Ashok Bhushan, J. - (1.) -We have heard Sri Shishir Kumar, counsel for appellants, and Sri G. D. Mukherji, counsel appearing for the respondent.
(2.) BY this appeal, the appellants have challenged the judgment of learned single Judge in Writ Petition No. 20405 of 1997, Ram Adhar Tiwari v. Union of India and others. Learned single Judge vide judgment dated 19th August, 1997 has allowed the writ petition filed by the respondent setting aside the order imposing sentence in the summary court-martial dated 30th July, 1997. Brief facts giving rise to this appeal are : respondent at the relevant time was working as Havaldar in Corps of Electrical and Mechanical Engineering (E.M.E.) and was posted at Station Workshop, Allahabad. The respondent was detailed to look after the Canteen Store Department (C.S.D.) run by E.M.E. Station Workshop. In the checking of stock of canteen, at the time of handing over charge, shortage was found. A Court of enquiry was held to ascertain the facts. In the court of enquiry, the Commanding Officer, Colonel S. C. Verma, was also examined as witness No. 1. After the Court of enquiry, the charges were issued to the respondent by charge-sheet dated 6th June, 1997. The Commanding Officer, Sri S. C. Verma, ordered for trial of the respondent by summary court-martial. In the summary court-martial proceedings, an application dated 14th June, 1997 was filed by respondent praying that summary court-martial be dissolved and reference be made to the Commander, Headquarters, Sub-Area, Allahabad to convene a district court-martial. In the aforesaid application, it was stated that Sri S. C. Verma, the Commanding Officer being witness No. 1 in the Court of enquiry, he will be called as prosecution witness to depose during the trial, hence reference be made for general court-martial. The said application was rejected. The respondent filed Writ Petition No. 20405 of 1997, praying for quashing of the summary court-martial proceedings. In the aforesaid writ petition, an interim order was granted on 24th June, 1997, staying proceedings of summary court-martial for a period of one month. By the order dated 24th June, 1997, two weeks time was granted to the appellants to file counter-affidavit and thereafter one week was allowed to the respondent to file rejoinder-affidavit. The respondent filed an application for extension of the interim order well before expiry of the interim order to which application an order was passed on 22nd July, 1997 directing the application to be listed in the next supplementary cause list. The appellants who were respondents in the writ petition served their counter-affidavit and filed counter-affidavit along with application for vacation of stay order on 24th July, 1997. The respondent has also informed the Commanding Officer that he has filed an application for extension of the stay order in the writ petition and case is fixed for 1st August, 1997. On 29th July, 1997 summary court-martial proceedings started. The counsel for the respondent was informed. It is stated that on 29th July. 1997 when the summary court-martial proceedings started, the Commanding Officer was informed that matter is fixed for 1st August, 1997 and adjournment was prayed for till 2nd August, 1997. The summary court-martial proceedings were adjourned for the next date. On the next date, the counsel for the respondent could not appear and sent a medical certificate. On 30th July, 1997, the summary court-martial proceedings proceeded and were completed. One Captain H. R. Chandel was appointed as friend of the accused. By order dated 30th July, 1997, summary court-martial sentenced the respondent for 90 days detention in military custody and reduced his rank from Havaldar to Craftsman. The respondent was allowed to amend the writ petition challenging the order dated 30th July, 1997. Supplementary counter-affidavit and supplementary rejoinder-affidavit were filed in the writ petition and learned single Judge vide its judgment dated 17th August, 1997, allowed the writ petition. Learned single Judge while allowing the writ petition recorded following reasons : (i) Commanding Officer was Chairman of the Canteen Committee and has himself caused the investigation which was admitted by him in the court of enquiry. The shortage was detected in May, 1996 and charge-sheet submitted on 6th June, 1997, which shows that one year time was taken in reaching the stage of issuing charge sheet and the respondents to the writ petition were not having any feeling of urgency which suddenly arose when petitioner to the writ petition obtained an interim stay on 24th June, 1997. There was no reason for immediate action to go on with the trial without reference to officer empower to convene a district court-martial, summary court-martial or general court-martial. (ii) There was no reason for refusing adjournment on the date of trial when the counsel for respondent was ill and sought adjournment by producing medical certificate. The appellants could not have proceeded with the trial without giving an opportunity to the respondent to appoint another friend to assist him during the trial of his own choice. The friend imposed on the respondent by the appellants has already affirmed an affidavit on behalf of the appellants in the writ proceeding. There was violation of Rule 129 of Army Rules.
(3.) THE counsel for the appellants challenging the judgment of learned single Judge has made various submissions. Following are the submissions raised by the counsel for the appellants in support of this appeal : (i) Learned single Judge has misread the provisions of Section 120 of Army Act. Reference is only necessary if a person is tried under Sections 34, 37 and 69 of the Act. (ii) Findings recorded by learned single Judge regarding non-compliance of Rule 129 of Army Rules is based on no evidence. (iii) Charges levelled against the respondent are fully proved and he also admitted the charges and has made deposit of the amount. (iv) This Court in exercise of jurisdiction under Article 226 of the Constitution will not quash the proceedings of summary court-martial, which were based on evidence. (v) THEre is very limited scope of judicial review of court-martial proceedings. (vi) It be clarified by this Court that the appellants are entitled to proceed again against the respondent as per observation of learned single Judge in the impugned judgment. The counsel for the appellants placed reliance on various decision, namely, Bhuwneshwar Singh v. Union of India and others, JT 1993 (5) SC 154 ; Union of India v. Himmat Singh Chahar, AIR 1999 SC 1980 ; Union of India and others v. Major A. Hussain, AIR 1998 SC 577 ; Ruval Kumar Vasave v. Chief of Army Staff and others, 1986 UPLBEC 663 ; Union of India and others v. J. S. Brar, JT 1993 SC 773 and General Inder Jit Kumar v. Union of India and others, JT 1997 (4) SC 8.;