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2006 Supreme(Del) 1499
High Court Of Delhi
SWATANTER KUMAR, G. S. SISTANI
MEHAR SINGH - Appellant
Versus
UNION OF INDIA - Respondents
WP (C) 4281 Of 2001
Decided On : 08/31/2006
MANINDER ACHARYA, T.Prashad, VINOD KUMAR
The plea of guilt properly recorded can form the basis of conviction, and unauthorized absence constitutes repeated indiscipline.
Headnote:
Army Act - Summary Court Martial - Section 39(a) - The court discussed the provisions of Army Rule 115(2) and 118, and the principles of natural justice. The court found that the petitioner's unauthorized absence for a long period constituted repeated indiscipline, and the plea of guilt properly recorded formed the basis of the conviction. The court held that there was no breach of rules or principles of natural justice, and dismissed the petition.
Fact of the Case:
The petitioner, a soldier in the Army, was charged with absenting without leave and tried by a summary court martial, resulting in dismissal from service and imprisonment. The petitioner alleged unfair trial, lack of opportunity to defend, and violations of procedural law.
Finding of the Court:
The court found that the petitioner's unauthorized absence constituted repeated indiscipline, and the plea of guilt properly recorded formed the basis of the conviction. The court held that there was no breach of rules or principles of natural justice.
Issues: Unfair trial, lack of opportunity to defend, violations of procedural law, breach of rules and principles of natural justice.
Ratio Decidendi: The plea of guilt properly recorded can form the basis of conviction. Unauthorized absence constitutes repeated indiscipline, and forces are required to maintain discipline.
Final Decision: The court found no merit in the petition and dismissed it, leaving the parties to bear their own costs.
SWATANTER KUMAR, J.
( 1 ) THE petitioner was enrolled in the Army on 9/1/1991. After completion of his training, he was posted to different regiments and to different places including hard field stations. He was awarded medals in recognition of his service with the Army. As a result of his hard work, he was promoted to the rank of 'naik' in the year 1996, While the petitioner was serving in 68, Engineer Regiment on 21/10/2000, he was charged with the offence under AA Section 39 (a) for absenting without leave from 8/5/2000 to 8/8/2000. He was tried by a summary court martial and the sentence of dismissal from service and four months' rigorous imprisonment was awarded to the petitioner. Because of his good conduct in the imprisonment at Jodhpur, his period of sentence was reduced by one month and the petitioner had already undergone the awarded sentence. According to the petitioner, he had not been given a fair, just and impartial trial, was not afforded adequate opportunity to defend himself, the respondents have violated the provisions of the Act as well as contravened procedural law, thus, vitiated the entire trial. It is also pleaded that the signatures of the petitioner on the summary of evidence were obtained by the respondents by causing a threat of physical harm to the petitioner. The witnesses were examined at the back of the petitioner without affording him any opportunity to cross-examine the same. According to the allegations made in the petition, he was kept under close arrest during the period from 8. 8. 2000 to 21. 10. 2000 illegally and was not brought on trial within the prescribed period. The requisite documents were not supplied to him. Another ground taken by the petitioner is that a proper friend of the accused was not provided to him during the course of trial and the person provided was a very junior officer of the same unit as that of the court and, thus, there was an apparent violation of the contents and spirit of AR 95 and AR 129. Keeping these grounds in mind, the petitioner after his release from the jail, submitted a petition under Section 164 of the Army Act to the Chief of Army Staff on 24. 1. 2001 on which no action was taken, compelling the petitioner to file CWP 1943 of 2000 which was disposed of by the court vide its order dated 26. 3. 2001 with a direction to the respondents to pass appropriate orders and liberty was also granted to the petitioner to approach the court, if the need so arises. Vide order dated 6. 6. 2001, the appeal of the petitioner was rejected by the authorities, resulting in filing of the present petition.
( 2 ) THE respondents have filed a detailed counter affidavit wherein it is stated that the petitioner was posted from CWE No. 1 dehradun to 68 Engineer Regiment and TOS on 7. 3. 2000. He was granted 20 days casual leave on permanent posting by CWE No. 1, dehradun but he reported to the unit on 14. 4. 2000 after 18 days of overstayal of leave. The petitioner again left the unit lines on 8. 5. 2000 and absented himself from unit lines for 91 days before he voluntarily rejoined. The petitioner was a habitual offender and the frequency of occurrence indicated that there was no improvement on the part of the petitioner. The petitioner was. brought back to the unit by his brother and village elders on 8. 8. 2000. This was the conduct of the petitioner within one year which required that the respondents should deal with the same in accordance with law. This resulted in the petitioner being tried by a summary court martial on 21. 10. 2000 and the petitioner was awarded dismissal from service and four months' rigorous imprisonment in civil prison. The sentence was subsequently reviewed by GOC 11 Inf. Div. and was reduced to three months' rigorous imprisonment. According to the respondents, the summary court martial was conducted in accordance with law and after providing adequate opportunity to the petitioner, the sentence was awarded by the court. It is not disputed that the
