Dr. Dhananjaya Y. Chandrachud, J.

The appellant has challenged the decision of the Armed Forces Tribunal, Regional Bench at Lucknow dated 18 December, 2012 in O.A. No. 48/2010, by which his challenge to the punishment of dismissal and six months’ rigorous imprisonment imposed by a Summary Court Martial has been rejected. 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 Signature Not Verified Subedar who had found the appellant to be not properly dressed Digitally signed by SUSHIL KUMAR RAKHEJA Date: 2018.12.14 19:42:32 IST Reason: for the parade.

The Summary Court Martial acquitted the appellant of the second charge, but he was found guilty of the first charge of 2 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.

The submission which has been urged on behalf of the appellant is that there was a violation of the principles of natural justice in conducting the Summary Court Martial. The submission is based on the provisions of Rule 129 of the Army Rules, 1954. The appellant sought the assistance of a civil advocate which was denied.

The appellant submits that in a Summary Court Martial, the Sepoy was pitted against the Commanding Officer. He should have been given the benefit of legal advise which was denied to him on the erroneous basis that it was only for an offence involving a possible sentence of death that such assistance could be allowed.

Rule 129 of the Army Rules, 1954 provides thus; “Friend of accused – In any summary court- martial, an accused person may have a person to assist him during the trial, whether a legal advisor or any other person. A person so assisting him may advise him on all points and suggest the questions to be put to witnesses, but shall not examine or cross- examine witnesses or address the court.” 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 expression ‘may’ must be read to mean that the person who is 3 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 8th 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 legal assitance could be admissible only where the offence was punishable with death.

Ms. Pinky Anand, learned ASG appearing for the Union of India submits that no prejudice was caused to the appellant and hence, the Court may not entertain the appeal. In this connection, reliance was placed on the decision of this Court in Major G.S. Sodhi vs. Union of India1 .

The judgment in Major Sodhi’s case (supra) dealt with a

1. (1991) 2 SCC 382 4 case of a General Court Martial. The circumstances of the case have been adverted to in paragraph 20 of the judgment. This Court noted that in the letter of the accused, there was a reference to Rule 95 which dealt only with a ‘defending officer’ and ‘friend of the accused’ to be provided for on request.

It was in this background that this Court observed as follows:-