The discretion to prosecute and the acceptance of guilt by the accused are crucial factors in determining the validity of charges and the service of charge sheets in military disciplinary proceedings.

Rajive Bhalla, J.

1. Prayer in the present petition, filed under Article 226 of the Constitution of India, is for the issuance of a writ, order or direction quashing the finding and sentence, returned by the Summary Court Martial, whereby the petitioner was dismissed from service.

2. The petitioner was charged with an act prejudicial to good order and military discipline. It was alleged that on 1.1.1994, the petitioner went out of the unit lines towards North Officers Colony, stopped Ms. Anuja Sharma d/o Capt. Avinash Kumar of 574 Engineer Park, who was cycling on the road in the said colony, and improperly put his hand on her neck. On a complaint filed, summary of evidence was recorded. During the recording of the summary of evidence, statements of Ms. Anuja Sharma, Capt. Avinash Kumar, Capt. Jagjit Singh and Capt. Harbinder Singh were recorded. The petitioner cross-examined Ms. Anuja Sharma and Capt. Harbinder Singh but declined to cross-examine Capt. Avinash Kumar and Capt. Jagjit Singh. Thereafter, papers were forwarded to the Commanding Officer, under Rule 22 of the Army Rules (for short herein after referred to as "the Rules") and a tentative charge sheet, dated 5.1.1994, prepared under Section 69 of the Act, i.e. for committing a civil offence, namely, using criminal force to a woman with intent to outrage her modesty, in terms of Section 354 of the IPC. The charge sheet eventually served on the petitioner on 4.5.1994 was for the commission of an offence, under Section 63 of the Act i.e. an act prejudicial to good order and military discipline. The allegations levelled, were that the petitioner improperly put his hand on the neck of Ms. Anuja Sharma d/o Cap. Avinash Kumar. The charges were read out and explained to the petitioner. The petitioner accepted his guilt. The Court ascertained from the petitioner as to whether he understood the nature of the charges to which he had pleaded guilty. The petitioner was also informed of the general effect of the plea and the difference in procedure, which was to be followed as a consequence of his admission of guilt. Thereafter, the petitioner was asked whether he desired to make any statement with reference to the charge or in mitigation of punishment. The petitioner made a statement that he had a wife and three children, the eldest being eight years old, who were all dependent upon him and, therefore, leniency be shown.

3. After the conclusion of Summary Court Martial, the petitioner was punished with dismissal from service.

4. Counsel for the petitioner contends that a perusal of the record reveals that on 5.1.1994 a tentative charge sheet was framed, charging the petitioner under Section 69 of the Act, for commission of a civil offence, namely, an offence, under Section 354 of the IPC i.e. outraging the modesty of a woman. However, the charges were subsequently modified to one under Section 63 of the Act; an act prejudicial to good order and military discipline. As the initial charge framed was one under Section 69 of the Act, namely, using criminal force to a woman with intent to outrage her modesty, the petitioner should have been tried for the aforementioned charge. The respondents did not do so as they were aware that such a charge would not withstand scrutiny even before a Summary Court Martial and, therefore, abandoned this charge and framed a charge, under Section 63 of the Act, namely, for an act prejudicial to good order and military discipline. It is, thus, argued that by abandoning the charge of outraging the modesty of a woman, the respondents, in essence, admitted their inability to establish such a charge and, thus, on the same set of facts, they could not have framed a charge, under Section 63 of the Act. It is further contended that the charge was actually converted from one under Section 69 of the Act to one under Section 63 of the Act, as trial, by Summary Court Martial, for an offence, under Section 69 of the Act, is prohibited, except in accordance