Decided on December 17,2007

UNION OF INDIA Respondents


- (1.) The Petitioner has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus, Certiorari or any other appropriate Writ, Order or direction, thereby quashing the impugned Order of termination/dismissal dated 11.07.97 passed by a summary Court Martial under Section 40 (a) and (c) of the Army Act, 1954 (hereinafter referred to as "the Act'). It has further been prayed that the Respondents be directed to reinstate the Petitioner into the Indian Army with effect from the date of discharge, i.e., 11.07.97 with all consequential benefits.
(2.) It is the case of the Petitioner that he along with 3 others namely Hav. Suresh Kumar, Sepoy Jaipal Singh and Sepoy Satvir Singh were illegally confined to a detention cell without assigning any reasons and, his arms and ammunitions were withdrawn. Further, under duress and compulsion, he was compelled to write and sign a false confession whereby he wrote that he left his post on the night intervening 21st /22nd Jun, 1997 and had indulged in committing rape upon a civilian woman. The Petitioner further states that he along with the above- mentioned three persons were kept in a detention cell, when he was told in unequivocal terms that a summary Court Martial was held and that he was dismissed from service vide Order dated 11.07.97 allegedly on charges framed under Section 40 of the Act.
(3.) The incident, which led to the discharge of the Petitioner occurred on the night of 06.07.97, in respect of which a summary Court-Martial assembled on 11.07.97 presided over by the Commanding Officer Col.S.S. Dhanoa. The following charges were framed against the Petitioner by the summary Court Martial: "First Charge Using Criminal Force to his superior officer AA Section 40(a) In that he, at field on 6 Jul 97 at 0935 hrs in active counter insurgency when an area dominating patrol struck JC-468197-M Nb Sub Rati Pal of "D" Coy of the same Bn with his rifle butt on the right arm Second Charge Using insubordinate language to his superior officer AA Section 40(c ) In that he, at field on 06 Jul 97 in active counter insurgency area when ordered by JC- 468197M Naib Subedar Rati Pal of the same Bn during an area domination patrol to take proper position and cover the house with his weapon said "you only do it, why should I do it" or words to that effect.";

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