Case: JASWANT SINGH Vs. UNION OF INDIA MINISTRY OF DEFENCE THROUGH ITS SECRETARY

The punishment of imprisonment has already been undergone.The appellant was enrolled as a Sepoy on 1 January, 2003 in the Indian Army. A Summary Court Martial was convened on two charges; the first being of an assault on a superior officer while the second was the use of abusive language against a Subedar who had found the appellant to be not properly dressed for the parade.The Summary Court Martial acquitted the appellant of the second charge, but he was found guilty of the first charge of misconduct. He was awarded a punishment of dismissal from service and six months rigorous imprisonment in civil jail.Aggrieved by the punishment, the appellant moved the Armed Forces Tribunal, which dismissed the Original Application.

Reasoning: The above Rule clearly indicates that in a Summary Court Martial, the accused may have a person to assist him during the trial, whether a legal adviser or any other person. The expressionmust be read to mean that the person who is proceeded against has the option on whether or not to engage a legal advisor or any other person. It represents an entitlement to be represented.By his letter dated 7.7.2009, the appellant requested the Commanding Officer to permit him to hire a civil advocate.On 8 th July, 2009, this request was turned down on the ground that under Regulation 479 of the Army Regulations, a civil advocate is permissible to only those persons who are subject to trial for an offence which may result in the imposition of the death penalty.Regulation 479 deals with a situation where a person who is subject to the Army Act is to be tried for a court martial for an offence punishable with death. On the contrary, Rule 129 of the Army Rules which has been extracted above specifically deals with representation in a Summary Court Martial.In view of the specific provision of Rule 129, the Commanding Officer was evidently in error in declining the assistance of a lawyer on the ground that legalcould be admissible only where the offence was punishable withabove factual basis on which it was held that no prejudice had been caused to the defence of the appellant was evidently the foundation of the ultimate decision of this Court.In the present cae, the appellant had rendered seven years of service. He was pitted against his Commanding Officer. In the face of Army Rule 129, there was no reason to deny him the benefit of legal representation which he desired at his own expense.For these reasons, we are of the view that there was a clear violation of the principles of natural justice. The prejudice too is evident. The appellant was dismissed from service and sentenced to siximprisonment. Both his livelihood and liberty were taken away.