JUDGMENT

SHARMA, J.:- Special leave is granted.

2. The appellant, Havildar Ratan Singh was tried and convicted by Summary Court Martial. He was reduced in rank and sentenced to suffer rigorous imprisonment for one year. He filed an application under Article 226 of the Constitution of India before the Delhi High Court, which was dismissed by the impugned judgment.

3. Although a number of questions were raised in the writ petition and the special leave petition, the ground urged by the learned counsel for the appellant before us is confined to one point. It has been contended that having regard to the nature of the charge against the appellant, the provisions of Section 34 of the Army Act, 1950 (hereinafter referred to as the Act) are attracted, and in view of Section 120(2) of the Act, trial by summary not permitted. The learned counsel has placed the relevant provisions of the Act indicating that the appellant would have been entitled to a qualitatively better right of defence before a court martial other than a summary court martial, which was denied to him on a wrong assumption that the case was covered by Section 36, and not by Section 34. The question, which arises in this case, is whether the Summary Court Martial had jurisdiction to try the appellant in the facts as alleged in the present case.

4. The charge sheet states that when fired upon by a group of terrorist-militants during an armed operation against them, the appellant quitted his place without orders from his superior officer. Section 120 of the Act states that subject to the provisions of sub-section (2) of the section a summary court martial may try any offence punishable under the Act, sub-section (2) reads as follows:-

"(2) When there is no grave reason for immediate action and reference can without deteriment to discipline be made 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, an officer holding a summary court-martial shall not try without such reference any offence punishable under any of the Sections 34, 37 and 69, or any offence against the officer holding the Court."

The position, thus, is that if the offence is covered by Section 34 and immediate action for the specified reasons is not warranted, the summary court martial shall not have jurisdiction to hold the trial.

5. Section 34 states that any person subject to the Act, who commits any of the offences enumerated thereunder, shall on conviction by court martial, be liable to suffer death or such less punishment as prescribed. The offences are detailed in 12 clauses and clauses (a) and (h) appear to be relevant in the present context. They are quoted below.-

"(a) shamefully abandons or delivers up any garrison, fortress, post, place or guard, committed to his charge, or which it is his duty to defend or uses any means to compel or induce any commanding officer or other person to commit by or the said acts; or

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(h) in time of action leave his commanding officer or his post, guard, picquet, patrol or party without being regularly, relieved or without leave, or....."

6. The evidence in the case, included in the paper book prepared by the appellant indicates that the appellant while engaged in an armed action against a group of militants is alleged to have run away when the militants opened fire and he, thus, in a cowardly manner left his post without permission of his superior officer. The allegations included in the charge sheet on the basis of which the appellant was tried are to the same effect. The appellant is, therefore, right in his stand that if the prosecution case be assumed to be correct (which he denies ) he was guilty of a more serious offence under clauses(a) and (h) of S. 34 of the Act than under Section 36 in reply it is contended on behalf of the respondents t