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High Court Of Delhi
MAHIPAL SINGH - Appellant
Versus
UNION OF INDIA - Respondent
Civil 3286 of 1991
Decided On : 03/23/1994
ARMY ACT - SUMMARY COURT-MARTIAL - JURISDICTION - ATTACHMENT OF PERSONNEL - CHARGE AMENDMENT - RIGHT TO DEFENCE: 1. A Summary Court-martial can only be held by the Commanding Officer (CO) of the unit to which the accused belongs, unless there is a valid attachment order. 2. Changing the charge from Section 69 to Section 63 of the Army Act to bring the accused within the jurisdiction of the Summary Court-martial is not permissible. 3. An accused is entitled to a qualitative better right of defence before a Court-martial other than a Summary Court-martial, especially when the charges are serious and involve senior personnel.
Fact of the Case:
The petitioner, a Havildar in the Indian Army, was charged with various offences related to recruitment and grant of outsider's sanctions. The charges were initially framed under Section 69 of the Army Act, 1950, but were later changed to Section 63 to bring the petitioner within the jurisdiction of the Summary Court-martial.
Finding of the Court:
The Court held that the Summary Court-martial was without jurisdiction as the petitioner was not attached to the unit of the Commanding Officer who held the trial. The Court also held that the change of charge from Section 69 to Section 63 was not permissible and that the petitioner was entitled to a better right of defence before a regular Court-martial.
Issues: 1. Whether the Summary Court-martial had jurisdiction to try the petitioner. 2. Whether the change of charge from Section 69 to Section 63 was permissible. 3. Whether the petitioner was entitled to a better right of defence before a regular Court-martial.
Ratio Decidendi: 1. The Court held that the Summary Court-martial did not have jurisdiction to try the petitioner as he was not attached to the unit of the Commanding Officer who held the trial. The Court relied on Section 116 of the Army Act and Note 5 appended to the Section, which states that a NCO or a Sepoy cannot be attached to another unit for the purpose of trial by Summary Court-martial except as provided in Army Regulations, para 381. 2. The Court held that the change of charge from Section 69 to Section 63 was not permissible as it was done solely to bring the petitioner within the jurisdiction of the Summary Court-martial. The Court relied on Section 120(2) of the Army Act, which states that a Summary Court-martial shall not try any offence punishable under Section 69 without the sanction of the officer empowered to convene a district Court-martial or a summary general Court-martial. 3. The Court held that the petitioner was entitled to a better right of defence before a regular Court-martial as the charges against him were serious and involved senior personnel. The Court relied on the judgment of the Supreme Court in Ex-Havildar Ratan Singh v. Union of India and Others, AIR 1992 SC 415.
Final Decision: The Court allowed the writ petition and quashed the impugned order of punishment dated 24/11/1988.
( 1 ) THE present writ petition under Article 226 of theconstitution of India has been filed for issuance of a writ in the nature ofmandamus and Certiorari for directing the respondents to take back the petitionerin service by declaring the Summary Court-martial proceedings and the resultantimpugned order dated 24/11/1988, by which the petitioner was sentencedlo be reduced in the ranks, to be dismissed from service and to suffer R. I. for sixmonths as-invalid and for quashing the same.
( 2 ) THE facts, briefly stated, are that the petitioner was enrolled on 28/02/1976 and was promoted to the rank of Havildar with effect from 1/01/1984. He was posted on transfer to the Zonal Recruiting Office (for short Z. R. O.) Jabalpuron 9/09/1984 and continued to serve there till 5/08/1987. He wasthereafter posted to No. 27 Air Defence Regiment (for short 27 A. D. Regiment ). Thepetitioner was called from 27 AD Regiment on alleged attachment to HQ. ,recruiting Zone, Jabalpur where he continued till the date he was removed fromthe Army by order dated 24/11/1988, as a result of conviction by thesummary Court-martial. On reaching Jabalpur he came to know that there weresome allegations against him and impugned disciplinary proceedings were contemplated to be initiated at Head Quarter Recruiting Zone. The petitioner wasserved with the "tentative Charge Sheet" dated 22/09/1986, and the samereads as follows:
TENTATIVE Charge Sheetthe accused No. 12688139w Hav/clk Mahipal Singh of Headquarters Recruiting Zone Jabalpur is charged with:-First charge : COMMITTING A CIVIL OFFENCE. THAT IS TO SAY, (AA Sec 69) FORGERY, CONTRARY TO SECTION 465 OF THE INDIAN PENAL CODEin that heat Jabalpur, on or around 16 December 85, fraudulently made an applicationfor outsider sanction for recruitment in respect of Shri Nar Singh (now No. 15351916h recruit) Narsingh of IMTR, ISTC, Jabalpur) furnishing false andfictitious details there in, with intention to obtain sanction for recruitment ofsaid Shri Nar Singh into the Army. Second Charge: COMMITTING A CIVIL OFFENCE, THAT IS TO SAY, (AA Sec 69) FORGERY, CONTRARY TO SECTION 465 OF THE INDIAN PENAL CODE. in that he,at Jabalpur, on 16 December 85, fraudulently made. a false letter, bearingno. 70908/gen dated 16 December 85 purported to be originated and signedby an officer of the rank of Captain/major of 506 Army Base Workshop,jabalpur. Third Charge: COMMITTING A CIVIL OFFENCE, THAT IS TO SAY, (AA Sec 69) FORGERY, CONTRARY TO SECTION 465 OF THE INDIAN PENAL CODEin that he,at Jabalpur on 14 October 85, fraudulently made an application for outsider -sanction for recruitment in respect of Shri Prem Kumar (now No. 1535058 -recruit Prem Kumar of 4 TTRm I STC Jabalpur) furnishing false and fictitiousdetails therein with intention to obtain sanction for recruitment of said Shriprem Kumar into the Army. Fourth Charge: COMMITTING A CIVIL OFFENCE, "that IS TO SAY, (AA Sec 69) FORGERY, CONTRARY TO SECTION 465 OF THE INDIAN PENAL CODE in that he, at Jabalpur on or around 22 December 85, fraudulently made an applicationfor outsider sanction for recruitment in respect of Shri Ram Kishan (nowno. 6924478x recruit Ram Kishan of AOC Centre Secunderabad) furnishingfalse and fictitious details therein, with intention to obtain recruitment of saidshri Ram Kishan into the Army. Fifth Charge : COMMITTING A CIVIL OFFENCE. THAT IS TO SAY, (AA Sec 69) FORGERY, CONTRARY TO SECTION 465 OF THE INDIANPENAL CODEin that he,at Jabalpur on 22 December, 85, fraudulently made a false letter, bearingno-70478/inst dated 22 December 85, purported to be originated and signedby a fictitious person named Captain HN Singh of 506 Army Base Workshopjabalpur. Sixth Charge : COMMITTING A CIVIL OFFENCE, THAT IS TO SAY (AA Sec 69) FORGERY, CONTRARY TO SECTION 465 OF THE INDIAN PENAL CODE in that he,at Jabalpur on or around 31 December 85, fraudulently made an applicationfor outsider sanction for recruitment in respect of Shri Raj Kumar son of Shrijagmal
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