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 THE petition was admitted restricted to the grievance of the petitioner that his lawyer had withdrawn from the Court Martial proceedings on 28th August 1981 and though he had asked for an adjournment he was given an army officer as his next friend to assist him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.) MR . Khurana does not dispute the fact that the petitioner is entitled to a friend for making a defence who may also be a lawyer. The short point, therefore, that arises for consideration is whether the petitioner has been denied the right to defend himself through a friend and whether it has prejudiced him in making his defence?