The Court Martial has the discretion to impose lesser penalties in addition to imprisonment under Section 39 of the Army Act, based on the circumstances of the case.

JUDGMENT: (C. L. PANGARKAR J.)

1. Petitioner seeks to challenge the penalty of dismissal imposed by the Military Court Martial and confirmed by the Appellate Authority.

2. Petitioner was appointed as a Sepoi in the Indian Army with effect from 11.01.1999. The petitioner served with Indian Army in various Regiments at various stations. While the petitioner was posted at a place known as Binaguri he applied for 6 days casual leave i.e. from 5th April 2004 to 10th April 2004. It is alleged that while petitioner was on his way to catch Howrah Express on 12.05.2004 he was kidnapped by one Ranjit Singh. He was also detained and confined in one room from 12/05/04 to 29.09.05. A report (non cognizable) was lodged to the police. Petitioner ultimately reported to the place of his posting on 02.12.05. Since the petitioner overstayed the leave he was declared as a deserter. The Court Martial proceeding was initiated against the petitioner for this lapse on his part. Court Martial was constituted and upon recording evidence the Court Martial found the petitioner guilty and imposed penalty under Section 39(b) of the Army Act of dismissal. Petitioner preferred a representation against the penalty and finding of guilt. The same came to be rejected on 19.05.2006.

3. We have heard the learned counsel for the petitioner and the respondents.

4. The main thrust of the argument of the learned counsel for the petitioner is that Court Martial erred in awarding penalty of dismissal when Section 39 of the Army Act contemplates only conviction and sentence of imprisonment. He contends that the order of Court martial therefore suffers from illegality. Shri Mishra the learned Assistant Solicitor General for respondents contends that the submission of the petitioner is devoid of any substance. He submits that Section 39 does not only contemplate conviction and sentence upon finding guilty but further contemplates imposition of lesser penalty in the alternative. He submits that an alternative has been provided under Section 39 and Court Martial has chosen a less harsh penalty of dismissal. He submits that had the petitioner been convicted he would not have been entitled to secure any employment under the Government any time. In order to avoid that he submits that the Court Martial had decided to simply dismiss him from the service. It would be necessary to reproduce here Section 39 of the Army Act. Section 39 reads thus:

39. Absence without leave.- Any person subject to this Act who commits any of the following offences, that is to say,-

[a] absents himself without leave ; or

[b] without sufficient cause overstays leave granted to him; or

[c] being on leave of absence and having received information from proper authority that any corps, or portion of a corps, or any department, to which he belongs, has been ordered on active service, fails, without sufficient cause, to rejoin without delay; or

[d] without sufficient cause fails to appear at the time fixed at the parade or place appointed for exercise or duty; or

[e] when on parade, or on the line of march, without sufficient cause or without leave from his superior officer, quits the parade or line of march; or [f] when in camp or garrison or elsewhere, is found beyond any limits fixed, or in any place prohibited, by any general, local or other order, without a pass or written leave from his superior officer; or

[g] without leave from his superior officer or without due cause, absents himself from any school when duly ordered to attend there, shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned. As said by Shri Mishra it appears that the Court Martial has two choices open to it i.e. one, to either convict and sentence the delinquent or two, impose a lesser penalty as provided under Section 71 of the Army Act. After having gone through the provisions of Section 71 it is obvious that penalties as

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