L.N. Chhangani, J.
1. Petitioner Hanumantsingh has submitted this application under Section 491, Criminal Procedure Code and Article 226 of the Constitution of India, challenging the validity of his conviction and sentences 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 sentences be set aside and be he 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 Mountaining 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 & was posted as IC 27-207/2/Lieutenant in 7 Composite Platoon. On 16th March, 1971 the petitioner was served with a charge sheet by Shri G.C. Kaul, Major commanding the Company. The charges 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 Mountain 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 1 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 charges 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 & sentences as confirmed the petitioner filed this application under Section 491, Criminal P.C. and Article 226 of the Constitution challenging his conviction and sentences.
2. We heard Mr. Mangilal Shrimali for the petitioner and did not deem it proper to call upon the respondent.
3. We may at the out set state some facts which are not in controversy.
4. 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 Section 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.
5. The petitioner made four averments to challenge his conviction.
6. In the first instance, the learned Counsel for the petitioner emphasis the expression 'his superior' appearing in Section 40(a) of the Act and contended that the use of the provision 'his' preceding 'superior officer' has been used to introduce the conception of a relationship of a boss and a subordinate. Wording to him, to constitute an offence under Section 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 point out to such an inference.
7. We have considered the relevant provisions of law and have not felt persuaded to accept his contention Section 3(xviii) defines the term 'officer'. Sub-section (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, include 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 intended to enlarge the meaning of the words or phrases occurring in the body of the statute and thus to make the definition enumerative and not exhaustive. It is clear from the definition that certain category of superior officers are included in the category only in relation so the persons placed under him. The definition does not have any reference to the relationship of a boss and a subordinate. The definition of the term 'superior officer' therefore, cannot render any assistance to the petitioner.
8. The use of the pronoun 'his' preceding the expression 'superior officer' also cannot be treated to introduce the concept of a boss and a subordinate. In interpreting the provisions of the Army Act we cannot ignore the basic requirements and conventions in the defence services requiring that all persons subject to Army Act, whether serving under an officer directly or not, should treat persons senior in seniority or rank with due respect. An interpretation which discourages or does not promote such an attitude would he against the spirit and purpose behind the law to keep administration and discipline in various ranks of the Army to a high order. Accordingly to us, the pronoun 'his' has been used to indicate the superiority pf rank between the person committing the offence and the person against whom an offence is committed. Taking this interoperation of Section 40(a) of the Act, we are clearly of opinion that to constitute an offence under Section 40(a) of the Act it is not necessary that the person against whom an offence is committed should be boss of the person committing the offence. All that is necessary is that the person against whom the offence is Committed senior in seniority or rank to the person committing the offence The first contention of Mr. Shrimali is, therefore, untenable and cannot be accepted.
9. The next submission of Mr. Shrimali is that there was no proper trial before the Tribunal as no oath was administered to the witnesses examined before the Court Martial. This allegation has been denied by the respondent and in support of its reply the statements showing that oath was administered to the witnesses have been brought to our notice. The contention of the petitioner raises a question of dispute on facts which is not ordinarily a matter of investigation by this Court. We are also satisfied that oath was administered to the witnesses and that there was in irregularity in the proceedings before the Court Martial.
10. The third submission of Shri Shrimali is that the Court Martial was convened by Shri I.M. Vohra who was not competent to convene the Tribunal. This allegation has aha been denied by the respondent. It has bean contended on behalf of the respondent that under a warrant issued by the Chief of the Army Staff, My or General I.M. Vohra and some other officers were competent to convene Court Martial. We may point, out, in the first instance that the petitioner did not raise any such objection during the Court Martial proceedings. He, therefore, cannot raise this objection in this writ petition, specially when the question of jurisdiction can be decided only after a proper enquiry. We are also satisfied with the stand taken by the respondent that Major General I.M. Vohra was competent to convene the Court Martial.
11. During the course of arguments Mr. Shrimali made a submission that the order convening the Tribunal was not in accordance with law in as much as it was issued under the signatures of Captain G.K. Paliwal. This argument is against the stand taken in the writ application and we did not permit Shri Shrimali to raise this controversy.
12 Lastly, the counsel for the petitioner also challenged the validity of the confirmation. The allegation in this connection in the writ application are extremely vague. The petitioner did not indicate which officer confirmed the sentences and how he was not competent to confirm them. At the time of argument soma general submissions were made, We have perused the record and are satisfied that the conviction and sentences were confirmed by competent authority.
13. There are no merits in this writ petition and it is accordingly dismissed. There will be no order as to costs.
14. The petitioner frays that the case should be certified as fit one for appeal to the Supreme Court under Article 134(1)(c) of the Constitution. We are not prepared to certify this case as a fit one for appeal. The prayer is consequently refused.