Case: Vidya Prakash Vs. Union Of India &amp; Ors

is disqualified for serving on a general or district Court martial if he— (a) is an officer who convened the court; or (b) is the prosecutor or a witness for the prosecution; or (d) investigated the charges before trial, or took down the summary of evidence, or was a member of a Court of inquiry respecting the matters on which the charges against the accused are founded, or was the Squadron, battery, company, or other commander, who made preliminary inquiry into the case, or was a member of a previous court-martial which tried the accused in respect of the same offence; or (e) is the commanding officer of the accused, or of the corps to which the accused belongs; or (f) has a personal interest in the case.? 12. Rule 19(2) provides that an officer who is the Commanding Officer of the accused or of the corps to which the accused belongs or who is an officer who convened the Court or who is the prosecutor or a witness for the prosecution and who has a personal interest in the case, is not eligible for serving on a general or district Court Martial. There are four kinds of Court martials specified in Section 108 of the Army Act, 1950. These are: (a) General Courts-Martial; (b) District Courts-Martial; (c) Summary General Courts-Martial; (d) Summary Courts-Martial; 13. Section 116 of the said Act says that a summary Court martial may be held by the commanding officer of any corps or department or detachment of the regular Army, and he shall alone constitute the court. It further provides that the proceedings shall be attended throughout by two other persons who shall be officers or junior commissioned officers or one of either, and who shall not as such, be sworn or affirmed. In the instant case a summary Court martial was held by the Commanding Officer, Major P.S. Mahant in accordance with the provisions of Section 116 of the Army Act. The Commanding Officer of the Corps, Department or Detachment of the Regular Army to which the appellant belongs, is quite competent in ac-cordance with the provisions of Section 116 of the said Act and as such the constitution of the summary Court martial by the Commanding Officer of the Corps cannot be questioned as illegal or incompetent, it is neither a general Court martial nor a district Court martial where the appellant?s case was tried and decided. In case of general Court martial or district Court martial Rule 39(2) of the Army Rules, 1954 is applicable and the Comman-ding Officer is not competent to convene general or district Court martial. The summary Court martial was held by the Commanding Officer of the corps, Major P.S. Mahant and there are two other officers including Capt. K.J. Singh and another officer to attend the proceedings. In such circum-stances, the summary Court martial having been converted by the Comman-ding Officer of the corps according to the provisions of the Army Act, 1950, the first submission made on behalf of the appellant fails. 14. Chapter 6 of the Army Act specifies the offences and also the punishments for such offences. Section 39(a) specifies that to be absent without leave constitutes an offence and Section 71(e) of the said Act provides dismissal from service as one of the punishments for such an offence. The appellant undoubtedly absented himself from duty without taking any leave from the lines as required under the Army Act, The appellant was charge-sheeted for the said offence and he was tried by a summary Court martial convened by the Commanding Officer and after giving him due opportunity it was held that the appellant was previously punished also for the offence of absence from duty on four occasions and there was a red ink entry. Considering all this in the summary Court martial proceedings he was con-victed and sentenced to the punishment of dismissal from service. The submission that the punishment is disproportionate to charge is wholly unsustainable. The summary Court martial constituted by Major P.S. Mahant after considering the evidences has found the appellant guilty of the alleged charge and awarded the said punishment in accordance with the provisions of the Army Act. As such the said order of dismissal cannot be challenged as disproportionate to the charge or as one tainted with illegality. 15. It has been urged on behalf of the appellant that he raised an objection to Major P.S. Mahant to preside over the summary Court martial. It has also been urged that at the time of taking evidence of the witnesses, the appellant was asked to keep his mouth shut and as such the appellant could not cross-examine the witnesses examined on behalf of the prosecu-tion, thereby the principles of natural justice have been violated. It appears that the appellant has not filed any objection before the summary Court martial objecting to the presiding of the Court martial proceedings by Major P.S Mahant nor any such objection had been taken in the writ petition moved before the High Court. It is for the first time in the appeal which the appellant filed before the Chief of the Army Staff (Competent Authority), Army Headquarters, New Delhi that he raised an objection to the presiding of Major P.S Mahant as Judge of the Court martial proceedings. It has been rightly held by the High Court that this is an after-thought and as such this submission cannot be permitted to be made by the appellant after the Court martial proceedings were completed and the order of dismissal from service was made. As regards the other objection that he was directed by Capt. K.J. Singh to keep his mouth shut, it is also without any substance in as much as it appears from the summary of the evidences recorded that the appellant in fact cross-examined the prosecution witnesses. It is also evident from the judgment of the Delhi High Court that the applicant admitted his guilt of absenting from duty without taking any leave.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is for the first time in the appeal which the appellant filed before the Chief of the Army Staff (Competent Authority), Army Headquarters, New Delhi that he raised an objection to the presiding of Major P.S Mahant as Judge of the Court martial proceedings. It has been rightly held by the High Court that this is an after-thought and as such this submission cannot be permitted to be made by the appellant after the Court martial proceedings were completed and the order of dismissal from service was made. As regards the other objection that he was directed by Capt. K.J. Singh to keep his mouth shut, it is also without any substance in as much as it appears from the summary of the evidences recorded that the appellant in fact cross-examined the prosecution witnesses. It is also evident from the judgment of the Delhi High Court that the applicant admitted his guilt of absenting from duty without taking any leave.