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2011 Supreme(Del) 667
IN THE HIGH COURT OF DELHI AT NEW DELHI
ANIL KUMAR, SUDERSHAN KUMAR MISRA, J.
Sepoy Sunil Kumar Marandi …. Petitioner
Versus
UOI & Ors. …. Respondents
WP(C) No.8481/2011
Decided On : 02.12.2011
Mr. K. Ramesh & Ms. Archana Ramesh, Advocates
Mr. Jatan Singh, Advocate
The main legal point established in the judgment is that the change of charge from Section 40(a) to Section 40(b) did not vitiate the Summary Court Martial proceedings, and the petitioner had full opportunity to defend himself.
Headnote:
Army Act - Summary Court Martial - Section 40(b) - [Section 40(b) of the Army Act] - The court discussed the provisions of Section 40(b) of the Army Act, 1950 and its interpretation in relation to the petitioner's dismissal from service. The court also referred to various legal precedents such as Masalti Vs. State of UP, Shamnasaheb M. Multtani Vs. State of Karnataka, and UOI & Ors. Vs. Major A. Hussain to support its decision.
Fact of the Case:
The petitioner, a sepoy of 24 Rashtriya Rifles (Bihar), was charged for using threatening language to his superior officer and was dismissed from service after a Summary Court Martial. The petitioner challenged the dismissal contending that the charge was modified after the summary of evidence was recorded and that he was not afforded full opportunity to defend himself.
Finding of the Court:
The court found that the evidence supported the charge against the petitioner and that the change of charge from Section 40(a) to Section 40(b) did not vitiate the Summary Court Martial proceedings. The court also held that there were no grounds to interfere with the orders of the Tribunal.
Issues: The issues included the modification of the charge after the summary of evidence, the petitioner's opportunity to defend himself, and the calling of witnesses during the Summary Court Martial.
Ratio Decidendi: The court held that the change of charge did not prejudice the petitioner as he had full opportunity to defend himself during the proceedings. The court also emphasized that the Summary Court Martial was not obligated to call all the witnesses for the prosecution whose evidence was in the summary of evidence unless requested by the accused.
Final Decision: The writ petition was dismissed as without merit.
ANIL KUMAR, J.
1. The petitioner has challenged the order dated 13th September, 2010 passed by the Armed Forces Tribunal, Principal Bench in OA No.119/2009 titled as Ex. Sepoy Sunil Kumar Marandi Vs. Chief of Army Staff and Ors., dismissing his original application against the order dated 12th December, 2007 passed by Summary Court Martial (SCM), whereby the petitioner was held guilty of committing the offence under Section 40(b) of the Army Act and the punishment of dismissal from service was imposed on him.
2. The petitioner was a sepoy of 24 Rashtriya Rifles (Bihar) and was charged for using threatening language to his superior officer, Company Hawaldar Major U.S. Pandey. The allegation against the petitioner was that on 30th May, 2007 he used abusive language to CHM U.S. Pandey. Though tentative charge sheet was issued to the petitioner under Section 40 (a) of the Army Act, however, after the summary of evidence was recorded, the charge sheet under Section 40(b) of the Army Act for using insubordinate language and criminal force to the superior officer was issued.
3. Though in the summary of evidence, a number of witnesses were recorded, however, during the Summary Court Martial only two witnesses were recorded on behalf of the respondents besides the evidence of the petitioner and on the basis of the evidence recorded during the Summary Court Martial, the petitioner was found guilty of the charge made against him and he was dismissed from service on 12th December, 2007.
4. The petitioner challenged his dismissal pursuant to the Summary Court Martial contending, inter alia, that in a very frivolous case under Section 40 (b) of the Act, he was court martialed and dismissed from service without due application of mind and for a very minor offence of using a few harsh words in the heat of the moment, his services have been terminated.
5. The petitioner also pleaded that though initially a charge sheet under Section 40(a) of the Act was issued to him, however, after recording the summary of evidence, the charge was modified. The petitioner also challenged his dismissal pursuant to the Summary Court Martial on the ground that he was not afforded full opportunity which resulted into non-compliance of various provisions of the Army Act and consequently, the proceedings against him, which resulted into his dismissal, are vitiated.
6. The petition filed by the petitioner was contested by the respondents contending, inter alia, that the petitioner was notorious in disobeying orders and was rude to all his superior officers.
7. The respondents asserted that on 30th May, 2007, the petitioner, with Ex. Sepoy Rajesh Kumar, showed resentment and used rude and offensive language against CHM U.S. Pandey. The petitioner not only used abusive language against his superiors but sought interview with the Company Commander as he was not ready to perform the duty assigned to him by his superior. The interview with the Company Commander was granted at the instance of the petitioner, however, his request not to assign him the duty was turned down by the Company Commander. The further allegation against the petitioner is that while proceeding for duty he used insubordinate language to CHM U.S. Pandey that if he come back he will shoot him. On 4th July, 2007, also the petitioner and Sepoy Rajesh Kumar manhandled and beat CHM U.S. Pandey and used insubordinate language against him.
8. The petitioner had challenged the Summary Court Martial findings before the Armed Forces Tribunal on the ground that the evidence of PW-1 CHM U.S. Pandey, who had fixed the duties of the petitioner, could not be relied on and had to be rejected which plea was repelled by the Tribunal relying on Masalti Vs. State of UP, AIR 1965 SC 220. The Tribunal had noticed that the Supreme Court had held that it would be unreasonable to contend that the evidence given by a witness should be discarded only on the ground that it is evidence of partisan or
