BHAGABAN TALUKDAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The challenge in the present writ application is against the order dated 22.5.96 passed in a Summary Court Martial held against the petitioner in respect of a charge of using criminal force against his superior officer brought vide chargesheet dated 13.5.96. A sentence of imprisonment as well as dismissal from service having been imposed, the present writ application was instituted calling into question the aforesaid order. The present writ application was initially allowed by this Court on the basis of the ratio of the law laid down by a Division Bench of this Court in the case of Hemantakumar Rathor Vs. Union of India & Ors. The aforesaid decision of the Division Bench in the case of Hemantakumar Rathor (supra) having been reversed by the Full Bench of this Court in the case of Union of India Vs. SPR CLK Jamil Ahmed, reported in 2001(1) GLT 572, an appeal against the order allowing the present writ petition was filed and a Division Bench of this Court by order dated 20.9.2001 set aside the order of the learned Single Judge allowing the writ petition and remained the matter for reconsideration on such other points which may be open to the writ petitioner to urge. It is pursuant to the order passed by the Division Bench that this case has been taken up for consideration.

(2.) Mr. J.M. Choudhury, learned Sr. counsel appearing for the writ petitioner has urged one solitary ground in respect of the challenge made in the writ application. According to the learned Sr. counsel, the impugned order passed in the Court Martial held against the writ petitioner is vitiated in law on account of non-compliance of the provisions of Rule 115 of the Army Rules, 1954 framed under the provisions of the Army Act, 1950. It has been urged by Mr. Choudhury that the record of proceedings of the Court Martial as enclosed to the writ petition would go to show non-compliance with the provisions of Rule 115(2) of the Army Rules, 1954 and such non-compliance, according to the learned counsel, has the effect of vitiating the sentence as well as the dismissal order passed in the case of the petitioner. The provisions of Rule 115(2) on which reliance has been placed by the learned Sr. counsel may be usefully extracted hereinbelow :-

(3.) A perusal of the records in original produced by Mr. B.M. Choudhury, learned C.G.S.C. would go to show that in the minutes of the proceedings of the Summary Court Martial, it is recorded that the charge being explained, the charged Officer pleaded guilty thereafter made the Presiding Officer made the following endorsement :-