Rajasthan High Court - Jaipur
Sohan Lal vs Union Of India Andors on 13 October, 2025
[2025:RJ-JP:35360-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 1434/2011
Sohan Lal S/o Shri Jesa Ram, aged about 49 years, resident of
VPO Tejsar Distt - Sikar Raj.
----Appellant/Petitioner
Versus
1. The Union Of India through the Secretary to the Govt. Of
India, Ministry Of Defence, New Delhi - 1100 11
2. The Director General Corps Of Signals, General Staff
Branch through Chief of the Army Staff, Army
Headquarters (Now Integrated HQ MOD (Army), DHQ PO
New Delhi - 1100 11
3. The Officer Commanding Southern Command Composite
Signal Regiment (AREN), C/o 56 APO
----Respondents
For Appellant(s) : Mr. Rajendra Singh Bhadauria
For Respondent(s) : Mr. Ashish Kumar
HON'BLE THE ACTING CHIEF JUSTICE MR. SANJEEV PRAKASH SHARMA
HON'BLE MR. JUSTICE SANJEET PUROHIT
ORDER
RESERVED ON:- 03/09/2025
PRONOUNCED ON:- 13/10/2025
REPORTABLE
Per, HON'BLE MR. SANJEET PUROHIT, J:
1. The present special appeal has been preferred by the
appellant assailing the validity and propriety of the judgment
dated 24.03.2009 passed by the learned Single Judge whereby,
the writ petition filed by the appellant-employee challenging the
proceedings and order dated 30.03.1993 of Summary Court
Martial was dismissed.
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Brief facts germane to the present controversy as narrated in
the writ petition are as under :-
2. The appellant initially entered into the service of the Indian
Army, being enrolled in the rank of Signalman on 24.01.1987. The
appellant applied for and was granted 13 days' casual leave from
19.12.1992 to 31.12.1992. During the period of leave, the
appellant's father suffered from the disease of 'hemophilia' and
was advised treatment and rest for a period of three months.
Thus, on 30.12.1992, he sent a telegram and one inland letter
seeking extension of leave.
Since the appellant did not report for duty a Court of Inquiry
(COI) presided over by Lieutenant G.K. Deb Roy was composed
and the COI declared the petitioner as deserter. The appellant
voluntarily rejoined duty on 16.03.1993 after overstaying leave for
75 days, and he was placed under close arrest in the unit Quarter
Guard.
On 22.03.1993, the appellant was served with a tentative
charge-sheet under Section 38(1) of the Army Act,1950 (for
brevity referred as "AA") and he was informed that he would be
tried by a Summary Court Martial on 30.03.1993. Lieutenant
Colonel G.K. Deb Roy was nominated as his "friend of the
accused".
The appellant was also served with a Summary of Evidence
(for brevity referred as "SOE"), wherein it was shown that the
accused had declined to cross-examine the witnesses and on
22.03.1993 itself, on a typed communication his declaration was
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recoded that he did not wish to call any defense witnesses. As per
the pleadings of the petitioner, his signatures were obtained
forcibly, while in close arrest.
During the proceedings of the Summary Court Martial on
30.03.1993, the appellant was served with a final charge-sheet for
offence under Section 39(b) of the AA i.e for overstaying leave
without sufficient cause for 75 days. The 'plea of guilty' of
appellant was recorded and consequently, the punishment of
dismissal from service imposed upon the appellant.
The appellant preferred a petition under Section 164(2) of
the AA, challenging the SCM proceedings on various grounds, the
same was kept pending for considerable long time. Therefore, the
appellant preferred the writ petition praying for quashing of the
SCM proceedings dated 30.03.1993 and also prayed for
reinstatement in service with all consequential benefits.
3. A reply to the writ petition was filed on behalf of the
respondent-employer, denying the averments made in the writ
petition and justifying the SCM proceedings. The factum of
telegram for extension of leave was admitted; however, it was
stated that immediately a telegram was sent denying the
extension of leave. Further, the appellant was rightly declared as
deserter by COI.
It was averred that proceedings of SOE were undertaken in
his presence and the appellant refused to cross-examine the
witnesses and appended his signature. The nomination of
Lieutenant G.K. Debroy as 'friend of accused' was also done with
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the consent of the appellant. On 22.03.1993 itself, the appellant
was duly informed that SCM proceedings will be held on
30.03.1993, therefore sufficient time was available and there is no
violation of Rule 34 of the Army Rules ('AR').
It was stated that the entire SCM proceedings were
conducted while complying with the mandatory requirement of AA
and AR and the petitioner participated in the same without any
objection. The grounds raised in the present petition are
concocted and afterthought.
Further, the appellant failed to provide any justifiable reason
for overstaying leave for 75 days. Considering that the said
offence being committed on repeated occasions, the punishment
of dismissal was justified. The respondents prayed for dismissal of
the writ petition.
4. During the pendency of the writ petition, the authority, i.e.
the Chief of Army Staff, rejected the petition preferred by the
appellant vide order dated 19.09.1996. The appellant while
placing the order dated 19.09.1996 on record, prayed for
quashing of the said order on the ground that the same was
passed without proper application of mind and without assigning
any reasons.
5. The writ petition filed by the appellant was decided by the
learned Single Judge vide judgment dated 24.03.2009, while
observing that the procedure prescribed under Rules 22 and 23 of
the Army Rules had been substantially followed. Since the
accused-appellant had declined to cross-examine the witnesses
and had pleaded guilty, no fault can be found in the findings of the
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SCM. Since the offence alleged was the third instance of
overstaying leave, the punishment of dismissal is wholly justified.
The learned Single Judge further observed that the reason
advanced for overstaying leave i.e. the illness of the appellant's
father, could not be treated as sufficient cause. Accordingly, the
writ petition filed by the appellant was dismissed.
Hence, the appellant has preferred the present appeal.
Arguments on behalf of the Appellant :-
6. The learned counsel for the appellant argued that the specific
grounds were raised that the non-compliance of the mandatory
provisions of AA and AR more specifically rule 22, 23, 34, 115 and
129 of AR resulted in denial of proper opportunity to defend his
case and the relevant case laws cited in that behalf have not been
considered by the learned Single Judge. The writ petition was
dismissed merely based on the plea of guilty illegally recorded by
the respondents. The issue regarding the proportionality of
punishment was also not judiciously decided by the learned single
judge. Reliance placed upon the past conduct was also not
justifed, as the same was not the Charge or consideration while
imposing punishment. The finding that the reason for overstaying
on leave i.e. sudden illness of appellant's father is not the
sufficient cause, is also erroneous.
It was argued that being confined within the close arrest, the
appellant's signatures were obtained forcibly during SOE on typed
papers which were not prepared under his instructions. strict
compliance of Rule 22 and 23 of AR has not been done. The
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finding of learned Single Judge that substantial compliance of the
rule 22 and 23 is sufficient, runs contrary to the settled position of
law.
Further, genuine reason for overstaying leave and extension
of leave had duly been communicated to the respondent
authorities through telegram, therefore, the punishment of
dismissal so imposed is shockingly disproportionate. The
judgments cited on behalf of the appellant were neither discussed
nor considered while passing the judgment impugned.
Learned counsel for the petitioner has relied on the following
judgments :
1. Lt. Col. Prithi Pal Singh Bedi v. Union of India
reported in (1982) 3 SCC 140
2. Ex-Sepoy Chander Singh v. Union of India, 1997 SCC
OnLine Raj 165 : (1997) 2 RLW 1209
3. Chief of the Army Staff v. M.Z.H. Khan, 2006 SCC
OnLine All 1465.
4. Ranjit Thakur v. Union of India, (1987) 4 SCC 611,
5. Central Industrial Security Force & Others vs. Abrar
Ali [(2017) 4 SCC 507]
Arguments on behalf of the Respondent :-
7. Reiterating the contents of the reply, the learned counsel for
the respondent stated the scope of interference of the Hon'ble
High Court under article 226 of the Constitution of India, in the
cases of Court Martials is very limited and since in the present
case the substantial compliance of the requirements of Army Rules
were duly done therefore, no interference is called for.
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Justifying the final charge-sheet served on the day of SCM, it
was stated that taking a lenient view, the charge had been
converted from an offence under Section 38(1) of the AA to
Section 39(b) of the AA, which is a less serious charge and
therefore, the same cannot be said to have caused any prejudice
to the appellant. Also the "friend of the accused" was appointed
with the consent of the appellant himself and he actively assisted
him.
The learned counsel for respondent contended that in the
disciplined uniform service, the third instance of overstaying leave
is serious offence, hence the punishment of dismissal was justified
for a habitual offender like the appellant.
Learned Counsel for the respondent supported the Judgment
impugned and also contended that appellant has raised several
new grounds during the appeal, which is not permissible.
Learned counsel for the respondent referred to the
judgments passed in the cases of (i) Union of India v. Major A.
Hussain, (1998) 1 SCC 537; (ii) Mohd. Akram Ansari vs.
Chief Election Officer and Ors., (2008) 2 SCC 95 and (iii)
S.N. Mukherjee v. Union of India, (1990) 4 SCC 594.
8. We have perused the record, in the light of the judgments
cited before us and considered the rival contentions.
Analysis and Reasoning :-
9. The challenge to the impugned SCM, in the present case has
been given principally on the ground that the mandatory
provisions of the AA and AR were not adhered 'stricto sensu',
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which vitiates entire SCM proceedings. The appellant alleged that
entire proceeding was undertaken while keeping him in close
arrest and the procedural requirements on various stages were
not adhered resulting in denial of proper opportunity to defend the
case.
Raising the ground of violation of rule 34(1) of the Army
Rules, it was stated that the final charge-sheet under Section 39
of AA was served upon the appellant on the very same day of SCM
i.e. on 30.03.1993. The required interval of 96 hours as per rule
34(1) of the AR was not provided to the appellant for preparation
of his defence, resulting in prejudicing the right of the appellant to
defend his case.
On the other hand, the respondent's counsel argued that the
date of SCM i.e. 30.03.1993 was duly informed to the appellant-
accused on 22.03.1993 which is sufficient compliance of rule 34(1)
of the AR. Since the charge levelled in the tentative charge-sheet
was changed to a less grave offence thus, the final charge-sheet
served on the date of SCM i.e. 30.03.1993 was justified. No
prejudice was caused to the appellant.
9.1 To adjudicate the said issue, we may first refer to Rule 34 of
the Army Rules, which reads as under:
34. Warning of accused for trial.--(1) The accused before
he is arraigned shall be informed by an officer of every
charge for which he is to be tried and also that, on his giving
the names of witnesses or whom he desires to call in his
defence, reasonable steps will be taken for procuring their
attendance, and those steps shall be taken accordingly.
The interval between his being so informed and
his arraignment shall not be less than ninety-six hours
or where the accused person is on active service less
than twenty-four hours.
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(2) The officer at the time of so informing the accused
shall give him a copy of the charge sheet and shall, if
necessary, read and explain to him the charges brought
against him. If the accused desires to have it in a language
which he understands, a translation thereof shall also be
given to him.
(3) The officer shall also deliver to the accused a list of
the names, rank and corps (if any) , of the officers who are
to form the court, and where officers in waiting are named,
also of those officers in courts-martial other than summary
courts-martial.
(4) If it appears to the court that the accused is
liable to be prejudiced at his trial by any non-
compliance with this rule, the court shall take steps
and, if necessary, adjourn to avoid the accused being
so prejudiced.
The clear and unambiguous language of rule 34 of the AR
not only conveys its mandate but also reflects the object of
providing adequate time and reasonable opportunity to the
accused to prepare and put-forth his defence.
9.2 To buttress his contention, counsel for the appellant has
relied upon the judgment passed by the Hon'ble Division Bench of
this Court in case of Ex-Sepoy Chander Singh (supra). The
relevant extract of the said judgment is quoted below :-
"18. It is clear that Legislature has provided the minimum
period of 96 hours from the issuance of charge-sheet to the
period of arraignment which is to be afforded to the
accused, so that he can prepare his defence or contact any
of his friend or taking necessary steps. Admittedly this Rules
has been grossly violated. There is no denial of fact that 96
hours period was never afforded to the petitioner. Rather it
has been admitted in the written statements that total
period for arraignment which was afforded to the petitioner
was 37 hours. The question arises whether compliance
of such rule is mandatory and does the violation
vitiates the trial. The learned counsel for the
petitioner relies on a Division Bench decision of
Allahabad High Court in Uma Shanker Pathak v. Union
of India (1), wherein it was held that provision of Rule
34 of the Army Act are mandatory and if it is not
complied with, the whole of the trial is vitiated. It was
held as under: "We are unable to agree. Even if we assume
that the petitioner was informed of the details of the trial on
Oct. 16, 1982. Rule 34 would not be deemed to have been
complied with in that notice would still fall short of ninety six
hours. In our opinion, the requirement that at least ninety
six hours notice should be given to the accused, is
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mandatory. The language used in Rule 34 is
preamptory. It states that "the interval between his
being so informed and his arraignment shall not be
less than 96 hours "Such an interpretation is also
consistent with the principle of natural justice in that
the purpose of the rule is to enable the accused to
have sufficient notice so that he may prepare his
defence. That being so, the breach of Rule 34 must
vitiate the entire trial."
26. With utmost respects to the learned Single Judge,
proposition as answered in the above said judgment is not
acceptable. Rather it confirms the view that provision of
Rule 34 are mandatory and are to be complied with in all
circumstances, but can only be dispensed with if there is any
such contingency or necessity for which the Presiding Officer
is to make a declaration under Rule 36 and only then the
mandatory provisions of Rule 34 are to be dispensed with
and if no such declaration is made by the Officer concerned
under rule 36, rigour of Rule 34 are to be applied with full
force. Viewing from other angle also, after all the idea
behind providing a period of not less than 96 hours, before
being arraigning after the charge is made, is that the
accused should have at least some sufficient time and
opportunity to defend himself. If it is held that rule is
directory and not mandatory, accused can be charged
and tried, there and then at the same hour and if the
accused is in custody, which normally he is, what type
of defence, accused can produce or prepare. Such a
situation shall be totally negatory to afford an
opportunity of defence to the delinquent officer and if
it is held that provisions of Rule 34 are directory and
not mandatory, in the defence force where principles
of natural justice have no say, the delinquent officer
shall be put at the mercy of Commanding
Officer/Presiding Officer of the summary court martial
trial. Therefore, it is held that provisions of rule 34 are
mandatory unless a declaration is made by giving reasons
under Sec. 36 in the contingency and in the necessity, that
the trial is to be held by dispensing with all the mandatory
provisions of rules. In absence of such declaration under
Rule 36, the provisions of rule 34 shall be mandatory and for
the reason that provision of Rule 34 which is right of
petitioner has not been complied with substantially, the
proceedings of summary court martial are to be quashed."
9.3 The judgment passed by this Hon'ble also gets support from
the judgment passed by the Hon'ble Apex Court in the case of
Union of India v. A.K. Pandey (2009) 10 SCC 552, wherein
while explaining the mandatory nature of the said provision, it has
been held as under:
"15. The principle seems to be fairly well settled that
prohibitive or negative words are ordinarily indicative of
mandatory nature of the provision; although not conclusive.
The Court has to examine carefully the purpose of such
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provision and the consequences that may follow from non-
observance thereof. If the context does not show nor
demands otherwise, the text of a statutory provision
couched in a negative form ordinarily has to be read in the
form of command. When the word "shall" is followed by
prohibitive or negative words, the legislative intention
of making the provision absolute, peremptory and
imperative becomes loud and clear and ordinarily has
to be inferred as such. There being nothing in the
context otherwise, in our judgment, there has to be
clear ninety-six hours' interval between the accused
being charged for which he is to be tried and his
arraignment and interval time in Rule 34 must be read
as absolute. There is a purpose behind this provision: that
purpose is that before the accused is called upon for trial, he
must be given adequate time to give a cool thought to the
charge or charges for which he is to be tried, decide about
his defence and ask the authorities, if necessary, to take
reasonable steps in procuring the attendance of his
witnesses. He may even decide not to defend the charge(s)
but before he decides his line of action, he must be given
clear ninety-six hours.
16. A trial before the General Court Martial entails grave
consequences. The accused may be sentenced to suffer
imprisonment. He may be dismissed from service. The
consequences that may follow from non-observance of the
time interval provided in Rule 34 being grave and severe,
we hold, as it must be, that the said provision is absolute
and mandatory. If the interval period provided in Rule
34 is held to be directory and its strict observance is
not insisted upon, in a given case, an accused may be
called upon for trial before the General Court Martial
no sooner charge/charges for which he is to be tried
are served. Surely, that is not the intention; the time-
frame provided in Rule 34 has definite purpose and
object and must be strictly observed. Its non-
observance vitiates the entire proceedings."
9.4 The undisputed chronology of the present case reveals that
COI has declared the appellant as deserter and the tentative
charge-sheet was served upon the appellant on 22.03.1993 upon
the said charge only i.e. under Section 38 of the AA. The final
charge-sheet with altered charge was served upon the appellant
on the day of SCM itself i.e. on 30.03.1993 and the verdict was
also pronounced on the same day. Thus, no time at all was
allowed to the appellant-accused to understand the nature of
charge alleged against him and to prepare his defence
accordingly.
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From the reading of the provision as well as the judgments
cited above, it is clear that the object behind providing interval of
96 hours under Rule 34(1) of AR is to provide proper opportunity
to the accused to prepare for his defence and a departure from
the said mandate tantamount to denial of the said valuable right.
The mandate of Section 34 is founded on the fundamental
principle of free and fair trial. The manner in which the
respondents have proceeded to disclose the charges to the
accused only on the day of court martial and punished him on the
same day, is not permissible in the eye of law. In view of the
judgments referred (supra), the non-compliance of Rule 34(1)in
the present case, vitiates the SCM in question.
10. Further the appellant has also questioned the SCM
proceedings on the ground that great prejudiced has been caused
to him as he was not allowed to appoint the 'friend of accused' of
his own choice and the friend of accused nominated by the
Department has not assisted and defended him in any manner.
Countering the same, it has been contended by the
respondents that the appellant had been informed that if he
wishes to engage any civil lawyer, then he can do it on his own
cost. Thereafter, Lieutenant G.K. Deb Roy has been nominated
with his own consent.
10.1 In the present case, on one hand the request of the
appellant to engage friend of accused of his choice was turned on
the count that the same can be appointed on his own cost and on
the other hand the authorities themselves nominated Lt. G.K. Deb
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Roy (who was the Presiding Officer of COI against the appellant)
as his friend of accused.
The argument so advanced on behalf of the respondents
apparently runs contrary to the Rule 129 of the Army Rules, which
nowhere provides engagement of friend of accused on the cost of
accused, rather gives right of the accused person to request for
assistance of any legal advisor or any other person of his choice as
his 'friend of accused'. The rule 129 of AR reads as under:
"129. 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."
10.2 To explain the crucial role of "friend of accused", the
appellant has relied upon the judgment passed by the Hon'ble
Supreme Court in the case M.Z.H. Khan (supra). The relevant
extract of para 27 is quoted below:
27. ....
From the pleadings, it is, therefore, apparent that the
petitioner sought to engage a defence lawyer and it does
not appear that the respondents had any objection to such
request of the petitioner-respondent, but from the record it
appears that he was not allowed to engage a defence
lawyer but the "friend of accused" was thrust upon him by
the authorities. This Court in Union of India v. Rameshwar
Mahto1993 AWC 883 and Union of India v. Ram Adhar
Tiwari, 2002 (4) ESC 86, has held that an accused person is
entitled for the assistance of a "friend of accused" of his
choice and denial thereof would vitiate the proceedings.
Considering the pleadings and material on record and in
view of the discussions made above, we are inclined to hold
that the petitioner-respondent was denied assistance of
"friend of accused" of his choice as provided under Rule 129
and there is breach of the aforesaid provision. We,
therefore, upheld the finding of the Hon'ble single Judge
that there is violation of Rule 129 of the Army Rules in the
present proceedings."
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10.3 We have also noticed that the respondent authorities on
their own have nominated Lt. GK Deb Roy as 'friend of accused' of
the appellant.the record of the case nowhere suggest that the
consent in this regard was given by the appellant. Even the
materials on record nowhere shows any active participation of the
said nominated 'friend of accused' during the entire proceedings.
We have no hesitation to hold that the friend of accused
nominated by the respondents have provided no assistance nor
has defended the appellant-accused in any manner. The denial of
a friend of accused of his own choice and the unilateral nomination
of the same strikes at the very root of the fair trial as in such
situation the accused remains unrepresented even in the presence
of his so called representative.
10.4 There apart even the nomination of Lt. Gk Deb Roy as
appellant's 'friend of accused' was inherently unfair. Admittedly,
with regard to the same incident, Lt. GK Deb Roy himself presided
over the Court of Inquiry and declared the appellant as 'deserter'.
Even by normal prudence, it cannot be reasonably presumed that
a person who himself being the Presiding Officer of COI declared
the appellant as 'deserter', will have his independent and unbiased
mindset in favour of the appellant. Thus, the nomination Lt. G.K.
Deb Roy as friend of accused has apparently compromised the
appellant's right to receive impartial assistance and violated his
right to have proper opportunity of defence during the trial under
the Army Rules.
10.5 The law in this regard is well settled that where the facts of
a case give rise to reasonable apprehension or likelihood of bias,
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the same makes the whole proceeding or order a nullity. The law
in the regard was summed up in the case of Union of India Vs.
Sanjay Jethi reported in (2013)16 SCC 116, wherein the
Hon'ble Apex Court has held as under :-
44. In Chandra Kumar Chopra v. Union of India [(2012) 6 SCC
369 (2012) 2 SCC (L&S) 152] it has been held that : (SCC p.
379, para 25)
"25. ... mere suspicion or apprehension is not good enough
to entertain a plea of bias. It cannot be a facet of one's
imagination. It must be in accord with the prudence of a
reasonable man. The circumstances brought on record
would show that it can create an impression in the mind of a
reasonable man that there is real likelihood of bias. It is not
to be forgotten that in a democratic polity, justice in its
conceptual eventuality and inherent quintessentiality forms
the bedrock of good governance. In a democratic system
that is governed by the rule of law, fairness of action,
propriety, reasonability, institutional impeccability and non-
biased justice delivery system constitute the pillars on which
its survival remains in continuum."
48. At this juncture, we think it apt to refer to the
pronouncements in Ranjit Thakur v. Union of India [(1987) 4 SCC
611 : 1988 SCC (L&S) 1 : (1987) 5 ATC 113] and Major G.S.
Sodhi v. Union of India [Major G.S. Sodhi v. Union of India,
(1991) 2 SCC 382 : 1991 SCC (Cri) 357] . In Ranjit Thakur case
[(1987) 4 SCC 611 : 1988 SCC (L&S) 1 : (1987) 5 ATC 113] the
Court was dealing with justifiability of an order of dismissal
passed by the summary court martial of which one of the
Members was Respondent 4 therein. The said respondent had
sentenced the appellant to suffer sentence of 28 days' rigorous
imprisonment for violating the norms for representation to higher
authorities and the representation that was sent to the higher
authorities pertained to the ill-treatment at the hands of
Respondent 4. Keeping the said factual backdrop in view the
Court referred to the procedural safeguards provided under
Section 130 of the Act and opined that the proceedings of
summary court martial was infirm in law. Thereafter, the learned
Judges proceeded to deal with the second limb of arguments also.
It related to bias on the part of Respondent 4 therein. In that
context, the Court observed as follows : (Ranjit Thakur case
[(1987) 4 SCC 611 : 1988 SCC (L&S) 1 : (1987) 5 ATC 113], SCC
p. 618, para 16)
"16. It is the essence of a judgment that it is made
after due observance of the judicial process; that the
court or tribunal passing it observes, at least the
minimal requirements of natural justice; is composed
of impartial persons acting fairly and without bias and
in good faith. A judgment which is the result of bias or
want of impartiality is a nullity and the trial coram non
judice. (See Vassiliades v. Vassiliades [AIR 1945 PC
38] .)"
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51. The principle that can be culled out from the number of
authorities fundamentally is that the question of bias would arise
depending on the facts and circumstances of the case. It cannot
be an imaginary one or come into existence by an individual's
perception based on figment of imagination. While dealing with
the plea of bias advanced by the delinquent officer or an accused
a court or tribunal is required to adopt a rational approach
keeping in view the basic concept of legitimacy of interdiction in
such matters, for the challenge of bias, when sustained, makes
the whole proceeding or order a nullity, the same being coram
non judice. One has to keep oneself alive to the relevant aspects
while accepting the plea of bias. It is to be kept in mind that what
is relevant is actually the reasonableness of the apprehension in
this regard in the mind of such a party or an impression would go
that the decision is dented and affected by bias. To adjudge the
attractability of plea of bias a tribunal or a court is required to
adopt a deliberative and logical thinking based on the acceptable
touchstone and parameters for testing such a plea and not to be
guided or moved by emotions or for that matter by one's
individual perception or misguided intuition."
Law is well settled that "justice should not only be done, but
the same also seem to have been done". The right to be
represented by a friend of accused of his own choice is an
essential and necessary ingredient of free and fair trial embodied
under Rule 129 of the Army Rules and the authority conducting
the Court Martial must ensure compliance of the Rule 129 of the
Army Rules in its true letter and spirit, which was completely
missing in the present case.
In the present case the valuable right of the accused to be
represented by an independent and impartial friend of accused of
his own choice has been denied and a person who can reasonably
be presumed to have bias against the appellant was being
nominated as his friend of accused, without his consent. The same
has vitiated the entire SCM impugned in the present case.
11. The appellant in the present case has also contended that the
recording of his "plea of guilty" was against the mandate of Rule
115 of the Army Rules and relied upon the relevant paras of the
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judgment passed in the case of Ex-Sepoy Chander Singh
(supra) to support the same. The appellant has questioned the
same on the ground that while being kept in close arrest, he was
brought to the SCM proceedings and without informing the
petitioner about the nature of charge levelled against him and
consequences thereof, his plea of guilty was recorded and based
on the same the punishment was imposed.
On the other hand, the counsel for the respondents argued
that due compliance of Rule 115 was made and the appellant after
understanding the general consequence of the same has himself
pleaded guilty. The allegations so levelled in the writ petition are
nothing, but an afterthought.
11.1 The argument so put forth by the respondents does not
seem to be valid. Admittedly, during the entire proceedings, the
appellant was under close arrest and was not allowed to contact or
meet any person. Thus, the appellant had no opportunity to
register his grievance regarding undue pressure and duress.
Immediately after his release, on the first available opportunity,
the appellant has raised the said objections in the petition
preferred under Section 164 and same ground has been raised in
the writ petition. Thus, the theory of 'afterthought' as put forth by
the respondents is not sustainable.
11.2 The Rule 115(2) of the Army Rules requires that where an
accused pleads "Guilty," the Court must first ensure that the
accused fully understands the nature and effect of the charge,
inform him of the general consequences of such a plea and explain
the difference in procedure that will follow. Army Rule 115(2A)
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further obliges the Court to advise the accused to withdraw the
plea of 'guilt' and record a plea of "not guilty", if the summary of
evidence or any other material indicates that the accused ought
not to plead guilty.
11.3 Admittedly, in the present case, the appellant had his
reasons/defence for overstaying the leave i.e. his father's illness,
which is supported by the medical reports placed on record. In
spite of having a defence available, it seems to be highly probable
that the nature of charge as well as consequence of such plea was
not duly being communicated to the appellant and therefore, he
voluntarily pleaded guilty. Coupled with the same, the peculiar
circumstances of the present case shows that the friend of
accused Lt. GK Deb Roy has not extended any assistance and also
not explained to the appellant the effect and consequence of such
plea of guilt. Such failure to complete essential procedural steps
as provided under Rule 115 of the Army Rules and to secure the
accused's consent strikes at the heart of the trial's integrity.
Therefore, the punishment founded on such a deficient plea of
guilt cannot withstand in the eye of law, equity and fairness.
12. The record of the case reveals that consent of the petitioner
was taken on a typed paper then, it is apparent that the trial was
a sham. The papers had been prepared in advance and signatures
were obtained from the accused who was in their custody. The
entire trial would therefore be vitiated in law.
12.1 The fact that the SCM proceedings commenced at 12:45 hrs
and concluded at 13:10 hrs, merely within 25 minutes clearly
shows the hot-haste manner in which the entire SCM proceedings
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were concluded. Where the charge-sheet has been served only
during the SCM proceedings, it does not seem possible that
charges could have been adequately explained, evidence
examined, the consequence of plea of guilt being duly made to
understand, recording of finding and awarding of sentence being
completed in such a short span of time. This undue haste leads to
the only conclusion that the procedure has been conducted in a
pre-determined and mechanical manner, thereby violating the
requirements of natural justice and the procedural safeguards
prescribed under the Army Rules.
12.2 On the contrary, learned counsel for respondent stated that
the SCM has been conducted in due compliance of the Statutory
Provision and substantial compliance is sufficient to uphold the
same. Further, it is submitted that the Court Martial proceedings
are subject to only judicial review by the Hon'ble High Court and
therefore, the scope of interference is very limited under Article
226 of the Constitution of India. In support of the said
contentions, the counsel for the respondents referred to para 23 of
the judgment passed in the case of Major A. Hussain, (supra).
The relevant extract of the same is quoted below:
23. ....
When there is sufficient evidence to sustain conviction, it is
unnecessary to examine if pre-trial investigation was
adequate or not. Requirement of proper and adequate
investigation is not jurisdictional and any violation
thereof does not invalidate the court-martial unless it
is shown that the accused has been prejudiced or a
mandatory provision has been violated. One may
usefully refer to Rule 149 quoted above. The High Court
should not allow the challenge to the validity of conviction
and sentence of the accused when evidence is sufficient,
court-martial has jurisdiction over the subject-matter and
has followed the prescribed procedure and is within its
powers to award punishment.
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12.3 A close reading of the said para also shows that while
confining the scope of interference of the Hon'ble High Court in
the cases of Court Martial, it was clearly provided that the
interference can very well be made in case it has been established
that prejudice has been caused to the accused and mandatory
provision has been violated.
12.4 In the present case, as has been discussed in detail above,
there has been apparent violation of the mandatory provisions,
which has clearly caused prejudice to the appellant and therefore,
the reliance placed on the said precedent is wholly misplaced and
the contention must necessarily be rejected.
12.5 The facts of the present case speaks in volume that in the
present case, the respondent authorities have proceeded to
conduct and conclude the SCM in question in a pre-determined
manner, the mandatory procedural requirements prescribed under
Rule 22, 23, 34, 115 and 129 of Army Rules have not been
adhered in 'strict sensu' and in its true letter and spirit. There is
an apparent departure from the statutory requirements of the
Army Act and Army Rules, and at some stages, only empty
formalities appears to have been observed. The law in this regard
is no more res integra that the provisions have its mandatory
force and non-compliance of the same renders the Court Martial
as nullity. In view of the judgments referred (supra), the finding of
the learned Single Judge that substantial compliance of Rules 22
and 23 of the Army Rules is sufficient for upholding the SCM, is
erroneous and against the settled position of law.
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13. The appellant in the present case has also questioned the
sentence awarded upon him on the ground of being excessively
harsh and disproportionate.
On the other hand, the respondents have tried to justify the
same on the count that the present offence is third instance of
overstaying of leave of the appellant and therefore, the
punishment of dismissal is justified. The learned Single Judge has
also accepted the said contention and upheld the quantum of
punishment of dismissal in the present case.
13.1 A perusal of the final charge-sheet as well as the Summary
Court-Martial (SCM) proceedings nowhere made any reference of
appellant's past conduct and has based the punishment solely on
the charge of overstay of leave from 01.01.1993 to 16.03.1993.
It is only in the reply to the writ petition filed by the
respondents, for the first time, the respondents contended that
the punishment of dismissal is justified looking to the earlier two
instances of overstay of leave of the appellant.
13.2 In view of the position of law settled by the Hon'ble Supreme
Court in the case of Mohinder Singh Gill v. The Chief Election
Commissioner, (1978) 1 SCC 405, the respondents cannot be
permitted to add or supplement new grounds at later stage to
justify their action.
Once an offence has been adjudicated and a penalty imposed
on a particular charge mentioned in the charge-sheet, the
respondents are precluded from justifying the punishment of
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dismissal, while using the prior instance of overstay as a fresh
ground to support the same.
13.3 In the present case, the tentative charge-sheet was issued
under Section 38 of the Army Act i.e. desertion; however, the
respondent authorities themselves altered the said charge to
Section 39(b) of the Army Act i.e. overstay of leave without
sufficient cause.
The medical documents placed on record establishes that the
appellant's father unexpectedly fell seriously ill during the period
of his sanctioned leave. The said fact was duly communicated to
the respondents through Telegram before the leave expired and
requested for extension. These undisputed facts demonstrate that
his overstay of leave was justified by sufficient cause and reasons
beyond his control. Thereafter, the appellant voluntarily rejoined
the duties on 16.03.1993. It cannot, therefore, be classified as
overstaying of leave without justified cause under Section 39(b) of
the Army Act.
13.4 Our view finds support from the precedent laid down by the
Hon'ble Apex Court in the case of Ranjit Thakur (supra), which
reads as follows:
25. Judicial review generally speaking, is not directed
against a decision, but is directed against the "decision-
making process". The question of the choice and quantum of
punishment is within the jurisdiction and discretion of the
court-martial. But the sentence has to suit the offence
and the offender. It should not be vindictive or unduly
harsh. It should not be so disproportionate to the
offence as to shock the conscience and amount in
itself to conclusive evidence of bias. The doctrine of
proportionality, as part of the concept of judicial review,
would ensure that even on an aspect which is, otherwise,
within the exclusive province of the court-martial, if the
decision of the court even as to sentence is an outrageous
defiance of logic, then the sentence would not be immune
from correction. Irrationality and perversity are recognised
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grounds of judicial review. In Council of Civil Service
Unions v. Minister for the Civil Service [(1984) 3 WLR
1174 (HL) : (1984) 3 All ER 935, 950] Lord Diplock said:
"Judicial review has I think developed to a stage today
when, without reiterating any analysis of the steps by which
the development has come about, one can conveniently
classify under three heads the grounds on which
administrative action is subject to control by judicial review.
The first ground I would call 'illegality', the second
'irrationality' and the third 'procedural impropriety'. That is
not to say that further development on a case by case basis
may not in course of time add further grounds. I have in
mind particularly the possible adoption in the future of the
principle of 'proportionality' which is recognised in the
administrative law of several of our fellow members of the
European Economic Community;. . ."
13.5 In a similar circumstanced case Abrar Ali (supra), the
Hon'ble Apex Court has held:
"19. Though we are of the view that the High Court ought
not to have interfered with the order passed by the
disciplinary authority, the penalty of dismissal from service
is not commensurate with delinquency. The respondent
was found guilty of desertion of the Force for a period
of five days and not improving his conduct in spite of
imposition of penalties on three occasions earlier. For
the above delinquencies, the penalty of dismissal from
service is excessive and harsh. In our view, the
penalty of compulsory retirement would meet the
ends of justice. We are informed by the counsel for the
appellants that the respondent is entitled for pension as he
has completed 10 years of service. In order to avoid any
controversy, we direct that the respondent shall be
entitled for notional continuity of service till the date
of completion of minimum service required to make
him eligible for pension. He will not be entitled for
payment of salary and allowances for that period."
14. In view of the judgments referred (supra), we hold that the
punishment of dismissal as imposed upon the appellant is
shockingly disproportionate and excessively harsh. The issue
regarding quantum of punishment as decided by the learned
Single Judge is therefore not sustainable, in view of the
observations made above.
15. The appellant has also challenged the order dated
19.09.1996 passed by the authority under Section 164 of the
Army Act. The memo of petition (Annex-12) shows that various
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grounds challenging the SCM proceedings were duly raised by the
appellant, however, none of those grounds were taken into
consideration and the petition has been rejected without assigning
any reasons.
15.1 On the contrary, the learned counsel for the respondents
submitted that in view of the law laid down by the Hon'ble Supreme Court in the case of S.N. Mukherjee (supra), the authority confirming the findings and sentence of a court-martial is not required to record reasons for its decision. 15.2 We have perused the order dated 19.09.1996 and found that the petition has been dismissed with a single line order and no reason, even for the namesake has been given in the said order. For ready reference, the order dated 19.09.1996 is reproduced hereunder :--
"I have examined the petition dated 25 th March 1994 submitted by No.15357554H Ex Sigmn Sohan Lal of Southern Command Composite Signal Regiment against the finding and sentence of Summary Court Marital dated 3o th March 1993.
2. The above named individual was found guilty of charge under Army Act Sec 39(b), is, without sufficient cause overstaying leave granted to him. He was sentenced to be dismissed from service.
3. I reject the petition as it lacks substances."
15.3 Although, it is true that the authority confirming the findings and sentence of a court-martial is not required to record its separate and detailed reasons for its decision. However, the same does not authorize the authority under Section 164 of the Army Act to reject the petition with a single line order. The statutory competent authority while adjudicating the findings or sentence of Court Martial is required to show some application of mind (Uploaded on 14/10/2025 at 11:07:23 AM) (Downloaded on 14/10/2025 at 10:24:38 PM) [2025:RJ-JP:35360-DB] (25 of 27) [SAW-1434/2011] otherwise the same will render the provision of Section 164, nugatory.
Even otherwise, this does not affect or limit the power of this Court under Article 226 of the Constitution to examine the case on its merits. The said proposition is also clearly propounded in para 49 of the judgment passed in the case of S.N. Mukherjee (supra):
"49. But that is not the end of the matter because even though there is no requirement to record reasons by the confirming authority while passing the order confirming the findings and sentence of the court martial or by the Central Government while passing its order on the post-confirmation petition, it is open to the person aggrieved by such an order to challenge the validity of the same before this Court under Article 32 of the Constitution or before the High Court under Article 226 of the Constitution and he can obtain appropriate relief in those proceedings."
15.4 Since we have found that the SCM has been conducted in violation of the provisions of Army Act and Army Rules as well as in violation of principles of natural justice, therefore, the order dated 19.09.1996 confirming the sentence is also not sustainable in the eye of law.
16. While referring to the judgment passed by the Hon'ble Apex Court in the case of Mohd. Akaram Ansari (supra), the respondent has contended that new grounds, which were not pressed before the Hon'ble Single Judge, cannot be allowed to be raised at the stage of appeal. The said objection is found to be without any force. A perusal of the judgment passed by the learned Single Judge clearly shows that grounds regarding non- compliance of the mandatory provisions of Army Act / Army Rules were duly been pressed before the learned Single Judge and the precedents cited in that regard were also been referred in the (Uploaded on 14/10/2025 at 11:07:23 AM) (Downloaded on 14/10/2025 at 10:24:38 PM) [2025:RJ-JP:35360-DB] (26 of 27) [SAW-1434/2011] impugned judgment passed by the learned Single Judge. Therefore, the objection raised by the respondents is without any substance hence rejected.
17. In the totality of the facts and circumstances, we are of the considered opinion that the SCM impugned in the present case was held in clear defiance of the provisions of the Army Act and the Army Rules and the same has resulted in denial of proper opportunity to the appellant to defend his case. Therefore, SCM proceedings dated 30.03.1993 are not sustainable in the eye of law.
The judgment impugned passed by the learned Single Judge is therefore not sustainable in law as well as on facts. Accordingly, the impugned judgment dated 24.03.2009 is quashed and set aside. The writ petition preferred by the appellant is allowed. The SCM proceedings dated 30.03.1993 and consequential punishment order dated 30.03.1993 is quashed and set aside and petitioner would be deemed to be reinstated.
18. From the records, it is evident that the appellant is now 61 years of age, therefore, in order to balance the equity, we direct that the appellant shall be deemed to have continued in service until the date of superannuation in ordinary course.
19. Taking guidance from the judgment passed by the Hon'ble Apex Court in the case of Abrar Ali (supra), we direct that the appellant shall not be entitled to actual salary or allowances for the period of his deemed continuity in service i.e. till the date of superannuation at his rank but would be given notional benefits. However, he shall be entitled for actual pensionary benefits as (Uploaded on 14/10/2025 at 11:07:23 AM) (Downloaded on 14/10/2025 at 10:24:38 PM) [2025:RJ-JP:35360-DB] (27 of 27) [SAW-1434/2011] directed herein. The respondents are accordingly directed to make notional fixation of the appellant's pay and allowance in terms of pay revision from time to time and further directed to calculate and pay pension as well as the other retiral benefits along with interest @ 6% per annum on the arrears within a period of three months from the date of the judgment.
(SANJEET PUROHIT),J (SANJEEV PRAKASH SHARMA),ACTING CJ TN/ (Uploaded on 14/10/2025 at 11:07:23 AM) (Downloaded on 14/10/2025 at 10:24:38 PM) Powered by TCPDF (www.tcpdf.org)