MALKIAT SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner was enrolled as a Sepoy in the Indian Army and was later promoted as a Naik. At the relevant time, he was serving in Headquarters 15 Corps Artillery Brigade and was employed as a driver. It is his case that on 20th May, 1995, he took a lift in a military truck driven by one Naik (DHT) Om Prakash for going to his Unit Headquarters to have the fan belt of the gypsy replaced as the old fan belt had worn out. He sat on the front seat along with the driver. Just after the truck covered about 200 yds., one NCO from the Military Intelligence stopped the truck and found Naik Om Prakash carrying two barrels of petrol in the truck unauthorisedly. Both Naik Om Prakash and the petitioner were taken in custody. On revelation by Naik Om Prakash, it transpired that one Havaldar by the name P.V. Rajan was also involved in the transaction. The respondents decided to take out departmental proceedings against the petitioner and the other two. Even though it is the stand of the respondent that a court of enquiry was conducted but there is nothing available on record. It is, however, a matter of record that summary of evidence was recorded in the case of the petitioner as well as the other co -accused wherein the accused persons were set up as witnesses against each other without disposing of the case of any one of them till the Summary Court Martial (SCM for short) was concluded.

(2.) IN the case of the petitioner the summary of evidence was recorded on 23.6.1995. Naik Om Prakash was examined as witness No. 2 and Havaldar P.V. Rajan was examined as witness No. 3. A similar exercise was done in the case of the other two accused persons on 22.6.1995 by examining the petitioner as a witness against them. Thereafter, on 8th September, 1995, a joint trial was held by the third respondent by holding a SCM. All the three persons were sentenced to be dismissed from service on 08.9.1995 after recording a plea of "guilty" without any corroboration. The petitioner submit that even the requirement of Rule 115(2) of the Army Rules was not followed. It is the case of the petitioner that as summary of evidence was irregularly recorded being against the Army rules and constitution, the court martial proceedings in their entirety are liable to be set aside.

(3.) THIS certificate is again available on a separate paper and is not in continuity of the proceedings moreover there is no evidence which has been recorded before calling upon the petitioner to make his plea and thus is not in accordance with rules. The date has been written in a different pen. Thus, it is pleaded that in these circumstances, the plea should be considered as that of "not guilty" and the procedure laid down under Rule 116(2) of the Army Rules should have been followed which has not been done. The said Rule reads as under: