1963 (10) TMI 29 - SC - Indian Laws

Summary

Issues Involved:
1. Discriminatory provisions of Section 125 of the Army Act and Article 14 of the Constitution.
2. Validity of Section 127 of the Army Act and Article 20 of the Constitution.
3. Violation of Article 22(1) of the Constitution regarding legal representation.
4. Compliance with the procedure for the death sentence under Section 132(2) of the Army Act.
5. Remedies under Section 164 of the Army Act.

Issue-wise Detailed Analysis:

1. Discriminatory Provisions of Section 125 of the Army Act and Article 14 of the Constitution:
The petitioner argued that Section 125 of the Army Act is discriminatory and contravenes Article 14 of the Constitution because it leaves the discretion to decide whether the accused would be tried by a Court Martial or a Criminal Court to an unguided officer. The court held that persons subject to the Act form a distinct class and the discretion provided under Section 125 is not unguided. The Act and the rules provide sufficient material indicating the policy for exercising this discretion, which includes considerations of the exigencies of service, maintenance of discipline, speedier trial, and the nature of the offence. The court concluded that Section 125 does not infringe Article 14.

2. Validity of Section 127 of the Army Act and Article 20 of the Constitution:
The petitioner contended that Section 127 violates Article 20 of the Constitution as it allows for successive trials by a Criminal Court and a Court Martial for the same offence. However, the court noted that the petitioner had not been subjected to a second trial for the same offence, making it unnecessary to decide on the validity of Section 127 in this case.

3. Violation of Article 22(1) of the Constitution Regarding Legal Representation:
The petitioner claimed that he was not allowed to be defended by a legal practitioner of his choice, violating Article 22(1) of the Constitution. The court found no evidence that the petitioner had made any express request for representation by a counsel of his choice. The court held that there was no violation of the petitioner's fundamental right to be defended by a counsel of his choice.

4. Compliance with the Procedure for the Death Sentence Under Section 132(2) of the Army Act:
The petitioner argued that the death sentence was not passed with the concurrence of at least two-thirds of the members of the Court Martial, as required by Section 132(2) of the Act. The court examined the certificate signed by the presiding officer and the Judge-Advocate, which confirmed that the death sentence was passed with the necessary concurrence. The court found no reason to doubt the authenticity of the certificate and held that there was compliance with Section 132(2).

5. Remedies Under Section 164 of the Army Act:
The petitioner contended that he was denied the opportunity to avail of both remedies provided under Section 164 of the Act. The court explained that Section 164 provides two remedies: a petition to the confirming authority and a petition to the Central Government or another authority. Since the Central Government confirmed the sentence, there was no higher authority to appeal to, and thus, the petitioner had no justifiable grievance.

Conclusion:
The court dismissed the writ petition, holding that there was no violation of the petitioner's fundamental rights and that the provisions of the Army Act were consistent with the Constitution. The petitioner's contentions regarding Sections 125, 127, 132(2), and 164 of the Army Act were found to be without merit.