G M RAO Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner filed this writ petition challenging the order of punishment awarded to him by Summary Court-Martial. He was reduced in rank from Naik (DS) to Sepoy (DS). According to the petitioner, he was enrolled in the Indian Army in the month of April, 1981 in the Corps of Air Defence as a driver and he rose to the rank of Naik (Driver). The petitioner was driving a motor vehicle TATA 1210 SD make from Balasore, Orissa to Hyderabad, Andhra Pradesh on 10-9-1998. At about 1930 hours the petitioner crossed Hayath-nagar market area and was approaching L.B. Nagar when his vehicle had been stopped by certain scooter riders who alleged that he had hit a cyclist on the road who was injured. Meanwhile the police from PS Hayatnagar came who took the vehicle into their custody. The petitioner and his co-driver Sarvan Kumar were taken to police station. Thereafter the person who was allegedly injured in the accident died. The petitioner along with his co-driver Sarvan Kumar were taken into custody and later produced before the Magistrate. The Magistrate granted them bail on 11-9-1998 in a crime registered under Crime No. 224/98 u/S. 304-A of I.P.C. On 17-2-1999 at the instance of the 9th respondent the learned Magistrate transferred the case to the Army authorities for trial by Court-Martial. The 10th respondent ordered summary of evidence to be recorded by 8th respondent and thereafter 10th respondent ordered trial by a Summary Court-Martial. The 10th respondent constituted the Court whereas the 9th respondent was acting as friend of the accused. The petitioner was, thereafter given two punishments by order dated 12-4-2000. He was reduced to the rank from Naik to Sepoy. He was also awarded one month's rigorous imprisonment in Military prison. The punishment awarded is challenged on various grounds. The learned counsel for the petitioner contended that right from the stage of the First Information Report to the stage of awarding of punishment neither the rules of natural justice nor the statutory provisions were followed by the respondents.

(2.) Before coming to the arguments advanced by the learned counsel for the petitioner it would be necessary to refer to the counter-affidavit filed by the respondents. The respondents in their counter-affidavit have stated that the writ petitioner was entrusted with the duty of driving of the truck belonging to the Army. On 10-9-1998 he collided with a cyclist resulting in death of the cyclist. The petitioner was apprehended by the local police and a case was registered against him. It is further contended that the offence committed by the petitioner was civil in nature within the scope of S. 69 of the Army Act. He was tried in the Summary Court-Martial in accordance with the provisions of the Army Act. Each and every step as laid down by the law was scrupulously followed during the trial. The petitioner was provided with a friend of the accused as requested by him. After taking into account evidence on record and facts and circumstances of the case the Court passed the sentence of reduction of the petitioner in rank and also ordered imprisonment of one month. While awarding the punishment the past conduct of the petitioner was also taken into consideration. The petitioner submitted a representation on 22/05/2000 to the General Officer of Commanding, Headquarters, Andhra, Tamil Nadu, Kerala, Karnataka and Goa (ATNKK and G) area who considered the representation of the petitioner and rejected his request. The petitioner had already been reduced in rank, therefore, he was liable to retire on 30/09/2000 on completion of 14 years of service. The writ petitioner has filed the writ petition suppressing certain facts. The contention of the petitioner that the offence committed by him comes within the ambit of S. 70 of the Army Act and, therefore, it could not be tried by the Court-Martial is not correct. The offence falls within S. 69 of the Army Act. There has been no violation of any statutory provision and, therefore, the writ petition was liable to be dismissed.

(3.) The first contention raised before this Court by the learned counsel for the petitioner was that, since a Criminal Court had taken cognizance of the matter and a charge-sheet had been filed before the Criminal Court therefore the case could have not been transferred at the instance of the respondents to the Army for the purpose of Court-Martial. In this regard reliance has been placed by respondents on S. 125 of the Army Act. Section 125 reads :