The main legal point established in the judgment is that the finding of a Summary Court Martial must be supported by evidence and not perverse, and the principle of proportionality should be considered in determining the quantum of punishment.

T. S. THAKUR, J.

( 1 ) IN this petition for a writ of certiorari, the petitioner calls in question an order of his dismissal from service pursuant to a Summary Court martial. A mandamus directing the respondents to reinstate the petitioner in service with full back wages has also been prayed for. The facts giving rise to the petition may be summarized as under :-

( 2 ) ON 17. 4. 92, the petitioner, while on active duty in Assam as a rifleman, serving in the Jammu and Kashmir Light Infantry, was deployed to carry out recce of an ambush area as a member of a patrol sent under Ex Hav Mohan Lal. On reaching village Jhargaon, the patrol was sub-divided into three sub-patrols comprising three jawans each. The petitioner was a member of sub-patrol No. 3 under Lance Naik Karnail Singh.

( 3 ) ACCORDING to the petitioner, after completing the task assigned to it, the patrolling party re-assembled and left for the Army Camp. In the afternoon, the husband of Mrs. Janki Sakia, a resident of village Jhargaon complained to the authorities that Lance Naik Karnail Singh had misbehaved with his wife during the search of the former's house. A complaint to that effect was lodged even with the Police Station at Khairabari District Durrang, Assam on the basis whereof FIR No. 17/92 was registered under Section 376, 354, 448 and 134 of the ipc. A Court of Enquiry was immediately ordered by the Commanding Officer of the petitioner's Battalion to find out as to who out of the nine Armymen was involved in the alleged incident. The Court of Enquiry did not find the petitioner guilty of the charge of rape or molestation of Smt. Sakia. Additional Summary of Evidence was then ordered to be recorded in May, 1993 in which Mrs. Janki Sakia appeared as CW-1 while Mrs. Deka, another witness appeared as CW-2. Both these witnesses clearly stated that the petitioner was not involved in the incident. The petitioner's grievance is that instead of closing the issue, the Commanding Officer altered the original charges and issued a charge sheet alleging commission of an Act Prejudicial to Good Order and Military Discipline, an offence punishable under Section 63 of the Army acts, in that, the petitioner had allegedly made statements about the activities of the patrol before the Investigating Officer which he knew to be false. The charge framed against the petitioner may at this stage be extracted in extenso:-

"the accused No. 9089898 Rifleman Kuldeep Singh, of 8 Jandkli, is charged with:-aa Sec 63 AN ACT PREJUDICIAL TO GOOD ORDER AND MILITARY DISCLIPLINE in that he at field on 18th April 92 repeatedly made statement which he knew to be false, to investigating officer, shen asked about the activities of the patrol which was led by Hav Mohan Lal on 17 April 92 and in which he was a member. "

( 4 ) A Summary Court Martial was then convened on 25th November, 1993 to try the petitioner summarily, who found the petitioner guilty and sentenced him to dismissal from service. Aggrieved, the petitioner has assailed the said conviction and sentence in the present writ petition.

( 5 ) APPEARING for the petitioner, Mr. Kinra made a three-fold submission for our consideration. Firstly, he argued that the Summary Court Martial had recorded no findings; given no opinion; made no recommendations and recorded no verdict of the petitioner being guilty. The entire proceedings had, according to Mr. Kinra, commenced and concluded within a few hours on 25th November, 1993 and the sentence executed on the same day. The procedural safeguards ensuring a fair and reasonable opportunity of being heard to the accused petitioner were also, according to Mr. Kinra, observed in breach.

( 6 ) SECONDLY, he contended that the condition of the petitioner and his dismissal from service was perverse in as much as the conviction of the petitioner, assuming any such conviction was recorded by the Summary Court martial, was without any evidence whatsoever to support the same. He urged that the star witnesses