UNION OF INDIA Vs. CHARANJIT S GILL

JUDGEMENT

(1.) Leave granted.

(2.) Finding that the Judge Advocate was lower in rank to the accused facing trial before a General Court-Martial (hereinafter referred to as "GCM"), the Division Bench of the High Court set aside the order of the trial Court and the entire Court-martial proceedings conducted against the respondent No. 1. The Bench, however, observed that the quashing of the proceedings of the GCM will not prevent the authorities concerned to initiate fresh Court-martial proceedings if they are so advised in accordance with law and also in the light of the judgment delivered. Feeling aggrieved by the aforesaid judgment the present appeal has been filed with a prayer for setting aside the impugned judgment and upholding the order of the GCM as well as the learned single Judge.

(3.) The relevant and almost admitted facts for determining the controversy in this appeal are that the first respondent joined the Indian Army as a Commissioned Officer in 1971 and was promoted to the rank of Major in 1984. He was posted at Fort William, Calcutta in April, 1990. While attached with 235 IWT Company, Engineers, the respondent No. 1 was alleged to have absented himself without leave on four occasions which was an offence under S. 39(1) of the Army Act. He was also charged under S. 63 of the Army Act for violation of good order and military discipline. A GCM was convened by the General Officer Commanding (GOC), Bengal Area by his order dated 23rd December, 1991. The Court-martial comprised of Col. Rabinder Bahadur Singh as Presiding Officer and Col. Kunjachen Puthenveetil Sebastian, Col. Prakash Nambiar, Col. Mahitosh Deb and Major Kadam Netaji Kesharuo as Members. Capt. Vashistha Arun Kumar, Dy. Assistant Judge Advocate-General was appointed as Judge Advocate in the Court-martial proceedings. The respondent No. 1 was found guilty of four out of five charges by the GCM and was sentenced to forfeit six months service for the purposes of promotion. The order of conviction and sentence was, however, made subject to the confirmation by the Confirming Authority to whom the proceedings were transmitted by the GCM in terms of S. 153 of the Army Act. The Confirming Authority felt that the sentence awarded to the respondent No. 1 by the GCM was grossly inadequate and inappropriate which required review. The order of the Confirming Authority dated 2-5-1992 was conveyed to the GCM which on 19-5-1992 upon, reconsideration revoked the earlier sentence and passed a fresh order of sentence of dismissing the respondent No. 1 from service. This order was also made subject to confirmation by the Confirming Authority.