EX-SEPOY CHANDER SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner, EX -Sepoy Chander Singh son of Vir Singh, has filed this writ petition for quashing the proceedings of Summary Court Martial and for issuance of appropriate direction to quash the findings and sentence of the Summary Court Martial dated 17.9.90 with the consequential prayer to the respondents to reinstate the petitioner in service and to grant all consequential benefits.

(2.) THE petitioner is said to have joined service in the Indian Army as Combatant Sepoy/Cook on 2.12.1983 and his last posting was in the 17th BN Mech. Inf. C/o 56 APO where he was involved in alleged misconduct/offence under Section 40(A) of the Army Act, 1950 (for short as 'Act of 1950') against one Nb Subedar Jaswant Singh on 15.8.90 at about 9.00 PM. The allegations against the petitioner were that he had given slap to Nb Subedar Jaswant Singh. The petitioner was immediately arrested on 15.8.90 itself and placed under close arrest in the Military custody. It is alleged by the petitioner that on next day i.e. 16.8.90, he was ordered to be marched before respondent No. 4 i.e. Commandant who had ordered Maj. K.C. Achappa to record the Summary evidence. When the petitioner was marched before respondent No. 4, all the three prosecution witnesses were produced before respondent No. 4 and had deposed against the petitioner. According to the petitioner, the witnesses were not produced one by one while recording the Summary Evidence. It is stated that he was not allowed to cross -examine any of three witnesses while recording the summary evidence by Major Achapa and Rule 22(1) of the Army Rules (for short as 'Rules') were violated which Rule prescribes that every charge against a person subject to the Act, other than an officer, shall be heard in the presence of the accused. The accused shall have full liberty to cross -examine any witness against him, and to call any witnesses and make any statement in his defence.

(3.) IT is submitted by the petitioner that summary of evidence was recorded in English language which language the petitioner did not know nor did he understand the English language. It is submitted by the petitioner that right from 15.8.90, he continued to be in detention and under close arrest in Military custody without remanding him for trial by a Court Martial which is to be done without unnecessarily delay or any other action as required vide Rule 24. Rule 24 prescribes that after recording the summary of evidence, remand of accused shall be considered by the commanding officer who shall either remand the accused for trial by a Court martial or refer the case to the proper Superior Military Authority; or rehear the case and either dismiss the charge or dispose it of summarily. It is provided in Sub -clause (2) of Rule 24 that if the accused is remanded for trial by a Court martial, the commanding officer shall without unnecessary delay either assemble a summary Court martial or apply to the proper Military authority to convene a Court martial, as the case may require. It is stated by the petitioner that he remained under close arrest (Military custody) for 34 days without having either disposing off the case summarily under Section 80 or assembly of summary Court martial for such a long period and thus no action was taken for such a long time and his liberty was curtailed without affording him due opportunity to either consult any on/seek legal advice and/or to prepare his defence as required under Rule 33. On 15.9.90, when Col. M.K. Nanda, the commandant had composed the summary Court, only then the petitioner was served with copy of order alongwith summary of evidence and charge -sheet in the after -noon of 15.9.90, copy of charge -sheet dated 15.9.90 has been attached as Annex. 2 and 3, it was directed that petitioner would continue to be under Military Custody till the trial was completed. The petitioner submits that he was not afforded a proper adequate opportunity of hearing as required under Rule 33(7) wherein a minimum of 96 hours of notice ought to have been given to the accused petitioner before his trial by a summary court martial. The petitioner submits that he was not explained the contents of charge -sheet nor apprised about the provision of being represented by a friend of the accused nor asked as to whom he would like to represent him at his trial except handing over the copy of the charge -sheet, summary of evidence and routine order no other thing was done. The petitioner was also not asked whether he wished to produce any witnesses in his defence. The petitioner submits that Rule 34(1) of the Rules were grossly violated. Rule 34 provides that accused, before he is arraigned shall be informed by an officer of every charge for which he is to be tried and also that, on his giving the names of witnesses, whom he desires to call in his defence, reasonable steps will be taken for procuring their attendance, and those steps shall be taken accordingly. It is further provided that interval between his being as informed, and his arraignment shall not be less than 96 hours or where the accused person is on active service, then not less than 24 hours. The petitioner submits that he was tried by summary court martial on 17.9.90 i.e. after 2 days of arrangement and was awarded punishment of 6 months' R.I. in civil prison and dismissal of service. Number of grounds have been mentioned in the writ petition whereby the procedure adopted has been challenged. It is stated that on the same day, the petitioner was sent to civil prison vide Annex. 5 and he was handed over the letter informing of his right of filing the petition/appeal to the higher authorities, when he was in jail on 17.9.90 itself.