DHARAM NATH YADAV Vs. CO PRATHAM BIHAR

JUDGEMENT

(1.) Aggrieved by dismissal of his writ petition, Civil Rule No. 139/1997, by judgment and order, dated 22.12.2004, the writ petitioner is, in appeal, before us.

(2.) We have heard Mr. R. D. Lall, learned counsel for the appellant, and Mr. H. Rahman, learned Assistant Solicitor General of India.

(3.) While working, in the Indian Army, as a sepoy of 1st Battalion of the Bihar Regiment, the appellant was taken into military custody on 25.04.1995 and tried by Summary Court Martial on the charge that on 25.04.95, while on active service, he had struck, with a stick, on the head of Subedar Lalan Prasad Singh of the same regiment, at Boro Bazar, and committed thereby an offence punishable under Clause (a) of Section 40 of the Army Act, 1950. On the ground that the appellant had pleaded guilty to the charge, framed against him, at his trial, the appellant was, on 06.05.95, held guilty of the charge, framed against him, under Section 40(a) of the Army Act, which makes use of criminal force to the superior officer liable to punishment. The appellant was accordingly convicted by the Summary Court Martial and sentenced to undergo rigorous imprisonment for five months and to be dismissed from service. The appellant did not prefer any statutory appeal against his conviction and/or the sentence, but he chose to challenge his conviction and the sentence, passed against him, by filing a writ petition under Article 226 of the Constitution of India.