YALLA CHANDRAMOHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner herein, who is an Army Personnel in the Army service, supported by an affidavit sworn to by Smt. Yalla Padmavathi, his mother filed this Writ Petition, inter alia, seeking a Writ of Habeas Corpus directing the third respondent herein to produce the petitioner, who is the detenu therein and declaring the entire proceedings of the Summary Court Martial dated 20/1/2007 conducted by the second respondent herein and convicting the detenu and dismissing from army service and awarding rigorous imprisonment for three months in civil prison as arbitrary, illegal, unjust, violative of the mandatory provisions of the Indian Army Act, 1950 and the Army Rules, 1954 and the principles of natural justice and consequently direct reinstatement of the detenu into Army Service with all consequential benefits.

(2.) Heard Sri C.M.R. Velu, learned counsel appearing for the petitioner, Sri A. Rajasekhar Reddy, Assistant Solicitor General and Sri K. Narahari, Standing Counsel for Central Government and the learned Advocate General appearing on behalf of the respondents herein.

(3.) The case of the petitioner as set out in the affidavit is that he was a combatant member of Indian Army and He was Gunner in General Duty and was posted at 68 Field Regiment (Parbat Ali). New Bowenpally, Secunderabad Cantonment and he was 21 years old and the sole earning member in their family and he has got unblemished record of service for the four years and trying to become a good soldier in the service of the nation. However, it has been pointed out that the Army Authorities instead of utilizing his services to the Army duties, deputed him on helper duty to perform all menial jobs like a private servant in the house of the Commander. Though, he has performed such service of three years, later he expressed his inability to continue further and requested for service duties which has irked the Commanding Officer i.e., respondent No.2 herein. The 2nd respondent foisted a false case of theft against the petitioner on the allegation that on 3/10/2006 the petitioner removed the ATM card of one Mr. Ravichander Vidyasagar and withdrew a sum of Rs 23,000.00 (Rupees twenty three thousand) in two instalments on the same day. It is further stated that he contacted one Baba, who gives clue on theft cases whereupon the said Baba gave a lime and told him that all the people who were suspected should touch the lime. It is further stated that on 9-10-2006 he found a sum of Rs. 18,500/-(Rupees eighteen thousand five hundred only) was lying on the top of a mosquito net of one Sivanandan and on the same day all the finger prints of all the people were to be taken and it was stated that the petitioner has confessed the stealing of ATM card and returned the balance money. Thereafter, the second respondent ordered for recording of summary of evidence without giving any proper opportunity to cross- examine the planted witnesses. Thereafter a Summary Court Martial was convened by the 2nd respondent as per the proceedings dated 13-1 -2007 fixed the summary court martial at 11.00 hours on 20-1 -2007 and on the same day it was recorded that the petitioner has pleaded guilty and the same was recorded and if he has accepted the allegations and consequently awarded the punishment ot dismissal from service and three months rigorous imprisonment in civil prison and on the same day the petitioner was sent to Central Jail, Chanchalguda and now he is lodged in the Jail from 20-1-2007. The said intimation was given to the deponent mother by the respondents. Even though she and other relatives wanted to see his son in the prison, her son was reluctant to show his face. Therefore, she went to her native place and after difficulty with the help of prison staff after being convinced, her son turned up to see her and handed four pages of written information in Telugu conveying what all had happened to him in the hands of the second respondent. It has been contended that the entire such procedure as conducted by the second respondent in the Summary Court Martial is contrary to the mandate as provided under Rules 52 and 22 of the Army Rules as there is no proper recording of the alleged plea of guilty nor there is any prior permission and no opportunity was given to the petitioner to cross examine the witnesses and the Officer was biased which caused to the root of the case and therefore the entire enquiry is vitiated. Further, the order of the dismissal from service and the rigorous imprisonment of 3 months is totally disproportionate and shocking the conscience of the court. The allegation that the petitioner has taken away ATM card is denied. Further, there has been a total miscarriage of justice caused to the petitioner in conducting such a Summary Court Martial and convicting him. Hence, the Writ Petition.