VIDYA PRAKASH versus UNION OF INDIA & ORS.

Citation: [1988] 2 S.C.R. 953 · Decided: 10-02-1988 · Supreme Court of India · Bench: A.P. SEN · Disposal: Dismissed

Judgment (excerpt)

" .,,. 
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<(. 
VIDYA PRAKASH 
v. 
UNION OF INDIA & ORS. 
FEBRUARY 10, 1988 
[A.P. SEN AND B.C. RAY, JJ.) 
Army Act, 1950/Army Rules, 1954: Sections 39(a), 71(e), 108 
and 116/Rule 39(2)-Jawan-Absent without leave-Charge sheeted-
Trial by Summary Court Martial-Held guilty-Dismissed from 
service-In writ petition assailing constitution of summary court martial 
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B 
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by Commanding Officer-Whether Commanding Officer of Corps 
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'competent to constitute the summary court martial-Held order of dis-
missal valid. 
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The appellant was appointed to the post of Craftsman (Jawan) on 
November 23, 1973. He was later promoted to the post of Naik in view 
of his good services and subsequently confirmed in that post. He served 
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at various places in the country, including field areas. He was, however, 
reverted from the post of Naik to the post of Craftsman (Jawan). While 
he was in service he incurred the displeasure of the Commanding 
Officer of his regiment (Major) as he did not comply with his directions. 
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He was consequently harassed and maltreated in various ways. Unable 
to bear the torture he surrendered to the mercy of the Commanding 
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Officer of the Battalion (Colonel). He, however, directed him to surren-
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der to the Commanding Officer of his regiment and gave hint a certlfl· 
cate of surrender. The Commanding Officer took hint into custody. He 
was charge-5heeted for the purpose and sentenced to 42 days imprison· 
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ment in military custody. During the period of his remaining in military 
, . custody, his family suffered harassment. The appellant on 12th 
"1 September, 1984 left station with his wife and tillldren without taking 
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~ny leave. He stated that he became unwell and was under the treat-
ment of a doctor. When he reported back to his unit with the fitness 
certificate the Commanding Officer of his regiment served him with a 
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charge-5heet on November 2, 1984 and directed that he be tried by a 
summary court-martial. On November 9, 1984, the order of dismissal 
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of the appellant from service was made by the Commanding Officer in 
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the Summary Court Martial. 
The appellant challenged the aforesaid order in a writ petition to 
the High Court, and sought quashing of the same contending: that the 
Commanding Officer was not legally competent to preside a summary 
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953 
954 
SUPREME COURT REPORTS 
[1988] 2 S.C.R. 
A 
court martial, that the punishment of dismissal from service was dis-
proportionate to the charge, that he was denied a fair opportunity to 
defend himself, and was in fact not permitted to question the witnesses. 
B 
A Division Bench of the High Court however, dismissed the writ 
petition holding that no objection was taken before the Summary Court 
Martial that the ·appellant was not allowed to be represented by his 
counsel, that no objection was taken as to the competence of the Com-
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manding Officer to act as a Judge in the Summary Court Martial, that 
,... 
c 
the appellant had earlier been convicted four times and entries were 
made in red ink in his service record, and that as the appellant was 
absent from duty without leave and pleaded guilty before the court 
martial proceedings, there was as such no illegality in the order of +.· 
dismissal made in the court martial proceedings. 
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D 
Dismissing the Appeal, 
HELD: 1. Four kinds of courts martial are specified in Section 
108 of the Army Act, 1950. These are:( a) General Courts-Martial; (b) 
District Courts-Martial; (c) Summary General Courts-Martial and (d) 
Summary Courts-Martial. [959G-H; 960A] 
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2. Section 116 of the Act says that a summary court martial may 
be held by the Commanding Officer of any corps or department or 
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detachment of the regular Army, and he shall alone constitute the 
court, and that the proceedings shall be attended throughout by two 
other persons who shall be Officers or junior commissioned officers or 
otie of either, and ·wlto shall not as such, be sworn or affirmed. It is only 
in· the case if general court martial or district court martial that Rule 
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39(2) of the Army Rules 1954·is applicable and the Commanding Officer 
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is not competent to convene general or district court martial. [960B, DI 
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3. In the instant case, the summary court martial was held by the 
Commanding Officer of the Corps, Major P.S. Mahant and there were 
two 'other officers Captain K.J. Singh and another officer to attend the 
proceedings. In such circumstances

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