{"id":217714,"date":"1998-05-27T00:00:00","date_gmt":"1998-05-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sumer-singh-sep-vs-union-of-india-on-27-may-1998"},"modified":"2016-08-12T05:47:24","modified_gmt":"2016-08-12T00:17:24","slug":"sumer-singh-sep-vs-union-of-india-on-27-may-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sumer-singh-sep-vs-union-of-india-on-27-may-1998","title":{"rendered":"Sumer Singh (Sep.) vs Union Of India on 27 May, 1998"},"content":{"rendered":"
Delhi High Court<\/div>\n
Sumer Singh (Sep.) vs Union Of India on 27 May, 1998<\/div>\n
Equivalent citations: 1998 IVAD Delhi 366, 74 (1998) DLT 15<\/div>\n
Author: K Ramamoorthy<\/div>\n
Bench: K Ramamoorthy<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 K. Ramamoorthy, J. <\/p>\n
 1.     The genesis of the writ petition is the incident that had occurred  on the  20th  of  June, 1994 at Lukret in Sikkim. The main  case  against  the petitioner by the respondents is that in that incident the petitioner put a punch on the back of N\/Sub.Pitha Ram Bhakar.\n<\/p>\n
 2.   There are two versions; one by the petitioner and the other by the respondents.  For appropriate appreciation of the case, it is better to  have the version of the petitioner which is in the following terms:-\n<\/p>\n
       “That  on 20.06.1994, the petitioner along with  Sep.Badan  Singh and  Sep.Dilbagh  Singh, all of the same unit  were  detailed  to perform the sentry duties at Lukret in Sikkim. At about 2130 hrs. Nb.Sub.Pitha Ram Bhakar allegedly checked the Sentry on duty.  On enquiry  from  the Guard persons in Gd.Residential Tent,  he  was told  that Sep.BAdan Singh Jat was supposed to be on Sentry  duty from  2000  hrs. to 2200 hrs. He accordingly,  advised  Sep.BAdan Singh to be on Sentry Duty in proper dress and then went away  to the  nearby  tent  where Havildar Yogender  Singh  stayed.  After
\n     remaining in the tent for about half an hour, he returned back to amn.Gd.post,  where he did not find Sep.Badan Singh on  duty.  He got  into  residential  Gds.tent, where he found  all  the  three above said  sentries having their meals. It appears that  the  JCO ill-treated,  the  above said sentries  being  his  subordinates, wherein he not only shouted on them but also kicked their food to the  extent that `Dal’ was found spilled on the floor  and  `Chapaties’  were  lying scattered in the tent. Sep.Badan  Singh  got excited and hugged the JCO who in turn tried to extricate himself and  both  the JCO and Sep.Badan Singh fell down  on  the  wooden Platform used for sleeping. During the above said incident,  the JCO  felt as if someone has punched him in his  back.  Meanwhile, the  JCO and Sep.Badan Singh Jat were got separated. As per  evidence  on  record there is no evidence to indicate that  JCO  was punched  at  all. JCO taking Hav.Joginder Singh  along  with  him
\n     reported  the  matter  to Maj.Ashjwani Sudan.  In  the  above said report,  the JCO reported that minor altercation had taken  place amongst  the gds. persons and they need to be changed and he  did not  report about his own misbehaviour with the gds.  persons  or about  the scuffle or he having been given a punch  by  somebody. The  three sentries were replaced by the order of  Maj.Sudan  and the sentries were sent back for the night rest at about 1.00 a.m. on  the  night  of 20\/21 June 1994. On  21st  Jun.1994  Maj.Sudan conducted  the preliminary investigation and reported the  matter to the Bn.HQ.” <\/p>\n
 3.   The respondents in their counter-affidavit stated that the  petitioner belonged to 5 Battalion in Jat Regiment. The respondents would state:-\n<\/p>\n
       “In  the  year 1994 the unit was located in Sikkim. On  20th  Jun 1994  the petitioner along with Sep.Dilbagh Singh  and  Sep.Badan Singh  was detailed as additional guard at Magazine Guard of  the Unit located at Lulerp(Sikkim). At about 2130 hours  Nb.Sub.Pitha Ram  Bhakhar,  JCO  Incharge of the Magazine guard  came  to  the
\n     Magazine  location and called for the perimeter patrol guard  but found  no  one on duty. On enquiry the JCO  found  that  Ex.Sepoy Badan  Singh  was supposed to be on duty from 2000 hrs.  to  2200 hrs.  The  JCO  Incharge told Sepoy Badan Singh  to  change  into uniform  and move for duty. After about 30 minutes the  JCO  went again  to  check  the guard but again found no one  on  duty.  On checking  the residential tent the JCO found that the  petitioner along with Sepoy Badan Singh and others was having food. The  JCO Incharge  enquired as to why they were having food while on  duty leaving  the  Magazine area unguarded. On being 30  asked,  Sepoy Badan  Singh caught hold of the JCO Incharge and  the  petitioner
\n     punched the JCO in his back.”\n<\/p><\/blockquote>\n
 4.   On  the 21st of June, 1994, Major Ashwini Sudan conducted  preliminary investigations  and reported the matter to the Battalion  Headquarters.  On the 22nd of June, 1994, the petitioner (Sumer Singh), Sepoy Badan Singh and Sepoy  Dilbagh Singh were marched before the Commanding Officer  (R-4)  for the  purpose  of preliminary hearing, as envisaged under Army Rule  22.  At this stage, it is necessary to note the Army Order 70\/1984 which gives  the guidance to the officers. The same runs as under:-\n<\/p>\n
    “Disciplinary process under the Military law commences with  Army Rule  22 which lays down that every charge against a person  subject  to the Army Act, other than an officer, shall be  heard  in the  presence of accused. The accused shall have full liberty  to cross-examine  any witness against him. This is a  mandatory  requirement  and  its non-observance will  vitiate  any  subsequent disciplinary proceedings.”\n<\/p>\n
 5.   As  per the rule and the instructions, the Commanding Officer  at  the time of the preliminary hearing should inform the accused about the charge. He should examine the witnesses and he should permit the accused to  cross-examine  them.  He must also record a statement from the  accused  to  note about  his version of the incident complained of. This is a safeguard  provided  to  the accused. This also would enable the  Commanding  Officer  to dispose  of the case. The Commanding Officer has to act with a great  sense of  responsibility.  In this case it is not disputed  that  the  Commanding Officer did not record any statement from the petitioner at the time of the preliminary  hearing as required under Army Rule 22. Army Rule 22 reads  as under:-\n<\/p>\n
      “Hearing of Charge._(1) Every charge against a person subject  to the Act other than an officer, shall be heard in the presence  of the accused. The accused shall have full liberty to cross-examine any  witness against him, and to call any witnesses and make  any statement in his defense.\n<\/p><\/blockquote>\n
      (2) The commanding officer shall dismiss a charge brought  before him if, in his opinion the evidence does not show that an offence under  the Act has been committed, and may do so if, in his  discretion he is satisfied that the charge ought not to be proceeded with.\n<\/p><\/blockquote>\n
      (3) At the conclusion of the hearing of a charge, if the commanding  officer is of opinion that the charge ought to be  proceeded with, he shall without unnecessary delay_ <\/p>\n<\/blockquote>\n
      (a) dispose of the case summarily under Section 80 in  accordance with the manner and form in Appendix III; or   <\/p>\n<\/blockquote>\n
      (b) refer the case to the proper superior military authority; or  <\/p>\n<\/blockquote>\n
      (c)  adjourn  the  case for the purpose of  having  the  evidence reduced to writing; or  <\/p>\n<\/blockquote>\n
      (d)  if the accused is below the rank of warrant  officer,  order his trial by a summary court-martial:\n<\/p><\/blockquote>\n
      Provided  that the commanding officer shall not order trial by  a summary  court-martial without a reference to the officer  empowered  to convene a district court-martial or on active service  a summary  general court-martial for the trial of the  alleged  of-fender unless either:_ <\/p>\n<\/blockquote>\n
      (a)  the offence is one which he can try by a summary  court-martial without any reference to that officer; or   <\/p>\n<\/blockquote>\n
      (b) he considers that there is grave reason for immediate  action and  such  reference cannot be made without detriment  to  discipline.”\n<\/p><\/blockquote>\n
 6.   The Commanding Officer acting under the Army Rule 22 (3) adjourned the case for the purpose of having evidence reduced to writing against all  the three accused. The record of the proceedings, as required under Army  Order 70\/1984, is in the following terms:-\n<\/p>\n
      “RECORD OF PROCEEDING BEFORE <\/p>\n
     COMMANDING OFFICER UNDER ARMY RULE 22  <\/p>\n
      In the case of 3184781Y Sep.Sumer Singh  <\/p>\n
      (personal 5 JAT particulars of the accused <\/p>\n
     (Present Unit), attached to___________ <\/p>\n
     (Unit to which attached), vide________ <\/p>\n
     quote authority).<\/p><\/blockquote>\n
      PROCEEDINGS  <\/p>\n
      1.        The  charge(s) against the accused has\/have  been  read out, explained to the accused and
\nattached as Annexure I.\n<\/p>\n
      2.   The  accused officer submits that he required\/does  not  require that the charge(s) be heard in accordance
\nwith Army Rule 22
\n     (I). <\/p>\n
\n                     ___________________\n     Dt.2 Jun 94         (Signature of accused)\n \n\n<\/pre>\n
      Note: (In the case of an officer, if he does not require that the charge(s)  be heard as per Army Rule 22(I) and if the  Commanding Officer decides accordingly column 3 to 6 may be scored out).\n<\/p>\n
      3.   Hearing of the charge(s) commenced on 22 Jun 94 at 1030 hrs. <\/p>\n
      4.   The following prosecution witnesses were heard by me in  the presence  of  the  accused who was given full  liberty  to  cross examine each of them:-\n<\/p>\n
      Date on which  Personal       Description    Whether accused\n     the witness    particulars of of             cross-examined\n     was heard      prosecution    documentary        the witness or\n     orally by CO   witness(es)                        decline to\n     evidence                                     cross-examine\n                              produced       (only state\n                              if any         'Yes' or\n                                             'declined' \n                                             before each\n                                             witness\n     22 Jun 94      JC-222675K \n               Nb.Sub Pitha   Nil            Yes \n               Ram Bhakar\n     22 Jun 94      3169970L \n               Hav.           Nil            Yes \n               Yogender \n               Singh\n \n\n      5.   The  accused  was informed by me that he was at  liberty  to \n     make  any statement and call any witness in defense. A  brief  of \n     the  statement made by the accused is attached as Annexure II  to \n     this form. \n \n\n      6.   The following defense witnesses were heard\/no witnesses were \n     produced by the accused:- \n      Date(s)   Personal particulars of  Description of \n          witnesses in defense     documentary evidence\n                                   produced if any\n               NIL\n \n\n      7.   On  conclusion of the hearing of the charge(s) I have  given \n     the following orders:- \n      Date of Order                 Order\n     22 Jun 94                     Evidence to reduced in writing.\n \n\n      8.   The above proceeding under Army Rule 22(I) were heard by  me in the presence of:- \n \n\n      (a) IC-41611P Maj.Ashwini Sudan - 5 JAT  \n \n\n      (b) JC-156036A Sub.Laxman Ram - 5 JAT\"  \n \n\n 7.   A  brief of the statement made by the accused at the time of  preliminary  hearing should have been attached as Annexure 'II' but that  was  not done in this case. \n \n\n 8.   The  offence report on the basis of which the Commander held the  preliminary hearing is as under:- \n       \n\n \"AA SEC 40(a) \n \n\n      USING CRIMINAL FORCE TO HIS SUPERIOR OFFICER  \n \n\n<\/pre>\n
      in  that he, at field on 20 Jun 94 when  JC-222675K  Nb.Sub.Pitha Ram  Bhakar  went  to  check the amn guard  at  Lukrep  he  found No.3184781Y Sep.Sumer Singh not on duty. On being asked as to why he  was not on duty said, “Kahan batman ko JCO bana diya hai”  or words to that effect and hit him with his fist on his back.”\n<\/p>\n
 9.   On  the  22nd  of June, 1994, the Commanding  Officer  directed  Major Ashwani Sudan to record Summary Evidence. The basis on which the summary of evidence  was  directed to be recorded was that the petitioner was  not  on duty  at the relevant time. There’ is absolutely nothing on record to  show that there was any complaint against the petitioner that he was not on duty at the relevant time. Evidence of N\/Sub Pitha Ram Bhakar is very clear.  He had deposed to two facts and the facts that had emerged out of his  deposition would not show that the petitioner was not on duty.\n<\/p>\n
 10.  If the Commanding Officer had recorded the statement of the petitioner at the time of the preliminary hearing, the Court would be in a position to assess  the statement of N\/Sub Pitha Ram Bhakar which was recorded  on  the 22nd  of June, 1994. This is the main reason why such a provision has  been made  in  the rule. The charge in the offence report is different  and  the facts  now narrated by the witness are entirely different  and,  therefore, the whole basis of the charge stands demolished. The violation committed by the Commanding Officer is of a very serious nature and that was not brought to  the  notice of the Chief of the Army Staff. In the  nature  of  things, having regard to the work of the Chief of the Army Staff, he has to  depend upon his subordinate officers for assistance and if all the relevant  facts are  not  brought to his notice, the entire fault cannot be placed  on  the Chief  of the Army Staff. The object of the Army Rule 22 is that, once  the facts  are recorded immediately after the incident, that will reflect  what exactly  had happened and the Commanding Officer would be in a position  to consider  the  matter objectively under Army Rule 22  (3).  The  Commanding
\nOfficer had completely ignored the mandate of the rule. Therefore, whatever that had been done further by the Commanding Officer would not be valid, as stated  in  the  Army  Order  70\/1984  which  has  been  extracted   above. N\/Sub.Pitha Ram Bhakar has introduced new facts in his evidence which is as under:-\n<\/p>\n
      “JC-222675K  Nb.Sub.Pitha  Ram Bhakar of 5 Jat having  been  duly  warned  states  that  he identified the  accused  as  No.3184781Y Sep.Sumer Singh and proceeds to say:-\n<\/p><\/blockquote>\n
      I  reached Lukrap Magazine loc at 2130 on 20 Jun 94. On  reaching the  gd tent loc I did not find any sentry on duty. I called  for the  sentry. On hearing my voice No.3178143K Sep.Badan Singh  Jat came  out of the gds residential tent. I asked him as to who  was the sentry. He replied that he himself was the sentry. I  pointed out to him that he should not be wearing slippers. I also pointed out  to  him that he was not on duty at the appointed  place,  in that he was inside his residential tent and improperly dressed. I ordered him to dress up properly and come back on duty for  which he was detailed from 2000h to 7200h. On hearing this  No.3178143K Sep.Badan  Singh  Jat  went back to his tent and I  went  to  the      residential  tent of No.3169970L Hav.Yogender Singh. After  about half an hour I came out to check the sentry again. I did not find any sentry on duty. I again called for the sentry. When I did not get any response, I went inside the gd. tent to enquire. I  found all  the three gd. person. eating their food. I  asked  No.3178143K Sep.Badan  Singh  Jat as to why he had not proceeded on  duty,  I told  him that the para on sentry duty should have had  his  food earlier.  I also told the gd. party that 2200 hr was too late  to have  food. On hearing this No.3178143K Sep Badan Singh Jat  used abusive  language and said, “Main tere ko dekhta hun”.  He  threw the `Chapaties’ he was holding in his hand on the grnd. He jumped  up  and mov towards me and on reaching near me caught hold of  me  in  a tight embrace. During the ensuing struggle resultant of  my
\n     effort to extricate myself from his tight grip No.3178143K  Sepoy Badan  Singh Jat and I fell down on the wooden platform, used  as bed,  lying nearby. At this juncture someone started punching  me in  my  back. I cannot say whether one or both  the  other  person. punched  me  in  the back. At that I  shouted  for  help  saying, “Marya,  Marya mai bachao, bachao”. On hearing  this  No.3178143K Sep.Badan  Singh Jat let me go from his grasp. Also,  No.3169970L Hav.Yogender  Singh  came  running  into  the  tent.  No.3178143K Sep.BAdan Singh Jat fell on my feet and started asking for mercy.  I  told  him that after heating a person. any body cannot  ask  for  mercy. No.3178143K Sep.BAdan Singh Jat then mov out and stood  on sentry  duty. I mov back to the tent of No.3169970L  Hav.Yogender Singh.  I tried to put a call on telex but it was not attended  by anyone at the exch. No.3184781Y Sep.Sumer Singh came and  started touching  my feet and begged for mercy.  No.3181308H  Sep.Dilbagh Singh  also came and asked to be excused.  No.3184781Y  Sep.Sumer Singh  said, “Senior is God and junior is nothing”. I told him  I don’t  know  English  and  enquired as to  who  out  of  them  is No.3181308H  Sep.Dilbagh Singh and No.3184781Y  Sep.Sumer  Singh, had hit me on my back when I was trying to extricate myself  from the   grip  of  No.3184781Y  Sep.Badan  Singh  Jat,   No.3181308H Sep.Dilbagh  Singh  and  3184781Y Sep.Sumer  Singh,  both  denied having  hit me. It appeared to me that they have taken  alcoholic drinks but due to my inability to smell liquor I could not ascertain  whether they have taken liquor or not. On my  repeated  enquiry as to who had punched me in the back, No.3184781Y Sep.Sumer Singh  accepted  that  he  had  hit me  from  the  rear.  I  told No.3184781Y  Sep.Sumer  Singh  to  write  down  his   confession. No.3184781Y Sep.Sumer Singh said that he had a cut on his  finger hence he was unable to write. I ordered No.3169970L  Hav.Yogender Singh  to  get  writing try and write  down  the  confession  of No.3184781Y  Sep.Sumer  Singh and get it signed  from  him.  When No.3169970L  Hav.Yogender  Singh  brought the  writing  try  and started writing the name and No. of No.3184781Y Sep.Sumer  Singh,  No.3178143K  Sep.BAdan  Singh Jat came with a stick in  his  hand  which  he starting jabbing into the left side of my  stomach  and told No.3181308H Sep.Dilbag Singh and No.3184781Y Sep.Sumer Singh
\n     not to give any written confession, he also said, “Apne haath  na katne”.  Meanwhile, No.3184781Y Sep.Sumer Singh  and  No.3181308H Sep.Dilbag  Singh  kept  on holding my feet  and  groveling  for mercy. I then ordered the whole gd party to go to their coy  line in  Ciaogang.  On  being  told  this  all  three  of  them   i.e. No.3178143K Sep.Badan Singh Jat, No.3181308H Sep.Dilbag Singh and No.3184781Y  Sep.Sumer  Singh left for  their  residential  tent.  No.3169970L av.Yogender  Singh and I then went to  Lukrep  Arty Exch and tried speaking to Giaogang exch but in vain. When I told the  person running Lukrep arty exch that we had tried speaking  to him from mag area he told us that there had been no ring received  at his end. After this No.3169970L Hav.Yogender Singh and I  went to   IC-41661P  Maj.Ashwini  Sudan  at  Ciaogang.  I   instructed
\n     No.3169970L  Hav.Yogender  Singh to call for the offer.  On  doing that  we  were called inside by IC-41661P aj.Ashwini  Sudan.  We told  him that there had been a minor altercation amongst the  gd person.  and the gd needed to be changed. At that pt of time I  did not  mention to IC-41661P Maj.Ashwini Sudan that the gd person  had  beaten me. IC-41661P Maj.Ashwini Sudan ordered a change of gd and said that this gd should be arrested. He also ordered me to go to the RP CHM and in consultation with him select a new gd party and take them for duty. I went to the RP CHM who after consulting IC-41661P  Maj.Ashwini  Sudan selected a new gd party  and  sent  it alongwith me to mag gd loc. The new gd party replaced the old  gd
\n     party which went back to its coy line at Ciaogang. In the morning I found an empty Rum bottle lying in the residential tent of  the gd. At 0730h on 21 Jun 94, I alongwith No.3169162N Hav.Murari Lal went  to IC-41661P Maj.Ashwini Sudan. No.3169162N Hav.Murari  Lal had gone to the offr to get an amn indent signed. I was  accompanying  him. Major Ashwini Sudan then enquired from me  about  the earlier  ni incident. Only then did I info him that the  gd  person had beaten me at ni and it was not a minor altercation amongst gd      person  that had taken place as had been reported to him  initially at  ni  by me and No.3169970L Hav.Yogender Singh.  The  offr  get angry  at me and called for all the three accused at once.  After carrying out prelim investigation he reported the matter at  once to the unit Adjt. After speaking to the Adjt he instructed me and all  the  three  accused i.e. No.3178143K  Sep.BAdan  Singh  Jat, No.3181308H  Sep.Dilbag Singh and No.3184781Y Sep.Sumer Singh  to reach the TCP for further mov to Bn HQ.\n<\/p><\/blockquote>\n
      The  accused wishes to cross-examine the witness and proceeds  to do so.”\n<\/p><\/blockquote>\n
 11.  If the statement of the petitioner had been recorded by the Commanding Officer  at  the time of the preliminary hearing on 22.6.1994,  the  entire context  of the Summary Evidence would have taken in a different  turn.  In the  cross-examination  N\/Sub.Pitha Ram Bhakar denies all the  facts  which reads as under:\n<\/p>\n
      “Q.1. When we had not consumed liquor why did you falsely  accuse  us of taking liquor?\n<\/p><\/blockquote>\n
      A.  I  have only said that I assumed from the actions of  the  gd person that  they had consumed liquor. Since I had not  seen  them consuming  liquor and due to my olfactory capabilities being  nil with  regard to smelling of liquor. I cannot be sure that the  gd  person had consumed liquor.\n<\/p><\/blockquote>\n
      Q.2.  When No.3178143K Sep.Badan Singh Jat was standing  on  duty why did you accuse the gd. party of not having a sentry on duty?\n<\/p><\/blockquote>\n
      A. No one was on sentry duty when I reached the gd room area.\n<\/p><\/blockquote>\n
      Q.3.  When IC-41661P Maj.Ashwini Sudan had ordered you to  arrest the gd person, you did not do so. You say it was because we did not have the belt on us, whereas all of us were properly dressed. Why did you lie?\n<\/p><\/blockquote>\n
      A.  I  did not lie. I did not raise everybody’s  coat  and  check their  belt when I asked for the belt no one out of you gave  the  belt. Hence, I assumed that you didn’t have the belt on you.\n<\/p><\/blockquote>\n
      Q.4. Whey did you snatch the Chapaties from my hand?\n<\/p><\/blockquote>\n
      A. I did not snatch any Chapaties from your hand.\n<\/p><\/blockquote>\n
      Q.5.  How can you be sure that the liquor bottle found in the  gd room  belonged  to our gd party only? It could have  belonged  to anyone who had ever stayed in that tent.\n<\/p><\/blockquote>\n
      A.  I  am not sure that the Rum bottle found in the gd  room  belonged to your gd party or not. From the actions of all gd person I had  presumed that the gd had consumed liquor. On seeing the  Rum bottle I presumed that the gd person had consumed liquor from  that Rum  bottle. However, I in sp the gd room morning and evening  and during  my earlier in sp I had not found any empty  liquor  bottle there.\n<\/p><\/blockquote>\n
      Q.6.  You  had met the gd party at TCP Giaogang at  172Sh.  After that  you were at the Trg Coy loc till 2100h of your own  accord. When did you check the gd room on the evening of 20 Jun 94?\n<\/p><\/blockquote>\n
      A.  I  did  not check the gd room on the evening of  20  Jun  94. However, I had checked it in the morning.\n<\/p><\/blockquote>\n
      The accused No.3184781Y Sep.Sumer Singh has no further  questions from prosecution witness No.1 JC-222675K Nb.Sub.Pitha Ram Bhakar.\n<\/p><\/blockquote>\n
      The   statement   has  been  read  to  the   witness   JC-222675K Nb.Sub.Pitha  Ram  Bhakar and the accused  No.3184781Y  Sep.Sumer Singh  in the language they understand and they sign it  as  correct.”\n<\/p><\/blockquote>\n
 12.  Hav.Yogender  Singh,  who was examined as  prosecution  witness  No.2, would give a different version of what had happened. His evidence is:\n<\/p>\n
      “No.;3169970L Hav.Yogender Singh of 5 JAT having been duly warned stated that he identifies the accused No.3184781Y Sep.Sumer Singh and proceeds to say:-\n<\/p>\n
      I,  No.3169970L  Hav.Yogender Singh mov back to  Lukrep  mag  loc along with JC-222675K Nb.Sub.Pitha Ram Bhakar after attending the evening  cl  of trg coy at Giaogang. We reached  Lukrep  mag  loc around 2130h. On reaching the mag loc JC-222675K Nb.Sub.Pitha Ram Bhakar called for the sentry, meanwhile, I entered my tent. After 5 -7 min JC-222675K Sub.Pitha Ram Bhakar came inside our tent and told  No.3172150K NK.Arab Singh to prep some tea. After about  25 min JC-222675K Nb.Sub.Pitha Ram Bhakar went out somewhere.  After about  5  – 7 min of his mov out I heard him  shout,  “Marya  rai Marya  bachao,  bhachao”. I admit rushed out and heard  a  lot  of noise in the gd room tent. I admit went inside that tent. Inside I found  No.3181308H  Sep.Dilbag Singh sitting next  to  his  food. No.3184781Y  Sep.Sumer  Singh was standing  next  to  No.3181308H Dilbag  Singh, No.3178143K Sep.Badan Singh Jat was standing in  a corner  and JC-222675K Nb.Sub.Pitha Ram Bhakar was  standing  between  No.3178143K Sep.Badan Singh Jat and the other two gd  person i.e No.3181308H Sep.Dilbag Singh and No.3184781Y Sep.Sumer Singh. I enquired from JC-222675K Nb.Sub.Pitha Ram Bhakar the cause  for his  shouting.  Meanwhile, Sep.Badan Singh Jat went  outside  the tent. On reaching my tent the JCO narrated the whole incident  to me.  I got angry at that and called No.318308H  Sep.Dilbag  Singh and No.3184781Y Sep.Sumer Singh to my tent. They started  begging JC-222675K  Nb.Sub.Pitha  Ram Bhakar to excuse  them.  JC-222675K Nb.Sub.Pitha  Bhakar  kept on asking them as to who  had  punched      him. Finally, after sometime No.3184781Y Sep.Sumer Singh accepted that he has given a punch to the JCO. On hearing this, JC-222675K Nb.Sub.Pitha Ram Bhakar told No.3184781Y Sep.Sumer Singh to  give his  confession in writing. No.3184781Y Sep.Sumer Singh told  him that  h had a cut in his finger, hence, he could not  write.  The JCO,  JC-222675K Nb.Sub.Pitha Ram Bhakar insert me to write  down the  confession of No.3184781Y Sep.Sumer Singh. While  I  started  writing No.3184781Y Sep.Sumer Singh’s name and No.,  No.3178143KL Sep.Badan  Singh  Jat came inside the tent and  told  No.3181308H Sep.Dilbag  Singh  and No.3184781Y Sep.Sumer Singh  not  to  give anything  in writing and he also said, “Apne haath na katna”.  He      had  a  stick in his hand which he started jabbing  at  JC-222675 Nb.Sub.Pitha Ram Bhakar. I don’t know whether that stick hit  the JCO  or not. At this I got angry and shouted for a `Lathi’.  This scared  No.3178143K Sep.Badan Singh Jat and he went  away.  After this  JC-222675K Nb.Sub.Pitha Ram Bhakar and I decided to  report the matter to a Sr.Offr. We tried speaking from our tel but could not. We tried speaking from the Lukrep arty exch in vain.  Finally, I dressed up alongwith JC-222675 Nb.Sub.Pitha Ram Bhakar went to   IC-41661P   Maj.Ashwini  Sudan   at   Giaogang.   JC-222675K Nb.Sub.Pitha Ram Bhakar insert me to tell only this to  IC-41661P Maj.Ashwini Sudan that there had been a minor altercation amongst the  gd  perks. On being info that a minor altercation  had  taken place  amongst the gd perks, IC-41661 Maj.Ashwini Sudan inert  JC 222675K  Nb.Sub.Pitha  Ram Bhakar to arrest the gd  perks  and  to change the gd perks in consultation with RP CHM. We went to the RP CHM. He detailed new gd which came with us to Lukrep and  changed the  earlier gd. The above mentioned statement has been  read  to No.3169970L Hav.Yogender Singh in the language he understands and he signs it as correct.”\n<\/p>\n
 13.  In the cross-examination, Hav.Yogender Singh would state:-\n<\/p>\n
      “Q.1.  When you reached the Lukrep Magazine loc and  Nb.Sub.Pitha Ram Bhakar shouted for a sentry, did No.3178143K Sep.Badan  Singh Jat reply back that he was the sentry on duty or not?\n<\/p><\/blockquote>\n
      A. Yes, he did reply back saying that he was the sentry duty from inside the gd.residential tent.\n<\/p><\/blockquote>\n
      Q.2. When you entered the guard room, did you see any Dal spilled on  the  ground  and some Chapaties broken and  littered  on  the ground?\n<\/p><\/blockquote>\n
      A.  I  did  find some Dal spilled on ground. I did  not  see  any Chapaties, however.\n<\/p><\/blockquote>\n
      Q.3. Did you find JC-222675K Nb.Sub.Pitha Ram Bhakar being beaten by any one of us?\n<\/p><\/blockquote>\n
      A. I did not see any such beating in the gd. room. However, I did see No.3178143K Sep.Badan Singh Jat jabbing a stick at JC-222675K Nb.Sub.Pitha Ram Bhakar.\n<\/p><\/blockquote>\n
      Q.4. In you opinion, had all the gd. perks consumed liquor?\n<\/p><\/blockquote>\n
      A.  Yes, I assume so. From their behaviour it assumed as if  they have consumed liquor.\n<\/p><\/blockquote>\n
      Q.5. Why did you not report the incident of beating of JC-223675K Nb.Sub.Pitha Ram Bhakar by the gd party to Maj.Ashwani Sudan? Why did you say to him at ni that a minor altercation had taken place between gd perks?\n<\/p><\/blockquote>\n
      A. I reported the matter of minor altercation amongst gd perks  at ni to IC-41661P Maj.Ashwini Sudan because JC-222675K Nk.Sub.Pitha Ram Bhakar had directed me to do so.\n<\/p><\/blockquote>\n
      Q.6. What time did Nb.Sub.Pitha Ram Bhakar leave for Giaogang Trg Coy loc from Lukrep on 20 Jun 94? Were you there with him at that time?\n<\/p><\/blockquote>\n
      A.  No,  I was not there with him at that time and I  don’t  know what time did he leave for Giaogang from Lukrep.\n<\/p><\/blockquote>\n
      Q.7.  Do  you know at what time did he reach the Trg Coy  loc  at Giaogang?\n<\/p><\/blockquote>\n
      A. No, I don’t know.\n<\/p><\/blockquote>\n
      Q.8.  Did Nb.Sub.Pitha Ram Bhakar ask for the belt of guard  perks in front of you? or, did he tell you to take their belt?\n<\/p><\/blockquote>\n
      A.  No, he did not do any such action in front of me and nor  did he order me to take the belt.\n<\/p><\/blockquote>\n
      Q.9. Is there any civil liquor shop around Lukrep?\n<\/p><\/blockquote>\n
      A. I don’t drink and I don’t have any knowledge on the subject.\n<\/p><\/blockquote>\n
      Q.10.  Were  you with Nb.Sub.Pitha Ram when  he  confiscated  the empty  liquor  bottle from guard room? Were you  with  him  since morning?\n<\/p><\/blockquote>\n
      A.  Yes, I was with the JCO at the time of his  confiscating  the empty  liquor bottle. Also, we had woken up at the same  time  in the morning and I was with him since then.\n<\/p><\/blockquote>\n
      The accused has no further questions from the prosecution witness No.2 No.3169970L Hav.Yogender Singh.\n<\/p><\/blockquote>\n
      The  above  statement  has  been read  to  the  individuals  i.e. No.3169970L Hav.Yogender Singh and No.3184781Y Sep.Sumer Singh in the language they understand and sign it as correct.”\n<\/p><\/blockquote>\n
 13A. The petitioner gave his statement which is as follows:-\n<\/p>\n
      “After  recording  the  statement of  prosecution  witnesses  the accused was cautioned in the presence of JC-177946F Sub Chuna Ram of 5 Jat as under:-\n<\/p><\/blockquote>\n
      Do  you  wish to make any statement? You are not obliged  to  say anything  unless you wish to do so but whatever you say  will  be taken down in writing and maybe given in evidence”.\n<\/p><\/blockquote>\n
      The  accused No.3184781Y Sep.Sumer Singh wishes to make a  statement and proceeds to do so.\n<\/p><\/blockquote>\n
      No.3181308H  Sep.Dilbag Singh and I were having our food  in  our tent when JC-222675K Nb.Sub.Pitha Ram Bhakar came to our tent. He abused us and said, “Tum itne ranges ho gaye ho ab khana kha  rahe ho”. His ft hit our bowl of food and its contents got spilled.  I don’t know whether he deliberately kicked our bowl or it happened involuntarily. After this he snatched the Chapaties which were in my  hand.  When  I took back the `Chapaties’ from  his  hand,  he slapped  me on the rt check. No.3178143K Sep.Badan Singh Jat  who was  standing on sentry duty came inside the tent on hearing  the  noise.  No.3169970L  Hav.Yogender Singh and  No.3179150K  Nk.Arab Singh also came in. No.3178143K Sep.Badan Singh Jat went back  to
\n     his  duty  outside the tent. JC-222675K Nb.Sub.Pitha  Ram  Bhakar also went out. I overheard JC-222675K Nb.Sub.Pitha Ram Bhakar say using  abusing terms, “Agar L.Nk.Budh Ram a Coy, He Coy  ke  teen jawanon ko saja dilwa sakta hai to main to bahut kuchh kar  sakta hun”.   After  that  JC-222675K  Nb.Sub.Pitha  Ram   Bhakar   and No.3169970L Hav.Yogender Singh reported the matter to someone. On their  return after reporting the matter we were ordered to  move back  to  our  coy  bk. On arr of the new gd.  we  were  told  by No.3172150K NK.Arab Singh to mov back to our Coy loc. No.3172150K NK  Arab  Singh told us to report to RP CHM he instructed  us  to report to the Coy CHM at the coy loc and he also told us to  ring him  up  on  reaching coy locality. On reaching the  coy  loc  we reported  to  Hav.Ram  Niwas,  Offg.CHM. There  we  came  to  coy
\n     Sr.JCO’s room and tried ringing up from their hut in vain.  There the coy Sr.JCO told us to go and not to worry about reporting  to RP CHM on tale. He would do the needful. After that around  0130h on 21 Jun 94 we came and slept in our barrack.”\n<\/p><\/blockquote>\n
      The statement has been read out to the accused in the language he understands and he signs it as correct.”\n<\/p><\/blockquote>\n
 14.  The Commanding Officer issued a certificate on the 22nd of June,  1994 that the petitioner refused to sign Appendix ‘A’. Two witnesses had attested the certificate which is in the following terms:-\n<\/p>\n
      “CERTIFICATE  <\/p>\n
      The  accused  refused  to sign on Apex ‘A’ to  AO  70\/84  in  the presence of the following:-\n<\/p><\/blockquote>\n
      (a) IC-41661P Maj Ashwani Sudan – 5 JAT.\n<\/p><\/blockquote>\n
      (b) JC-156036A Sub.Laxman Ram – 5 JAT. <\/p><\/blockquote>\n
\n      1. _____________________________\n     (IC-41661P Maj.Ashwani Sudan)\n     2. __________________________\n     (JC-156036 Sub.Laxman Ram)\n     Station: Field                (KK Bhattacharya)\n                              Col.dated: Dated; 22 Jun 94\n                              CO\"\n \n\n      These two perksons had not been examined. \n \n\n 15.  The Commanding Officer had assumed that the petitioner had put a punch on the of JCO when there is no evidence. \n \n\n<\/pre>\n
 16.  Shri  Yogender Singh, who was the second witness in the  Summary  Evidence,  was  examined as third witness in the Summary  Court  Martial.  The Court  put  the  questions and the questions and answers  are  recorded  as follows:-\n<\/p><\/blockquote>\n
      “No.3169970L  Hav.Yogender Singh being sworn is examined  by  the Court.\n<\/p><\/blockquote>\n
\n      Q.1. When you and JC-222675K Nb.Sub.Pitha Ram Bhakar were sitting in your tent, did No.3184781Y Sep.Sumer Singh confess that he had hit Nb.Sub.Pitha Ram Bhakar on his back? <\/p>\n
      A. Yes, he had confessed hitting the JCO Nb.Sub.Pitha Ram Bhakar.\n<\/p><\/blockquote>\n
\n      Q.2.  When  JC-222675K Nb.Sub.Pitha Ram Bhakar  told  No.3184781Y Sep.Sumer  Singh  that you write your  statement,  did  Sep.Sumer Singh say that he has got injury in his finger? <\/p>\n
      A. Yes, he said that.\n<\/p><\/blockquote>\n
\n      Q.3.  When JC-222675K Nb.Sub.Pitha Ram Bhakar told you  to  write the  statement,  and you were noting down the name and  No.,  did Sep.Badan  Singh  Jat say, “Likhit mein kuchh  nahin  dena,  isse hamare haath kat jayange”? <\/p>\n
      A. Yes, he said that.”\n<\/p><\/blockquote>\n
<\/blockquote>\n<\/blockquote>\n
 17.  What is recorded by the Commanding Officer is that the petitioner  declined  to  cross-examine the prosecution witness No.3. A  perusal  of  the deposition  of Yogender Singh would show that he does not bring  about  any facts  from  which even a semblance of inference could be  made  about  the guilt of the petitioner.\n<\/p><\/blockquote>\n
 18.  Sepoy  Dilbagh Sigh, who was arraigned along with the  petitioner  was examined as second witness in the Summary Court Martial. His statement  was not  recorded at the time of recording of Summary Evidence. How  a  person, who  was accused, is now examined as a witness against the  petitioner  has not  been  explained by the Commanding Officer or the  respondents  in  the counter.  Mr.N.L.Bareja, learned counsel for the petitioner submitted  that the examination of Sepoy Dilbagh Singh at the time of the trial of SCM  was contrary to Army Rule 135.\n<\/p>\n
 19.  The learned counsel for respondents, Mr.K.C.Mittal, submitted that the respondents had acted in accordance with rule.\n<\/p>\n
 20.  Before I notice the evidence of this witness, it is better to have the Rule 135 itself.\n<\/p>\n
      “Calling of witness whose evidence is not contained in summary._ <\/p>\n
      If  the prosecutor, or, in the case of a  summary  court-martial, the  court intends to call a witness whose evidence is  not  contained  in any summary or abstract of evidence given to the  accused,  notice of the intention shall be given to the  accused  a reasonable  time  before the witness is called together  with  an abstract of his proposed evidence; and if such witness is  called without  such  notice  or abstract having been  given  the  court shall, if the accused so desires it, either adjourn after  taking the  evidence of the witness, or allow the  cross-examination  of such  witness  to  be postponed and the court  shall  inform  the accused of his right to demand such adjournment or  <\/p>\n
 21.  According to Mr.Mittal, learned counsel for the respondents, the  rule had  been complied with but Mr.Bareja, learned counsel for  the  petitioner submitted that if a witness is to be examined but had not been examined  at the  time  of Summary Evidence, the Court shall inform the accused  of  his right  to demand an adjournment or postponement. and that was not  done  in this case and that would vitiate the entire proceedings and that such  last part  of the rule was not followed, cannot be disputed by the  respondents. Therefore,  the  examination of Sepoy Dilbagh Singh was not valid  in  law. Therefore, his evidence cannot be looked into at all for any purpose  whatsoever.  But  all the same, even if we look into the evidence,  that  would only  go to prove that the Commanding Officer had some how made an  attempt to bring in evidence to establish the guilt of the accused. The evidence of Dilbagh Singh is as under:-\n<\/p>\n
      “No.3181308H  Sep.Dilbag  Singh being sworn is  examined  by  the Court.\n<\/p><\/blockquote>\n
      Q.1.   When  No.3178143K  Sep.Badan  Singh  Jat  and   JC-222675K Nb.Sub.Pitha Ram Bhakar fall down during the scuffle Nb.Sub.Pitha Ram Bhakar has said that someone has hit him from behind. Can you say who hit him?\n<\/p><\/blockquote>\n
      A.  In  the  second tent No.3184781Y  Sep.Sumer  Singh  confessed hitting the JCO, JC-222675K Nb.Sub.Pitha Ram Bhakar.\n<\/p><\/blockquote>\n
      Q.2.  When you went to No.3169970L Hav.Yogender Singh’s tent  did Sep.Sumer  Singh confess that he had hit Nb.Sub.Pitha Ram  Bhakar from behind on his back in the first tent?\n<\/p><\/blockquote>\n
      A. Yes, he confessed hitting the JCO.\n<\/p><\/blockquote>\n
      Q.3.  When No.3184781Y Sep.Sumer Singh had confessed that he  had hit Nb.Sub.Pitha Ram Bhakar on his back at that time Nb.Sub.Pitha  Ram Bhakar had asked Sep.Sumer Singh to write down his  statement accordingly. At that time Sep.Sumer Singh said that he had injury on his finger. Was No.3169970L Hav.Yogender Singh asked to  write the statement on his behalf?\n<\/p><\/blockquote>\n
      A. Yes.\n<\/p><\/blockquote>\n
      Q.4.  When No.3169970L Hav.Yogender Singh was writing the  statement, No.3178143K Sep.Badan Singh Jat to said Sep.Sumer Singh not to  give  anything in writing. He said, “Likhit  main  kuchh  mat dena, isse hamare haath kat jayange”, Did he say so?\n<\/p><\/blockquote>\n
      A. Yes, he said that.”\n<\/p><\/blockquote>\n
      This  would not bring out anything to point out the guilt to  the  accused.\n<\/p><\/blockquote>\n
 22.  The JCO, N\/Sub Pitha Ram Bhakar gave evidence before the Court and his evidence is as under:-\n<\/p>\n
      “Q.1. When you noticed the sentry was not on duty you again  went to the gd. res. tent. At that time during fight, did  No.31\/8143K Sep. Badan Singh Jat grasp you from behind?\n<\/p><\/blockquote>\n
      A. Yes.\n<\/p><\/blockquote>\n
      Q.2. When you fell down, did someone hit you from behind?\n<\/p><\/blockquote>\n
      A. Yes.\n<\/p><\/blockquote>\n
      Q.3. Can you say who hit you from behind?\n<\/p><\/blockquote>\n
      A. I was hit by No.3184781Y Sep.Sumer Singh on my back. Sep.Sumer Singh  has  confessed about it in the second tent where  he  came subsequently.\n<\/p><\/blockquote>\n
      Q.4.  When No.3184781Y Sep.Sumer Singh confessed of hitting  you, who all were present in the tent?\n<\/p><\/blockquote>\n
      A.  At that time, No.3169970L Hav.Yogender Singh and  No.3181308H Sep.Dilbagh Singh were present.”\n<\/p><\/blockquote>\n
      His  evidence also does not bring home the charge alleged against  the petitioner.\n<\/p><\/blockquote>\n
 23.  The learned counsel for respondents, Mr.K.C.Mittal, submitted that the petitioner, who was present at the time of the Summary Court Martial, which is not disputed, did not chose to cross-examine the witness, and therefore, the  evidence recorded should be accepted to be correct. A reading  of  the evidence recorded at the Summary Evidence and the cross-examination and the evidence recorded at the time of the Summary Court Martial would show  that no  offence had been made out against the petitioner. The evidence  of  the witnesses  has absolutely been incoherent, totally illogical and  not  consistent  with offence report, not consistent with natural course  of  human conduct. At the time of the Summary Court Martial, a new case of  intoxication was brought in.\n<\/p>\n
 24.  Mr.Bareja,  learned counsel for the petitioner, submitted  that  Sepoy Badan  Singh, who was an eyewitness, had not been examined and that  vitiates the proceedings. No explanation is forthcoming from the respondents as to  why  Sepoy  Badan Singh was not examined at the time  of  recording  of Summary Evidence or at the time of the Summary Court Martial.\n<\/p>\n
 25.  The learned counsel, Mr.Bareja, submitted that provisions of Army Rule 34 had not been followed. According to the learned counsel for  petitioner, the  charge-sheet dated 2.7.1994 annexed as B-2 by the proceedings was  not furnished to the petitioner and the petitioner was served with a  tentative charge-sheet  on 1.7.1994 and the final charge-sheet was not given to  him. The answer is that what was given is final charge-sheet and the description as  ‘tentative charge-sheet’ was a mistake. Mr.Bareja, learned counsel  for the  petitioner submitted that the time of the offence is stated to  be  at 21.30 in the charge-sheet but the witnesses speak to a different time  and, therefore,  according the learned counsel, the Commanding Officer  had  not applied  his  mind to the events. The learned counsel  for  the  petitioner raised  various other contentions but I am of the view that in view of  the what  has  been discussed above, it is not necessary to go into  the  other points.\n<\/p>\n
 26.  The offence report and the charge-sheet issued on 2.7.1994 are different  and they are contradictory to each other and as I noticed  above,  the Commanding  Officer  had  not followed the Army Rule 22  and  the  evidence recorded does not disclose any offence. The whole thing is a made-up affair by the Commanding Officer and there is absolutely no evidence on record  to sustain  the conviction and the sentence and the punishment imposed by  the SCM.\n<\/p>\n
 27.  The  learned counsel for the petitioner, Mr.N.L.Bareja, relied on  the following rulings:\n<\/p>\n
      1.  “Prithpal  Singh Vs. Union of India & Others” 1984  3SLR  675 (J&K) <\/p>\n
      2. “Lt.Col.Prithi Pal Singh Bedi Vs. Union of India & Others<\/p>\n
 And   <\/p>\n
      Captain Dharam Pal Kukrety & Another Vs. Union of India & Others   <\/p>\n
      And  <\/p>\n
      Captain  Chander  Kumar  Chopra & Another Vs. Union  of  India  & Others”\n<\/p>\n
      3. “Ranjit Thakur Vs. Union of India & Others” , <\/p>\n
      4. “Nb\/Sub Avtar Singh Vs. Union of India & Others” 1989 4SLR 579
\n     (Delhi) <\/p>\n
      5. “Shri S.N.Mukherjee Vs.Union of India” , <\/p>\n
 28.  In  Prithipal Singh’s case 1984 3 SLR 675, the High Court of  Jammu  & Kashmir had dealt with the scope of Rule 129 of the Army Rules, which deals with  Court  Martial  providing accused, what is called, a  friend  of  the accused. The High Court of Jammu & Kashmir observed:-\n<\/p>\n
      “The  most  important  aspect of the case is as  to  whether  the petitioner  had pleaded guilty to the charges as is suggested  by Mr.Hussain  or  not  Plea of guilt recorded  by  Lt.Col.Mehta  is dehors  R.155 of the Army Rules. In the first place  the  alleged plea of guilt is unsigned by the authorities.\n<\/p>\n
      Surprisingly the petitioner also has not signed the alleged  plea of  guilt. At what stage word “guilty” was recorded against  each charge  is not known. If it was recorded in presence of  the  accused-petitioner  obviously  his signatures would have  been  obtained  on it. Then the minutes of the enquiry should  have  contained  an  advice to the petitioner not to plead guilty  as  enjoined by R.115 of the Army Rules. This important mandate of  the Rule  has  been flagrantly violated. Therefore,  the  proceedings      conducted  by the Summary Court Martial which have  affected  the      petitioner’s fundamental rights as he is deprived of his job  are vitiated.  The  protection afforded by the procedure  should  not have been denied to the petitioner if it was intended to  proceed against  him  under the Army Rules. As to  whether  charges  were correct or not as already observed this court cannot go into that aspect of the matter. But certainly this court will set aside the punishment which is awarded to the petitioner on the ground  that the  decision to punish the petitioner was taken by  contravening the  mandate  of Rules. Such a decision would  be  arbitrary  and shall  be violative of the guarantees contained in Art.14 of  the Constitution.  The  argument of the learned counsel for  the  respondent  that  the petitioner was not prejudiced in  any  manner during the Summary Court Martial proceedings is devoid of  force.  The petitioner has suffered punishment of dismissal from  service and the punishment is awarded by conducting proceedings in such a manner  which were neither fair not judicial. Could  the  Summary Court Martial observe the Rules governing the conduct of  Summary Court Martial in breach. Answer to this question will be emphatic no in view of the glory of the Constitution and rights guaranteed by it.”\n<\/p>\n
 29.  Mr.Bareja,  learned  counsel  for the petitioner  submitted  that  the entire  SCM proceedings, as per the record produced, would appear  to  have been  concluded  in  just an hour. According to the  learned  counsel,  the Commanding  Officer had typed out the entire proceedings. He had not  taken the  signatures  of the petitioner in any of the  roceedings.  Though  the petitioner  was present at the time of the SCM, he was not  asked  anything and  whole recordings had been made without his knowledge.  Therefore,  according to Mr.Bareja, the submission by Mr.K.C.Mittal, learned counsel  for the respondents, that the fact that the petitioner was present at the  time of the Court Martial trial what the petitioner stated would not be correct, cannot be accepted.\n<\/p>\n
 30.  I  am incline to agree with Mr.Bareja because the Commanding  Officer had  not taken his signatures in any of the proceedings and, as  I  noticed above, proceedings are typed out. In his letter to the father of the  petitioner,  the Commanding Officer had given a different version and  now  the punishment imposed is different in the proceedings. There is no explanation from  the  respondents as to why the Commanding Officer did  not  take  the signatures of the petitioner. The same Commanding Officer had recorded  the fact on the 22nd of June, 1994 in the presence of witnesses that the  petitioner  refused to sign but in the Summary Court Martial there is  no  such recording.  Therefore,  whatever that stated in the Summary  Court  Martial proceedings cannot be given any credence at all.\n<\/p>\n
 31.  In  S.N.Mukherjee’s case  the Constitution Bench  of the Supreme Court had laid down:-\n<\/p>\n
       “It must be concluded that except any cases where the requirement has been dispensed with expressly or by necessary implication, an administrative  authority, exercising judicial or  quasi-judicial functions, is required to record the reasons for its decision”\n<\/p>\n
 32.  Mr.Bareja  referred  to the following judgements for  the  purpose  of showing that the punishment imposed is out of all proportion to the offence complained of.\n<\/p>\n
      1. “Ex.Naik Sardar Singh Vs. Union of India & Others” AIR 1992 SC 417  <\/p>\n
      2.  “Bhagat Ram Vs. State of Himachal Pradesh & Others”\n<\/p>\n
 33.  Mr.K.C.Mittal,  learned  counsel for the respondents  relying  up  the following judgement of the Supreme Court contended that once the  petitioner had  participated  in the Summary Court Martial, the  pre  trial  violation
\ncannot be the subject matter of any complaint:”\n<\/p>\n
      Union of India & Others Vs. Major A.Hussain” .\n<\/p>\n
      The Supreme Court was concerned with the case of a Major in the Indian Army.  The Supreme Court had referred to the provisions of Rule 22 and  had also  referred  to the judgment in Prithipal Singh’s case.  Therefore,  the judgment of the Supreme Court is not an authority for the proposition  that when  there  has  been violation of the rules, the  participation  of  the accused in the Court Martial would render the violation valid.\n<\/p>\n
 34.  For  the  foregoing  reasons, I have no hesitation in  coming  to  the conclusion  that the proceedings of the SCM and the order of the  Chief  of the Army Staff dated 1.7.1997 cannot be sustained in law. Accordingly, they are quashed.\n<\/p>\n
 35.  The writ petition is allowed in above terms.\n<\/p>\n
 36.   The petitioner shall be reinstated in service with all  consequential benefits on or before the 31st of July, 1998.\n<\/p>\n
 37.  There shall be no orders as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Sumer Singh (Sep.) vs Union Of India on 27 May, 1998 Equivalent citations: 1998 IVAD Delhi 366, 74 (1998) DLT 15 Author: K Ramamoorthy Bench: K Ramamoorthy ORDER K. Ramamoorthy, J. 1. The genesis of the writ petition is the incident that had occurred on the 20th of June, 1994 at Lukret […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-217714","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nSumer Singh (Sep.) vs Union Of India on 27 May, 1998 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sumer-singh-sep-vs-union-of-india-on-27-may-1998\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sumer Singh (Sep.) vs Union Of India on 27 May, 1998 - 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