The Army Regulations are non-statutory in character and do not have the force of law. A person charged with a civil offence triable by a criminal court is deemed to be guilty of an offence against the Army Act and can be tried by Court Martial.

P.K.Sarin, J.

1. By this petition under Article 226 of the Constitution of India the petitioner prays for issuing a writ restraining the respondents from proceeding with the Court Martial proceedings against the petitioner. By amendment petition it has been further prayed that the order dated 9th. December, 1995 remanding the petitioner for trial by Court Martial on a charge (Annexure 6) be also quashed.

2. The petitioner holds the rank of Colonel under the Indian Army. He has been ordered to face trial by Court Martial in respect of a civil offence regarding an incident which took place in the intervening night of 17-18th November, 1994 at Ranchi. Allegations are that on that date and time the petitioner used criminal force to out-rage the modesty of the wife of Major Rahul Dev which amounts to an offence under Sec. 354 of the Indian Penal Code. According to the petitioner Major Rahul Deu had lodged a complaint regarding the said incident with respondent No. 2, the General Officer Commanding who is disciplinary authority of the petitioner. It is alleged that the respondent No. 2 inflicted a punishment of warning/Rebuke orally in presence of Colonel A.K. Bhanot and also ordered the petitioner to write a letter of apology to Major Rahul Dev which the petitioner duly complied although the allegations levelled against him were not true. It is alleged that the aforesaid warning given to the petitioner by respondent No. 2 has also been entered in the confidential report of the petitioner. According to the petitioner he cannot be tried by the Court Martial for the same offence for which he has already been punished by way of verbal warning/Rebuke by the respondent No. 2. As such his trial by Court Martial for the same offence is unauthorised and without jurisdiction and is mala fide and arbitrary.

3. The learned Counsel for the petitioner has contended that the Army Regulations provide for verbal punishment also. He has placed reliance on Regulations 327 which provides that reproof may be verbal or in writing or in both and that warning, a minor censure may take the form of reproof and be administered verbally or in writing to the service personnel by the Officer Commanding or by an authority superior in command to the Officer Commanding. Clause (D) of Regulation 327 provides as follows:

It should be ensured that before administering reproof by way of a warning or otherwise the competent authority applies its mind to the case and comes to a conclusion that ends of justice would be met by closing the case with reproof. Once a decision has been arrived at and the case closed by administration of a reproof by a competent authority, no superior authority can reopen the case.

4. Relying heavily on the said clause, the learned Counsel for the petitioner has contended that as the case were closed by the General Officer Commanding after giving warning/rebuke to the petitioner, no superior authority can reopen the case as such the reopening of the case at the instance of any higher authority or the decision to initiate Court Martial proceeding and the service of charge sheet on the petitioner for the same offence is without jurisdiction. The learned Counsel for the petitioner has further contended that the Army Regulations are statutory regulations and have a binding force. He has placed reliance for this proposition on a decision of the Allahabad High Court in the case of R.K. Pathik V/s. M.S. Pawar, 1986 Lab I.C 6920 wherein it has been held that the Regulations as framed under the provisions of the Army Act have statutory force, their non-publication may not be any avail as the provisions of the Act, the Rules and the Regulations are co-extensive.

5. As regards the submission made by the learned Counsel for the petitioner that the Army Regulations are statutory in character that is not borne out by the Regulations themselves. The power to frame regulations has been provided under Sec. 192 of the Army Act. The present Army Regulati