IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD , THE DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT HON'BLE THE CHIEF JUSTICE SRI ANIL R. DAVE and HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT APPEAL No.303 of 2008 (Writ Appeal under Clause 15 of the Letters Patent against the order dated 07-12-2007 in W.P.No.1046 of 2007 on the file of the High Court) Between: 1. The Union of India, rep. by its Defence Secretary, New Delhi. 2. The General Officer Commanding (GOC) 54 Inf.Div.Sig. Regt., Secunderabad. 3. The Commanding Officer (CO), 54 Inf. Div. Sig. Regt., Secunderabad. … Appellants AND Mr. Rajesh Chetty, S/o. R. Chandrasekhar Chetty, Occ: Sigmn (Dvr/MT) 15665549L HQ Coy, 54 Inf. Div. Sig. Regt (AREN) C/o. 56 APO, PIN – 917584. … Respondent Counsel for appellants: Mr. M. Ratna Reddy, Addl. S.C. for Central Govt. Counsel for the respondent: Mr. C.V.R. Rudra Prasad The Court made the following: Judgment: (Per Hon’ble Sri R. Subhash Reddy, J) This writ appeal, under clause 15 of the Letters Patent, is filed by the Union of India, through its Defence Secretary, aggrieved by the order dated 07-12-2007 passed by the learned single Judge in W.P.No.1046 of 2007. 2. The respondent herein had filed the aforesaid writ petition seeking directions by way of Mandamus to declare the action of the appellants herein in seeking to prosecute him for the second time in general court-marshal for the same charges/offences, pursuant to communication in 54 Division Signal Regiment Letter No.15665549L/01/CRC/180 dated 30-12-2006, issued by the third respondent-Commanding Officer, as illegal, arbitrary and in violation of fundamental rights guaranteed under Article 20 of the Constitution of India. The learned single Judge, by the impugned order, allowed the writ petition holding that the action of the respondents therein, in seeking to prosecute the writ petitioner, i.e. the respondent herein, for the second time in general court-martial, is illegal, runs contrary to Section 121 of the Army Act, 1950 and also is in violation of Article 20(2) of the Constitution of India. 3. The respondent herein was enrolled in the Corps of Signals of Indian Army on 27-02-1997 and during the year 2004, he was working in the Officers’ Mess of the Unit. During the said time, criminal cases, vide Crime Nos.62, 63 and 64 of 2005 were registered against him for the alleged offences under Section 379 of the Indian Penal Code, on the file of the Police, Trimulgherry, Secunderabad. Pursuant to registration of the said crimes, he was produced before the XI Additional Chief Metropolitan Magistrate, Secunderabad. But, however, the said cases were transferred to the competent authority under the Army Act, 1950 as contemplated under Section 125 read with Rule 197-A of the Army Rules, 1954. After transfer of the cases to the authority under the Army Act, 1950, disciplinary proceedings were commenced against him and summary of evidence and additional summary of evidence was recorded. The respondent was tried for four charges under Section 69 of the Army Act, 1950, for committing theft and for violation of the provision under Section 379 of IPC. The summary court-martial conducted trial and the respondent was convicted and sentenced to be deprived of the appointment of Lance Naik and also to suffer rigorous imprisonment for 2 months and 29 days in military custody. Pursuant to the said conviction in the summary court-martial, the wife of the respondent was informed about the same by letter dated 24-07-2006, issued vide proceedings PC- 15665549/O1/Sigs/CRC. The said letter reads as under: “ INFORMATION TO THE NEXT OF KIN: PUNISHMENT AWARDED Madam, 1. Your husband No. 15665549L Rank Signalman Trade Dvr MT Name C Rajesh Chetty has been tried by Summary Court Martial under Army Act, 1950 Section-69 and the punishment awarded is Deprived of Appointment of Unpaid Lance Naik and Two months and twenty nine days Rigorous imprisonment in military custody. 2. This is for your information please.” 4. But, however, after the respondent underwent about 51 days of rigorous imprisonment, the trial before the summary court-martial was rendered void ab initio and he was again sought be subjected to trial before the general court-martial. When the said communication was sent to the respondent, he approached this court and filed the writ petition. Though the appellants herein have pleaded in support of retrial by the general court-martial, but, however, the learned single Judge, while considering in detail various provisions of the Army Act, 1950, held that there are no valid reasons for retrial by the general court-martial. 5. In this writ appeal, it is contended by Mr. M. Ratna Reddy, learned counsel for the appellants, that the appellants are conferred with the power for reviewing the proceedings under Section 162 of the Army Act, 1950. It is submitted that though summary court-martial has tried the cases, but when the said proceedings were forwarded to the Deputy Judge Advocate General, Headquarters 21 Corps for review of summary court-martial, in terms of Army Rule – 133, during the course of review, it was ordered to set aside the summary court-martial proceedings for want of jurisdiction since the charge sheet based on which the petitioner was tried did not contain the endorsement for trial by the convening authority. 6. On the other hand, it is contended by Mr. C.V.R. Rudra Prasad, learned counsel for the respondent-writ petitioner, that as much as the summary court-martial is competent to try the charges framed against the respondent and such court-martial has already tried and passed final orders, in such an event, there is no power conferred, as pleaded under Section 162 of the Army Act, 1950, on the appellants to reopen the proceedings again by the general court-martial. It is submitted that there is a clear bar under Section 121 of the Army Act, 1950 for second trial. Advancing such argument, he has pleaded that there are no grounds to interfere with the reasoned order passed by the learned single Judge. 7. In this case, it is not in dispute that after registration of crimes against the respondent-writ petitioner, an order was passed by the competent criminal court transferring the cases for trial by the competent authority under the Army Act, 1950. It is also not in dispute that after recording summary of evidence and additional summary of evidence, the respondent was tried by the summary court-martial from 22-07-2006 to 24-07-2006 on all the four charges and was sentenced to undergo rigorous imprisonment for a period of 81 days apart from deprivation of his appointment to the post of Lance Naik. The only ground, which is sought to be urged by the learned counsel for the appellants, in support of ordering retrial, is that the charge sheet, based on which the respondent was tried, did not contain the endorsement for trial, by the convening authority. Except such technical ground, no other ground is urged for conducting de novo enquiry by the general court-martial in spite of the fact that the respondent was tried by the summary court-martial and was convicted and also imprisoned for 51 days. 8. At this juncture, it is apposite to refer to Section 162 of the Army Act, 1950, which reads as under: “Transmission of proceedings of summary courts- martial.- The proceedings of every summary court-martial shall without delay be forwarded to the officer commanding the division or brigade within which the trial was held, or to the prescribed officer; and such officer, or the Chief of the Army Staff, or any officer empowered in this behalf by the Chief of the Army Staff, may, for reasons based on the merits of the case, but not any merely technical grounds, set aside the proceedings or reduce the sentence to any other sentence which the court might have passed.” 9. A reading of the aforesaid provision makes it abundantly clear that every proceedings of summary court-martial, without delay, be forwarded to the officer commanding the division or brigade within which trial was held or to the prescribed officer or to such officer who is empowered by the Chief of the Army Staff. Such authority is also empowered to set aside the proceedings or reduce the sentence imposed by the summary court-martial, but, however, the same is a conditional one. In this case, it is evident from the pleadings on record that the power under Section 162 of the Army Act, 1950 is sought to be exercised merely on the ground that the charge sheet based on which the respondent herein was tried and convicted did not contain the endorsement for trial by the convening authority. If there is an omission in taking such endorsement as required under law, the same is only a technical defect and in such event the appellants cannot invoke the power as contemplated under Section 162 of the Army Act, 1950. The provision under Section 162 of the Army Act, 1950 is very clear and in view of the very provision, the power of review cannot be invoked on the aforesaid technical ground. Except the said technical lapse, no other reason is assigned by the appellants to declare the proceedings before the summary court-martial as void ab initio and to order retrial by the general court-martial. In addition to the same, under Section 121 of the Army Act, 1950 there is a clear prohibition for second trial. In this case, it is also to be noted that during the course of either summary of evidence, additional summary of evidence or during trial, at no point of time such technical lapse was noticed. The respondent-writ petitioner was tried before the summary court-martial, convicted for the offences alleged and also underwent about 51 days of imprisonment as per the conviction recorded by the summary court- martial. In view of the same, we too share the same view expressed by the learned single Judge. Therefore, we do not find any ground to interfere with the impugned order. 10. The writ appeal fails and is accordingly dismissed, however, in the circumstances without any order as to costs. ____________________ ANIL R. DAVE, CJ. _________________________ R. SUBHASH REDDY, J. December , 2008 MRR