- (1.) The present petition has been filed for issuing a writ of certiorari quashing the impugned order of Summary Court-martial proceedings and rejection of the appeal of the petitioner passed by respondent No. 1 and issuing a writ of mandamus commanding the respondents to treat the petitioner as having been continued in colour service till he completed his tenure of service.
(2.) The petitioner was enrolled in the Indian Army from BRO Bareilly on 26th July, 1982 and after having training at GRC, Jabalpur was posted in several units. In the year 1998, the petitioner suffered from Neurosis and was treated at Mental Hospital, Agra and subsequently the petitioner was taken back from the strength of the unit and performing the duties satisfactorily. Petitioner submits that the petitioner had asked for leave, which was granted from 20th February, 1999 to 9th March, 1999 and thereafter the petitioner had voluntarily reported for duty, but the application (application ) has been treated as absent without leave and was subjected to a trial by the Summary Court-Martial. The further submission of the petitioner is that the provisions of Army Act and Rules has not been followed, therefore, the total trial is vitiated. The Commanding Officer had given orders for recording of Summary of evidence, thereby violating the procedural safeguards laid down in Rule 22(1) and Rule 23 of the Army Rules. It has been submitted that the Court has been presided by Lt. Colonel L.K. Pandey, who was the officiating Commanding Officer on 13th of April, 1999 wherein Major Sushil Walli, Subedar Major Bal Singh have been shown as members attending the trial, both being from the same unit as such, were liable to influence on the Commanding Officer. Apart from the above, the officer show as 'Friend of Accused' Capt. Kuldeep Singh belonging to 9 Grenadiers, who has been thrust upon the petitioner despite his objecting to seeking permission to engage a counsel of his choice as defined as provided under Rule 129. It has further been submitted on behalf of the petitioner that the trial has been commenced within 65 minutes, therefore, total trial is void.
(3.) The main contention on behalf of the petitioner is that the provisions of Rules 33 and 34 of the Army Act have not been followed, therefore, the total trial is vitiated. It has been submitted that according to Rule 34(7) interval between the giving of the charge-sheet and assembly of the Court-martial will be 96 hours. It has been submitted that the charge-sheet was given on 13th of April, 1999 for charges under Section 39(a) of the Army Act and the Summary Court-martial was assembled on the same day. As the provisions of Rule 33(7) are mandatory and the same has not been followed, the total trial is vitiated and the petitioner is entitled for relief.;