MOHAN LAL Vs. UNION OF INDIA & ORS.

JUDGEMENT

(1.) We have heard Mr. S.K. Nanda learned counsel for the appellant and 1 Mr. Vineet Mathur learned Additional Central Government Standing Counsel for the respondents.

(2.) The appellants a Laince Naik in the Indian Army was tried by Summary Court Martial on the charge under Sec. 48, 63, 42(e) of the Army Act. He was found guilty of driving a vehicle unauthorizedly under intoxication. The act was found to be prejudicial to the good order and military discipline and disobedience of the order and as such he was ordered to be dismissed from service on 19.4.1997. He submitted a petition under Sec. 164 of the Act, which was rejected by the order of the Lt. General 10 Officer Commanding in Chief dated 6.12.97. Appellant approached to this Court by way of petition under Art. 226 of the Constitution of India. The learned Single Judge examined the matter in depth and detail and by a well reasoned order dismissed the petition. Hence, this appeal,

(3.) It is contended by Mr. S.K. Nanda learned counsel for the appellant that the trial of the appellant by a Summary Court Martial was wholly illegal. As such the condition precedent as contemplated under sub-clause (2) of Sec. 120 has not been complied with. Thus, the submission of the learned counsel is that entire Court Martial proceedings, which culminated into dismissal of the appellant is wholly without jurisdiction. Elaborating the submissions, he submitted that sub-clause (2) of Sec. 120 prohibits an officer from holding summary court martial with respect to the offences. punishable under Sec. 34, 37 & 69 without reference. Sec. 69 pertains to civil offences. It is further submitted that civil offence has been defined under section 3(ii) which means an offence which is triable by a criminal court. We are not impressed with the contention raised by the learned counsel. Sub-section (2) of Sec. 120 does not put a complete embargo on trial of civil offence by Summary Court Martial. The only requirement is, there should be a reference to the Summary Court Martial for holding trial. Rule 130 of the Army Rules provides that in case Summary Court Martial tries without reference, an explanatory memorandum is to be attached to the proceedings. It is not in dispute that explanatory memorandum is attached to the proceedings. Thus, we find no illegality in the impugned Summary Court Martial proceedings.