- (1.) BY this petition, a challenge is made to the court martial proceedings, which said to have been initiated in violation of Rules 22 & 180 of the Army Rules, 1954 (in short "Rules of 1954").
(2.) LEARNED counsel for petitioner submits that an FIR was registered for offence under Section 380 IPC. After investigation, charge sheet was filed before Additional Chief Judicial Magistrate No.5, Kota. The cognizance of offence was taken followed by framing of charges. The evidence was also started and at that stage, an application was filed by the Army to take over the proceedings for court martial. Learned Magistrate passed the order and by virtue of it, court martial proceedings were initiated. The initiation of the proceedings thereupon should have been as per Rules and Act applicable to it. A reference of Rule 22 and 180 of the Rules of 1954 was given for hearing of charge at the first instance. The Army is under an obligation to apply mandate of Rule 22 and 180 of the Rules of 1954. In the instant case, neither Rule 22 nor 180 was followed. The proceedings were initiated without following the procedure, thus deserve to be quashed. A reference of judgment of Hon'ble Apex Court in the case of Union of India and Ors. Vs. Dev Singh,2007 15 SCC 709 was given. Therein, similar issue came up for consideration before Hon'ble Apex Court. The further references of the judgment in the case of Rajiv Arora Vs. Union of India and Ors., 2009 AIR(SC) 1100 were given. Last judgment is by Delhi High Court in the case of Major General Rakesh Kumar Loomba Vs. Union of India and Ors., Writ Petition (C) No.3831/2007, decided on 02.06.2008 wherein all the judgments, on the issue, have been discussed. Prayer is accordingly made to quash the proceedings of court martial though liberty can be given to take up the proceedings again by following the Rules of 1954.
(3.) LEARNED counsel appearing of UOI has seriously opposed the petition. He submitted that after FIR and the charge sheet, not only cognizance of offence was taken but charges were also framed by the court. The prayer for transfer of the case was made at that stage. The petitioner kept mum on initiation of court martial proceedings where the process was taken as per Rule 22/180 of the Rules of 1954, though not required. It is looking to the fact that charges had already been framed by the learned Magistrate, thus court martial was required to proceed from that stage. A reference of judgment of Hon'ble Apex Court in the case of Major S.K. Sharma Vs. Union of India, 1987 AIR(SC) 1878 has been given. Therein, similar situation came up before the Apex Court and has been dealt with. The practice of Army to re -initiate the proceedings from the initial stage has been deprecated in the case . In the light of judgment aforesaid, challenge to the proceedings is not tenable. I have considered the rival submissions made by the parties and perused the record.;