JUDGMENT Shishir Kumar, J.
1. The present petition has been filed for issuing a writ of certiorari quashing the impugned order of Summary Court Martial proceedings and rejection of the appeal of the petitioner passed by respondent No. 1 and issuing a writ of mandamus commanding the respondents to treat the petitioner as having been continued in colour service till he completed his tenure of service.
2. The petitioner was enrolled in the Indian Army from BRO Bareilly on 26th July, 1982 and after having training at GRC Jabalpur was posted in several units. In the year 1998, the petitioner has suffered from Neurosis and was treated at Mental Hospital, Agra and subsequently the petitioner was taken back from the strength of the unit and performing the duties satisfactorily. Petitioner submits that the petitioner had asked for leave, which was granted from 20th February, 1999 to 9th March, 1999 and thereafter the petitioner had voluntarily reported for duty, but the application has been treated as absent without leave and was subjected to a trial by the Summary Court Martial. The further submission of the petitioner is that the provisions of Army Act and Rules has not been followed, therefore, the total trial is vitiated. The Commanding Officer had given orders for recording of Summary of Evidence, thereby violating the procedural safeguards laid down in Rule 22(1) and Rule 23 of the Army Rules. It has been submitted that the Court has been pa sided by Lt. Colonel L.K. Pandey, who was the officiating Commanding Officer on 13th of April, 1999 wherein Major Sushil Walli, Subedar Major Bal Singh have been shown as members attending the trial, both being from the same unit as such, were liable influence on the Commanding Officer. Apart from the above, the officer show as 'Friend of Accused' as Capt. Kuldeep Singh belonging to 9 Grenadiers, who has been thrust upon the petitioner despite his objecting to seeking permission to engage a counsel of his choice as defined as provided under Rule 129. It has further been submitted on behalf of the petitioner that the trial has been commenced within 65 minutes, therefore, total trial is void.
3. The main contention on behalf of the petitioner is that the provisions of Rule 33 and 34 of the Army Act have not been followed, therefore, the total trial is vitiated. It has been submitted that according to Rule 34(7) interval between the giving of the charge sheet and assemble of the Court Martial will be 96 hours. It has been submitted that the charge sheet was given on 13th of April, 1999 for charged under Section 39(a) of the Army Act and the Summary Court Martial was assembled on the same day. As the provisions of Rule 33 (7) are mandatory and the same has not been followed, the total trial is vitiated and the petitioner is entitled for relief.
4. The notices were issued and a counter affidavit has been filed. A counter affidavit has been filed by one Major R.K. Misra and has stated in the counter affidavit that the petitioner was tried by the Summary Court Martial on 13th of April, 1999 by Officiating Commanding Officer of 9 Grenadiers (Mewar). He was tried under Section 39(a) of the Army Act. It has further been submitted that the petitioner joined the battalion on 16th December, 1983. The individual has barely served for two years in the battalion when he has committed the first offence under Section 39(b) of the Army Act. Thereafter the petitioner has repeated the same offence by being absent without leave. The individual was tried and convicted. The detailed is being given below-
5. This clearly shows that the individual was a habitual offender has committed the same crime one after another. It has also been stated in the counter affidavit that the petitioner was trailed by the Summary Court Martial on 13th of April, 1999 and has been sentenced to suffer rigorous imprisonment for three months in Civil Jail and to be dismissed from the service for being absent without leave from 20th February 1999 to 9th March, 1999. The proper procedure as provided under the Army Act and Rules have been followed. The accused himself had pleaded guilty and prayed for lenient punishment, therefore the gravity of the offence when viewed and in the light of a series of similar offences committed by the petitioner, the punishment of dismissal has been awarded. It has further been stated that the Army order referred by the petitioner has already been superseded by Army Order 24/94. The Commanding Officer had gone a hearing of charge as per Army Order 24/94 and ordered to record Summary of Evidence on 5th April, 1999. It is incorrect to state that the provisions of Army Rule 22(1) and Army Rule 23 have not been complied with. As regards 'Friend of accused' the petitioner himself had agreed to have Capt. Kuvir Singh as "Friend of accused"'. The petitioner was apprised of the name of "Friend of accused" vide letter dated 9th of April, 1999. The letter has been annexed as Annexure 6 to the counter affidavit. Since the petitioner has pleaded guilty and declined to call any witness to cross examined and has submitted a admission note in writing, therefore, the proceedings of the Summary Court Martial has been completed within a short period. It has been argued on behalf of the respondents that as the provisions of the Act and Rules were followed and the petitioner himself has pleaded guilty and has declined cross examination the witnesses, as such, the proceedings of the Court Martial has been commenced within a short time. This action of respondent cannot be said to be illegal.
6. I have heard learned counsel for the petitioner and Sri K.C. Sinha, learned Senior Standing Counsel on behalf of the respondents.
7. The one and the only submission of the petitioner is that, as Rule 33(7) and 34 has not been complied with being a mandatory provision the total trial is vitiated. Rule 33 and 34 is being reproduced below:-
33. Right of accused to prepare defence- (1) Correspondence between the accused and his legal advisers shall not be liable to be censored. The accused shall inform his commanding officer of the names of such advisers and shall also inform him of any distinctive marks that such correspondence will bear.
(2) An accused person shall have the right to interview any witnesses whom he may wish to call in his defence. The provisions of Rule 137 shall apply to procuring the attendance of such witnesses.
(3) If the accused so desire, the commanding officer of the accused shall take such steps as the circumstances of the case permit to obtain a written statement from a witness whom the accused may wish to call in his defence. The statement shall be obtained in a closed envelope which shall be given to the accused person unopened.
(4) if the accused person gives to his commanding officer the name of any person whom he wishes to call in his defence, no person shall interview such witness with reference to the charges against the accused except in the presence of the accused, unless the accused agrees to dispense with his presence in writing. Similarly if the accused wishes to interview a witness who the prosecutor intends to call, the interview shall be in the presence of an officer detailed by the commanding officer of the accused person.
(5) The commanding officer of the accused person or the officer responsible for his custody shall take adequate precautions so that no conversation which the accused person may have with his legal advisers or witnesses is liable to be overheard.
(6) The accused person shall have the right to address an application to the Deputy or Assistant judge Advocate General of the command within which he for the time being is, if he is kept under arrest longer than forty-eight days without being brought to trial or is not given full liberty for preparing his defence.
(7) As soon as practicable after an accused has been remanded for trial by a general or district court-martial, and in any case not less than ninety-six hours or on active service twenty-four hours before his trial, an officer shall give to him free of charge a copy of the summary of evidence, an abstract of the evidence, and explain to him his rights under these rules as to preparing his defence and being assisted or represented at the trial, and shall ask him to slate in writing whether or not he wishes to have an officer assigned by the convening officer to represent him at the trial, if a suitable officer should be available. The convening officer shall be informed whether or not the accused so elects.
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.
(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 than the accused is liable to he 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.
8. From the record, it is clear that petitioner has been punished under Section 39 several times on account of absent. Rule 39 is being reproduced below-
39. Absence without leave. Any person subject to his Act who commits any of the following offences, that is to say,-
(a) absents himself without leave; or
(b) without sufficient cause overstays leave granted to him; or
(c) being on leave of absence and having received information from proper authority that any corps, or portion of a corps, or any department, to which hebelongs, has been ordered on active service, fails, without sufficient cause, to rejoin without delay; or
(d) without sufficient cause fails to appear at the time fixed at the parade or place appointed for exercise or duty; or
(e) when on parade, or on the line or march, without sufficient cause or without leave from his superior officer, quits the parade or line or march; or
(f) when in camp or garrison or elsewhere, is found beyond any limits fixed, or in any place prohibited, by any general, local or other order, without a pass or written leave from his superior officer; or
(g) without leave from his superior officer or without due cause, absents himself from any school when duly ordered to attend there, shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned.
9. From the perusal of Section 39, it is clear that in the army the absent without leave is an offence and if a person commits the offence under Section 39 shall be liable for conviction by the Court Martial and liable to suffer imprisonment for a term, which may be extended to three years. The Court has perused the provisions of Rule 33 and 34. The tentative charge sheet was given to the petitioner on 5th April, 1999 and the copy of the Summary of Evidence was also given to the petitioner and the regular charge sheet was given to the petitioner on 13th of April, 1999. From the perusal of tentative and regular charge sheet it is clear that both is one and the same. When the tentative charge sheet was given to the petitioner, the petitioner was aware that he will be tried by the Summary of Court Martial.
10. The word used in Rule 33, Sub-clause 7 is that as practicable after an accused has been remanded for trial by the Court Martial, and in any case not less than 96 hours or on active service of 24 hours before the Trial, an officer shall give him free of charge a copy of summary of evidence an abstract of the evidence, and explain to him his rights for the purposes of preparing his defence. The intention of the aforesaid sub-section is that the person concerned must know before 96 hours that he will be tried by the Court for an offence of which a charge sheet has been given. In the present case, the petitioner was aware by receiving the tentative charge sheet on 5th April, 1999 and the copy of the Summary of Evidence was also given to the petitioner. The interval from 5th April to 13th April, 1999 is beyond 96 hours, therefore, the judgment relied by the petitioner in Ram Parvesh Rai v. Union of India and Ors. reported in 1999 UPLBEC, 783 will not give the benefit to the petitioner as the Division Bench in the aforesaid case has held that Rule 33 Sub-rule 7 provides that as soon as practicable after an accused has been remanded for trial by a general or district court martial, and in any case not less that 96 hours or on active service 24 hours before his trial.
11. From the perusal of record, it is clear that the Summary of Evidence has taken place 5th April, 1999, the day when the tentative charge sheet was given to the petitioner and during the Summary of Evidence, four witnesses were examined and the petitioner was asked to cross examine the witnesses but the petitioner has declined the same and the signature of the petitioner bearing on the Summary of Evidence. After the conclusion of the summary of Evidence he has been remanded for trial, as such Army Rule 23 and 24 has been complied with. In the present case, the petitioner has not produce any witness as the petitioner has pleaded guilty and did not raise any objection during the trial or make any such requests for adjournment. Regarding the contention of the petitioner to this effect that one Col. Subedar Mr. Bale Singh cannot participate in the proceedings. It is not correct, as under the Army Act, 116, it clearly provides that the Commanding officer shall alone constitute the Court and the proceedings shall be attended throughout by two person who shall be officers or junior commissioned officers or one of the either. As regards the contention of the petitioner regarding non-application of Rule 39, Rule 39 is not applicable in case of Summary Court Martial, therefore, the contention of the petitioner cannot be accepted.
12. The petitioner has further placed reliance upon a judgment in Union of India v. Giriraj Sharma reported in A.I.R. 1994 Supreme Court, Page 215, and has submitted that the punishment, which has been awarded is disproportionate punishment, as such, is liable to be quashed.
13. The further reliance has been placed by the petitioner in judgment in Chittar Appellant v. State of Rajasthan reported in A.I.R. 1994, Page 214 and has submitted that the confession, it is well settled that retracted extra-judicial is very weak type of evidence.
14. The submission regarding not following the provisions of Army Rule 22 deals regarding the hearing of charge during the Summary of Evidence. Rule 22 is being reproduced below-
22. Hearing of Charge-
(1) Every charge against a person subject to the Act shall be heard by the Commanding Officer in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call such witness and make such statement as may be necessary for his defence:
Provided that where the charge against the accused arises as a result of investigation by a Court of inquiry, wherein the provisions of Rule 180 have been complied with in respect of that accused, the commanding officer may dispense with the procedure in Sub-rule (1).
(2) The commanding officer shall dismiss a charge brought before him of in his opinion the evidence does not show that an offence under the Act has been committed, and may do so if, he is satisfied that the charge ought not to be proceeded with:
Provided that the commanding officer shall not dismiss a charge which he is debarred to try under Sub-section (2) of Section 120 without reference to superior authority as specified therein.
(3) After compliance of Sub-rule (1), if the commanding officer is of opinion that the charge ought to be proceeded with he shall within a reasonable time-
(a) dispose of the case under Section 80 in accordance with the manner and form in Appendix III; or
(b) refer the case to the proper superior military authority: or
(c) adjourn the case for the purpose of having the evidence reduced to writing: or
(d) if the accused is below the rank of warrant officer, order his trial by a summary court-martial:
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 offender unless-
(a) the offence is one which he can try by a summary court-martial without any reference to that officer;
(b) he considers that there is grave reason for immediate action and such reference cannot be made without detriment to discipline.
(4) Where the evidence taken in accordance with Sub-rule (3) of this rule discloses an offence other than the offence which was the subject of the investigation, the commanding officer may frame suitable charge(s) on the basis of the evidence so taken as well as the investigation of the original charge.
15. As the petitioner has pleaded guilty and the petitioner was informed the effect of plead guilty, which has been recorded in the proceedings of the Summary Court Martial, the Court has perused the record and as the petitioner has pleaded guilty, as such, the Army Rule 115(2) has been compiled with. The petitioner was informed about the general effect of pleading guilty. There is a difference in procedure, which will be followed if person has pleaded guilty. Petitioner himself has signed on the said document, therefore, now at this stage the petitioner cannot say that the provisions of Army Rule 115(2) has not been complied with.
16. Regarding the submission made on behalf of the petitioner that as the provisions of Rule 33 Sub-Clause 7 has not been complied with therefore, the total proceedings of Court Martial is vitiated. As it appears from the record that on 5th April a tentative charge sheet was given, on 9th April, the Summary of Evidence was been held and as the petitioner pleaded guilty, the petitioner has given a written application and admitted his guilt. The Court narrates the effect of pleading guilty, therefore, there is a full compliance of Rule 115 (2) of the Army Rules. The Court Martial was held on 13th of April, therefore, the contention of the petitioner that the provisions of Rule 33(7) have not been followed is not correct. The petitioner was aware on 5th April when the tentative charge sheet was given to the petitioner and when on 9th April, the Summary of Evidence has taken place then it cannot be said that the petitioner was not aware that he will be tried by the Summary Court Martial. Unless and until the petitioner is able to show before this Court that due to non-supply of charge sheet before 96 hours as provided under Rule 33 (7) is fatal and trial is vitiated and petitioner was not in a position to submit his reply and what substantial injury has been caused to the petitioner. The contention of the petitioner regarding non-serving the charge sheet in compliance with Rule 33 (7) cannot be said to be an illegality in the fact and circumstances of the present case. It may be an irregularity, therefore, as submitted by the petitioner, only on this ground the Court Martial proceedings cannot be said to be vitiated.
17. On the other hand the respondents has place a reliance upon a judgment of the Apex Court in Union of India v. Major A. Hussain reported in 1998 Supreme Court, 577 and has submitted that unless and until it is established that mandatory provisions of the Act and Rules has not been followed this Court under Article 226 of the Constitution cannot have a power of judicial review as the Court Martial is not subjected to superintendence of the High Court under Article 227 of the Constitution of India. If the Court Martial has properly convey ed and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter any Court must stay its hand. The proceedings of Court Martial are not to be compared with the proceedings of a Criminal Court. The observation made by the Supreme Court in Para 22 is relevant for the purpose of this case. Para 22 is reproduced below-
22. "Though court-martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the court-martial is not subject to the superintendence of the High Court under Article 227 of the Constitution. If a court-martial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter any Court must stay its hands proceedings of a Court-martial are not to be compared with the proceedings in a criminal Court under the Code of Criminal Procedure, where adjournments have become a matter of routine though that is also against the provisions of law it has been rightly said that court-martial remains to a significant degree, a specialized part of overall mechanism by which the military discipline is preserved, it is for the special need for the armed forces that a person subject to Army Act is tried by court-martial for an act which is an offence under the Act. Court-martial discharges judicial function and to a great extent is a Court where provisions of Evidence Act are applicable. A court-martial has also the same responsibility as any Court to protect the rights of the accused charged before it and to follow the procedural safeguards. If one looks at the provisions of law relating to court-martial in the Army Act, the Army Rules, Defence Service Regulations and other Administrative instructions of the Army, it is manifestly clear that the procedure prescribed is perhaps equally fair if not more than a criminal trial provides to the accused. 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 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."
18. The Apex Court has further gone to this extent referring Rule 149, which is the provision regarding the validity of irregular procedure in certain cases.
Article 149 is being reproduced below -
"149. Validity of irregular procedure in certain cases-
Whenever, it appears that a court-martial had jurisdiction to try any person and make a finding and that there is legal evidence or a plea of guilty to justify such finding and any sentence which the court-martial had jurisdiction to pass thereon may he confirmed, and shall, if so confirmed and in the case of a summary court-martial where confirmation is not necessary, be valid, notwithstanding any deviation from these rules or notwithstanding that the charge-sheet has not been signed by the commanding officer or the convening officer, provided that the charges have, in fact, before trial been approved by the commanding officer and the convening officer or notwithstanding any defect or objection, technical or other, unless it appears that any injustice has been done to the offender, and where any finding and sentence are otherwise valid, they shall not be invalid by reason only of a failure to administer an oath or affirmation to the interpreter or shorthand writer; but nothing in this rule shall relieve an officer from any responsibility for any willful or negligent disregard of any of these rules."
19 I found that the proceedings of summary of court-martial to be quite immaculate where trial was fair and every possible opportunity was afforded to the respondent to defend his case. The court-martial had been conducted in accordance with the Act and Rules and it is difficult to find any fault in the proceedings.
20. From the perusal of the record, it is clear that the tentative charge-sheet was given to the petitioner on 5th April and on 9th April. The Summary of Evidence was held. The petitioner has pleaded guilty and it is clear from the record that after pleading the guilty by the petitioner, the effect of pleading guilty has been recorded as provided under Rule 115 (2). Rule 115 (2) states that if an accused person has pleaded guilty, the Court will explain to the accused the meaning of charge for which the person concerned has pleaded guilty and will ascertain that the accused has understood the nature of charge to which he has pleaded "Guilty". The Court will also inform the accused the general effect of the plea and the difference in procedure, which will be followed consequent to the said plea. The Court having satisfied itself that the accused understands the charges and the effect of his plea of "Guilty", accepts and records the same. After perusal of the documents annexed with the writ petition, it is clear that the provisions of Rule 115 (2) has been complied with. It is well settled that if a person has pleaded "Guilty" and the effect of pleading "Guilty" has been explained, the procedure in case of pleading "Guilty"' is different and in the case of not pleading "Guilty" is also different as provided under (sic) 116 of the Army Rules. Regarding the submissions made on behalf of the petitioner, that the punishment, which has been awarded is disproportionate to the charge cannot be accepted in view of the Apex Court judgment in A.I.R. 1988, Supreme Court, page 705, Vidya Prakash v. Union of India and Ors. In the aforesaid case the Apex Court has taken a view that if an army soldier absenting himself from duty without taking any leave from lines as required under the Act and was previously punished for the same offence of absence from duty on four occasions the infliction of punishment of dismissal from service cannot be said to be disproportionate to the charge of tainted with illegality. The relevant portion in Para 14 is being quoted below-
"14. Chapter 6 of the Army Act specifies the offences and also the punishments for such offences. Section 39(a) specifies 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 Army Act. The appellant was charge-sheeted for the said offence and he was tried by a summary court-martial convened by the Commanding 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 sentenced to the punishment of dismissal from service. The submission that the punishment is disproportionate to charge is wholly unsustainable. The summary court-martial constituted by Major P.S. Mahant after considering the evidence 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 tainted with illegality."
21. In case of Maan Singh v. Union of India and Ors. reported in 2003 (3) Supreme Court Cases, 464, the Apex Court has also taken a view that if a person is a habitual for unauthorized absent and a departmental enquiry was held he was found guilty to unauthorized long absence from duty the order of dismissal passed by the competent authority needs no interference.
22. In another case of Regional Manager, U.P.S.R.T.C., Etawah and Ors. v. Hoti Lal and Anr. reported in (2003) 3 Supreme Court Cases 605, a bus conductor has not issued tickets to the passengers and the order of termination was passed. The Apex Court has held that it cannot be said to be disproportionate to the offence committed by the petitioner. The Apex Court has further observed as follows-
"10. It needs to be emphasized that the court or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment does not commensurate with the proved charges. As has been highlighted in several case's to which reference has been mad above, the scope for interference is very limited and restricted to exceptional cases in The submission of the learned counsel for the petitioner is that indicated circumstances. Unfortunately in the present case as the quoted extracts of the High Court's order would go to show, no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Failure to give reasons amounts to denial of justice. (See Alexander Machinery Dudley Ltd. v. Crabtree). A mere statement that it is disproportionate would not suffice. A party appearing before a court, as to what it is that the court is addressing its mind. It is not only the amount involved but the mental set up, the type of duty performed and similar relevant circumstances which go into the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, highest degree of integrity and trustworthiness is must and unexceptionable. Judged in that background, conclusions of the division bench of the High Court do not appear to be proper. We set aside the same and restore order of learned single judge upholding order of dismissal."
23. After analyzing the various provisions of Army Acts and Rules and the verdicts of the Apex Court, I am of the opinion that the total procedure as provided under the Army Acts and Rules have been followed and the petitioner was given full opportunity during the Summary of Evidence and during the court-martial proceedings. In such a way I does not find any illegality in the procedure, which has been adopted by the respondents.
24. As from the record, it is clear that the petitioner was earlier punished for an offence under Army Act and was punished for four occasions. This clearly goes to show that the petitioner was a habitual absconder and absented several times without sanction of leave. Therefore, in my view, it cannot he said that the punishment of dismissal, which has been awarded is disproportionate to the charge levelled against the petitioner.
25. In view of the aforesaid fact, I find no illegality. The present writ petition is devoid of merits and is hereby dismissed.
26. There shall be no order as to costs.