Ex-naik Kanhiya Lal Pathak Vs. Union of India and Others - Court Judgment

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army act - sections 40(a), 116 and 130--in the instant case, the appellant was not given opportunity to challenge the constitution of the summary court martial and he was convicted.; that non-compliance of the provisions of section 130 vitiated the proceedings. order of conviction was set aside. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family division. u.k. praying for an order that the minor child be made a ward of the court and for a direction upon the wife to return the minor child to the jurisdiction of the said court. a further direction was given for the passport and other international travel documents of the minor child to be handed over to the solicitors of the husband. a petition seeking protection of minor child was thereupon filed by father of the husband before delhi high court. a direction for handing over custody of child to father of husband was also sought. the high court considering fact that the u.k. court was already in seisin of matter and had passed an interim order and by relying on principle of comity of nations and comity of judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to u.k.or hand it over to father of husband to be taken to u.k. as measure of interim custody and that it would be for the u.k. court to decide the question of custody - order was challenged by wife - held, the order of high court was not liable to be interfered with. although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of u.k. court cannot be lost sight of., the order of u.k. court except for insisiting that the minor be returned to its jurisdiction, the english court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. the ultimate decision in that regard has to be left to the english court having regard to the nationality of the child and the fact that both the parents had worked for gain in the u.k. and had also acquired permanent resident status in the u.k. english court has not directed that the custody of the child should be handed over to the father but that the child should be returned to the jurisdiction of the courts in the u.k. which would then proceed to determine as to who would be best suited to have the custody of the child. the high court has taken into consideration both the questions relating to the comity of courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child. charanjit talwar, j.1. by this petition, the petitioner ex naik kanhiya lal pathak, challenges the conviction awarded to him by summary court martial vide order dt. 15th april, 1986. the petitioner at the relevant time was a non-commissioned officer holding the rank of a naik. he was charged for an offence under section 40(a) of the army act. (hereinafter called the act). the charge framed by his commanding officer lt. colonel m.c. sebastian on 1st april, 1986 reads as follows :- 'using criminal force to his superior officer in that he, army act section 40(a) at field on 06 april, 1986, at about 1030 hrs, caught the collar, pushed and hit with his right hand ic-25372w major ravi gupta, officer commanding of his unit.' 2. the petitioner admitted his guilt and made the following statement before his commanding officer who was holding the summary court martial. 'i admit my guilt, i shall never commit such a mistake again. i am prepared to apologias to my oc, maj. gupta and i shall give in writing that as long as i remain in the army, such a mistake will not be repeated. i request you to consider my case sympathetically, keeping in view the fact of my children and my family.' 3. the summary court martial after considering the previous convictions awarded to the petitioner herein (the statement giving full particulars of previous convictions is on page 46 of the writ petition) awarded the following punishments :- '(a) to be reduced to the ranks; (b) to be dismissed from service.' the sentence was promulgated on the same date, i.e., 15th april, 1986 at 12.30 p.m. 4. the only ground urged before us by mr. gupta, learned counsel for the petitioner is that the procedural safeguard as provided under s. 130 of the army act not having been complied with, the proceedings of the summary court martial are vitiated and thus liable to be set aside. in support of his contention, mr. gupta relies on a judgment of the supreme court ranjit thakur v. union of india, : 1988crilj158 . in the said case, the appellant who was a signal man in the signal regiment of the army was tried by summary court martial. his commanding officer (i.e. respondent no. 4 in the said case) was presiding over the court. after some witnesses on behalf of the prosecution had been examined, the appellant admitted his guilt. he was dismissed from service and also a sentence of rigorous imprisonment for one year was awarded. one of the pleas raised before the supreme court was : '(a)(i) the proceedings of the court martial are vitiated by non-compliance with the mandate of s. 13(1) of the act in that the summary court martial did not afford to the appellant an opportunity to challenge its constitution as required by that section;' 5. after noticing the provision of s. 130 of the act, it was observed that the proceedings did not indicate that the appellant was asked whether he objected to be tried by any officer, sitting at the court martial. the court held, 'we are afraid, the non-compliance of the mandate of s. 130 is an infirmity which goes to the root of the jurisdiction and without more, vitiates the proceedings.' 6. mr. gupta submits that in the present case also, the proceedings of the court martial do not indicate that the petitioner was ever asked whether he objected to be tried by lt. col. sebastian. the factual position is admitted. mr. satpal, learned counsel for the state, however, submits that army rule s. 130 is not applicable to summary court martial. he submits that the said provision is applicable to three types of court martial i.e. general court martial, district court martial and summary general court martial. the fourth type of court martial i.e. the summary court martial can be held only by the commanding officer and he alone has to constitute the court within the purview of s. 116 of the act. the said section reads as follows :- '116. summary court martial. (1) a summary court martial may be held by the commanding officer of any court, department or attachment of the regular army, and he shall alone constitute the court; (2) the proceedings shall be attended throughout by two other persons who shall be officers or junior commissioned officers or one of either and who shall not as such be sworn or affirmed.' 7. the argument is that the summary court martial is a single member court. the other two persons who are required as per the sub-section (2) to attend are not even to be sworn or affirmed. they merely witness the proceedings but do not take part in it. 8. in view of the clear enunciation by the supreme court that provisions of s. 130 of the act are applicable to a summary court martial, it is not open to us to analyze or to give any finding on the submission made by mr. sat pal. following the law laid by their lordships in the said decision, we set aside the impugned order dt. 15th april, 1986. rule is made absolute. however, no order as to costs. 9. petition allowed.