Decided on May 17,2006

UNION OF INDIA Respondents


- (1.) THE petitioner was engaged in the Indian Army as Sapper/Cook in the year 1989, and was serving in 62 Engineer Regiment. He was attached with the Station Head Quarter, Nagrota and was performing the duties of Sayahak to Lt. Col. Darshan Singh of Station Headquarter, Nagrota. The petitioner applied for going on leave w.e.f. 14.6.2001. However, on 13.6.2001 i.e. a day prior to the proceeding on leave from 1700 hours to 2230 hours he absented himself from duty. He was charge sheeted and tried by the Summary Court Marshal for remaining absent from duty for a period of 5 1/2 hours on 13.6.2001. The accused/petitioner in his statement made during the Summary of evidence stated that he had gone to Jammu city to make purchases for himself. It is the admitted case of the respondents that the accused/petitioner had himself joined back his duty at 2230 hours on 13.6.2001. The accused/petitioner however pleaded guilty to the charges. The offence for remaining absent from duty is covered by Section 39 clause (a) of the Army Act 1950, it carries punishment of imprisonment for a term which may extend to three years or such less punishment as mentioned in the act. Accepting the plea of guilt of the accused/petitioner the Summary Court Martial sentenced the accused/petitioner as follows: - "(a) To suffer rigorous imprisonment for one year and I direct that the sentence of rigorous imprisonment shall be carried out by confinement in civil prison. The accused is recommended for division 'C while undergoing the sentence in the civil prison. If there are only two divisions of prisoners, the accused is recommended for Division 'B. (b) To be dismissed from service."
(2.) PURSUANT to the order of sentence, the accused/petitioner was sent to prison to suffer his sentence. There he remained in detention for about a period of six month and six days i.e. untill he was granted bail in terms of the order dated 27.12.2001 passed by this Court.
(3.) THE petitioner through this writ petition is questioning the legality of the sentence imposed upon him. The case of the petitioner is that he had absented himself only for 5 1/2 hours from duty and had voluntarily rejoined the same. He had long service to its credit i.e. about 11 years. Since he was to proceed on leave on the next day for going to his native place Bihar, he had gone to Jammu City for making purchases for the family. According to the petitioner sentence imposed is very harsh and disproportionate to the gravity of the offence. On the other hand, the stand of the respondents is that the petitioner had voluntarily absented from duty and offence is covered by Section 39 clause 'a of the Army Act, which carries the maximum punishment of three years. Mr.Rabstan, submits Summary Court Martial on accepting the plea of guilt of the accused/petitioner had awarded the sentence, which commensurates with the gravity of the offence, therefore, no judicial review is permissible.;

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