Vineet Saran, J.
1. The petitioner joined the Indian Army on 18th July, 1975 as a Sepoy. In the year 1992, while the petitioner was posted in the field in the 8th Battalion of the Brigade of Guards, he was charge-sheeted for an incident that allegedly took place on 4.1.1992. The charge-sheet was served on the petitioner on 6.7.1992 and the three charges framed against him were as follows :
* First under Section 69 of the Army Act for committing civil offence, that is to say using force on a woman with intent to outrage her modesty contrary to Section 354 I.P.C.;
* Second under Section 39(d) of the Army Act for failing to appear, without sufficient cause, at the time fixed and place appointed for duty; and
* Third under Section 48 of the Army Act with regard to the petitioner having been found in a state of intoxication.
2. All the three charges relate to the same date i.e., 4.1.1992.
3. The petitioner was tried by the Summary Court Martial on 6.7.1992 and on the same date itself, after having been held guilty, he was awarded the following punishments :
(a) to be reduced to the ranks;
(b) to undergo six months rigorous imprisonment; and
(c) to be dismissed from the service.
4. After being released from the jail, on 1.3.1993 the petitioner challenged the order of the Summary Court Martial by filing a petition under Section 165 of the Army Act with a prayer that the proceedings of the Summary Court Martial may be annulled. It was also urged in the petition that the proceedings of the Summary Court Martial had not been handed over to the petitioner as provided under Rule 147 of the Army Rules and as such it was contended that the Summary Court Martial proceedings were illegal and unjust. Vide order dated 10.4.1993, the competent authority held that the proceedings of Summary Court Martial were in order and that the punishment awarded was legal and in conformity with the Army Act. Alongwith the said order, the proceedings of the Summary Court Martial had also been sent to the petitioner.
5. Aggrieved by the aforesaid orders dated 6.7.1992 and 10.4.1993 passed by the respondents, the petitioner has filed this writ petition and has also prayed for his reinstatement in service and payment of arrears of salary.
6. Sri Satyajit Mukerji, learned Counsel for the petitioner has challenged the impugned orders and the proceedings of the Summary Court Martial on the following grounds :
(i) That the charge-sheet and the order are both of the same date i.e., 6.7.1992, and as per Rules 34 (1) and 33 (7) of the Army Rules, 1954, the petitioner was entitled to have been served with the notice at least 24 hours before the trial as he was on active service (or 96 hours before in case of those on non-active service);
(ii) That the petitioner was not provided with a copy of the Summary Court Martial proceedings to which he was entitled to under Rule 147 of the Army Rules;
(iii) That in the facts of the present case, under Section 120(2) of the Army Act read with Para 459 of the Defence Service Regulations, the Summary Court Martial was not permissible;
(iv) That there was gross violation of Rule 129 of the Army Rules which entitles an accused to the assistance of a Legal Advisor or some other person, in the trial by the Summary Court Martial but the same was not provided to the petitioner; and
(v) That no proper opportunity was afforded to the petitioner which was in violation of Rule 22 of the Army Rules. Also that when the alleged incident had taken place on 4.1.1992, there could not have been any grave urgency in serving the charge-sheet and concluding the trial on the same date, i.e., 6th July, 1992.
7. Sri D.S. Shukla, learned Counsel appearing for the respondents submitted that the charge-sheet was served on the petitioner 26th June, 1992 for which receipt had been issued by the petitioner (filed as Annexure CA- 2 to the counter affidavit) and thus, there was no violation of Rules 33 and 34 of the Army Rules; that the petitioner had been given ample opportunity to prepare his case and reply to the charges; that due permission from the Commandant had been taken before the commencement of the Summary Court Martial on 10.3.1992 and thus, the proceedings were in accordance with Section 120(2) of the Army Act read with Para 459 of the Regulations; and that adequate opportunity was afforded to the petitioner and he was given opportunity to cross-examine the witnesses which he declined, and hence the proceedings, as well as the orders passed, were in compliance with the provisions of the Army Act and Rules.
8. I have heard the learned Counsel for the parties at length and have also perused the materials on record including the impugned orders as well as the relevant provisions of the Army Act and Rules. In my considered view, the proceedings of Summary Court Martial as well as the conduct of the trial were not done in accordance with the provisions of the Army Act and the Rules. The orders dated 6.7.1992 passed in the Summary Court Martial and dated 10.4.1993 passed by respondents, thus, deserve to be set aside. Before giving my reasons for my conclusion, some of the relevant provisions of the Army Act and Rules may be reproduced below:--
The Army, 1950--
'Section 120. Powers of Summary Courts Martial.--(1) Subject to the provisions of Sub-section (2), a Summary Court Martial may try any offence punishable under this Act.
(2) Where there is no grave reason for immediate action and reference can without detriment to discipline be made to the office empowered to convene a District Court Martial or an active service a Summary General Court Martial for the trial of the alleged offender, an officer holding a Summary Court Martial shall not try without such reference any offence punishable under any of the Sections 34, 37 and 69 or any offence against the officer holding the Court.'
The Army Rules, 1954--
'Rule 33. Right of accused to prepare defence.--(1)....................
(2)..............................................................
(3)..............................................................
(4)..............................................................
(5)............................................................
(6)...........................................................
(7) As soon a 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 an active service twenty-four hours before his trial, an officer shall given to him free of charge a copy of the summary of evidence, an obstract 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 state 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.
Rules 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 internal between his being informed and his arrangement shall not be less than ninety six hours or where the accused in on active service less than twenty-four hours.
(2) ...............................................................................................
(3) ................................................................................................
(4) ................................................................................................
Rule 129. Friend of accused.--In any Summary Court Martial, an accused person may have a person to assist him during the trial, whether a Legal Advisor or any other person. A person so assisting him may advise him on all points and suggest the questions to be put to witnesses, but shall not examine or cross-examine witnesses or address the Court.
Rule 147. Right of person tried to copies of proceedings.--Every person tried by a Court Martial (other than Summary Court Martial) shall, after the proceedings have been signed by the Presiding Officer and in the case of Summary Court Martial the officer holding the trial, and before they are destroyed, on a request made by such person in writing to the Court or the officer holding the trial or the person having custody of his proceedings, be entitled for the supply of a copy of such proceedings, within a reasonable time and free of cost, including the proceedings upon revision, in any.'
9. The issuance of the charge-sheet dated 6.7.1992, as filed with the writ petition, has not been denied by the respondents in their counter affidavit. The respondents have not placed on record any other charge-sheet which could be said to have been served on the petitioner, the receipt of which (dated 26.6.1992) has been filed as Annexure-CA-2. The petitioner in his rejoinder affidavit has categorically denied the alleged receipt, which, he asserts, is a forged document. In the absence of the respondents having placed on record any other charge-sheet besides the one which has been filed by the petitioner, and is dated 6.7.1992, it cannot be understood as to how the charge-sheet dated 6.7.1992 could have been served on the petitioner on 26.6.1992. Thus, in my view, the only charge-sheet was the one dated 6.7.1992, and since it had been served on the petitioner on the same date and the Summary Court Martial proceedings were commenced and also concluded on the same date i.e., 6.7.1992, there was no compliance of Rules 33 and 34 of the Army Rules, as even though the petitioner may have been on active service, at least 24 hours notice/information of the charges had to be given to the petitioner. The obvious object of the provision is to given the accused an opportunity to prepare his defence and even under the Army Act, reasonable opportunity is mandatory.
10. In No. 138836-K-SEP DVR (MT) MZH Khan v. Chief of Army Staff, Army Headquarters, New Delhi and Ors., (2001) 3 UPLBEC 2202, while considering a case where the charge-sheet was dated 12.6.1997 and the Summary Court Martial proceedings were held on 14.6.1997, and as this Court found that sufficient information of 96 hours had not been given to the person on non-active service, the Summary Court Martial proceedings were held to be bad for non-compliance of Rule 34 of the Army Rules, 1954. Similar view was taken by a Division Bench of this Court in Ram Parvesh Rai v. Union of India and Ors., (1998) 1 UPLBEC 783, where it was held that Rule 34 contemplates that the interval between the accused being informed of the charge 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, and also that non-compliance of the provisions of the aforesaid Rule would vitiate the proceedings.
11. With regard to copy of the proceedings not having been supplied to the petitioner and thus, there being violation of Rule 147, it is apparent from the record that the copy of the proceedings were asked for but supplied to the petitioner for the first time alongwith the order dated 10.4.1993, that is after the decision on the petition under Section 165 of the Army Act. Thus, it is established from the record that the copy of the proceedings were not supplied to the petitioner within a reasonable time as required under Rule 147 of the Army Rules.
12. As regards the contention of the petitioner that in the facts of the present case, the Summary Court Martial was not permissible under Section 120 as the sanction had not been obtained having perused the 'Report on Application for Trial' dated 10.3.1992 (filed as Annexure CA-1 to the counter affidavit), it is clear that the Commander had accorded his sanction to hold the Summary Court Martial against the petitioner, and thus the said contention does not hold good.
13. However, the submission with regard to the irregularity in holding the trial in violation of Rule 129 has some force. It has already been held that the charge-sheet was served on 6.7.1992, and when the trial was also proceeded with and concluded on the same date, it cannot be said that any reasonable opportunity could have been afforded to the petitioner for engaging a Legal Advisor or any other person to assist and advice him in the trial. In the case of Joga Singh v. Union of India and Ors., 1996 Lab.I.C. 677, the Punjab and Haryana High Court has, while dealing with similar provisions under the Border Security Force Rules, held that the Rule requires necessity of providing reasonable opportunity to the accused for which the assistance of even a legal practitioner can be taken. In the present case, there is no evidence to show that the petitioner (accused) was informed of his right to seek assistance of a friend and as such, opportunity had not been given to the petitioner. Thus, since there was clear violation of Rule 129 of the Army Rules, the entire trial would vitiate.
14. Even otherwise, the Summary Court Martial, as the words suggest, is in fact a summary procedure of trial meant to be adopted in cases of extreme urgency, to meet out instant justice, which may be necessary for discipline and security in the Armed Force. In the present case, it is not understood as to what was the grave urgency after more than six months of the incident which is alleged to have taken place on 4.1.1992, that the entire proceedings were to be initiated and concluded on the same date i.e., 6.7.1992.
15. Thus, for the foregoing reasons, the impugned orders deserve to be quashed and the petitioner is entitled to the relief prayed for.
16. In the end, Sri Shukla, learned Counsel for the respondents submitted that the offences against the petitioner are very grave and thus, this Court should not interfere with the punishment awarded to him. He relied upon a decision of the Apex Court in the case of Union of India and Ors. v. Himmat Singh Chahar, AIR 1999 S.C. 1980, wherein it has been held that 'it is of course true that notwithstanding the finality attached to the orders of the Competent Authority in the Court Martial proceedings the High Court is entitled to exercise its power of judicial review by invoking jurisdiction under Article 226 but that would be for a limited purpose of finding out whether there has been infraction of any mandatory provisions of the Act prescribing the procedure which has caused gross miscarriage of justice or for finding out that whether there has been violation of the principles of natural justice which vitiates the entire proceedings or that the authority exercising the jurisdiction had not been vested with jurisdiction under the Act. The said power of judicial review cannot be a power of an Appellate Authority permitting the High Court to re-appreciate the evidence and in coming to a conclusion that the evidence is sufficient for the conclusion arrived at by the Competent Authority in Court Martial Proceedings. At any rate it cannot be higher than the jurisdiction of the High Court exercised under Article 227 against an order of an inferior Tribunal'. Reliance was also placed on the decision in the case of Union of India and Ors. v. R.K. Sharma, AIR 2001 S.C. 3053, where the Supreme Court has held that only is extreme cases can Courts interfere with the punishment imposed by the Court Martial and no interference should be made on compassionate ground by the Courts of Law.
17. There is no quarrel with the aforesaid preposition of law. The ambit of judicial review in such matters arising out of Court Martial proceedings is no doubt, very limited. In the present case, this Court has not examined as to whether the punishment awarded to the petitioner is commensurate with the alleged offences or not. Since the procedure as prescribed by the Army Act and Rules had not been followed while conducting the trial, I am of the clear opinion that the Summary Court Martial proceedings had thus vitiated. Thus, the question of interfering with the quantum of punishment or interference on compassionate grounds does not arise as in the present case, the Summary Court Martial proceedings themselves deserve to be annulled for not having been conducted in conformity with the law.
18. As such, the orders dated 6.7.1992 and 10.4.1993 passed by the respondents are liable to be set aside and are hereby quashed. The writ petition is, thus, allowed, but without any order as to costs.