IMPORTANT POINT
The SCM must comply with section 120(2) of the Army Act.

JUDGMENT :

DHANANJAYA Y CHANDRACHUD, J.

1. Admit.

2. This appeal arises from a judgment of the Armed Forces Tribunal at its Chandigarh Regional Bench dated 7 December 2015. The appellant was enrolled on 29 October 1996 in the 43 Armed Brigade and was at the material time posted as Acting Lance Dafadar, (“ALD”). It is alleged that on 11 August 2007 while on duty for cleaning the service area in the morning, the appellant entered the residence of a colleague and while his spouse was washing her son, placed his hands on her shoulder.

3. A Summary Court Martial, (“SCM”) took place on 22 May 2008 during the course of which evidence was recorded. The appellant was held guilty and was dismissed from service. Among those who deposed during the SCM were the victim and her husband.

4. The Armed Forces Tribunal, while holding that the charge had been duly established, came to the conclusion that the punishment of dismissal was disproportionate and should be modified to an order of discharge.

5. Mr. Naresh Ghai, learned counsel appearing on behalf of the appellant has submitted that during the course of the evidence it emerged that in the month of June or July 2007, the appellant had reported the spouse of the victim for unauthorisedly removing petrol from a Maruti Gypsy for which the latter was awarded a punishment. This was specifically brought out in the course of the examination of the spouse of the victim in the SCM. Hence, it was urged that the entire incident is fabricated and is only a reprisal for the appellant having reported the misconduct on the part of the spouse of the victim.

6. On the question of law, it was urged that having due regard to the provisions of Section 120 of the Army Act 1950 and the decision of this Court in Ex Havildar Ratan Singh vs Union of India & Ors, AIR 1992 SC 415 and in Union of India and Others vs Vishav Priya Singh, (2016) 8 SCC 641, the convening of an SCM is by way of an exception where immediate action is necessary. Hence, it was urged on behalf of the appellant that there was no reason or justification to hold an SCM in May 2008 in respect of an incident that took place in August 2007.

7. In response, Mr. Sanjay Jain, the learned Additional Solicitor General submitted that on the merits of the charge of misconduct, both the victim and her spouse deposed in the course of the inquiry by the SCM. Hence, it was submitted that there is no occasion for this Court to review the pure findings of fact which have been affirmed by the Armed Forces Tribunal. Moreover, it was urged that the judgment in Vishav Priya Singh (supra) has since been clarified in the course of a review so as to be applicable on and from 5 July 2016, whereas the incident in question dates back to August 2007.

8. In the exercise of its appellate jurisdiction, this Court would be circumspect in reassessing the evidence when the Armed Forces Tribunal has duly applied its mind to the findings of fact. We have also duly assessed the submission of the appellant that in the present case, the appellant had lodged a complaint in the past against the spouse of the victim for pilferage of petrol. Be that as it may, it is not necessary for this Court to enter upon the findings of fact since there is an independent ground on which the submissions of the appellant would be worthy of acceptance.

9. Section 120 of the Army Act, 1950 provides as follows:

“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 t