Judgment

RAGHUBAR DAYAL, J. : Ram Sarup, petitioner, was a sepoy in 131 Platoon DSC, attached to the Ordnance Depot, Shakurbasti. As a sepoy, he is subject to the Army Act, 1950 (XLVI of 1950), hereinafter called the Act.

2. On June 13, 1962 he shot dead two sepoys, Sheotaj Singh and Ad Ram and one Havildar Pala Ram. He was charged on three counts under S. 69 of the Act read with S. 302 I.P.C. and was tried by the General Court Martial. On January 12, 1968 the General Court Martial found him guilty of the three charges and sentenced him to death.

3. The Central Government confirmed the findings and sentence awarded by the General Court Martial to the petitioner. Thereafter, the petitioner has filed this writ petition praying for the issue of a writ in the nature of a writ of habeas corpus and a writ of certiorari setting aside the order dated January 12, 1968 of the General Court-Martial and the order of the Central Government confirming the said findings and sentence for his release from the Central Jail, Tehar, New Delhi, where he is detained pending execution of the sentence awarded to him.

4. The contentions raised for the petitioner are:, (1) That the provisions of S. 125 of the Act are discriminatory and contravene the provisions of Art. 14 of the Constitution inasmuch as it it left to the unguided discretion of the officer mentioned in that section to decide whether the accused person would be tried by a Court Martial or by a Criminal Court. (2) Section 127 of the Act which provides for successive trials by a Criminal Court and a Court-Martial, violates the provisions of Art. 20 of the Constitution as it provides for the prosecution and punishment of a person for the same offence more than once. (3) The petitioner was not allowed to be defended at the General Court-Martial by a legal practitioner of his choice and therefore there had been a violation of the provisions of Art. 2(1) of the Constitution.- (4) The procedure laid down for the trial of offences by the General Court-Martial had not been followed inasmuch as the death sentence Awarded to the petitioner was not passed with the concurrence of at least two-thirds of the members of the Court. (5) Section 164 of the Act provides two remedies, one after the other, to a person aggrieved by any order passed by a Court-Martial. Sub-s. (1) allows him to present a petition to the officer or authority empowered to confirm any finding or sentence of the CourtMartial and sub-s. (2) allows him to present a petition to the Central Government or to any other authority mentioned in that subsection and empowers the Central Government or the other authority to pass such order on the petition as it thinks fit, the petitioner could avail of only one remedy as the finding and sentence of the Court-Martial was confirmed by the Central Government. He, therefore, could not go to any other authority against the order of the Central Government by which he was aggrieved.

5. It will be convenient to deal with the first point at the end and take up the other points here.

6. The petitioner has not been subjected to a second trial for the offence of which he has been convicted by the General Court Martial. We therefore do not consider it necessary to decide the question of the validity of S. 127 of the Act in this case.

7. With regard to the third point, it is alleged that the petitioner had expressed his desire, on many occasions, for permission to, engage a practising civil lawyer to represent him at the trial but the authorities turned down those requests and told him that it was not permissible under the Military rules to allow the services of a civilian lawyer and that he would have to defend his case with the counsel he would be provided by the Military Authorities. In reply, it is stated that this allegation about the petitioner s requests and their being turned down was not correct, that it was not made in the petition but was made in the reply after the State had filed its counter affidav