CIVIL APPEAL No. 7133 OF 2008

Based on these reports, the Chief Engineer, Project Beacon, ordered a Court of Inquiry which investigated these allegations and concluded that the Respondent was blameworthy for two of the four aforesaid acts committed without authority: firstly, demanding and taking 100 litres of HSD from BRIHL Meena on 30th November, 2001 and selling it to a civilian, and secondly, on 5th December, 2001 demanding and taking a coat/ parkha and two stone breaking steel hammers. The Chief Engineer partially agreed with the findings of the Court of Inquiry and directed disciplinary action against the Respondent for the aforementioned two acts. The Respondent was arraigned on two counts for the two respective acts and charged with committing extortion, under Section 53(a) of the Army Act, 1950. Summary of Evidence was recorded under Rule 23, Army Rules and the Respondent was tried by Summary Court Martial (SCM), headed by Lt. Col CM Kumar, Officer Commanding, (OC) on 11.04.2002. The Respondent pleaded guilty to both charges. At the hearing of the SCM, two prosecution witnesses were examined, both of whom the Respondent declined to cross-examine. The Respondent neither made any statement in his defence, nor did he produce any defence witnesses. He was ultimately awarded the sentence of are duction in rank to that of “Naik”. Thereafter, for reasons recondite, the ‘reviewing authority’ purportedly acting under Section 162 of the Act, while ‘reviewing’ the SCM, set aside the same, “due to incorrect framing of charge and lackadaisical recording of evidence at the summary of evidence”. This intervention is in the teeth of the Certification in consonance with Rule 115.Inasmuch as it is the Deputy Judge-Advocate General who has made these observations and the records do not bear out and authenticate that his opinion/observation, was subscribed to or approved by the ‘reviewing authority’ who statutorily has to be the senior ranking officials enumerated in Section 162, there appears to us that a ‘review’ did not actually take place. This is essentially a usurpation of power by Deputy Judge-Advocate General. Rule 133 no doubt mentions this officer, but his role is restricted to forwarding the proceedings of the Summary Court Martial to the officer authorised to deal with them in pursuance of Section 162. At the most the Deputy Judge-Advocate General may append his own opinion to the proceedings of the Summary Court Martial while forwarding them to the authorised officer. This is amply clear from the fact that the records made available to the High Court as well as to this Court do not contain any Order of the “prescribed officer” setting aside the proceedings or reducing sentence to any other sentence which the SCM had imposed. It also seems to us to be plain that instead of setting aside or reducing the sting of the sentence the Deputy Judge-Advocate General has opined, without any statutory authority, that the Summary Court Martial itself should be set aside and the Accused/Respondent be relieved of all consequences of trial. Wholly contrary to his own opinion, the Deputy Judge-Advocate General has gone on to return a finding of misappropriation and a sentence that the conduct of the Accused/Respondent renders his retention in the service as undesirable. It determined that although the officer conducting the Court Martial recorded a plea of guilty under Rule 116(4), a perusal of the Respondent’s statement in the Summary of Evidence belied this recording; that therein, qua the second charge, the Respondent had contested the charge stating that he had requested for supply of only one hammer which was to be returned at the end of winter. Upon later inspecting the hammer, the Respondent discovered that there were two hammers packed inside, instead of the one that he had requested….read more