Holding

A summary court‑martial may be convened and presided over by the Commanding Officer of the corps under Section 116 of the Army Act, 1950, and Rule 39(2) of the Army Rules does not apply to such courts, rendering the dismissal valid.

Summary

Vidya Prakash, a soldier in the Indian Army, was dismissed after being found guilty of being absent without leave by a summary court‑martial convened by his corps Commanding Officer, Major P.S. Mahant. He challenged the dismissal, contending that the Commanding Officer was not competent to preside over a summary court‑martial under Rule 39(2) of the Army Rules, that the punishment was disproportionate, and that he was denied a fair opportunity to defend himself. The Delhi High Court dismissed the writ petition, holding that no objection was raised about the CO’s competence and that the appellant had admitted guilt. On appeal, the Supreme Court examined the statutory framework and held that Section 116 of the Army Act, 1950 authorises a Commanding Officer of a corps to constitute and preside over a summary court‑martial, and that Rule 39(2) applies only to general and district courts‑martial. Consequently, the dismissal was valid and not disproportionate, and the principles of natural justice were not violated. The appeal was dismissed, affirming the High Court’s order.

Issues considered

Whether a Commanding Officer of a corps is competent to constitute and preside over a summary court‑martial under Section 116 of the Army Act, 1950 notwithstanding Rule 39(2) of the Army Rules, 1954.
Whether dismissal from service for the offence of absence without leave is disproportionate to the charge.
Whether the appellant was denied a fair opportunity to defend himself and the principles of natural justice were violated.

Legislation cited

Army Act, 1950s. 108, s. 116, s. 39(a), s. 71(e)
Army Rules, 1954s. Rule 39(2)

Subjects

summary court martialArmy ActRule 39absence without leavedismissal from servicenatural justicemilitary lawcompetence of commanding officer

Judgment

VIDYA PRAKASH
A
v.
UNION OF INDIA & ORS.

FEBRUARY 10, 1988

[A.P. SEN AND B.C. RAY, JJ.) B
i
<(.
Army Act, 1950/Army Rules, 1954: Sections 39(a), 71(e), 108
.,,.
" and 116/Rule 39(2)-Jawan-Absent without leave-Charge sheeted-
Trial by Summary Court Martial-Held guilty-Dismissed from
service-In writ petition assailing constitution of summary court martial
C
r
by Commanding Officer-Whether Commanding Officer of Corps
'competent to constitute the summary court martial-Held order of dis-
J missal valid.

The appellant was appointed to the post of Craftsman (Jawan) on
November 23, 1973. He was later promoted to the post of Naik in view
of his good services and subsequently confirmed in that post. He served D
at various places in the country, including field areas. He was, however,
reverted from the post of Naik to the post of Craftsman (Jawan). While
he was in service he incurred the displeasure of the Commanding
Officer of his regiment (Major) as he did not comply with his directions.
'f He was consequently harassed and maltreated in various ways. Unable
to bear the torture he surrendered to the mercy of the Commanding E
Officer of the Battalion (Colonel). He, however, directed him to surren-
der to the Commanding Officer of his regiment and gave hint a certlfl·
cate of surrender. The Commanding Officer took hint into custody. He
• was charge-5heeted for the purpose and sentenced to 42 days imprison·
' ment in military custody. During the period of his remaining in military
, . custody, his family suffered harassment. The appellant on 12th F
"1 September, 1984 left station with his wife and tillldren without taking
~ny leave. He stated that he became unwell and was under the treat-
ment of a doctor. When he reported back to his unit with the fitness
certificate the Commanding Officer of his regiment served him with a
, charge-5heet on November 2, 1984 and directed that he be tried by a
summary court-martial. On November 9, 1984, the order of dismissal G
..,., of the appellant from service was made by the Commanding Officer in
r the Summary Court Martial.

The appellant challenged the aforesaid order in a writ petition to
the High Court, and sought quashing of the same contending: that the
Commanding Officer was not legally competent to preside a summary H

953
954 SUPREME COURT REPORTS [1988] 2 S.C.R.

A court martial, that the punishment of dismissal from service was dis-
proportionate to the charge, that he was denied a fair opportunity to ,...
defend himself, and was in fact not permitted to question the witnesses.

A Division Bench of the High Court however, dismissed the writ
petition holding that no objection was taken before the Summary Court
B
Martial that the ·appellant was not allowed to be represented by his
counsel, that no objection was taken as to the competence of the Com- Y
manding Officer to act as a Judge in the Summary Court Martial, that
the appellant had earlier been convicted four times and entries were
made in red ink in his service record, and that as the appellant was
absent from duty without leave and pleaded guilty before the court
c martial proceedings, there was as such no illegality in the order of
dismissal made in the court martial proceedings. ·,_
+.· '
.
Dismissing the Appeal,

HELD: 1. Four kinds of courts martial are specified in Section
D
108 of the Army Act, 1950. These are:(a) General Courts-Martial; (b)
District Courts-Martial; (c) Summary General Courts-Martial and (d)
Summary Courts-Martial. [959G-H; 960A]
\
2. Section 116 of the Act says that a summary court martial may
be held by the Commanding Officer of any corps or department or
E detachment of the regular Army, and he shall alone constitute the
court, and that the proceedings shall be attended throughout by two
other persons who shall be Officers or junior commissioned officers or
otie of either, and ·wlto shall not as such, be sworn or affirmed. It is only
in· the case if general court martial or district court martial that Rule •
39(2) of the Army Rules 1954·is applicable and the Commanding Officer '
F is not competent to convene general or district court martial. [960B, DI
. . .. . J/ .
.

3. In the instant case, the summary court martial was held by the
Commanding Officer of the Corps, Major P.S. Mahant and there were
two 'other officers Captain K.J. Singh and another officer to attend the
proceedings. In such circumstances, the summary court martial had x
G been convened by the Commanding Officer according to the provisions
of the A:rmy Act, 1950. [960C, E-FI
y
4. Section 39(a) of the Act specifies that to be absent without leave
constitiltes an offence, while Section 7l(e) provides· dismissal from
Ii service aslllle of the punishments for such an offence. [960FI
i·.
VIDYA PRAKASH v. U.0.1. [RAY, J.] 955

S. The appellant in the instant case, nndonbtedly absented A
himself from duty without faking any leave from the lines as required
under the Army Act, was charge-sheeted for the said offence and tried
by a summary court martial convened by the Commanding Officer.
After giving him due opportunity it was held that the appellant was
previously punished also for the offence of absence from duty on four
occasions and there was a red ink entry. Considering all this, in the B
summary court martial proceedings he was convicted and sentenced to
the punishment of dismissal from service. The submission on behalf of
the appellant that punishment is disproportionate to the charge is
wholly unsustainable. As such the said order of dismissal cannot be
challenged as disproportionate to the charge or as one tainted with
illegality. It is also evident from the judgment of the High Court that C
the appellant admitted his guilt of absenting from duty without any
leave. [960G-H; 96IA-B, F)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2107
of 1987.
D
From the Judgment and Order dated 3.3.1986 of the Delhi High
Court in Writ Petition No. 2503 of 1985.

R.K. Garg and D.K. Garg for the Appt:llant.

M.S. Rao and C.V. Subba Rao forthe Respondents. E

- •
.,
The Judgment of the Court was delivered by

RAY, J. Special leave granted. Heard argum~nts of learned
counsel for the parties .
F
This appeal by special leave is against the judgment and order
dated 3rd March, 1986 passed by the High Court at Delhi dismissing
the writ petition No. 2503 of 1985.

The facts of the case in brief are that the appellant was appointed
to the post of Craftsman (Jawan) on November 23, 1973. We was sent G
to 3 E.M.E. Centre, Bhopal for training. After completion of his two
years' training he was posted to 80 EME Battalion C/o 56. A.P.O. on

... July 25, 1975. The appellant in view of his good service was promoted
to the post of Naik and subsequently he was confirmed in that post .
During his service as Jawan and as a Naik, the appellant served at
various places in the country including the field area at Pun j Sector in H
956 SUPREME COURT REPORTS ·[1988] 2 S.C.R.

A Jammu & Kashmir. The appellant was reverted from the post of Naik )'-
to the post of Jawan (Craftsman) by Lt. Col. G.S. Srivastava and he
, was, thereafter, directed to report to NEPA. The appellant joined his
post in NEPA. However, the appellant was subsequently transferred
and posted in Panagarh. One Major N.K. Tiwari who was the Com-
manding Officer of the said regiment became very much displeased..
B with the appellant as he did not comply with his directions to go to
Kanpur to ·~ring his personal goods from Kanpur to Panagarh. The
appellant was harassed and maltreated in various ways. The appellant
being unable to bear the torture caused to him approached Col. R.K.
Mehta, Commanding Officer, EME Depot Battalion, Sikandrabad
and surrendered to the mercy of the said Colonel. The Colonel advised
the appellant to go back to Panagarh and report to his Unit. The
c appellant was sent with the certificate of surrender. On his return, the A-.
appellant was not permitted to join his duty; but he was taken into the • ~ ·
custody immediately and thereafter he was directed by Major Tiwari
to be treated without leave for three days and should be court-martial-
led for the same. The appellant was charge-sheeted for the purpose
D and he was convicted to 42 days imprisonment in military custody.
During the period of his remaining in military custody, he was given
only a small sum of Rs.60 and as such his family had to suffer much
harassment. The appellant, however, on 12th September, 1984 left
Panagarh with his wife and children for Kanpur without taking any
leave. It is stated that he became unwell and he was under the treat-
E ment of a doctor.

After coming round he reported to Panagarh and reported in his
Unit with the fitness certificate. The appellant was called by the
Officer Commanding and he was served with a charge-sheet on
November 2, 1984 wherein it was ordered by Major P.S. Mahan! that •
F the appellant be tried by a Summary Court Martial. It has been alleged "
that Major Mahan! appointed his close associate Captain K.J. Singh to. l.. /
record summary of evidence. The appellant was not given proper ..A:··
opportunity to defend himself. In the proceedings the appellant was
not allowed to raise any objections. On 9th November, 1984, the order
of dismissal from service of the appellant was made by Major P.S.
G Mahan!, Commanding Officer, in the summary court martial.

The appellant challenged this order by a writ petition being Civil
Writ Petition No. 2503 of 1985 on the ground that the Commanding
Officer was not legally competent to preside a summary court martial.
It was 'also stated in the petition that the punishment of dismissal from
H service was disproportionate to the charge; he was denied a fair
VIDYA PRAKASH v. U.0.1. [RAY, J.) 957

opportunity to defend himself and was in fact not permitted to ask
A
questions to the witnesses. The appellant so prayed for issuance of an
appropriate writ for quashing the impugned order of dismissal from
service and also for a direction to the respondents to pay the entire
arrears of salary and allowances which are legally due to him.

t The writ petition was heard by a Division Bench of the High
Court at Delhi and it was dismissed on March 3, 1986 holding inter alia
t that no objection was taken before the Summary Court Martial that
the appellant was not allowed to be represented by his counsel. It was
B

also held that in the writ petition no objection was taken as to the
competence of Major P.S. Mahan! to act as a Judge in the Summary
Court Martial nor objection was made to the effect that Captain K.J.
~ Singh ordered him to keep his mouth shut. It was also observed that
c
besides Major P .S. Mahan! who was presiding Summary Court Martial
I threre were two other members. The appellant, it was held, had earlier
been convicted four times and entries were made in the red ink. The
appellant was absent from duty without any leave and he pleaded
guilty before the court martial proceedings and as such there was no D
illegality in the order of dismissal made in the court martial pro·
ceedings.

It is against this judgment and order, the impugned l'ppeal on
special leave has been preferred before this Court.

-
E
An affidavit in counter sworn by one Capt. D .K. Ghosh on
behalf of the respondents has been filed. In paragraph 4 of the said
affidavit, it has been submitted that Rule 39(2) of the Army Rules
deals with the disqualification of officers for General and District
Courts Martial. The said rule says that an officer is disqualified for
., serving on a general or district court martial if he is the Commanding F
. Officer of the accused. The appellant has assailed the court martial
"\._proceedings on the ground that the Commanding Officer served on the
Court Martial and as such the court martial proceedings are in breach
of Rule 39(2) of the Army Rules, 1954. It has been further stated that
the appellant was tried by a Summary Court Martial and not by a
General or District Court Martial and Army Rule 39(2) does not apply G
to Summary Court Martial constituted under Section 116 of the Army
T Act, 1950. It has been further stated that a Summary Court Martial
may be held by a Commanding Officer of any Corps, Department or
Detachment of the regular army, as stipulated by Section 116(c) of the
Army Act. It has been submitted that the appellant has been tried by a
Summary Court Martial and he was sentenced to dismissal from H
958 SUPREME COURT REPORTS [19881 2 S.C.R. 1

A service on November 9, 1984. It has also been stated that the proceed-
ings have been attended throughout by two other persons in accord-
,..
ance with the provisions of Section 116( 1) of the said Act. It has been
f'-
averred that in a case of Summary Court Martial as per Section 116 of
the said Act, the Commanding Officer shall alone constitute the
Court. The proceedings of the Court shall be attended by two officers/
B JCOs or one of either. It has been further stated that the appellant
incurred the following red ink entries while serving with various units
prior to the summary court martial: f t
(i) 14 days R.I. in military custody under AA (Army Act) Sec.
39(a) on September 3, 1975 by 80 EME Bn.
" ~

c (ii) 3 days R.I. in military custody under A.A. Sec. 39(a) on p·.
22nd June, 1979 by 1 EME Centre.
~
'
(iii) Reduced to the rank under AA Sec. 63 on 24 January, 1983
by 174 Fd. Regt.
D
(iv) 28 days R.I. and 14 days detention in mi!. custody under AA ' r--
Sec. 39(a) on lOth July, 1984 by 986 AD. Regt WKSP.

The appellant was issued a show cause notice for discharge being
unsuitable inefficient soldier on 30th August, 1984 to which he replied
E on 2nd September, 1984. The appellant again became absent without
leave on 13th September, 1984. The appellant did not inform the Unit
authority again of taking his family to Kanpur. While leaving for
Kanpur he locked his quarter securely to keep possession of the family
accommodation. The proceedings of the summary court martial were
in accordance with the provisions of the Army Act and the order of
-
F dismissal from service of the appellant is a valid order.

A rejoinder was filed by the appellant wherein he reiterated that
the order of dismissal passed by the Commanding Officer, Major P.S.
r·
Mahant was illegal and contrary to the provisions of natural justice.
The charge-sheet was given to the appellant by the aforesaid Major ,
d alleging that the appellant remained absent from 13th September, ~
1984 to 30.10.1984 wihtout leave from the Unit's line and the said
officer himself made an order that the appellant shall be tried by a ~
summary court martial on that day, The said officer constituted the
court of summary court martial and himself presided over the same.
The order of dismissal was passed in violation of the rules of natural
H justice. It has also been submitted that the conviction of the appellant
VIDYA PRAKASH v. U.0.1. [RAY, J.I 959

was in utter breach of Articles 14 and 21 of the Constitution of India
A
- and as such the said order was liable to be set aside.

The first submission on behalf of the appellant is that the con-
stitution of the Summary Court Martial by the Commanding Officer
Major P.S. Mahan! is in contravention of Rule 39(2) of the Army
Rules, 1954. the relevant provisions of Rules 39 are in the following B
terms:
t
"Rule 39 ....... .

" (2) An officer is disqualified for serving on a general or
district court martial if he:
c
(a) is an officer who convened the court; or

(b) is the prosecutor or a witness for the prosecution; or

( c) investigated the charges before trial, or took down the D
summary of evidence, or was a member of a court of in-
quiry respecting the matters on which the charges against
the accused are founded, or was the squadron, battery,
company, or other commander, who made preliminary in-
quiry into the case, or was a member of a previous court-
martial which tried the accused in respect of the same E
offence; or
• (d) is the commanding officer of the accused, or of the
corps to which the accused belongs; or

(e) has a personal interest in the case." F

Rule 39(2) provides that an officer who is the Commanding
Officer of the accused or of the corps to which the accused belongs or
who is an officer who convened the court or who is the prosecutor or a
witness for the prosecution and who has a personal interest in the case,
is not eligible for serving on a general or district Court Martial. There G
are four kinds of court martials specified in Section 108 of the Army
Act, 1959. These are:

(a) General Courts-Martial;

(b) District Courts-Martial H
960 SUPREME COURT REPORTS 11988) 2 S.C.R.

(c) Summary General Courts-Martial;
A
(d) Summary Courts-Martial

Section 116 of the said Act says that a summary court martial
may be held by the commandilrg officer of any corps or department or
B detachment of the regular Army, and he shall alone constitute the
court. It further provides that the proceedings shall be attended
throughout by two other persons who shall be officers or junior com-
missioned officers or one of either, and who shall not as such, be sworn
or affirmed. In the instant case a summary court martial was held by
the Commanding Officer, Major P.S. Mahant in accordance with the
C provisions of Section 116 of the Army Act. The Commanding Officer
of the Corps, Department of Detachment of the Regular Army to
which the appellant belongs, is quite competent in accordance with the
provisions of Section 116 of the said Act and as such the constitution of
the summary court martial by the Commanding Officer of the Corps
cannot be questioned as illegal or incompetent. It is neither a general
D court martial nor a district court martial where the appellant's case was
tried and decided. In case of general court martial or district court
martial Rule 39(2) of the Army Rules, 1954 is applicable and the
Commanding Officer is not competent to convene general or district
court martial. The summary court martial was held by the Command-
ing Officer of the corps, Major P .S. Mahant and there are two other
E officers including Capt. K.J. Singh and another officer to attend the
proceedings. In such circumstances, the summary court martial having
been convened by the Commanding Officer of the corps according to
the provisions of the Army Act, 1950, the first submission made on
behalf of the appellant fails.

F Chapter 6 of the Army Act specifies the offences and also the
punishments for such offences. Section 39(a) specifie& that to be
absent without leave constitutes an offence and Section 71(e) of the
said Act provides dismissal from service as one of the punishments for
such an offence. The appellant undoubtedly absented himself from
duty without taking any leave from the lines as required under the
G Army Act. The appellant was charge-sheeted for the said offence and
he was tried by a summary court martial convened by the Command-
ing Officer and after giving him due opportunity it was held that the
appellant was previously punished also for the offence of absence from
duty on four occasions and there was a red ink entry. Considering all
this in the summary court martial proceedings he was convicted and
H sentenced to the punishment of dismissal from service. The submission
VIDYA PRAKASH v. U.0.1. [RAY, J.) 961

"f that the punishment is disproportionate to charge is wholly unsustain- A.
able. The summary court martial constituted by Major P.S. Mahan!
after considering the evidences has found the appellant guilty of the
alleged charge and awarded the said punishment in accordance with
the provisions of the Army Act. As such the said order of dismissal
cannot be challenged as disproportionate to the charge or as one B
tainted with illegality.

+ It has been urged on behalf of the appellant that he raised an
objection to Major P.S. Mahan! to preside over the summary court
martial. It has also been urged that at the time of taking evidence of
the witnesses, the appellant was asked to keep his mouth shut and as
such the appellant could not cross-examine the witnesses examined on c
behalf of the prosecution, thereby the principles of natural justice have
-t"been violated. It appears that the appellant has not filed any objection
before the summary court martial objecting to the presiding of the
court martial proceedings by Major P.S. Mahan! nor any such objec-
tion had been taken in the writ petition moved before the High Court.
It is for the first time in the appeal which the appellant filed before the D
Chief of the Army Staff (Competent Authority), Army Headquarters,
New Delhi that he raised an objection to the presiding of Major P.S.
Mahan! as Judge of the court martial proceedings. It has been rightly
held by the High Court that this is an after-thought and as such this
submission cannot be permitted to be made by the appellant after the
court martial proceedings were completed and the order of dismissal E
from service was made. As regards the other objection that he was
··..,: directed by Capt. K.J. Singh to keep his mouth shut, it is also without
any substance in as much as it appears from the summary of the evi-
dences recorded that the appellant in fact cross-examined the prosecu-
tion witnesses, It is also evident from the judgment of the Delhi High
Court that the appellant admitted his guilt of absenting from duty F
without taking any leave.
~ Considering all these facts and circumstances, the judgment and
order passed by the High Court of Delhi appears to us as unassailable.
We, therefore, dismiss the appeal and affirm the judgment and order
) of the High Court. There will be no order as to costs. G

N.V.K. Appeal dismissed.