CHHANGANI, J.—Petitioner Hanuwantsingh has submitted this application under sec. 491 Criminal Procedure Code and Art. 226 of the Constitution of India, challenging the validity of his conviction and sentence recorded by a Court Martial Tribunal dated 3rd April, 1971 and subsequently confirmed by a competent authority on 8th May, 1971, and praying that his conviction and sentence be set aside and he be set at liberty.

2 The relevant facts are these—

The petitioner was holding the post of Naik and was posted as No. 1033540 in 27 Mountain Division Intelligence Field Security Company (hereinafter referred to as the Company) at the relevant time. One Ramlal was also working in the same company but in a different unit and was posted as IC-27-207/2 Lieutenant in 7 Composite Platoon. On 16th March, 1971 the petitioners was served with a charge sheet by Shri G. C. Kaul, Major Commanding the Company. The charge was that he used criminal force to his superior officer which was in reference to one Ramlal. A District Court Martial was formed under the orders of I-C, 1792 Major General I.M. Vohra, General Officer Commanding 27 Mountaia Division. During the trial the petitioner raised an objection before the Tribunal that since Shri Ramlal was not a superior officer in relation to the petitioner the charge could not be tried by the Court Martial but could be tried only by a criminal court. This objection was over ruled by the Court Martial. After recording evidence and allowing an opportunity to the petitioner to defend himself, the Court Martial vide its order dated 3rd April, 1971 found the petitioner guilty of the charge and convicted him and awarded the following sentences—

(a) to be reduced to the ranks.

(b) to suffer rigorous imprisonment for six months and

(c) to be dismissed from the service.

The conviction and the sentences were confirmed by Major General I. M. Vohra on 8th May, 1971. Aggrieved by his conviction and sentences as confirmed, the petitioner filed this application under sec. 491, Criminal P. C. and Art. 226 of the Constitution challenging his conviction and sentences.

3. We heard Mr. Mangilal Srimali for the petitioner and did not deem it proper to call upon the respondent.

4. We may at the out set state some facts which are not in controversy.

5. Ramlal in relation to whom the offence was alleged to have been committed by the petitioner was certainly a superior officer within the definition of clause (xxiii) of sec. 3 of the Army Act, 1950 (hereinafter called the Act. It is also not in dispute that Ramlal was superior to the petitioner so far as the army ranks were concerned.

6. The petitioner made three averments to challenge his conviction—

In the first instance, the learned counsel for the petitioner emphasised the expression "his superior" appearing in sec. 40(a) of the Act and contended that the use of the pronoun "his" preceding "superior officer" has been used to introduce the conception of a relationship of a boss and a subordinate. According to him, to constitute an offence under sec. 40 of the Act the accused should be subordinate to the person against whom the offence is alleged to have been committed. In elaborating his argument, it was contended that the use of the pronoun "his" in this section and the absence of similar pronoun in other sections points out to such an inference. |

7. We have considered the relevant provisions of law and have not felt persuaded to accept his contention. Sec. 3(xviii) defines the term "officer". Sub-sec. (xxiii) defines the term "superior officer". The definition of superior officer" reads as under—

"Superior officer, when used in relation to a person subject to this Act, includes a junior commissioned officer, warrant officer and a non-commissioned officer, and, as regards persons placed under his orders, an officer, warrant officer, petty officer and non-commissioned officer of the Navy or Air Force." The definition of the term using the word "includes" indicates that the Legislature i

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