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2006 Supreme(Raj) 2229
High Court Of Rajasthan
Judgename : S.N. Jha
Ajay Rastogi - Appellant
Versus
Roop Singh - Respondent
D.B. Civil Writ Petition No.2490 of 1987
Decided On : 08/31/2006
Mr. Rajendra Prasad, for the Petitioners.
Mr. K.K. Sharma, for the Respondents.
The constitutional mandate of Article 33 allows Parliament to restrict or abrogate fundamental rights to ensure the proper discharge of duties by the Armed Forces and the maintenance of discipline among them.
Headnote:
Court Martial - Army Act, 1950 - Section 63, Section 38(1), Section 39(a), Section 40, Section 108, Section 109, Section 110, Section 112, Section 113, Section 114, Section 115, Section 116, Section 118, Section 119, Section 120, Section 71, Section 72, Section 69 - The judgment discusses the validity of punishment awarded in Court Martial proceedings under the Army Act, 1950 and the Army Rules, 1954. It also addresses the challenge to the provisions relating to summary Court martial. The court analyzes the nature of the offenses, the procedures followed in summary Court martial, and the constitutional validity of the provisions. The court refers to various sections of the Army Act, detailing the composition and powers of different types of Court-martial and the offenses specified under the Act. The judgment highlights the constitutional mandate of Article 33, which allows Parliament to restrict or abrogate fundamental rights to ensure the proper discharge of duties by the Armed Forces and the maintenance of discipline among them.
Fact of the Case:
The petitioners, ex-army personnel, challenged the punishment awarded to them in Court Martial proceedings under the Army Act, 1950. Each petitioner was charged with different offenses such as absence without leave, using criminal force to superior officers, and committing acts prejudicial to good order and military discipline. The petitioners pleaded guilty in most cases and were punished with imprisonment and dismissal from service.
Finding of the Court:
The court found that the petitioners had pleaded guilty in most cases and had challenged the vires of various provisions of the Army Act and the Rules. The court also addressed the limited argument made regarding non-compliance of Rule 115 of the Army Rules and the excessive nature of the punishment. The court analyzed the nature of the offenses, the procedures followed in summary Court martial, and the constitutional validity of the provisions. The court concluded that the grievance as to the provisions relating to summary Court-martial being discriminatory and therefore violative of Article 14 cannot be entertained.
Issues: The issues involved in the case included the validity of punishment awarded in Court Martial proceedings, the challenge to the provisions relating to summary Court martial, and the constitutional validity of the provisions under the Army Act, 1950.
Ratio Decidendi: The court's decision was influenced by the constitutional mandate of Article 33, which allows Parliament to restrict or abrogate fundamental rights to ensure the proper discharge of duties by the Armed Forces and the maintenance of discipline among them. The court also considered the provisions of the Army Act, detailing the composition and powers of different types of Court-martial and the offenses specified under the Act.
Final Decision: The court upheld the punishment awarded in Court Martial proceedings and concluded that the grievance as to the provisions relating to summary Court-martial being discriminatory and therefore violative of Article 14 cannot be entertained.
S.N. Jha, CJ.-In these seven writ petitions, the petitioners, ex-army personnel, are aggrieved by the punishment awarded to them in Court Martial proceeding. They also seek to challenge the validity of the provisions relating to summary Court martial under the Army Act, 1950 and the Army Rules, 1954. As vires has been challenged in all the petitions, they were heard together.
2. In Writ Petition No.2490/1987 petitioner Roop Singh was found by the Duty Officer running from the direction of out-of -bound area at about 00.30 hours in the night of 17/18 May, 1987 when he was supposed to be on sentry duty for which he was tried by summary Court martial for committing an act prejudicial to good order and military discipline under Section 63 of the Army Act. Before being subjected to Court-martial, summary of evidence was recorded in presence of an independent witness, the charge and names of witness were made known to him. The petitioner refused to accept copy of the charge-sheet and the summary of evidence. During summary Court-martial proceedings, in the circumstances, charge was read over to him in presence of two witnesses. On completion of the proceedings, he was sentenced to one years rigorous imprisonment which was later reduced to six months and dismissed from service on 14.06.1987. From the reply of the respondents it appears that the incident had taken place when the unit was posted 1.5 kms. from the border during Operation Trident. An incident had occurred in the neighbourhood in which a woman had been reportedly raped by some army personnel and in the circumstances, instructions had been issued declaring the adjoining villages as out-of-bound area. In violation of the instructions, the petitioner went to the said area, he was seen in the midnight running from that direction. He took the plea that he had gone to that side to know the password. The reply states that earlier two red ink entries had been made against the petitioner - (i) for absence without leave under Section 39(a) of the Army Act; and (ii) for committing act prejudicial to good order and military discipline (consuming) liquor under Section 63 of the Army Act. At the relevant time, he had four years and ten months service to his credit including one year as a recruit.
3. In Writ Petition No.5506/1994, petitioner Dilip Singh was enrolled in the Army in 1986 as Sepoy (Nursing Assistant). He was charged with absence without leave from the unit lines from 1600 to 2200 hours on 01.08.1993 and using criminal force to his superior officers namely Sub./NA H.N. Gautam and Hav/NA Shawale Babasahab Shrimuri whom he allegedly assaulted by hands on their face and chest. Summary of evidence was recorded. He 3 declined to cross-examine and accepted his guilt. He was supplied copy of charge-sheet, summary of evidence. At the stage of summary Court-martial, he was again apprised of the charges and consequences of his pleading guilty. The petitioner again admitted his guilt. He was punished with three months rigorous imprisonment and dismissed from service on 07.08.1993. He preferred appeal without any success.
4. In Writ Petition No.5689/1994, petitioner Bhagwan Sahai was enrolled was enrolled as Sepoy in the Army on 8.1979. While he was posted with Det.515 ASC Bn attached with 5011 ASC Bn(MT), he was sanctioned 42 days annual leave from 16.03.1992 to 26.04.1992. He failed to report on 27.04.1992. He had been informed about refusal of his request for extension of leave. He ultimately submitted joining on 02.02.1993 after remaining wilfully absent from duty for 302 days. Charge-sheet was served and summary of evidence was recorded in course of which he was afforded opportunity to cross-examine witness and examine his own in defence. He declined to cross-examine the witnesses and make any statement in his defence. Instead, he admitted his guilt. Summary Court Martial was thereafter held. Charge was explained and papers were supplied, and he was provided with friend o
