ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI

T.A.NO. 3 of 2014

THURSDAY, 16TH DAY OF JULY, 2015/25TH ASHADHA, 1937

CORAM:

HON'BLE MR. JUSTICE S.S.SATHEESACHANDRAN, MEMBER (J)

HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A)

APPLICANT

KAMALUDEEN.K. AGED 24 YEARS, RESIDING AT THANIKULANGARA VADAKKATHIL, VADAKKUMTHALA VILLAGE, KOLLAKA POST, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT, KERALA STATE 690 536. * APPLICANT'S ADDRESS CORRECTED AS FOLLOWS:

KAMALUDEEN.K. EX SEPOY NO.14632781A S/O.LATE KOYAKUTTY, “PULINJIKOMPIL”, H.S.JUNCTION, VALAKKODE.P.O., PUNALOOR, KOLLAM DISTRICT, KERALA – 691 331.

(ADDRESS OF THE APPLICANT AMENDED AS PERORDER DATED 19.08.2014 IN MA.NO.458/2014.).

BY ADV.SRI.V.K.SATHYANATHAN.

VERSUS RESPONDENTS

1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF DEFENCE, NEW DELHI. 2. THE ADJUTANT GENERAL, ARMY HEADQUARTERS, D.H.Q.P.O., NEW DELHI – 110 011.

3. GENERAL OFFICER COMMANDING, 8 MOUNTAIN DIVISION, C/O.56 APO.

4. COMMANDING OFFICER, 608, E.M.E.BATTALION, C/O.56 APO.

5. MAJOR D.S.BISHT, OC 851 FD WKSP COY EME, C/O.56 APO.

BY ADV.SRI. K.M.JAMALUDHEEN, SENIOR PANEL COUNSEL

T.A.3 of 2014 : 2 :

O R D E R

VAdm.M.P.Muralidharan, Member (A):

1. This Transferred Application was originally filed in

the Honourable High Court of Delhi as Civil Writ Petition

No.6439/2001 on 17th October 2001. It was transferred to

the Armed Forces Tribunal, Principal Bench on 21st January

2014 as T.A.No.3 of 2014. Based on the request of the

applicant, it was transferred to this Bench and received

on 7th May 2014 and taken as T.A.3 of 2014.

2. The applicant was enrolled into the Indian Army

(EME) on 25th April 1996. In due course, he was posted to

851 Field Workshop Company of EME where he was also

given additional duties as Sahayak to his Officer

Commanding Major BS Bisht. On 05 May 1999, the

applicant was tried by a Summary Court Martial

(hereinafter referred to as 'SCM') under Section 69 of the

Army Act for committing a civil offence i.e., voluntarily

causing hurt by knife to Smt. Kiran Bisht, wife of Major

T.A.3 of 2014 : 3 :

B.S. Bisht on 02 Nov 1998. The applicant pleaded guilty

to the charge and was sentenced to Rigorous

Imprisonment for 4 months and dismissal from service.

3. The applicant submitted a petition to respondent

No.1 (Government of India) under Section 164(2) of the

Army Act (Annexure P3) on 22nd September 1999. Since

the applicant did not get any response he filed

O.P.No.19852 of 2000 before the Honourable High Court of

Kerala, and the High Court directed the first respondent

to pass appropriate orders after considering Annexure P3

within four months. Subsequently, he received a reply to

his petition from respondent No.1 vide Government of

India, Ministry of Defence letter No.C/o 7043/DV-3/

4007/D(AG) dated 3rd Oct 2000 (Annexure P4) rejecting

his appeal. Aggrieved by the same, he had filed the Writ

Petition in the Honourable High Court of Delhi.

4. Mr.V.K.Sathyanathan, the learned counsel for the

applicant, contended that the alleged incident of the

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applicant causing hurt to Smt.Kiran Bisht was not true. In

fact the lady who had the knife tried to attack the

applicant and when he resisted, a minor bruise was caused

to the hand of Mrs. Bisht, which was later made into a

case of the applicant attacking her, according to the

counsel. No wound certificate or medical evidence had

been produced in the case, submits the counsel.

5. According to the learned counsel for the applicant,

in the first instance as Mrs.Bisht was not a person subject

to Army Act, the applicant should not have been tried

under the Army Act. The alleged offence should have

been reported to local Police and tried by a criminal Court.

Even under the Army Act, since the applicant was charged

under Section 69, in view Section 120 and as there was

no grave reason for immediate action, the applicant

should have been tried by a District Court Martial and not

an SCM, according to the counsel. In this regard the

learned counsel cited the judgment of the Hon'ble Bombay

High Court in case of Santosh Kumar Pyarelal Mishra

T.A.3 of 2014 : 5 :

vs. Union of India & Ors, (1996) 3 CRIMES 295.

6. The learned counsel for the applicant also

contended that Section 130 of the Army Act was not

complied with in that the applicant was not given a

chance to challenge constitution of SCM or object to the

Presiding Officer. In this regard he cited the decision of

the Hon'ble Apex Court in Ranjit Thakur v. Union of

India & Ors, (1987) 4 SCC 611, wherein it was held

by the Apex Court that non compliance of the mandate of

Section 130 is an infirmity which goes to the root of the

jurisdiction and vitiates the proceedings.

7. Learned counsel also contended that tentative

charge sheet had been given to the applicant under

Section 307 of the Ranbir Penal Code but he was tried in

the SCM under Section 324 of the Ranbir Penal Code. The

learned counsel further contended that no medical records

of the alleged injury caused to Mrs.Bisht had been

produced. The applicant was also not given an

T.A.3 of 2014 : 6 :

opportunity to cross examine witnesses. Further, the

applicant was in custody and was not given an opportunity

to prepare his defence properly or a counsel of his choice.

He also contended that the applicant had not pleaded

guilty but had been forced to sign a set of papers and he

was not aware of what he had signed.

8. The learned counsel also contended that the

applicant on award of R.I by the SCM had made a petition

under Section 164 (2) of the Army Act against the order

(Annexure P3) to the Government of India, Ministry of

Defence. However the reply (Annexure P4) from the

Government rejecting the appeal was extremely delayed.

Further it was a terse reply and not a proper speaking

order examining the issues raised by the applicant.

9. He therefore appealed that the entire findings

and sentence of the SCM and the decision of the

Government on the appeal of the applicant be quashed.

(Annexures P2 and P4). Further, a direction be given to

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the respondents to reinstate the applicant in service with

retrospective effect with all emoluments and benefits.

10. Mr.K.M.Jamaludheen, Senior Panel Counsel for

the respondents, submitted that the applicant had

committed a civil offence under Section 69 of the Army

Act. A First Information Report had been lodged with

the Civil Police on the day of the incident, and the case

was handed over to the Army for further disposal as per

orders of Sub Judge, Jammu. Disciplinary proceedings

were initiated against the applicant after a Court of Inquiry

and Summary of Evidence was recorded in terms of

Section 23 of the Army Rules. The applicant had been

given full opportunity to cross examine witnesses.

11. The applicant had admitted his offence during

the Court of Inquiry and during Summary of Evidence.

Possibly due to guilty feeling he had even tried to commit

suicide by consuming Phenol and Harpic and was admitted

in Military Hospital. There was absolutely no motive for

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Mrs.Bisht to assault the applicant.

12. Based on the summary of evidence, the

Commanding Officer of the Unit had referred the case to

his superior military authority who then ordered for the

trial by the SCM in accordance with Section 120(2) of the

Army Act. As per Section 116 of the Army Act,

Commanding Officer alone constitutes the Court and the

SCM was conducted by the Commanding Officer of the

applicant. Additional Officers attended the SCM as

independent witnesses and the applicant was also given a

suitable defence as friend of the accused. Sufficient

warning and time was given to the applicant regarding

the SCM and all required documents were handed over in

advance and the applicant had acknowledged receipt of

the same. During SCM, the applicant had pleaded guilty

and also stated that no one had forced him to sign any

papers. The learned counsel further submitted that all

the provisions of Army Act and Rules had been complied

with during SCM and no injustice was done to the

T.A.3 of 2014 : 9 :

applicant.

13. Considering the offence, the applicant had been

given a lenient sentence by the Commanding Officer after

the SCM. The learned counsel for the respondents also

submitted that at SCM, the applicant had neither raised

any objection to being tried by the Commanding Officer

nor brought up any issue of insufficient preparation time

or need for medical evidence. These issues were raised as

an afterthought while submitting his petition. All issues

raised by the applicant were duly considered by the

competent authority (Ministry of Defence) and were

rejected on merits in accordance with law.

14. We have perused the records of the case.

15. The primary contention raised by the applicant

is of legal infirmities in the conduct of the SCM and hence

the need for its findings and sentence to be set aside.

The applicant was tried by SCM under Section 69 of Army

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Act for committing a civil offence, that is to say,

voluntarily causing hurt by dangerous weapon punishable

under Section 324 of the Ranbir Penal Code, in that, he

at Jammu on 02nd November 1998 voluntarily caused hurt

by knife to Mrs.Kiran Bisht, wife of IC-41254 M, Major

DS Bisht of his unit. The applicant has contended that

as Mrs.Bisht was not a person subject to the Army Act,

he should not have been tried under the Army Act and

that the alleged offence should have been reported to

local Police and tried by a criminal Court. It is

observed from the order of the Sub Judge (JMIC), Jammu

submitted by the respondents along with their counter

affidavit that the applicant was produced before the Sub

Judge as an accused involved in offence under Sections

376/511/324 RPC and 4/25 Arms Act. The Sub Judge

observing that the matter was triable by an Army Court

had remitted the case back to Army authorities. It is

therefore apparent that the case had been reported to

civil authorities and had been transferred back to the

Army by an order of the Sub Judge, Jammu.

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16. Sections 69 and 70 of the Army Act, being

relevant, are reproduced below:

“69 . Civil offences: - Subject to the

provision of Section 70, any person subject to

this Act who at any place in or beyond India,

commits any civil offence, shall be deemed to

be guilty of an offence against this Act and, if

charged therewith under this Section, shall be

liable to be tried by a court-martial and, on

conviction, be punishable as follows, that is to

say, –

(a) if the offence is which would be

punishable under any law in force in India with

death or with transportation, he shall be liable

to suffer any punishment, other than whipping

assigned for the offence, by the aforesaid law

and such less punishment as is in this Act

mentioned; and

…........

70. Civil offences not triable by court-

martial :- A person subject to this Act who

commits an offence of murder against a person

not subject to military, naval or air force law or

of culpable homicide not amounting to murder

against such a person or of rape in relation to

such a person, shall not be deemed to be guilty

of an offence against this Act and shall not be

tried by a court-martial, unless he commits any

T.A.3 of 2014 : 12 :

of the said offences--

(a) while on active service, or

(b) at any place outside India, or

(c) at a frontier post specified by the Central

Government by notification in this behalf.

17. It emerges that according to the provisions

of Section 69, any person subject to the Army Act who

commits a civil offence can be tried under the Act,

except for offences under Section 70, ie murder or

culpable homicide not amounting to murder or rape

against a person who is not subject to military, Naval or

Air Force law unless the offences are committed in

specified circumstances. In the instant case, even

though Mrs.Bisht was not subject to the Army Act, as

the offence did not fall under the provisions of Section

70, there was no impediment whatsoever in having had

the trial of the applicant under the Army Act.

18. The learned counsel for the applicant had also

raised the issue that the applicant could not be tried by

an SCM in view of Section 120 of the Army Act. The

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section, being relevant, is re-produced below:

“ 120. Powers of Summary courts-martial. (1)

Subject to the provisions of sub-section (2), a

summary court-martial may try any offence

punishable under this Act.

(2) When there is no grave reason for immediate

action and reference can without detriment to

discipline be made to the officer empowered to

convene a district court-martial or on active service a

summary general court-martial for the trial of the

alleged offender, an officer holding a summary court-

martial shall not try without such reference any

offence punishable under any of the sections 34, 37

and 69, or any offence against the officer holding the

court.

(3) A summary court-martial may try any person

subject to this Act and under the command of the

officer holding the court, except an officer, junior

commissioned officer or warrant officer.

(4) A summary court-martial may pass any

sentence which may be passed under this Act,

except a sentence of death or transportation, or of

imprisonment for a term exceeding the limit

specified in sub-section (5).

(5) The limit referred to in sub-section (4) shall be one

year if the officer holding the summary court-martial is

of the rank of lieutenant-colonel and upwards, and

three months, if such officer is below that rank.”

T.A.3 of 2014 : 14 :

19. The Army Act Section 120 while giving

powers to try any offence punishable under the Act

through SCM, also stipulates that if there is no grave

reason for immediate action, any offence punishable

under Section 69, is to be referred to an authority

empowered to convene a District Court Martial. In the

instant case, it is observed that the charge sheet of

the applicant (Annexure P1) dated 21 April 1999 had

been referred to GOC 8 Mountain Division who

authorised the trial by a SCM on 23 April 1999.

Therefore, in our view, the Commanding Officer had

proceeded to try the applicant by SCM only after approval

in accordance with Section 120. This is in keeping

with the views expressed by the Hon'ble Bombay High

Court in the case of Santosh Kumar Pyarelal Mishra

vs. Union of India & Ors, (supra), cited by the

learned counsel for the applicant. Further, the rank and

the punishment awarded to him also did not contravene

Section 120.

T.A.3 of 2014 : 15 :

20. Reliance placed by learned counsel for the

applicant on the observations made by the apex Court on

the applicability of Section 130 of the Army Act in Ranjit

Thakur's case (cited supra) is shown to be devoid of any

merit. It has been brought to our notice that the

observations so made had been deleted by the apex Court

reviewing its earlier decision (See Union of India v.

Ranjit Thakur (1989) 2 SCC 38). Suffice to state in SCM

by virtue of Section 116 (1) of the Army Act, the

applicability of Section 130 is clearly excluded.

21. In the instant case, applicant was not asked

whether he had objections to being tried by the

Commanding Officer, has been canvassed as a legal

infirmity to challenge the SCM. The constitution of SCM is

to be in accordance with Section 116 of the Army Act

which reads thus:

“116.Summary court-martial:--(1) A summary

court-martial may be held by the commanding

officer of any corps, department or detachment of

T.A.3 of 2014 : 16 :

the regular Army, and he shall alone constitute the

court.

(2) The proceedings shall be attended throughout

by two other persons who shall be officers or junior

commissioned officers or one of either, and who

shall not as such, be sworn or affirmed.”

22. In the case of Vidya Prakash v. Union of

India (1988) 2 SCC 459, the apex Court has held thus:

“13. The Commanding Officer of the corps,

Department or Detachment of the Regular Army to

which the appellant belongs, is quite competent in

accordance with the provisions of Section 116 of the

said Act and as such the constitution of the Summary

Court Martial by the Commanding Officer of the Corps

cannot be questioned as illegal or incompetent. It is

neither a General Court Martial nor a District Court

Martial where the appellant's case was tried and

decided.. . . . . . . .”

23. In the instant case as observed from

Annexure P2, Col.P.P Singh, Commanding Officer of

608 EME Bn Conducted the SCM. Lt.Bhuwan Khare,

Sub S.S.Kadu (friend of the accused) and Capt. Rahul

Kumar (Interpreter) attended the trial. Where the

Commanding Officer is competent to hold the SCM and

T.A.3 of 2014 : 17 :

then he alone shall constitute the Court as prescribed

under Section 116 of the Act, the challenge raised that the

applicant was not asked of his objections to being tried by

his Commanding Officer has no merit.

24. We now look at the charge framed against the

applicant. A Court of Inquiry (COI) was convened by

order of the Station Commander, Jammu Cantt, soon after

the alleged incident to investigate circumstances under

which the applicant had threatened and assaulted

Mrs.Bisht. The Court examined 7 witnesses with

applicant as the first witness. During the COI, the

applicant stated that he was under mental stress as he

had to make arrangements for his sister's impending

marriage and due to the impression he got that

Mrs.Bisht would not relieve him to go on leave. He

therefore planned to frighten her with a knife on O2

November 1998. According to the applicant, while he is

succeeded in his intention, the situation soon got out of

hand. This scared him and being afraid of the

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consequences he consumed Phenol and Harpic and

subsequently became unconscious. The aspect of the

applicant brandishing knife at Mrs.Bisht has been

corroborated in the statements of other witnesses.

Opinion of the COI was that the applicant, being

suspicious that he was not being allowed to proceed on

leave, attempted to threaten Mrs.Bisht with a knife in

order to persuade her to send him on leave. In the

scuffle that ensued Mrs.Bisht sustained a cut on her right

hand. Based on the COI, the Station Commander on 18

November 1998 directed that disciplinary action be

initiated against the applicant.

25. It is observed that on 29 January 1999, a

tentative charge sheet under Section 69 of the Army Act

for committing a civil offence under Section 307 of the

Ranbir Penal Code was prepared against the applicant and

hearing of charge was held under Rule 22 by the

Officiating Commanding Officer. On conclusion of hearing

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the Commanding Officer ordered for Summary of Evidence

to be recorded.

26. As regards conduct of Court of Inquiry, the

Hon'ble Apex Court in the case of Major General

Inder Jit Kumar vs. Union of India & Ors. , (1997)

9 SCC 1 held that:

“7. Under Rule 177 of Army Rules, 1954, a Court of

Inquiry can be set up to collect evidence and to

report, if so required, with regard to any matter which

may be referred to it. The Court of Inquiry is in the

nature of a fact-finding inquiry committee. Army Rule

180 provides, inter alia, that whenever any inquiry

affects the character of military reputation of a person

subject to the Army Act, full opportunity must be

afforded to such a person of being present

throughout the inquiry and of making any

statement, and of giving any evidence he may

wish to make or give, and or cross-examining any

witness whose evidence, in his opinion, affects his

character of military reputation and producing

any witnesses in defence of his character of

military reputation. . . . . . . ”

27. Further, in the same judgment, the Apex Court

also examined procedures related to framing of charges.

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The Apex Court held that :

“8. . . . . . . The procedure relating to a Court of

Inquiry and the framing of charges was examined by

this Court in the case of Major GS Sodhi vs. Union of

India [1991 (2) SCC 382]. This Court said that the

Court of Inquiry and participation in the Court of

Inquiry is at a stage prior to the trial by Court

martial. It is the order of the Court Martial which

results in deprivation of liberty and not any order

directing that a charge be heard or that a summary

of evidence be recorded or that a Court martial be

convened. Principles of natural justice are not

attracted to such a preliminary inquiry. Army Rule

180, however, which is set out earlier gives adequate

protection to the person affected even at the stage of

the Court of Inquiry. . . . . . . .”

28. Army Rule 180 being relevant is re-produced:

180: Procedure when character of a person subject

to the Act is involved.- Save in the case of a prisoner

of war who is still absent whenever any inquiry affects

the character or military reputation of a person subject to

the Act, full opportunity must be afforded to such person

of being present throughout the inquiry and of making

any statement, and of giving any evidence he may wish

to make or give, and of cross examining any witness

whose evidence in his opinion, affects his character or

military reputation and producing any witnesses in

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defence of his character or military reputation. The

presiding officer of the court shall take such steps as may

be necessary to ensure that any such person so affected

and not previously notified receives notice of and fully

understands his rights, under this rule.

29. Army Rule 22 is re-produced below:

“22. Hearing of Charge.- (1) Every Charge against

a person subject to the Act shall be heard by the

Commanding Officer in the presence of the accused. The

accused shall have full liberty to cross-examine any

witness against him, and to call such witness and make

such statement as may be necessary for his defence:

Provided that where the charge against the accused

arises as a result of investigation by a Court of inquiry

wherein the provisions of rule 180 have been complied

with in respect of that accused, the commanding officer

may dispense with the procedure in sub-rule (1).

(2) The commanding officer shall dismiss a charge

brought before him if, in his opinion the evidence does

not show that an offence under the Act has been

committed, and may do so if, he is satisfied that the

charge ought not to be proceeded with:

Provided that the commanding officer shall not

dismiss a charge which he is debarred to try under sub-

section (2) of Sec.120 without reference to superior

authority as specified therein.

(3) After compliance of sub-rule (1), if the commanding

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officer is of opinion that the charge ought to be proceeded

with, he shall within a reasonable time

(a) dispose of the case under section 80 in

accordance with the manner and form in Appendix III; or

(b) refer the case to the proper superior military

authority; or

(c) adjourn the case for the purpose of having the

evidence reduced to writing; or

(d) if the accused is below the rank of warrant officer,

order his trial by a summary court-martial.

Provided that the commanding officer shall not

order trial by a summary court-martial without a reference

to the officer empowered to convene a district court-

martial or on active service a summary general court-

martial for the trial of the alleged offender unless -

(a) the offence is one which he can try by a

summary court-martial without any reference to that

officer; or

(b) he considers that there is grave reason for

immediate action and such reference cannot be

made without detriment to discipline.

30. As brought out by the Apex Court, the COI is

set up to collect evidence and is in the nature of fact

finding. Even though principles of natural justice are not

T.A.3 of 2014 : 23 :

attracted at the stage of COI, in accordance with Army

Rule 180, full opportunity must be afforded to a person

for making any statement and giving evidence and should

be afforded the opportunity to cross examine any witness

whose evidence in his opinion affects his character or

reputation. In the instant case at the COI stage it is

observed that the applicant was not provided an

opportunity under Army Rule 180. Charge was heard in

accordance with Rule 22. There were two Prosecution

Witnesses and four independent witnesses. While at the

COI stage, the applicant was not given an option under

Rule 180 to cross examine witnesses, at the stage of

hearing of the charge, an opportunity was provided to the

applicant as mandated to cross examine the witnesses.

However he declined the option of cross examination and

also did not call any witness in his defence.

31. Summary of Evidence is to be recorded as per

Army Rule 23 given below:

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23. Procedure for taking down the summary of

evidence: (1) Where the case is adjourned for the

purpose of having the evidence reduced to writing, at

the adjourned hearing evidence of the witnesses who

were present and gave evidence before the commanding

officer, whether against or for the accused, and of any

other person whose evidence appears to be relevant,

shall be taken down in writing in the presence and

hearing of the accused before the commanding officer or

such officer as he directs.

(2) The accused may put in cross examination such

questions as he thinks fit to any witness, and the

questions together with the answers thereto shall be

added to the evidence recorded.

(3) The evidence of each witness after it has been

recorded as provided in the rule when taken down, shall

be read over to him, and shall be signed by him, or if he

cannot write his name shall be attested by his mark and

witnessed as a token of the correctness of the evidence

recorded. After all the evidence against the accused has

been recorded, the accused will be asked: :Do you wish

to make any statement? You are not obliged to say

anything unless you wish to do so, but whatever you say

will be taken down in writing and may be given in

evidence”. Any statement thereupon made by the

accused shall be taken down and read to him, but he will

not be cross examined upon it. The accused may then

call his witnesses, if he so desires, any witnesses as to

character. “

T.A.3 of 2014 : 25 :

32. It is observed that while recording Summary of

Evidence, eight Prosecution Witnesses were examined

and the applicant was given the option to cross examine

them. He chose to cross examine only prosecution

witness No.8, who during the cross examination,

confirmed seeing the applicant hovering over Mrs.Bisht

holding a knife. On completion of recording of evidence of

Prosecution witnesses, the applicant was duly cautioned in

accordance with Army Rule 23(3) and was asked if he

desired to make any statement. However, he did not

make any statement nor call any witness in his defence.

Provisions of Army Rule 23 were complied with during

recording of Summary of Evidence.

33. While the tentative charge sheet at the hearing

of charge was for contravening Section 307 of Ranbir

Penal Code, during SCM it was for contravening Section

324. Section 307 pertains to attempt to murder with

punishment to the extent of imprisonment for life.

Section 324 is for voluntarily causing hurt by dangerous

T.A.3 of 2014 : 26 :

weapons with punishment of imprisonment which may

extent to 3 years. It emerges that after COI, charge

envisaged was under Section 307, but after Summary of

Evidence, it was reduced to a lesser offence under

Section 324. Therefore, in our view, no prejudice was

caused to the applicant and no injustice has been done in

this regard.

34. Rules 106 to 133 of the Army Rules provide for

the proceedings for conduct of summary court-martial.

Rule 115 deals with general plea of ‘guilty’ or ‘not guilty’.

Rule 116 deals with the procedure after plea of ‘guilty’.

Rule 116 provides as follows:

“116 Procedure after plea of "Guilty":- (1) Upon the

record of the plea of "Guilty", if there are other charges

in the same charge-sheet to which the plea is "Not

Guilty", the trial shall first proceed with respect to the

latter charges, and, after the finding of these charges,

shall proceed with the charges on which a plea of

"Guilty" has been entered; but if they are alternative

charges, the Court may either proceed with respect to

all the charges as if the accused had not pleaded

"Guilty" to any charge, or may, instead of trying him,

T.A.3 of 2014 : 27 :

record a finding upon any one of the alternative charges

to which he has pleaded "Guilty" and a finding of "Not

Guilty" upon all the other alternative charges.

(2) After the record of the plea of "Guilty" on a charge

(if the trial does not proceed on any other charges), the

Court shall read the summary of evidence, and annex it

to the proceedings or if there is no such summary, shall

take and record sufficient evidence to enable it to

determine the sentence, and the reviewing officer to

know all the circumstances connected with the offence.

The evidence shall be taken in like manner as is

directed by these rules in case of a plea of "Not Guilty".

(3) After such evidence has been taken, or the

summary of evidence has been read, as the case may

be, the accused may address the Court in reference to

the charge and in mitigation of punishment and may

call witnesses as to his character.

(4) If from the statement of the accused, or from the

summary of evidence, or otherwise, it appears to the

Court that the accused did not understand the effect of

his plea of "Guilty", the court shall alter the record and

enter a plea of “Not Guilty”, and proceed with the trial

accordingly.

. . . . . . . .

(6) When the accused states anything in mitigation of

punishment which in the opinion of the Court requires to

be proved, and would, if proved, effect the amount of

T.A.3 of 2014 : 28 :

punishment, the court may permit the accused to call

witnesses to prove the same.

. . . . . . . . . .”

35. As pointed out earlier, Col P.P.Singh, the

Commanding Officer of the applicant was legally

competent and he alone could have constituted the SCM.

The applicant was served with the charge sheet which was

in conformity with Rule 31 of the Army Rules (signature

on charge sheet), and Sections 69 (civil offences) and

116 (Summary court martial) of the Army Act. The

applicant pleaded guilty before the SCM and the SCM

followed the procedure provided for under Rule 116 of the

Army Rules and awarded punishments of 04 months of

Rigorous Imprisonment and dismissal from service.

36. The Hon'ble Apex Court in case of Union of

India & Ors. v. Dinesh Prasad (supra) had considered

the case of an applicant pleading guilty. The finding of the

Hon'ble Apex Court being relevant is re-produced below:

T.A.3 of 2014 : 29 :

“24. The learned counsel for the respondent placed

heavy reliance upon the decisions of this Court in

Punjab National Bank v. Kunj Behari Misra, (1998) 7

SCC 84, Maneka Gandhi v. Union of India, (1978) 1

SCC 248 and Roop Negi v. Punjab National Bank,

(2009) 2 SCC 570 in support of his submission that

the order of dismissal from service by the Summary

Court Martial was in violation of principles of natural

justice. We are afraid none of these decisions has

any application to the facts of the present case.

There is no violation of principles of natural justice.

No illegality has been committed in convening the

Summary Court Martial by the Commanding Officer

nor is there any illegality in the conduct of the

Summary Court Martial. The respondent pleaded

guilty to the charge before the Summary Court

Martial and the Summary Court Martial found him

guilty. It was only then that the order of dismissing

the respondent from service was passed. It is now

settled that no reasons are required to be recorded

by the Court Martial.”

37. In the instant case too, neither the constitution

of the SCM nor the procedure followed by the Court can

be said to suffer from any legal infirmity. It is also

observed that proceedings of the SCM were forwarded to

the GOC in accordance with Section 162 of Army Act and

T.A.3 of 2014 : 30 :

he countersigned it. Considering that the punishment

under Section 324 of Ranbir Penal Code is imprisonment

of either description for a term which may extend to 03

years or a fine or both, the punishment awarded, in our

view, can neither be said to be disproportionate or

oppressive.

38. As observed by us in the foregoing, there is no

legal infirmity in the proceedings leading to SCM, conduct

of the SCM or award of sentence to the applicant. Hence

there is no merit in the primary contention of the

applicant. The other contention of the applicant was the

absence of a proper speaking order from Respondent

No.1. The subject had been examined in depth by a

Constitution Bench headed by Hon'ble Chief Justice, in

the case of S.N.Mukherjee v. Union of India, (1990) 4

SCC 594. The Apex Court held that reasons are not

required to be recorded for an order passed by the

confirming authority or for an order passed by the Central

Government dismissing post-confirmation petition and the

T.A.3 of 2014 : 31 :

relevant section of judgment is quoted below:

“48. For the reasons aforesaid it must be held

that reasons are not required to be recorded for

an order passed by the confirming authority

confirming the findings and sentence recorded by

the court martial as well as for the order passed

by the Central Government dismissing the post-

confirmation petition. Since we have arrived at the

same conclusion as in Som Datt Datta case,AIR

1969 SC 414, the submission of Shri Ganguli that

the said decision needs reconsideration cannot be

accepted and is, therefore, rejected. “

39. We do not find any legal infirmity or bias or any

other reason to set aside the findings of the SCM.

Transferred Application is therefore dismissed.

40. We would however like to place on record

our appreciation for the learned counsel for the applicant

Sri V.K.Sathyanathan. The applicant had appeared in

person with the T.A stating that he had no source of

regular livelihood and had requested for free legal service.

At that juncture, Mr.V.K.Sathyanathan who was present in

Court, had volunteered to take up the brief of the

T.A.3 of 2014 : 32 :

applicant and has vigorously argued the case. The

gesture shown by Mr.V.K.Sathynathan is indeed worthy of

appreciation and emulation.

41. There will be no order as to costs.

42. Issue free copy to the parties.

sd/- sd/-

VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE S.S.SATHEESACHANDRAN MEMBER (A) MEMBER (J)

an (true copy)

Prl.Pvt.Secretary