The act of wilfully leaving the guard duty resulting in a person escaping from the guard would amount to permitting a person to escape without reasonable excuse by the offender.

Pradeep Nandrajog, J.

1. The writ petitioner seeks quashing of the Summary Court Martial Proceedings held on January 15, 2000, culminating in an order of penalty reducing the petitioner in rank and to undergo rigorous imprisonment for 21 days in Military Custody. As a consequential relief, the petitioner seeks emoluments which would have accrued to him had he not been reduced in rank together with interest @ 18% per annum reckoned from the date the payment become due till when the payment is made.

2. Enrolled in the Indian Army in the Sikh Regiment on December 04, 1985, petitioner was posted to the Sikh Regimental Centre, Ramgarh as of May 06, 1998. Detailed for duty as a Guard Commander from 06:00 hours on January 03, 2000 the petitioner was to be relieved at 06:00 hours the next day on January 04, 2000.

3. It needs to be highlighted that admittedly petitioner was serving with an administrative battalion i.e. a unit of the Sikh Regiment.

4. The charges for which the petitioner was tried at the Summary Court Martial were two in numbers. The first was for the offence under Section 36(d) of the Army Act, 1950 i.e. without orders from the superior officer leaving his guard. It was alleged that while on duty the petitioner left the quarter guard between 04:00 hours to 05:45 hours on January 04, 2000 without permission from his superior officer. The second charge was of having committed an offence under Section 49(b) of the Army Act 1950 on the allegation that the act of being away from the duty place facilitated a prisoner Yadhwinder Singh to escape from the custody.

5. We need not note the evidence led at the Trial for the reason no argument was advanced pertaining thereto at the hearing of the writ petition on February 19, 2014. Learned counsel for the petitioner had conceded that there was sufficient evidence to prove the fact that as per two charges the petitioner was posted on duty as a Guard at the Quarter Guard and he had abandoned the place i.e. the Quarter Guard and that Yadhwinder Singh had escaped.

6. What then are we to decide?

7. Three technical pleas were advanced by learned counsel for the petitioner. The first is that the offence under Section 49(b) of the Army Act is of ‘wilful or without reasonable excuse allows to escape any person who is committed to his charge or whom it is his duty to keep or guard’.

8. The argument is interesting. It is based on the following reasoning:

“As per the first charge, the petitioner had committed the offence under Section 36(d) of the Army Act by leaving the guard duty post without orders from his superior officer. If this be so, the question of the petitioner willfully allowing Yadhwinder Singh to escape would not arise. Hence, the second charge was not even maintainable.”

9. The truncated argument is based on a convoluted logic. Section 49(b) of the Army Act 1950 makes it an offence where a person subject to the Act commits the offence of wilfully or without reasonable excuse allowing any person to escape who is committed to his charge or whom it is his duty to keep or guard.

10. The argument is premised on the presumption that unless the escape is with the wilful connivance of the person against whom the offence is alleged, the offence cannot be made out. The argument overlooks the fact that Section 49(b), while relating to the escape of a person under the context of a person who is alleged to be a wrong doer, refers to the words ‘wilful or without reasonable excuse’.

11. Now the act of wilfully leaving the post of Guard duty resulting in a person escaping from the guard would amount to permitting a person to escape without reasonable excuse by the offender.

12. Whereas wilfully may be indicative of a positive mens rea. The words ‘without reasonable excuse’ would signify an act of omission.

13. The second contention advanced is that the first charge negates the second.

14. The reasoning for the argument is the same as for the first contention.

For the above reasoning while negating t