Notwithstanding any other provisions in this Act, for the purposes of this section, the Tribunal shall be deemed to be a criminal court for the purposes of sections 175, 178, 179, 180, 193, 195, 196 or 228 (45 of 1860) of the Indian Penal Code and Chapter XXVI of the Code of Criminal Procedure, 1973. (2 of 1974) "

Section 14, thus, provides that the Tribunal shall on or before the appointed date, exercise all the jurisdiction, powers and authority, exercisable immediately before that date by all courts except the Supreme Court or a High Court exercising jurisdiction under Article 226 and 227 of the Constitution in relation to the service matters. The service matters here also, as per definition of the Act , would be in respect of those, who are persons subject to these Acts. The person aggrieved by an order pertaining to any service matter may make an application to the Tribunal as is provided under Section 14 (2) of the Act then the procedure is prescribed for dealing with the such application.

The jurisdiction, powers and authority in the matter of appeal against court martial is regulated by Section 15 of the Act. This Section provides that the Tribunal shall exercise on and from the appointed day, all the jurisdiction, powers and authority exercisable under this Act in relation to appeal against any order, decision, finding or sentenced passed by the court martial or any matter connected therewith or incidental thereto. Section 14 dealt with service matter, whereas there is no such restriction so far Section 15 of the Act is concerned. Section 15 extends the jurisdiction of the Tribunal against any order, decision, finding or sentence passed by the court martial and it is in respect of any person. It also extends jurisdiction of the Tribunal to any matter connected therewith or incidental thereto. Sub Section 2 of Section 15 then provides that any person aggrieved by an order, decision, finding or sentence passed by a court marital may prefer an appeal in such form, manner and within such time as may be prescribed.

Here again, there appears to be no restriction imposed on the persons, who would be entitled to invoke the jurisdiction of the Tribunal under the Act. In my view, Section 15 of the Act has been made to extend the jurisdiction of the Tribunal in respect of all court martial and this may be in respect of any person, who is aggrieved by any order, decision or finding by court martial. Undoubtedly, the petitioner has been subjected to trial by court martial. The definition of service matter, in my view, would be relevant only to a limited extent of invoking jurisdiction in regard to the said service matters, which may otherwise fall within jurisdiction of the Tribunal under the Act. In other words, the court marital, which imposes sentence, which is less than dismissal, may have to be dealt with by Forums constituted other than the Armed Forces Tribunal. Otherwise, the trial by court martial, finding, sentence and all other orders apparently seems amenable to the jurisdiction of the Armed Forces Tribunal constituted under the Act.

Viewing the aspect of jurisdiction from different angle, it can be observed that there is no reason or cause for restricting this jurisdiction which is extending appellate jurisdiction for those persons to challenge the proceedings of the court martial to deny them the provisions of newly legislated Act. It will be rather discriminatory if a person, who is otherwise not subject to the Act but the provisions of the Act have been applied to him, is held disentitled to invoke the right of the appeal that has been provided under the Act. It will, in my view, lead to certain discriminatory consequences, which apparently, are not envisaged by provisions of the Act.

Taking the totality of facts in consideration, I am of the considered view that the petitioner, who may not be subject to Army, Navy or Air Force Act but the provisions of Army Act have been applied to him by virtue of Section 4 of the Army Act and as such would be entitled to challenge the finding and sentence of court martial as imposed on him by way of appeal or other jurisdiction under the Act.

I have been denied the benefit of assistance of the counsel representing Union of India in this regard. This is nothing unusual. Counsel representing Union of India hardly come present in the cases. This has been a feature of this case specially. The situation has not improved despite calling Assistant Solicitor General on more than one occasion. Even in one of the cases, the issue was brought to the notice of Defence Secretary but still the situation has not improved. No one was present on behalf of the respondent/Union of India on 05.10.2012. This case has been called on more than one occasion, today none has chosen to appear on behalf of Union of India. Instead of waiting for response to above aspect, I would deem it appropriate to accede the request of counsel for the petitioner for transferring this petition before the Armed Forces Tribunal, in view of the detailed reasons given above.

Let the copy of this order be placed before the Secretary Defence for him to ensure presence of counsels to represent the Government. Let this be not taken as routine order to be forgotten in the corridors and under the burdens of files. Some action should follow. A day should not come when Defence Secretary may have to be called to the Court to ensure presence of the counsel on behalf of Union of India.

The writ petition is otherwise disposed of in the above light.