JHA, CJ. - (1.) IN these seven writ petitions, the petitioners, ex-army personnel, are aggrieved by the punishment awarded to them in Court Martial proceeding. They also seek to challenge the validity of the provisions relating to summary court martial under the Army Act, 1950 and the Army Rules, 1954. As vires has been challenged in all the petitions, they were heard together.
(2.) IN Writ Petition No. 2490/1987 petitioner Roop Singh was found by the Duty Officer running from the direction of out-of- bound area at about 0030 hours in the night of 17/18 May, 1987 when he was supposed to be on sentry duty for which he was tried by summary court martial for committing an act prejudicial to good order and military discipline under Section 63 of the Army Act. Before being subjected to court-martial, summary of evidence was recorded in presence of an independent witness, the charge and names of witness were made known to him. The petitioner refused to accept copy of the charge-sheet and the summary of evidence. During summary court-martial proceedings, in the circumstances, charge was read over to him in presence of two witnesses. On completion of the proceedings, he was sentenced to one year's rigorous imprisonment which was later reduced to six months' and dismissed from service on 14. 6. 1987. From the reply of the respondents it appears that the incident had taken place when the unit was posted 1. 5 kms. from the border during 'operation Trident'. An incident had occurred in the neighbourhood in which a woman had been reportedly raped by some army personnel and in the circumstances, instructions had been issued declaring the adjoining villages as 'out-of-bound' area. IN violation of the instructions, the petitioner went to the said area, he was seen in the midnight running from that direction. He took the plea that he had gone to that direction. He took the plea that he had gone to that side to know the password. The reply states that earlier two red ink entries had been made against the petitioner - (i) for absence without leave under Section 39 (a) of the Army Act; and (ii) for committing act prejudicial to good order and military discipline (consuming) liquor under Section 63 of the Army Act. At the relevant time, he had four years and ten months service to his credit including one year as a recruit. In Writ Petition No. 5506/1994, petitioner Dilip Singh was enrolled in the Army in 1986 as Sepoy (Nursing Assistant ). He was charged with absence without leave from the unit lines from 1600 to 2200 hours on 1. 8. 1993 and using criminal force to his superior officers namely Sub/na H. N. Gautam and Hav/na Shawale Babasahab Shrimuri whom he allegedly assaulted by hands on their face and chest. Summary of evidence was recorded. He declined to cross-examine and accepted his guilt. He was supplied copy of charge-sheet, summary of evidence. At the stage of summary court- martial, he was again apprised of the charges and consequences of his pleading guilty. The petitioner again admitted his guilt. He was punished with three months' rigorous imprisonment and dismissed from service on 7. 8. 1993. He preferred appeal without any success. In Writ Petition No. 5689/1994, petitioner Bhagwan Sahai was enrolled was enrolled as Sepoy in the Army on 8. 1979. While he was posted with Det. 515 ASC Bn attached with 5011 ASC Bn (MT), he was sanctioned 42 days annual leave from 16. 3. 1992 to 26. 4. 1992. He failed to report on 27. 4. 1992. He had been informed about refusal of his request for extension of leave. He ultimately submitted joining on 2. 2. 1993 after remaining wilfully absent from duty for 302 days. Charge-sheet was served and summary of evidence was recorded in course of which he was afforded opportunity to cross-examine witness and examine his own in defence. He declined to cross-examine the witnesses and make any statement in his defence. Instead, he admitted his guilt. Summary Court Martial was thereafter held. Charge was explained and papers were supplied, and he was provided with 'friend of accused' and informed of the consequences of pleading guilty. After going through the papers supplied to him, he admitted his guilt which was recorded. He was declared deserter and held guilty of the charge under Section 38 (1) of the Army Act and dismissed from service on 8. 4. 1993. He preferred appeal which was rejected on 26. 7. 1994. In Writ Petition No. 6134/1994, petitioner Chatar Singh was enrolled in the Army on 28. 9. 1976. He proved to be the habitual absentee. He remained absent from duty without leave for 12 days from 1. 1. 1982 to 2. 11. 1982 for which he was awarded punishment of 21 days rigorous imprisonment in military custody on 6. 12. 1982. He overstayed leave without sufficient cause for 05 days from 8. 10. 1991 to 13. 10. 1991 for which he was awarded penalty of reduction in rank after Summary Court Martial. The punishment was set aside on technical ground and the authority was advised to hold de novo proceeding. After fresh proceeding, the same punishment of reduction in rank was awarded on 24. 10. 1992. He again remained absent without leave for 16 days from 28. 10. 1992 i. e. within four days of the above order of punishment. Earlier too, he had overstayed leave for 03 days from 13. 7. 1992 to 14. 7. 1992, and remained absent without leave from 19. 8. 1992 to 1. 9. 1992 for which he was subjected to court martial. In course of the summary court marital proceeding he pleaded guilty. He had been told about nature of the charge and consequences of pleading guilty and difference in procedure in case of pleading guilty. He was found guilty of the charge under Section 39 (a) and (b), and dismissed from service on 5. 1. 1993. He preferred appeal which was rejected on 28. 6. 1994. In Writ Petition No. 6145/1994, petitioner Harman Singh was enrolled in the Army on 2. 10. 1978. While he was posted as Gunner (L/nk) on Guard Duty on 3. 11. 1991, he alongwith others allegedly took a woman, one Smt. Geeta Devi, inside the bunker and cohabitated contrary to discipline. Smt. Geeta Devi later lodged an FIR at P. S. Ranbir Singh Pura on 20. 12. 1991 alleging that she had been raped by the petitioner. She identified the petitioner in the test identification parade. Challan was filed against the petitioner for offence under Sections 376/341 I. P. C. and the case was committed to the Court of Session. The case was later taken over for trial under the Army Act. The Army Headquarters ordered a Court of Inquiry and summary of evidence was recorded which disclosed commission of offence under Section 63 of the Army Act and a charge-sheet was issued to the petitioner. At the stage of recording of summary of evidence he was given opportunity to cross-examine the witnesses and produce evidence in defence; but he declined to cross-examine the witnesses. He was later tried by summary court martial in course of which he was again informed of the charges, supplied copies of the documents and provided the service of 'friend of accused'. In course of the proceedings, he pleaded guilty. He was made aware of the consequences of pleading guilty. After completion of the proceedings, petitioner was sentenced to four months' rigorous imprisonment and dismissed from service on 31. 8. 1992.
(3.) IN Writ Petition No. 2223/1996, petitioner Pradeep Kumar was enrolled in the Army on 28. 12. 1989. IN course of his deployment with 820 Fd Wksp Coy from 21. 5. 1994 to 24. 8. 1994 for a period of 96 days, he performed his duties on only 22 days, reporting sick six times during the period allegedly to avoid duty. On 8. 8. 1994 he came for morning parade but fell out of ranks without permission and slapped and kicked Sub. Major T. D. Juneja in front of the whole company for which he was charged with the offence of using criminal force to superior officer punishable under Section 40 of the Army Act. Summary of evidence was recorded and he was given opportunity to produce evidence in defence but he did not do so, he rather admitted his guilt. IN course of summary court martial, the charge was explained to him and was supplied with copies of papers and also made aware of the consequences of his pleading guilty, he again pleaded guilty and requested to be forgiven promising that he would not repeat such act in future. Statement was recorded vide Annexure-8. After completion of the proceedings he was sentenced to six months' rigorous imprisonment and further dismissed from service on 24. 8. 1994. He sought review of the punishment which was rejected on 2. 11. 1994. In Writ Petition No. 2272/1996, petitioner Devendra Singh was enrolled in the Army on 16. 10. 1970. A Court of inquiry was ordered to investigate into circumstances in which he allegedly entered the house of Nk B. L. Chouhan on 23. 9. 1987 and his possible intention. Summary of evidence was recorded in his presence and he was given opportunity to participate in the hearing. The evidence collected in course of inquiry disclosed prima facie case, and he was subjected to summary court martial. In course of the court martial proceedings, the charge was read over and explained, and copies of the relevant papers were supplied to him. He was also made aware of the consequences of his pleading guilty. His plea of guilt was thereafter recorded and he was awarded the penalty of reduction to ranks on 23. 10. 1987. It would thus appear that out of seven cases, except Roop Singh in Writ Petition No. 2490/1987, in all other cases the petitioners had pleaded guilty. In those cases, even though the petitioners have challenged the vires of various provisions of the Army Act and the Rules, a limited argument was made at the time of hearing regarding non-compliance of rule 115 of the Army Rules and the punishment being excessive. We shall deal with these six case separately later in this judgment. ;