Summary Court Martial Without 96-Hour Notice and With Biased ‘Friend of Accused’ Vitiated: Rajasthan High Court

The appellant, enrolled as a Signalman in 1987, was granted casual leave from 19.12.1992 to 31.12.1992. His father fell ill, and on 30.12.1992 he sent a telegram and a letter seeking an extension. A Court of Inquiry declared him a deserter; he rejoined voluntarily on 16.03.1993 after overstaying 75 days and was kept in close arrest. A tentative charge-sheet under Section 38(1) of the Army Act was served on 22.03.1993. At the Summary Court Martial on 30.03.1993 he received a final charge-sheet under Section 39(b), his plea of guilty was recorded and he was dismissed (para 2). His statutory petition was rejected on 19.09.1996, and a Single Judge dismissed his writ petition on 24.03.2009 (paras 4-5).

Rule 34(1) requires at least 96 hours between informing the accused of the charge and his arraignment. Following Ex-Sepoy Chander Singh and Union of India v. A.K. Pandey, the Court held the interval mandatory; serving the altered charge and deciding the case on the same day vitiated the trial (para 9). Rule 129 lets the accused choose a person to assist him. Instead, the authorities nominated the officer who had presided over the Court of Inquiry, with no consent on record; he gave no assistance, and his role gave rise to a reasonable likelihood of bias (para 10). The plea of guilty, recorded while the appellant was in close arrest and despite a defence of his father's illness, lacked the Rule 115 safeguards (para 11). A hearing of 25 minutes showed a pre-determined, mechanical procedure, and the Single Judge's view that substantial compliance with Rules 22 and 23 sufficed was erroneous (para 12). Past overstays, raised first in the reply, could not justify the penalty, and dismissal was shockingly disproportionate (paras 13-14). The one-line rejection of the statutory petition showed no application of mind (para 15).