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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
S. Murtaza Fazl Ali,Jaswant Singh, JJ.
J.C. 13018 Subedar Surat Singh - Appellant
Versus
Chief Engineer Projects (Beacon) C/0 56 A.P.O. - Respondent
Writ Petition No. 252/1969
Decided On : 22 May, 1970
ARMY ACT - CONVICTION - CONFIRMATION - RETRIAL - VALIDITY - ORDER OF RETRIAL BY CONFIRMING AUTHORITY WITHOUT JURISDICTION - WRIT OF CERTIORARI ISSUED TO QUASH THE ORDER.
Fact of the Case:
The petitioner, a soldier subject to the Army Act, 1950, was acquitted of murder charges by a General Court Martial. The confirming authority, dissatisfied with the acquittal, sent back the finding for revision under Section 160 of the Act. The General Court Martial reaffirmed its previous finding, but the confirming authority refused to confirm it and ordered a retrial.
Finding of the Court:
The High Court held that the order of retrial was invalid as the confirming authority had no jurisdiction to do so. The court interpreted Sections 121, 153, 154, and 160 of the Act and Rule 70 of the Army Rules to conclude that the confirming authority's powers were limited to confirming, refusing confirmation, or reserving confirmation for superior authority. The court also held that the existence of an alternative remedy did not preclude the petitioner from seeking relief through a writ petition.
Issues: 1. Whether the confirming authority had the jurisdiction to order a retrial after the General Court Martial reaffirmed its finding of acquittal on revision? 2. Whether the petitioner was entitled to seek relief through a writ petition despite the availability of an alternative remedy.
Ratio Decidendi: 1. The court interpreted the relevant provisions of the Army Act and the Army Rules to conclude that the confirming authority's powers were limited to confirming, refusing confirmation, or reserving confirmation for superior authority. The court held that the confirming authority could not order a retrial as there was no provision for retrial in the Act or the Rules. 2. The court held that the existence of an alternative remedy did not preclude the petitioner from seeking relief through a writ petition, as the impugned order was manifestly contrary to law and principles of natural justice.
Final Decision: The High Court allowed the petition, quashed the impugned order by a writ of certiorari, and directed the respondent to order the release of the petitioner.
2. Aggrieved by this order, the petitioner has moved this Court under Article 32 (2-A) of the Constitution of India as applied to the State of Jammu and Kashmir and Section 103 of the State Constitution for a writ of Certiorari quashing the order, inter alia on the grounds that there is no provision in the Act or the Rules according to which the confirming authority can refuse to confirm the verdict of "not guilty" after the same has been re-affirmed on revision under Section 160 of the Act and reconvened the General Court Martial for retrial of the offender.
3. In the affidavits filed on behalf of the respondent in reply to the petition, it is contended, that the finding or "not guilty" has no validity unless it is confirmed under Section 153 of the Act read with Rule 63 of the Rules, that if the confirming authority finds that the finding of "not guilty" is perverse it is empowered under Section 160 of the Act to send back the proceedings to the General Court Martial for revision, that this power can be exercised only once, that if on revision the General Court Martial adheres to its former finding and transmits the proceedings for confirmation and the confirming authority comes to the conclusion that the finding given second time by the General Court Martial on revision is still perverse it can refuse to confirm the finding and order retrial because not to try the offender again would mean allowing the charge against him to remain without valid adjudication which would be against the provisions of Sec. 153 of the Act that in exercise of the powers conferred under Rule 70 of the Army Rules, the respondent refused to confirm the finding of "not guilty" of the General Court Martial in respect of the petitioner and his co-accused pioneers and ordered their retrial in order to meet the requirements of discipline as well as ends of justice, that in the circumstances the proposed fresh trial of the accused by the General Court Martial for the same offences cannot be said to be against the provisions of the Act and the Rules and that it is
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