Decided on March 20,1986

UNION OF INDIA Respondents


- (1.) THE petitioner has filed this writ petition for quashing the proceedings and verdict of the Summary Court Martial dated July 22, 1985, convicting him and sentencing him to undergo one years imprisonment and further to reinstate him in the army service with pay, emoluments and promotion due to him, His case is that he was serving in 11th Bn JAK RIFLES when in the first week of November, 1982, he fells sick and proceeded on the valid leave. He could not resume his duties because of his bad health regarding which he sent intimation to the concerned authorities. On feeling well, he reported for duty on July 1, 1985. The respondents did not take into consideration his broken health and instead remanded him to the custody. Afterwards, through a summary Court Martial, he was charge -sheeted for absenting himself from leave under Sec. 39 -A of the Army Act, He was not granted any opportunity of arranging defence nor was he provided copies of the proceedings as required under law. His conviction was recorded on July 22, 1985 which conviction we illegal as he was charge -sheeted for an offence under Sec. 39 (a) of the Army Act. whereas he was convicted under Sac. 39 (b) of the said Act of overstaying as is apartment from the letter addressed to the father of the petitioner by the army authorities. The conviction awarded was out of prejudice and vindictiveness as he was awarded the maximum punishment provided under law.
(2.) THE respondents in their objections have stated that no part of the cause of action has accrued within the State of Jammu and Kashmir and as such this Court has got no jurisdiction to grant any relief to the petitioner. The petitioner absented himself when he was posted out of the State of Jammu and Kashmir. He was charged, tried convicted and sentenced at a place beyond the jurisdiction of this Court. He was, however, lodged in Central Jail, Jammu, only for his convenience and place of confinement did not confer any jurisdiction upon the Court. It is further mentioned in the objections that the petitioner had not reported sick during November. 1982 and no leave was granted to him. Had the petitioner reported to be stick, he would have been admitted in the army hospital for treatment and thereafter sent on leave, if required. The petitioner absented himself without leave from the unit lines on 6 -11 - 984 at 1800 hrs. and remained absent for 2 yrs. 238 days. No intimation was ever received from the petitioner or his relations regarding his where about. Police Station, R. S. Pura, informed the Comminding Officer. 11 Bn JAK RIFELS, respondent No. 2 herein on 26 -5 -1984 that the petitioner had left for Nepal where he was doing some job. The petitioner ported back in the unit on July 1, 1985, at 1800 hrs and he was kept in custody in accordance with army rules. He was given adequate opportunity to defend his case. Summary of evidence was recorded by Maj. Anant Ram in presence of the petitioner and the petitioner chose not to make any statement at the time of recording of the summary of evidence. Summary Court Martial was held in accordance with the Army Act and the rules framed there under. The petitioner pleaded guilty to the charge and further chose not to produce any evidence in defence despite opportunity granted for the purpose. The confession of the petitioner was recorded in accordance with the provisions of the Army Act and the rules. The petitioner was charged for the same offence for which he was tried. He was charge -sheeted, tried, convicted and sentenced for the commission of an offence under Section 39 (a) only and not under Sec. 39 (b). Any letter addressed or communication sent to the relations of the petitioner could not be made a ground for alleging that he was charged for and tried for an offence other than the one for which he was convicted and sentenced and which letter could not from part of the proceedings.
(3.) I have heard learned counsel for the parties. Learned counsel appearing for the petitioner has argued that the petitioner was charge -sheeted under Sec. 39 (a) of the Army Act but he was convicted and sentenced under Sec. 39 (b) of the said Act which conviction cannot be maintained under law as no accused can be convicted for which he was not charged. In this regard, learned counsel has referred to the charge sheet framed against the petitioner by the Summary Court Martial and the letter of Commanding Officer, addressed to father of the petitioner informing about the conviction and sentence awarded to the petitioner. Learned counsel for the respondents, on the other hand, has contended that the petitioner was charged under Sec. 39 (a) of the Army Act and he was tried, convicted and sentenced under the said section. The letter addressed by the Commanding Officer to father of the petitioner was only in his administrative capacity and it cannot be treated to be a part of the judicial proceedings, According to him, it was only a typographical mistake occurred in the letter by mentioning the words "overstaying leave". I have considered these respective contentions raised by either side and have also perused the record of Summary Court Martial in this regard. Admittedly, the petitioner was charged under sec. 39 (a) of the Army Act for absenting himself without leave. The petitioner has placed on record the letter addressed to Shri Sant Ram, father of the petitioner by the Commanding Officer, 11th Bn. JAK RIFIES, which reads thus: CONFIDENTIAL 11th Battalion, The Jammu & Kashmir, Rifles Care of 56 Army Post Office. 1917/1/AI3743329 22 July 1985 Shri Sant Ram Father of No. 13743329 Rfn. Vinod Kumar Village - - - Mokhe Post Office - - - Satrain Camp. Tehsil - - - R.S. Pura. District - - - Jammu (J&K) SUMMARY COURT MARTIAL: NUMBER 13743329 RIFLEMAN VINOD KUMAR Sir, 1. I am to inform you that your son Number 13743329K Ex -Rifleman Vinod Kumar has been awarded imprisonment by Court Martial (To be undergone in civil jail) as under : a) Offence for which sentence awarded - - - Overstaying leave. b) Punishment awarded - - - To Suffer rigorous imprisonment of one year to be carried out in a civil jail. c) To be dismissed from service. d) Name of the civil Jail. - - - District Jail, Kangra at Dharamsala. e) Date of award. - - - 22 July 1985 Yours Faithfully, Sd/ - (R.K. Khanna) Lieutenant Colonel. Commanding Officer. The record of the Summary Court Martial reveals that the petitioner was charged under Sec. 39 (a) of the Army Act and he was tried, convicted and sentenced under the said section. In the above -mentioned letter, Commanding Officer, 11 Bn. JAK RIFLES has mentioned as overstaying leave" against Column (a) which relates to an offence for which sentence awarded. Overstaying leave is an offence covered under Sec. 39 (b) of the Army Act. Nowhere in the letter there is a mention of awarding the sentence under Sec. 39 (b) of the aforesaid Act. This letter is only a communication addressed by the Commanding Officer of the Battalion to father of the petitioner informing him about the punishment awarded to the petitioner. It is a letter written in an administrative capacity by the Commanding Officer and it cannot in any manner form part of the proceedings of the Summary Court Martial. It cannot be denied that the accused cannot be convicted for an offence for which he is not charged first unless it is covered under the exceptions contained in Sections 221 & 222 of the Code of Criminal Procedure. The cases which do not come within the purview of sections 221 and 222 Cr. P. C., the absence of a special charge will operate as an incurable irregularly or illegality in the trial But such is not the case in the trial of the petitioner before the Summary Court Martial. The petitioner was charged under Section 39 (a) of the Act and tried, convicted and sentenced under the same provision. The plea raised by learned counsel for the petitioner in this regard fails.;

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