M.K. Mukherjee, C.J.@mdashRameshwar Mahto, the Respondent herein, while working as a Motor Transport Driver in the 504 At my Supply Corps Battalion, attached to the 4th Mountain Division at Chaitham Lines, Allahabad was placed on trial before a summary court-martial on the allegation that he had made false accusations against persons subject to the Army Act, 1950. On conclusion of the trial he was sentenced to suffer rigorous imprisonment for three months and dismissed from service by an order dated March 13, 1984 passed by the Commanding Officer, 504-A.S.C. Battalion Aggrieved thereby he filed a writ petition before a learned Judge of this Court which was allowed and the impugned order dated 13th March, 1984 was quashed. The above Judgment and order of the learned single judge is under challenge in this special Appeal filed by the Union of India and the Army authorities).
2. While allowing the writ petition and quashing the impugned order the learned Judge found various infirmities in the conduct of the trial before the summery court-martial and, one of them was that Rule 129 of the Army Rules, 1954, which reads as under:
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.
was not complied with inasmuch as the Respondent (writ-Petitioner) was not allowed to appoint a legal advisor or any other person of his choice to assist him during the trial. The above finding of the learned Judge was sought to be assailed by the learned Counsel for the Appellants by producing the record of the trial and pointing out that one Captain A.R. Bhardwaj was detailed as friend of the accused (Respondent) in accordance with the above-quoted Rule.
3. Having considered the record of the trial in the light of the provisions of Rule 129 we find no merit in the contention raised on behalf of the Appellants From a plain reading of Rule 129 it is Inductively clear that an accused who is being tried in a court-martial is entitled to be assisted by a legal advisor or any other person, of his choice for the purposes mentioned therein In paragraph 25 of the writ petition, the Respondent has categorically stated that on 7-3-1984 (the date on which the trial commenced) he asked for the services of a legal practitioner to assist him during his trial by summary court martial and was prepared to bear the expenses for the same, but even though it was his legal right under the provisions of Rule 129, the Appellant No. 4 (Commanding Officer, 504-A.S.C. Battalion) did not allow his prayer for reasons best known to him. In their counter-affidavit the Appellants (Respondents in the writ petition), while dealing with the complaint made in paragraph 25 of the writ petition, stated as under:
That (he contents of paragraph 25 of the writ petition are incorrect and are denied. As per the Army Act and the Rules Captain A.R. Bhardwaj was detailed as friend of the accused.
From the above pleadings of the parties on the question of compliance of Rule 129 we fined that the Appellants did not specifically deny the fact that the Respondent had asked for a legal advisor. On the contrary they stated that they had appointed a person as friend of the accused. The right to be defended by a lawyer of one''s choice is expressly provided for in Rule 129 and, therefore, it was incumbent upon the Appellants to provide the Respondent with a lawyer of his choice. In case the Respondent had not exercised such right the Appellants might have appointed a person to assist him as his friend, but as in the Instant case the record clearly shows that the Respondent had asked for the assistance of a legal advisor and such right was denied, it must be said that the Respondent was prejudiced in his defence and the principles of natural justice were violated.
4. As the judgment and order passed by the learned single Judge has got to be sustained on this ground alone, we need not detail, delve into the other grounds which weighed with the learned Judge to quash the order of the summary court-martial. The appeal is therefore, dismissed with costs.
