1. This petition which challenges the trial and convictice of the petitioner under Section 302 of the Indian Penal Code by a Summary General Court Martial has been referred to this Bench by one of us for it raises an important question relating to the interpretation of Section 70 of the Army Act, 1950 (Act XLVI of 1950), hereinafter called "the Act", on which there is no authoritative pronouncement either of the Supreme Court or of this Court.

2. It appears that the petitioner who was a Rifle Man belonging to 9 J & K Rifles, a part of the Defence Service of the Union of India, and as such subject to the Act, was charged with the offence of murder under Section 302 of the Indian Penal Code for causing the death while on active service, at field, of one Mohamad Hussain, a civilian on the night intervening 12th and 13th of June, 1968. He was tried by a Summary General Court Martial (consisting of three officers viz respondents Nos. 1 to 3) convened by the General officer Commanding 25, Infantry Division, respondent No. 5, vide his order dated 12th March, 1969. The Court-Martial vide its order dated 3rd April, 1969, found the petitioner guilty of the said offence and sentenced him to imprisonment for life. The finding and sentence of the Court Martial were confirmed by respondent "No. 5 by his order dated 1st May, 1969.

3. Aggrieved by this conviction and sentence the petitioner filed the aforesaid petition before this court on 22nd July, 1970, challenging the jurisdiction of the Summary General Court Martial to try him and pray­ing that a writ of Certiorari quashing the aforesaid orders dated 3rd April, 1969, and 1st May, 1969, of the Summary General Court Martial and of the confirming authority respectively, and a writ in the nature of Habeas Corpus directing his release from the Central Jail, Jammu where he is detained be issued.

4. Appearing in support of the petition Mr. S. P. Gupta, has reiterated the contention raised in the petition that the offence of murder with which the petitioner was charged having been committed in the State of Jammu and Kashmir and not being a civil offence, as defined in Section. 3(ii) read with Section 3 (VIII) of the Act, was not triable by the Summary General Court Martial but was exclusively triable by an ordinary court of criminal justice in the State.

5. A close scrutiny of the Contention, which a based on the heading of Section 70 of the Act, would show that it has no force. Sections 3, 69, and 70 of the Act in so far as they are relevant for the purpose of the petition read as follows: -

"3-dcfinition-In this Act, unless the context otherwise requires.

X X X X X X X X X

(ii) "Civil offence" means an offence which is triable by a criminal court.

(viii) "Criminal court" means a court of ordinary criminal justice in any part of India, other than the State of Jammu and. Kashmir.

(xvii) "Offence" means any act or omission punishable under this Act and includes a civil offence as hereinbefore defined.

69-Civil Offences-Subject to the provisions of Section 70, any person subject to this Act who at any place in or beyond India Commits any civil offence shall be deemed to be guilty of an offence against this Act, if charged therewith under this Sec­tion shall be liable to be tried by a court-martial and on convic­tion, be punishable as follows, that is to say :-

(a) If the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment other than whipping assigned for the offence, by the aforesaid law and such less-punishment as is in this Act mentioned.

x x x x x x x x x

70. Civil Offences not triable by court-martial.

A person subject to this Act who commits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person shall not be deemed to be guilty of an offence against this Act and