- (1.) By this petition Surjit Singh who was a sepoy in the Indian Army has challenged the conviction and sentence awarded to him by Summary Court Martial vide order dated 14.11.1991.
(2.) The brief facts of the case are that the petitioner while serving in the Army met with an accident and suffered compound commuted fracture femus lower and also compound commuted fracture tibia, fibula right leg. He was admitted to Command Hospital at Chandigarh on 24.7.1990 and remained in the hospital till 28.11.1990. There was no proper treatment in the Command Hospital and in spite of the fact that he remained admitted in the hospital for a long time he was not properly cured. He requested the hospital authorities to discharge him so that he may get himself treated from private hospital. He was allowed leave from 29.11.1990 upto 8.12.1990. The leave was granted because he was unable to resume his duties on account of injuries suffered by him. Thereafter, he remained admitted in K.D. Hospital, Mahesh Nagar, Ambala Cantt. from 15.12.1990 to 25.1.1991 he was operated upon in that hospital on 18.12.1990. Even after that treatment he was not fully recovered and the Doctor advised him rest at his house and follow up treatment. While he was under treatment his father visited his Commanding Officer with a letter from Doctor K.D. Sharma but at that time the unit was at Patti. Therefore, he met JC. 105354 Sub-Major Gurdev Singh and handed over the letter to him. Gurdev Singh was explained that the petitioner was getting treatment from Civil Hospital and was unable to resume duty. He Joined duty on 2.8.1991 and on 27.10.1991 he was charged as under :- "Tentative Charge Sheet No. 3375138 X Sepoy Surjit Singh, 16th Battalion The Sikh Regiment is charged with :- AA Section 39(b) Without sufficient cause overstaying leave. In that he, at WC Hospital, Chandigarh having been gtd. 10 days CL from 20 November, 1990 to 08 December, 90 to proceed to his home, failed to report back in the MH Chandigarh on expiry of said leave until he rejoined unit on 02 August, 91 at 1800 hours at his own accord. Sd/- (A. Nagi) Col. Co. Station : Field Dated 23 October, 1991." His plea of guilt was recorded and then some witnesses were examined and he was convicted and sentenced to undergo rigorous imprisonment for six months which was to be carried out by confinement in civil prison. He was also dismissed from service.
(3.) The petitioner alleged that his conviction and sentence were bad in law and were liable to be quashed as he overstayed his leave for sufficient cause being unable to resume his duty. Although in the Summary Court Marshal it was mentioned that two other officers attended the trial but their signatures were not obtained. The witnesses were to be sworn at the time of their examination but that was not done and there was no legal evidence on the basis of which he could be convicted and sentenced. The plea of guilt was wrongly recorded and this fact was also wrongly mentioned that he had nothing to say. In fact he clearly stated that he remained admitted in the hospital and get treatment from a private Doctor. There was violation of mandatory provisions of Section 130 of the Army Act as he was not read over the names of the Presiding Officers and other members and he was not asked if he had any objection to be tried by them. Provisions of Section 143 were also not complied with. It was the duty of the Court to call Sub-Major Gurdev Singh but this having not been done, the whole proceedings were null and void.;