ORDER
B. Seshasayana Reddy, J.
1. J.P. Ratan, the petitioner is a taxi driver and resident of H. No. 225, Lal Bazaar, Trimulgherrry, Secunderabad. He is allegedly approached the army authorities at MCEME on 20.08.2006 and informed that the taxi driven by him had been hired by the army person viz., Nb. Sub. Nagender Singh Yadav. He also stated to have informed the purpose for which Nb. Sub. Nagender Singh Yadav engaged his taxi. The purpose was to commute two foreign nationals in his taxi from railway station to a married accommodation in military area and later to the airport. He is said to have identified the person who hired the taxi as Nb. Sub. Nagender Singh Yadav and the residence as the one allotted to Cfn. Devender Kumar, a neighbour of Nb. Sub. Nagender Singh Yadav. A Court of Enquiry took up investigation on the directions of the Headquarters, Southern Command, Pune. The petitioner deposed before the Court of Enquiry and narrated the complete sequence of events as to his taxi being hired by Nb. Sub. Nagender Singh Yadav for commuting two foreign nationals to a marriage accommodation in a military area allotted to Cfn. Devender Kumar. The Court of Enquiry found Nb. Sub. Nagender Singh Yadav and Cfn. Devender Kumar guilty of maintaining contacts with foreign nationals against the security instructions specifically prohibiting armed forces personnel from such conduct. A disciplinary action was ordered against the accused armed personnel. According to the petitioner, Subedar B. Francis Xavier, HQ MC EME, Secunderabad-4th respondent came with a posse of armed personnel in the month of October, 2007 to his residence and asked him to accompany him to the Colonel Administration, Military College of EME, Trimulgherry, Secunderabad-2nd respondent. The petitioner expressed his inability to comply with his request owing to his prior professional engagements. The 4th respondent allegedly took the petitioner to Colonel R. Sitharamaiah-3rd respondent. The 3rd respondent introduced himself to the petitioner as Colonel Administration, Military College of EME and asked him whether he could recognize or know anything about the two armed personnel standing in his office (i.e. 2nd respondent's office). The petitioner states that he denied of any acquaintance with those personnel. Thereupon, the 3rd respondent handed over the petitioner to other army officer, who took him to a separate room, where the army officers allegedly tortured him physically and mentally and forced him to put his signatures on certain blank, partly filled/ written/typed papers. According to the petitioner, the 4th respondent accompanied by civil police personnel from Trimulgherry Police Station started making visits to his house frequently to take him to the Police Station and therefrom to the 2nd respondent establishment. The petitioner issued a legal notice dated 07.11.2007 to the Commissioner of Police, Hyderabad complaining of illegal assistance rendered by police personnel to the army personnel. Thereafter, 3rd respondent sent summons requiring the presence of the petitioner before him through XI Additional Chief Metropolitan Magistrate, Secunderabad, for his appearance at the trial of some army personnel on 21.09.2007. The petitioner issued a legal notice dated 14.12.2007 to the 3rd respondent denying of his having any personal acquaintance or interaction or knowledge about persons mentioned in the summons. He also sent a sworn statement in the form of a notarized affidavit dated 27.12.2007 specifically mentioning that he had no knowledge about anything concerning any army personnel against whom 4th respondent was forcing him to make a statement. After a gap of about six months, the 4th respondent herein made a visit to the petitioner's residence on the night of 2/3-07.2008 along with a posse of armed military personnel and threatened the petitioner to remain in city on 21.07.2008 on which date he is required to be produced in Court Martial Proceedings initiated against some army personnel. It is the version of the petitioner that frequent visits of the 4th respondent to his house were to make him to speak as tutored by him (4th respondent) in the Court Martial Proceedings. The petitioner filed the writ petition assailing the action of the respondents 3 and 4 in compelling him to be present before the Court Martial Proceedings without following the procedure as contemplated under Section 135(3) of the Army Act, 1950.
2. When the writ petition came up for admission, Sri M. Ratna Reddy, learned Standing Counsel of Central Government received notice on behalf of the respondents. The respondents filed counter-affidavit. Col. R. Sitaramaiah, Colonel Administration, HQ MCEME, Secunderabad, has sworn to the counter- affidavit. The circumstances under which the petitioner came to be summoned to appear before the Court Martial have been detailed in the counter-affidavit. The allegation made by the petitioner in the writ affidavit that respondents 3 and 4 are compelling him to speak as tutored by them has been denied. For better appreciation, I may refer para. 5 of the counter-affidavit, which reads as hereunder:
5. The Court of Inquiry found Nb Sub Nagender Singh Yadav and Cfn. Devender Kumar, guilty of maintaining contact with foreign nationals against the security instructions specifically prohibiting Armed Forces personnel from such conduct. Directions of the higher authorities were obtained on the proceedings of court of inquiry. Accordingly, disciplinary proceedings i.e., recording of Summary of Evidence was ordered against the accused Army personnel. The Hon'ble XI Addl. Chief Metropolitan Magistrate was approached, for serving of summons to the essential witness as per the legal procedure under Army Act Section 135(3) (Annexure P-3). It is submitted that Shri J.P. Ratan appeared voluntarily for recording of Summary of Evidence proceedings on 20th Oct, 2007. The petitioner at that sage turned hostile and changed not only his statement given earlier during Court of Inquiry but also refused to recognize Nb Sub Nagender Singh Yadav and Cfn. Devender Kumar (Annexure P-4). Thereafter, in response to the summons from the Hon'ble XI Addl. Chief Metropolitan Magistrate, Shri JP Ratan, instead sent a sworn affidavit vide his Counsel letter dated 14th Dec. 2007 (Annexure P-5), which was duly admitted as part of the disciplinary proceedings.
3. The petitioner filed reply affidavit. It is stated in the reply affidavit that the petitioner had already offered to present himself in the Court Martial proceedings and sought permission to be accompanied by his Counsel as a safety against undue harassment, pressure and torture.
4. When the writ petition came up admission hearing, with the consent of learned Counsel appearing for the parties, it is taken up for final disposal.
5. Heard learned Counsel appearing for the petitioner and learned Standing Counsel of Central Government appearing for the respondents.
6. Learned Counsel appearing for the petitioner submits that the petitioner is a civilian and in case his presence is essential in the Court Martial Proceedings, summon is required to be sent to him through the area Magistrate where the petitioner resides and any other mode adopted by the respondents compelling his presence before the Court Martial is opposed to the provisions the Army Act, 1950. Learned Counsel took me to Section 135 of the Army Act, 1950 to buttress his submission that summon shall be sent to the Magistrate within whose jurisdiction the witness resides and such Magistrate shall give effect to the summon as if the witness were required in the Court of such Magistrate. He also placed reliance on the judgment of the Supreme Court in Chandra Kishore Jha v. Mahavir Prasad : AIR1999SC3558 in support of his contentions.
7. Learned Standing Counsel of Central Government appearing for the respondents submits that the summon has been sent to the petitioner through XI Additional Chief Metropolitan Magistrate, Secunderabad as per the procedure contemplated under Section 135(3) of the Army Act, 1950.
8. A fact remains that the presence of the petitioner is required in the disciplinary proceedings initiated against the two army personnel viz., Nb Sub Nagender Singh Yadav and Cfn Devender Kumar. It is not in dispute that the petitioner is a civilian and in case his presence is required in the disciplinary proceedings initiated against the two army personnel viz., Nb Sub Nagender Singh Yadav and Cfn. Devender Kumar, summon is required to be served on him as provided under Section 135(3) of the Army Act, 1950. For better appreciation, I may refer Section 135 of the Army Act, 1950, which reads as hereunder:
135. Summoning witnesses.-(1) The convening officer, the presiding officer of a court-martial, the judge advocate or the commanding officer of the accused person may, by summons under his hand, require the attendance, at a time and place to be mentioned in the summons, of any person either to give evidence or to produce any document or other thing.
(2) In the case of a witness amenable to military authority, the summons shall be sent to his commanding officer and such officer shall serve it upon him accordingly.
(3) In the case of any other witness, the summons shall be sent to the magistrate within whose jurisdiction he may be or reside, and such magistrate shall give effect to the summons as if the witness were required in the Court of such magistrate.
(4) When a witness is required to produce any particular document or other thing in his possession or power, the summons shall described it with reasonable precision.
A plain reading of the above referred Section indicates that in case a civilian is required to be present before the Presiding Officer of a Court Martial, a summon is required to be sent to the Magistrate within whose jurisdiction the civilian reside and such Magistrate shall give effect to the summon as if the witness were required in the Court of such Magistrate.
9. In that view of the matter, the writ petition is disposed of at the admission stage directing the respondents 3 and 4 to send the summon to the area Magistrate for being served on the petitioner, in case the presence of the petitioner is required in the Court-Martial proceedings initiated against the two armed personnel viz., Nb Sub Nagender Singh Yadav and Cfn Devender Kumar. No costs.