MEHAR SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was enrolled in the Army on 9/1/1991. After completion of his training, he was posted to different regiments and to different places including hard field stations. He was awarded medals in recognition of his service with the Army. As a result of his hard work, he was promoted to the rank of 'Naik' in the year 1996, While the petitioner was serving in 68, Engineer Regiment on 21/10/2000, he was charged with the offence under AA Section 39(a) for absenting without leave from 8/5/2000 to 8/8/2000. He was tried by a summary court martial and the sentence of dismissal from service and four months' rigorous imprisonment was awarded to the petitioner. Because of his good conduct in the imprisonment at Jodhpur, his period of sentence was reduced by one month and the petitioner had already undergone the awarded sentence. According to the petitioner, he had not been given a fair, just and impartial trial, was not afforded adequate opportunity to defend himself, the respondents have violated the provisions of the Act as well as contravened procedural law, thus, vitiated the entire trial. It is also pleaded that the signatures of the petitioner on the summary of evidence were obtained by the respondents by causing a threat of physical harm to the petitioner. The witnesses were examined at the back of the petitioner without affording him any opportunity to cross-examine the same. According to the allegations made in the petition, he was kept under close arrest during the period from 8.8.2000 to 21.10.2000 illegally and was not brought on trial within the prescribed period. The requisite documents were not supplied to him. Another ground taken by the petitioner is that a proper friend of the accused was not provided to him during the course of trial and the person provided was a very junior officer of the same unit as that of the court and, thus, there was an apparent violation of the contents and spirit of AR 95 and AR 129. Keeping these grounds in mind, the petitioner after his release from the jail, submitted a petition under Section 164 of the Army Act to the Chief of Army Staff on 24.1.2001 on which no action was taken, compelling the petitioner to file CWP 1943 of 2000 which was disposed of by the court vide its order dated 26.3.2001 with a direction to the respondents to pass appropriate orders and liberty was also granted to the petitioner to approach the court, if the need so arises. Vide order dated 6.6.2001, the appeal of the petitioner was rejected by the authorities, resulting in filing of the present petition.

(2.) The respondents have filed a detailed counter affidavit wherein it is stated that the petitioner was posted from CWE No. 1 Dehradun to 68 Engineer Regiment and TOS on 7.3.2000. He was granted 20 days casual leave on permanent posting by CWE No. 1, Dehradun but he reported to the unit on 14.4.2000 after 18 days of overstayal of leave. The petitioner again left the unit lines on 8.5.2000 and absented himself from unit lines for 91 days before he voluntarily rejoined. The petitioner was a habitual offender and the frequency of occurrence indicated that there was no improvement on the part of the petitioner. The petitioner was. brought back to the unit by his brother and village elders on 8.8.2000. This was the conduct of the petitioner within one year which required that the respondents should deal with the same in accordance with law. This resulted in the petitioner being tried by a summary court martial on 21.10.2000 and the petitioner was awarded dismissal from service and four months' rigorous imprisonment in civil prison. The sentence was subsequently reviewed by GOC 11 Inf. Div. and was reduced to three months' rigorous imprisonment. According to the respondents, the summary court martial was conducted in accordance with law and after providing adequate opportunity to the petitioner, the sentence was awarded by the court. It is not disputed that the petition filed by the petitioner on 24.1.2001 has been rejected by the Chief of Army Staff vide their letter dated 7th June, 2001. It is specifically denied that the signatures of the petitioner on the summary of evidence were obtained under threat of physical harm. On the contrary, it is submitted that the summary of evidence was recorded strictly as per rules, The petitioner was fully apprised of his right to get copy of the summary of evidence proceedings conducted under Army Rule 147 which was received by the petitioner on 21 October, 2000 (copy of receipt has been annexed on record as Annexure R-2) and summary of court martial proceedings were also received by him (copy of receipt has been annexed on record as Annexure R-3).

(3.) During the course of hearing, the petitioner had pleaded guilty and the court, after complying with the requirements of the relevant provisions, had recorded the plea of guilt in the proceedings held on 21st October, 2000. The relevant part of the court of proceedings reads as under:- <FRM>JUDGEMENT_363_AD(DEL)7_2006Html1.htm</FRM>