Judgment :-

R.M. Lodha, J.

The question which falls to be determined in this appeal by special leave is : is the provision in Rule 34 of the Army Rules, 1954 that the interval between the accused being informed of charge for which he is to be tried and his arraignment shall not be less than ninety-six hours mandatory?

2. Mr. A.K. Pandey - respondent -was enrolled in Army on September 18, 1987. Subsequently, he was posted to 12 Corps Signal Regiment (AREN) unit on August 21, 1994 at Jodhpur. The respondent remained on casual leave for thirteen days from September 5, 1995 to September 17, 1995. When he resumed his duty on September 23, 1995 he brought with him one country made pistol and one round of small ammunition to the unit which he sold to signalman J.N. Narasimlu of the same unit. J.N. Narasimlu while leaving the unit was caught by the regimental police carrying the above weapon and one round of small ammunition in one bag. On being questioned, J.N. Narasimlu told that he had purchased the weapon and one round of small ammunition from the respondent. The respondent and J.N. Narasimlu were placed in closed arrest with effect from September 23, 1995. Summary of evidence against both the persons is said to have been recorded by Major Sudhir Handa of 12 Corps Signal Regiment.

3. The respondent was charged vide charge-sheet dated October 26, 1995 which was served upon him on November 2, 1995 at 1800 hours. He was informed that he would be tried by General Court Martial on November 6, 1995 at 1130 hrs.

4. On November 6, 1995, General Court Martial commenced its proceedings at 1010 hours wherein the respondent is said to have pleaded guilty of both the charges. Based on that, the respondent was awarded punishments; (i) to suffer rigorous imprisonment for three years and (ii) dismissal from service.

5. The respondent aggrieved thereby submitted a petition under Section 164(2) of the Army Act, 1950 before the Chief of the Army staff for setting aside the findings and sentence of the General Court Martial held on November 6, 1995.

6. The Chief of Army Staff rejected the petition submitted by the respondent on December 23, 1996 and the respondent was informed of the said decision on December 31, 1996.

7. The respondent then approached the High Court of Judicature for Rajasthan at Jodhpur praying therein for issuance of appropriate writ, order or direction to quash the General Court Martial proceedings dated November 6, 1995 and the punishments awarded to him and to reinstate him in service with effect from November 6, 1995 with all consequential benefits.

8. The present appellants contested the writ petition by filing a counter in opposition before the High Court.

9. The Learned Single Judge allowed the writ petition on December 3, 1999 and quashed and set aside General Court Martial proceedings held on November 6, 1995 as well as the order of punishment.

10. The present appellants preferred intra court appeal which was found devoid of any merit and came to be dismissed on April 11, 2001. Hence, the present appeal by special leave.

11. Mr. Mohan Jain, Learned Additional Solicitor General strenuously urged that the interval of ninety-six hours provided in Rule 34 is directory and, in any case, the respondent having pleaded guilty of both the charges, no prejudice can be said to have been caused to him by non-compliance of the time provided therein. In support of his submissions, he heavily relied upon a decision of this Court in the case of State Bank of Patiala and Others v. S.K. Sharma ((1996) 3 SCC 364).

12. Rule 34 of the Army Rules, 1954 with which we are concerned reads as follows :

"34. Warning of accused for trial.--(1) The 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 or whom he desired to call in his defence, reasonable steps will be taken for procuring their attendance, and those steps shall be taken accordingly.