MAHAL SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has filed this writ under Article 226 of the Constitution of India challenging the order dated 1st September 1981 of the Summary Court Martial and the order dated 1st December 1981 passed by the Commanding Officer reducing the sentence of four months R.I. to three months and upholding the order of the Summary Court Martial in respect of dismissal from service. It may be recorded here that the Summary Court Martial had sentenced the petitioner to four months R.I. and to dismissal from service on a charge of theft, which was framed against him by the Commanding Officer on 28-6-81.

(2.) The petition was admitted restricted to the grievance of the petitioner that his lawyer had withdrawn from the Court Martial proceedings on 28th August 1981 and though he had asked for an adjournment he was given an army officer as his next friend to assist him on the same day and that he could not cross-examine the witnesses properly resulting in prejudice to the petitioner and denial of opportunity to defend himself properly. In short, the grievance of the petitioner is that the principles of natural justice on' which the army rules are based have been violated in utter disregard of the interests of justice and fair play.

(3.) The case of the petitioner is that one Mohinder Singh Advocate was engaged as his next friend to defend him in the court martial proceedings and on 21st August 1981 when the summary court martial was convened, his lawyer appeared and acted for him. His further case is that on 28th August 1981 when the court martial was again convened his counsel Shri Mohinder Singh withdrew from the proceedings as he was treated rudely and was not shown any courtesy. The petitioner on that date is stated to have asked for an adjournment to engage a friend so that he is assisted in making his defence properly. According to him instead of granting his request he was on the same day offered the appointment of Maj. K.S. Samyal as his friend who according to the petitioner did not properly cross-examine the witnesses and in this way he was prejudiced in the trial.