HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 174 of 2007 Ex Sepoy/paid acting Naik Dinesh Chandra Gahtori. ……..Appellant Versus Chief of Army Staff and another. …….Respondents Mr. Dinesh Chandra Gahtori, appellant in person. Mr. B.P.S. Mer, Standing Counsel for Union of India/respondents. Dated: February 23, 2011 Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. Barin Ghosh,C.J. (Oral) In 1992, a Summary Court Martial found the appellant guilty of misconduct, which may entail an order of dismissal; the appellant was, accordingly, dismissed. Against the order of dismissal, appellant filed a statutory representation. While the statutory representation was pending, appellant filed a writ petition. The said writ petition was dismissed. Appellant preferred an appeal against the order of dismissal of his writ petition. While the appeal was pending, the statutory representation of the appellant was decided against him. A Division Bench of Hon’ble Allahabad High Court, which was dealing with the appeal of the appellant, accordingly, disposed of the appeal holding that by reason of the said order passed on the statutory representation of the appellant, the appellant has a fresh cause of action. Subsequent thereto, appellant filed a writ petition in this Court contending that the statutory representation of the appellant should have been allowed and, accordingly, the order of dismissal should have been set-aside. By the judgment and order under appeal, a learned Single Judge has held that there is no scope of interference with any part of the proceedings 2 of the Court Martial and, accordingly, there is no scope of interference with the order rejecting the statutory representation of the appellant. 2. In the appeal, it is the contention of the appellant that in the matter of conducting the Summary Court Martial, the Authorities violated various provisions of the Army Rules. It was stated that the charge, though was framed against the appellant, but the same was not heard by the Commanding Officer in his presence. We are unable to accept the said contention, inasmuch as, only after hearing the charge, the Commanding Officer could direct recording of evidence and the fact remains that evidence was recorded when not only appellant cross- examined witnesses of the prosecution, but had also presented his own evidence through a witness. At that stage, the appellant also gave a statement and in that he stated, amongst others, that with one hand he caught hold of the collar of Major R.N. Singh, and with another hand, stopped him from beating him by belt. It is being contended that the appellant was not remanded and that is another infirmity. The fact remains that the appellant was remanded for trial by a Court Martial and the appellant, by putting his signatures on the proceedings of the Court Martial, duly accepted the same. It was contended that the appellant was purported to have been shown to have pleaded guilty of the charge, while the record of the proceedings show otherwise. It shows that the Court discharged its obligation pertaining to acceptance of guilt by the appellant, by apprising the appellant in that regard, as is the mandate of Army Rule 115(2), and the appellant, by putting his signatures, duly accepted compliance of such statutory requirement by the 3 Court. The proceedings further show that after the appellant had, thus, been told about his rights and obligations pertaining to acceptance of guilt, he did not accept the guilt and, accordingly, the Court had to proceed with the trial. Records of the proceedings further show that subsequent thereto, fresh evidence was tendered through several witnesses of the prosecution when the appellant cross-examined all of them under his signatures. 3. Before the Court, however, appellant did not make any statement. Before the Court, appellant also did not bring any evidence either in the form of documentary evidence or in the form of oral evidence. Considering the evidence recorded before the Court, the Court came to the conclusion that the charge that appellant struck with his hands and feet on the body of Major R.N. Singh, stands proved. It is the contention of the appellant that the mandatory provision contained in Rule-34 of the Army Rules was not complied with. For the preposition that Army Rule-34 is mandatory, reliance was placed upon the judgment of Hon’ble the Supreme Court, rendered in the case of Union of India vs. A.K. Pandey, reported in (2009) 10 SCC-552. In the instant case, admittedly, the summary of evidence was recorded on 29th July when the appellant himself had tendered evidence of one witness and recorded his statement. The trial commenced on 6th August. In the case before Hon’ble the Supreme Court, in respect of a charge sheet dated 2nd November, 1985 issued at 1800 hrs, the charged Officer was informed that he would be tried by a General Court Martial on 16.11.1995 at 1130 hrs and on 16th November, 1995, the General Court Martial commenced its proceedings at 1010 hrs. In that 4 background, the Hon’ble Supreme Court felt that the mandate of Rule 34 of the Army Rules, was not complied with. In the instant case, as aforesaid, summary of evidence was recorded on 29th July, the trial commenced on 8th August and while in course of summary of evidence, witness on behalf of the appellant got himself examined after the appellant cross-examined the prosecution witnesses. He did not bring any witness to depose on his behalf at the trial. 4. We, accordingly, find no infirmity in the procedure for Court Martial and, accordingly, are unable to interfere with the judgment and order under appeal. The appeal fails and the same is dismissed. (V.K. Bist, J.) (Barin Ghosh, C.J.) 23.02.2011 NCM/Aswal