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Judgment
Gupta, J.
Shri Prithpal Singh, respondent No. 1 herein was a Havildar Clerk in J&K Light Infantaiy Regiment at Srinagar when he was tried by a Summary
Court Martial on three charges and ultimately he was reduced in rank and further dismissed from service on May 2. 1983. After availing statutory
remedies and having failed therein he challenged his demotion and dismissal by filing a writ petition in this Court. Learned Single Judge of this Court
on September 4.1984 allowed this writ petition and quashed the impugned order of punishment. Aggrieved by that judgment appellants herein
have come up in appeal.
Learned Single Judge has based his findings on two points, firstly that Rule 115 of Army Rules was violated while recording plea of guilt of the
accused and; secondly; Rule 129 was also not strictly followed as man of the choice of the accused was not provided to him.
We have heard the learned counsel for the parties and perused the record before us. Mr. Bhardwaj, learned Standing counsel for Union of India,
has argued that the charges framed against respondent No. 1 were of serious nature and those were tried by summary court martial where this
respondent pleaded guilty and in view of the provision contained in Rules 115 & 116 of Army Rules, 1954, there was no option left except to
record punishment. His further plea is that the procedure laid down in the said rules was adhered to in right perspective and the learned Single
Judge landed in error by holding otherwise. He has further pleaded that friend of respondent accused was appointed strictly in accordance with
rule 129 of the aforesaid rules and the finding of the learned Single Judge in this regard was also bad in law. Mr. Handoo learned counsel for
respondent No. 1. has, however, contended that Despondent No. 1. never pleaded guilty to the charges and the word ""guilty"" was incorporated
later on in the proceedings. According to him respondentaccused was never informed about the nature of charge to which he was required to
plead guilty nor was rule 115 (2) of the aforesaid rules complied with in letter and spirits. He has laid stress on Rule 129 under which friend of the
accused was to be appointed who, according to him, was not provided with the consent of the respondent accused and the mandatory provisions
of law were violated.
Before appreciating above said arguments main facts of the case are required to be gone into. Respondent No. 1 has narrated so many incidents in
his petition about his harassment by his superiors. According to him one Yog Raj civilian defence employee who was working as a private cook at
the residence of Bng. S.P. Katoch Commandant used to come to Adm. Coy. cooking house to take food without any payment and threatened the
staff in the name of the Commandant for providing him better quality food without special sanction which he resisted and reprimanded him who in
turn informed the Commandant and the Commandant threatened for action. He has also pointed but such like happenings in the regiment. The
second mala fide which he pointed out against his superiors was that he moved an application for further extensions of six months of his tenure in
the regiment on January 11,1983 which was not considered favourably by the concerned authorities and he then requested for interview with the
Commandant which prayer was disallowed and in turn his that application treated as offensive involving him for an offence under sec. 40 (c) of the
Army Act. His further case was that he applied for six days casual leave with effect from 15.4.1983 to 2141983 which was recommended by the
Head Clerk but leave certificate was not signed by Capt. R. P. Singh who had been so directed by the Commandant. He has stated in the petition
that ill treatment disturbed his mind and all the circumstances forced him to approach the colonel of the regiment Lt. Gen. M.L. Shibber, to explain
him the difficulties and the treatment meted out to him and he accordingly wrote an application to the Commandant on 13.4.1983 informing him his
intention with application for leave certificate. He proceeded to Udhampur but to his ill luck Lt. Gen Shibber was out of station and he had to come
back. According to him he sent log message as well as telegram to the Commandant seeking extension of leave but that was not considered. He
further stated in the petition that on 22.4.1983 when he was in the office he was served with a letter sent by Lt. Col R.S. Mehta placing him under
close arrest from that date and he was then locked in a room near main office. On 23.4.1983 Capt. R.K. Sharma asked him to get ready for the
charge sheet and on the same day he was produced before Lt. Col. R.S. Mehta, Adm. Bn. Commander who without hearing him ordered
recording of summary of evidence. His further case was that the witnesses did not tell anything against .him but their statements were changed by
inserting certain additions thereto and he repeatedly requested for holding General court Martial instead of summary Court Martial. Lateron Lt.
Arun Dhar was deputed as friend of the accused but he wrote a letter to Lt.Col.R.S.Mehta declining to accept Lt.Dhar £s friend of the accused.
He has then pointed out in the petition that he was locked in the cell from 22.4.1983 till 2.5.1983. He was pursuaded to appear before
Col.R.S.Mehta before whom he made a statement and also wanted certain witnesses to be examined but all his requests were declined and he was
awarded punishment of reduction in' rank and dismissal from service:
Col. Shashi Kant, Officiating Commandant J&K Light Inf. Regimental Centre filed reply affidavit on behalf of the respondents denying the
allegations of respondent No.l. According to him respondent was granted six months extension of his tenure and further extension was not
recommended. He has further stated in the affidavit that respondent filed application which was couched in insubordinate language and he wanted
an interview with Colonel of the Regiment and in this regard he completely ignored the directions of the Commandant which attitude or a
subordinate could not be allowed in the interest of discipline. Respondent absented from unit line without authority as his leave had not been
sanctioned and he remained absent from duty from 15.4.83 to 22.4.1983. Respondent was also informed in writing not to leave unit lines without
proper permission and he would be marked absent in case he would do so. He has further pointed out that summary of evidence was recorded by
an officer in presence of an independent witness in terms of Army Rule 23 and he was given full opportunity to crossexamine the witnesses to
which be declined. According to him respondent pleaded guilty to the charge at the trial. Regarding appointment of friend of the accused it has
been stated in the affidavit that respondent did not give any name of his choice and as such an officer was detailed and respondent accepted him.
He has admitted about the choice given by the respondent for change of friend of the accused but according to him, said request was received
after the trial had concluded and regarding leading of defence he stated that the respondent never gave any name of the witnesses of his choice.
Following charges were framed against the respondentaccused :
(1) U/S 39 (a)Absent without leave;
(2) U/S 42 (c)Using insubordinate language to
Commandant, Brig.S.C.Katoch.
(3) U/s 42 (d)Using insubordinate language to
Deputy Commandnat Col.Shashikant.
As pointed out above respondent accused was tried under Summary Court Martial for which procedure has been laid down in the Army Rules.
The plea taken by the appellant is that respondent accused pleaded guilty to all the charges and as such the procedure laid down in Rule 15 & 16
was adopted. On the other hand, as it comes out from the pleadings of the respondent, this respondent never pleaded guilty. Mr. Handoo has in
this connection referred to the evidence recorded by summary Court Martial after recording plea of guilt which, according to him, tentamounted to
following procedure under Rule 118 meant for cases having pleaded net guilty. Rule 115 reads as under;
115General plea of ""Guilty"" or ""not guilty
(1) The accused person's plea ""Guilty"" or ""Not Guilty' (or if he refused to plead, or does not plead intelligibly either one or the other, a plea of ""not
guilty"") shall be recorded on each charge.
(2) If an accused person pleads ""Guilty"", that plea shall be recorded as the finding of the court; but be fore it is recorded the court shall ascertain
that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea, and in
particular of the meaning of the charge to which he has pleaded guilty, and of the difference in procedure which will be made by the plea of guilty,
and shall advise him to withdraw that plea if it appears from the summary of evidence if any) or otherwise that the accused ought to plead not
guilty.
(3) Where an accused person pleads guilty to the first of two or more charges laid in the alternative, the court may, after subrule (2) of this rule has
been complied with and before the accused is arraigned on the alter native charge or charges, withdraw such alternative charge or charges, without
requiring the accused to plead thereto, and a record to that effect shall be made upon the proceedings of the court.
This rule thus lays down the procedure to be followed when the accused pleads guilty. Rule 116 points out the mode and method to be adopted
after the plea of guilt is recorded. Rule 118 prescribes the procedure after recording of plea of not guilty. Rule 116 (2) makes it obligatory that
after recording of plea of guilt the court is required to read the summary of evidence already recorded and in case there is no such summary the
court is required to take and record sufficient evidence to enable it to determine the sentence. Original record has been produced by Mr.
Bhardwaj. From its perusal it appears that summary of court martial had not taken evidence after recording plea of guilt and only summary of
evidence earlier recorded was available on record. In this manner the court seems to have rightly followed the procedure. The contention of Mr.
Handoo in this regard does not seem to be correct.
The other point which has been made basis for quashing the sentence awarded to respondent accused relates to clause (2) of rule 115. Under this
mandatory provision the court is required to ascertain, before it records plea of guilt of the accused, as to whether the accused understands the
nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea and in particular of the meaning of charge
to which he has pleaded guilty. The court is further required under this provision of law to advise the accused to withdraw that plea if it appears
from summary of evidence or otherwise that the accused ought to plead not guilty. How to follow this procedure is the main crux of the question
involved in this case. Rule 125 provides that the court shall date and sign the sentence and such signatures shall authenticate whole of the
proceedings. It comes out from this rule that the signing of the proceedings by the court will amount to authentication of the same. We may take it
that the signatures of the accused are not required even after recording plea of guilt but as a matter of caution same should be taken. But in order
to come to a finding as to whether compliance of subrule (2) of rule 125 has been made there should have been some certificate of the court to that
effect or at least some minutes pointing out the fulfillment of the procedure. Nothing is coming out from record to this effect. It is certainly a
violation of the above said rule. Respondent accused is clamouring from the very beginning regarding ding holding of a fair trial in his case and he
has also taken a specific stand that he never pleaded guilty. He addressed so many communications to the court as well as to the authorities for
providing him friend of the accused of his choice and other facilities for the trial and in such circumstances recording of plea of guilty by the Court
without strictly following rule 115 is to be viewed with suspicion, How here on record there are signatures of the respondent accused showing that
he willingly pleaded guilty.
The Division Bench of this Court in case Bhagwan Singh versus Union of India, 1984 S LJ. 90 while dealing with rule 52 (2) of the Army Rules in
similar circumstances has held as under :
The document does not show as to whether or not the charges were explained to the petitioner, who is not at all conversant with English, the
language in which they were framed. It also does not show as to whether or not the JudgeAdvocate had satisfied himself that the petitioner had
understood the charges before pleading guilty to them. It does not show that he had informed the, petitioner that he could be convicted on the basis
of his plea of guilty without recording any other evidence. Nor does it transpire from the said document that he had gone through the summary of
evidence to arrive a the conclusion as to wether or not the petitioner required to be advised to withdraw his confession. On the other band, the
certificate appended to the aforesaid confession reveals that the Judge advocate assumed automatic compliance of Rule 52 (2), on the petitioner's
pleading guilty to the charges. He, in our opinion, clearly slipped into an error. Rule 52 enjoins upon him a compliance with its mandatory
provisions, not only in letter, but also in spirit and this compliance ought to have been reflected in the document itself, or elsewhere in the recorded
proceedings of the G.C.M. Incidently, it is reflected nowhere, except to same extent in the reply affidavit of the respondents, which admittedly has
neither been sworn by the concerned Judgeadvocate nor by the Presiding officer of the concerned G.C.M. and nor for that matter, by any of its
members. The conclusion is, therefore, inevitable that since there has been no compliance with Rule 52, the trial of the petitioner stands vitiated.
Rule 52 applies to cases being held by a Court Martial whereas Rule 115 pertains to summary court martial. Rule 52 (2) is parametric to rule 115
(2). The above said view taken earlier by the Division Bench is the same as being taken by us in this case.
The next point for consideration is whether rule 129 was followed or violated while holding trial of accused respondent This rule pertains to the
appointment of friend of the accused to assist and advise him during trial. Appellants herein have taken stand in their reply affidavit that Lt. Arun
Dhar was deputed for the said purpose and respondentaccused accepted him. Respondent has pleaded otherwise and according to him such
officer of his choice was not provided to him There is a letter of the respondent addressed to Adm. Bn. Commander, placed on record, showing
that Lt. Dhar was not acceptable to him. Under Rule 129 it is not obligatory to allow the accused to have only property demands that a person of
his choice should be a person of his choice to assist and advise him during his trial but provided to him. By not doing so there is no violation of rule
129 vitiating the whole trial.
As we have held that Rule 115 (2) of Army Rules has been violated in the present case whole proceedings of the Summary Court Martial stand
vitiated. For this reason we confirm the findings of the learned Single Judge and dismiss the appeal, without making any order as to costs.