Mandatory procedural compliance in military trials is essential for ensuring fair trial rights; failure to adhere renders proceedings invalid.

ORDER :

1. The present special appeal has been preferred by the appellant assailing the validity and propriety of the judgment dated 24.03.2009 passed by the learned Single Judge whereby, the writ petition filed by the appellant–employee challenging the proceedings and order dated 30.03.1993 of Summary Court Martial was dismissed.

2. Brief facts germane to the present controversy as narrated in the writ petition are as under :-

The appellant initially entered into the service of the Indian Army, being enrolled in the rank of Signalman on 24.01.1987. The appellant applied for and was granted 13 days’ casual leave from 19.12.1992 to 31.12.1992. During the period of leave, the appellant’s father suffered from the disease of ‘hemophilia’ and was advised treatment and rest for a period of three months. Thus, on 30.12.1992, he sent a telegram and one inland letter seeking extension of leave.

Since the appellant did not report for duty a Court of Inquiry ( COI ) presided over by Lieutenant G.K. Deb Roy was composed and the declared the petitioner as deserter. The appellant voluntarily rejoined duty on 16.03.1993 after overstaying leave for 75 days, and he was placed under close arrest in the unit Quarter Guard.

On 22.03.1993, the appellant was served with a tentative charge-sheet under Section 38 (1) of the Army Act,1950 (for brevity referred as “ AA ”) and he was informed that he would be tried by a Summary Court Martial on 30.03.1993. Lieutenant Colonel G.K. Deb Roy was nominated as his “friend of the accused”.

The appellant was also served with a Summary of Evidence (for brevity referred as “SOE”), wherein it was shown that the accused had declined to cross-examine the witnesses and on 22.03.1993 itself, on a typed communication his declaration was recoded that he did not wish to call any defense witnesses. As per the pleadings of the petitioner, his signatures were obtained forcibly, while in close arrest.

During the proceedings of the Summary Court Martial on 30.03.1993, the appellant was served with a final charge-sheet for offence under Section 39 (b) of the AA i.e for overstaying leave without sufficient cause for 75 days. The ‘plea of guilty’ of appellant was recorded and consequently, the punishment of dismissal from service imposed upon the appellant.

The appellant preferred a petition under Section 164 (2) of the AA , challenging the SCM proceedings on various grounds, the same was kept pending for considerable long time. Therefore, the appellant preferred the writ petition praying for quashing of the SCM proceedings dated 30.03.1993 and also prayed for reinstatement in service with all consequential benefits.

3. A reply to the writ petition was filed on behalf of the respondent–employer, denying the averments made in the writ petition and justifying the SCM proceedings. The factum of telegram for extension of leave was admitted; however, it was stated that immediately a telegram was sent denying the extension of leave. Further, the appellant was rightly declared as deserter by COI .

It was averred that proceedings of SOE were undertaken in his presence and the appellant refused to cross-examine the witnesses and appended his signature. The nomination of Lieutenant G.K. Debroy as ‘friend of accused’ was also done with the consent of the appellant. On 22.03.1993 itself, the appe