1. The petitioner -- a Jawan cadet in the 54 A. D. Battery, 19 Air Defence Regiment of the Indian Army at present in Cuttack Jail -- challenges the order dated August 8, 1967 of the Lt. Colonel Commanding 19 Air Force Regiment, by which the petitioner was awarded six months' rigorous imprisonment and was also dismissed from service, stated to have been passed after trial by a Summary Court-Martial in the said Unit, on a charge of having committed the offence of, without sufficient cause, overstaying the leave granted to him, under Section 39(b) of the Indian Army Act, 1950 (Central Act 46 of 1950).
2. On March 2, 1967 the petitioner was granted leave for two months with effect from that date and was permitted to proceed to his village to avail of the leave. While on leave, the petitioner is said to have fallen ill from April 29, 1967 and is stated to have been in a delirious condition until May 3, 1967. He got a medical certificate from the Government Hospital at Delang in the district of Puri and on July, 25, 1967 the petitioner reported to duty. Soon thereafter, he was put in custody by the military authorities. The petitioner's illness relapsed and he was under medical treatment in the military hospital while in custody. The disease, which was found to have relapsed, was found to be chronic.
3. On August 3, 1967 the petitioner was charged under Section 39(b) of the Indian Army Act with the offence of having, without sufficient cause, overstayed the leave granted to him, in that the petitioner, having been granted leave of absence from March 2, 1967 to May 2, 1967 to proceed to his home, failed to rejoin duty on the expiry of the said leave without sufficient cause till he voluntarily joined, on July 25, 1967. He was charged by the Officer Commanding 19th Air Defence Regiment; in the charge-sheet it was also stated that he was to be tried by Summary Court-Martial.
4. Within five days thereafter, by an award of punishment by Summary Court-Martial the petitioner was sentenced to six months' rigorous imprisonment and also dismissed from service with effect from August 7, 1967. This writ petition was filed on November 30, 1967 against the Union of India represented by the Chief of Indian Army Staff 56 A. P. O. A counter affidavit was filed by Station Staff Officer, Station Head Quarters, Cuttack on behalf of the Union of India in support of the award of punishment to the petitioner by the Summary Court-Martial.
5. The grounds on which the petitioner challenges the impugned order of imprisonment and dismissal are, in substance, these: The entire proceedings of the Summary Court-Martial were conducted in violation of the procedure laid down in the Army Act and the Rules made thereunder; the charges which were in English were not explained to him in Oriya the language he understands; that the entire proceedings were conducted in English and he had no opportunity to defend himself or adduce evidence in rebuttal. It was further contended that the award of two punishments for one offence, namely imprisonment for six months and dismissal from service was illegal in that Section 39 of the Act provides that any person subject to the Act who commits any of the offences, including the offence of, without sufficient cause, overstaying leave granted to him, shall, on conviction by a Court-Martial, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as mentioned in the Act; that section does not provide for dismissal from service as a punishment.
6. The scheme of the Army Act shows that the Courts-Martial were intended to, be quasi-judicial bodies required to follow the principles of natural justice. Chapter X of the Act (containing Sections 108 to 127) deals in some detail about the functioning of Courts-Martial on the same lines as a Court of law. Chapter XI (covering Sections 128 to 152) deals with the procedure of Courts-Martial. Section 130 (quoted below) provides to the effect that at all trials by Courts-Martial, the accused shall be asked whether he objects to being tried by any officer sitting on the Court and lays down the procedure if the accused objects to any such officer. Section 130 reads as follows:
'130. (1) At all trials by general, district or summary general court-martial, as soon as the Court is assembled, the names of the presiding officer and members shall be read over to the accused, who shall thereupon be asked whether he objects to being tried by any officer sitting on the Court.
(2) If the accused objects to any such officer, his objection, and also the reply thereto of the officer objected to, shall be heard and recorded, and the remaining officers of the court shall, in the absence of the challenged officer decide on the objection.
(3) If the objection is allowed by one-half or more of the votes of the officers entitled to vote, the objection shall be allowed, and the member objected to shall retire, and his vacancy may be filled in the prescribed manner by another officer subject to the same right of the accused to object.
(4) When no challenge is made, or when challenge has been made and disallowed, or the place of every officer successfully challenged has been filled by another officer to whom no objection is made or allowed, the court shall proceed with the trial.'
Section 152 is that any trial by a Court-Martial shall be deemed to be a judicial proceeding and the Court-Martial shall be deemed to be court as provided therein. Chapter XV (covering Sections 191 to 194) of the Act gives the Central Government power to make rules and regulations for the purpose of carrying into effect the provisions of the Act and rules have been made accordingly. In exercise of the power conferred by Section 191 and in supersession of the previous rules, the Central Government, by S. R. O. dated November 27, 1954, made rules called Army Rules, 1954. Under these rules, the accused is given an opportunity to be represented by any officer who shall be called 'the defending officer' or assisted by any person whose services the accused may be able to procure and who shall be called 'the friend of the accused.' Rule 107 of the Army Rules, 1954 provides that when any evidence is given in a language which the court or the accused does not understand, that evidence shall be interpreted to the court or officer attending the proceedings in a language which it or he does understand; the Court-Martial shall, for this purpose, either appoint an interpreter, or shall itself take the oath or affirmation prescribed for an interpreter at a Summary Court-Martial.
7. It is apparent from the scheme of the Army Act that a Court-Martial as a court is to follow the procedure adopted by courts of law at the trial before it, in giving findings and awarding sentences on persons charged with having committed offences under the Act as in a judicial proceeding; this implies that rules of natural justice should also be observed.
8. The question Is: Did the Summary Court-Martial while dealing with the petitioner in the proceeding against him follow the procedure laid down under the Act and the Rules made thereunder or the principles of natural justice? The Station Staff Officer, Station Head Quarters, Cuttack, in his counter-affidavit made it clear how the proceedings of the Summary Court-Martial were conducted. He stated that the petitioner was charge-sheeted by the Lt. Col. Commanding 19 Air Defence Regiment under Section 39(b) of the Act for unauthorised absence from duty for a period of 84 days. Before the Summary Court-Martial the petitioner was assisted by an officer as 'the friend of the accused' and also by another officer who acted as interpreter. It was further stated that since the petitioner pleaded not guilty, three witnesses were examined during the proceeding on behalf of the prosecution and the accused-petitioner declined to cross-examine any of these witnesses. Thereafter, the accused petitioner was called upon for his defence. He declined to cite any witness in defence, to examine himself; he produced certain medical certificates in support of his version; the certificates were exhibited in the case.
9. We are satisfied that the Summary Court-Martial duly followed the procedure under the Army Act, the Army Rules and the rules of natural justice and awarded the punishment after considering the entire evidence on record including the statement of the accused and the materials produced by him in support of his case, all as explained in the counter-affidavit filed by the Station Staff Officer on behalf of the Union of India, Therefore, the contention that the petitioner was not given an opportunity to defend himself at the trial before the Summary Court-Martial is not tenable.
10. There is also no substance in the argument on behalf of the petitioner that the punishment of his dismissal from service was illegal. The petitioner's point is that Section 39 of the Act under which he was charged provides that on conviction he shall be liable to suffer imprisonment and there is no provision in that section providing for dismissal from service on conviction under that section. This argument, however, overlooks Sections 71 and 73 of the Act. Section 71 provides that punishment may be inflicted in respect of offences committed by persons subject to the Army Act and convicted by a Summary Court-Martial according to the scale as mentioned therein including dismissal from the service. Section 73 provides for combination of punishments--dismissal along with imprisonment as in the present case -- which a Court-Martial may award as a punishment in addition. Thus, under Section 71 read with Section 73 of the Act, punishment of dismissal can be combined with the sentence of imprisonment that a Court-Martial may award. The impugned order of dismissal combined with imprisonment is not therefore Illegal.
11. In the view that we have taken of the case on merits as discussed above, we consider it unnecessary to express any opinion on the point raised on behalf of the Union of India on the question of the jurisdiction of this Court to enquire into the validity of the proceedings before the Summary Court-Martial.
12. In the result, therefore, the writ petition is dismissed. But there will be no order as to costs.
A. Misra, J.
13. I agree.