Non-compliance with mandatory provisions of Army Rules, specifically Rule 34, vitiates the entire proceedings of the Summary Court Martial and violates the accused's rights under the Army Act and Army Rules.

( 1 ) THE petitioner, by virtue of this writ petition, is seeking quashing of the proceedings, findings and sentence of the Summary Court Martial dated 11th July, 1994 whereby the petitioner was found guilty of the charge under Section 52 (b) of the Army Act, 1950 and was sentenced to rigorous imprisonment of four months and dismissal from service.

( 2 ) THE petitioner joined the Indian Army as Sepoy in the Jat Regiment in the year 1980 and claims that he has discharged his duties to the satisfaction of all the superior officers of the Indian Army. While on active service at Changri west post on 26th June, 1994, it was alleged that he had dishonestly misappropriated government ration valued at Rs. 4,031. 24 P. and had sold it to civilians. Pursuant to these allegations, a summary of evidence was directed against the petitioner by his Commanding Officer Col. K. K. Bhattacharya which was recorded on 6th July, 1994.

( 3 ) BASED on the summary of evidence, a tentative charge-sheet was drawn up against the petitioner on 10th july, 1994. The Commanding Officer thereafter directed trial of the petitioner by Summary Court Martial which proceedings were conducted on the 11th July, 1994. A charge-sheet dated 11th July, 1994 was drawn up against the petitioner whereby a charge under Section 52 (b) of the Army Act alleging that the petitioner, while on active service on 26th July, 1994, while at Changri west post, dishonestly misappropriated the government ration, the property of the government valued at Rs. 4,031. 24 P and sold it to the civilians. The petitioner was arraigned before the Summary Court Martial on the 11th july, 1994 and it is alleged that on a plea of guilt by the accused, he was found guilty of the offence with which he was charged. He was consequently, sentenced to rigorous imprisonment of four months and dismissal from service on the 11th July, 1994.

( 4 ) THESE findings and sentence of the Summary Court martial dated 11th July, 1994 have been impugned before us inter alia on the following grounds:- (i) The trial, findings and sentence of the petitioner are liable to be set aside and quashed for non- compliance of the mandatory provisions of Army Rules 34 and denial of adequate opportunity to prepare and lead his defence to the petitioner. (ii) The trial, findings and conviction of the petitioner is vitiated on account of non-compliance of section 162 of the Army Act in as much as there was inordinate delay in forwarding the proceedings of the summary Court Martial to the officer commanding the division/brigade within which the trial was held. The delay of more than six months in forwarding the proceeding amounted to frustration of the valuable rights of the petitioner in as much as the same could have been legally reduced by the authority. (iii) The findings and sentence are liable to be set aside and quashed for the reasons that copy of the proceedings was not available to the petitioner despite repeated requests including requests made on 19th january, 1995 and 10th February, 1995.

( 5 ) THE respondents have sought to support their actions solely on the plea that the petitioner had pleaded guilty and nothing further was required to be done by the respondents. The respondents have further contended that the finding and sentence of the Summary court Martial was not required to be confirmed as per section 161 of the Army Rule 132. The respondents were justified in forthwith executing the sentence and that no fault could be found on the fact that the finding and sentence of Summary Court Martial was reviewed by the competent Authority on 25th January, 1995.

( 6 ) WE have given our thoughtful consideration to the submissions addressed by the learned counsel for the parties. We have also had the benefit of perusing the original records of the summary of evidence as well as proceedings of the Summary Court Martial.

( 7 ) THE legislature has incorporated specific requirements and safeguards in order to ensure