(1.) The petitioner was a Major in the army. He was court martial led and dismissed from service. He now challenges the very constitution of the Court Martial and contends that it was a coram non Judice.
(2.) The petitioner took over the command of 983 Transport Company in January, 1971 from the then officiating Officer Commanding Capt. Ved Viyas. On 29th July, 1972, the petitioner proceeded on one months annual leave and came to Simla. After rejoining, he was assigned a temporary duty at Simla. The petitioner fell sick and was on sick leave upto 10th December, 1972. When the petitioner rejoined he was attached to another unit for the purpose of recording Summary of Evidence for the two charges made against him. These charges were : (i) improper use of jeep No. ZB -40326, and (ii) improper use of one 3 ton vehicle No, ZD -59838.
(3.) Summary of Evidence was accordingly recorded on 17th December, 1972. Lt. Col. K. M. Upadhyaya, Officer Commanding, while forwarding the Summary of Evidence (Annexure PA), observed, inter alia, thus : "It was further observed by the Officer recording S of E that all the witnesses had come with prepared statements and merely dictated from the same. In this connection it is submitted that inspite of your signal No. 1608 of 17th December, 1972, HO CASC I Corp did not make arrangement for attachment of all witnesses to this regiment as directed by you in your signal referred above. These instances go to show that some interested party has tutored the witnesses against the accused. In fairness to the accused, it is recommended that all the witnesses should be attached with some unit at SAMBA so that neither the prosecution nor the defence sides have any access to them. Moreover expeditious finalization of the case should be done to avoid further manipulations by either side. (4) Finally I would like to submit that the case should be disposed of as early as possible. My reasons are as follows : - (a) The accused has committed the offence for which he deserved the punishment. (b) The case has given me feeling that there are some interested parties who wants to fix this officer. (c) Based on the evidence recorded a GCM may not really be - necessary as a summary disposal by Corp Comdr would probably meet the end of justice." (emphasis supplied)