Mool Chand Garg, J.@mdashThe petitioner was enrolled as a Sepoy in the Indian Army and was later promoted as a Naik. At the relevant time,
he was serving in Headquarters 15 Corps Artillery Brigade and was employed as a driver. It is his case that on 20th May, 1995, he took a lift in a
military truck driven by one Naik (DHT) Om Prakash for going to his Unit Headquarters to have the fan belt of the gypsy replaced as the old fan
belt had worn out. He sat on the front seat along with the driver. Just after the truck covered about 200 yds., one NCO from the Military
Intelligence stopped the truck and found Naik Om Prakash carrying two barrels of petrol in the truck unauthorisedly. Both Naik Om Prakash and
the petitioner were taken in custody. On revelation by Naik Om Prakash, it transpired that one Havaldar by the name P.V. Rajan was also
involved in the transaction. The respondents decided to take out departmental proceedings against the petitioner and the other two. Even though it
is the stand of the respondent that a court of enquiry was conducted but there is nothing available on record. It is, however, a matter of record that
summary of evidence was recorded in the case of the petitioner as well as the other co-accused wherein the accused persons were set up as
witnesses against each other without disposing of the case of any one of them till the Summary Court Martial (SCM for short) was concluded.
2. In the case of the petitioner the summary of evidence was recorded on 23.6.1995. Naik Om Prakash was examined as witness No. 2 and
Havaldar P.V. Rajan was examined as witness No. 3. A similar exercise was done in the case of the other two accused persons on 22.6.1995 by
examining the petitioner as a witness against them. Thereafter, on 8th September, 1995, a joint trial was held by the third respondent by holding a
SCM. All the three persons were sentenced to be dismissed from service on 08.9.1995 after recording a plea of ""guilty"" without any
corroboration. The petitioner submit that even the requirement of Rule 115(2) of the Army Rules was not followed. It is the case of the petitioner
that as summary of evidence was irregularly recorded being against the Army rules and constitution, the court martial proceedings in their entirety
are liable to be set aside.
3. It is also the case of the petitioner that even the procedure for recording the plea of guilty as alleged by the respondents has not been recorded
as per the procedure prescribed under Rule 115(2), inasmuch as, neither any evidence was recorded nor the caution as required before recording
the plea of guilty has been given to the accused. The said Rule for the sake of reference is reproduced hereunder: ""Where an accused pleads
Guilty"", such plea and the factum of compliance of Sub-rule (2) of this rule, shall be recorded by the court in the following manner: ""Before
recording the plea of ""Guilty"" of the accused the court explained to the accused the meaning of the charge (s) to which he had pleaded ""Guilty"" and
ascertained that the accused had understood the nature of the charges (s) to which he had pleaded ""Guilty"". The court also informed the accused
the general effect of the plea and the difference in procedure, which will be followed consequent to the said plea. The court having satisfied itself
that the accused understands the charge (s) and the effect of his plea of ""Guilty"", accepts and records the same. The provisions of Rule 115(2) are
thus complied with"".
4. This certificate is again available on a separate paper and is not in continuity of the proceedings moreover there is no evidence which has been
recorded before calling upon the petitioner to make his plea and thus is not in accordance with rules. The date has been written in a different pen.
Thus, it is pleaded that in these circumstances, the plea should be considered as that of ""not guilty"" and the procedure laid down under Rule 116(2)
of the Army Rules should have been followed which has not been done. The said Rule reads as under:
Rule 116(2): After the record of plea of ""Guilty"" on a charge (if trial does not proceed on any day other charges), the court shall read the summary
of evidence, and annex it to the proceedings or if there is no such summary, shall take and record sufficient evidence to enable it to determine the
sentence, and the reviewing officer to know all the circumstances connected with the offence. The evidence shall be taken in like manner as is
directed by these rules in case of a plea of ""Not Guilty
5. According to the petitioner he made a representation to army authorities but heard nothing from them. The petitioner then filed a writ petition
challenging the entire proceedings before the Punjab & Haryana High Court which was allowed to be withdrawn with the permission to file the
same in an appropriate forum. It is thereafter that the petitioner has filed the present petition. In the writ petition the petitioner has also made a
reference to para 4 of the Memoranda for the guidance of Officers concerned with Court Martial under the heading ""Summary of Evidence"". The
relevant portion of the said Memoranda reads as under:
4. If in any case two or more persons are suspected of complicity in an offence, and it is found necessary to call one of these as a witness for the
prosecution against the other or others charged in connection with the offence, one of two courses must be taken:
(i) Proceedings against him must be abandoned and any charge therein already preferred against him dismissed; or
(ii) Steps must be taken to ensure that the case against him is disposed of summarily or tried by court-martial, before the trial of persons concerned
against whom he is to give evidence; and that he is only tendered as a witness when he has already been acquitted or convicted.
6. It may also be appropriate to take note of the procedure mentioned in the Manual of Military Law (Vol-I) about admissions and confessions in
the rules which contains instructions that should be followed by the Army Authority. The same is reproduced hereunder:
27. Confession only admissible against the person who makes it-The general rule is that a confession is not admissible as evidence against any
person except the person who makes it. But a confession made by one accomplice in the presence of another is admissible against the latter to this
extent, that if it implicates him, his silence under the charge may be used against him, whilst on the other hand, his prompt repudiation of the charge
might tell in his favour. The Indian Evidence Act further enacts that when two or more persons are tried jointly for the same offence, a confession
made by one of such persons, affecting himself and any other of the accomplices jointly tried with him, when proved, may be taken into
consideration by the court against that other accomplice as well as against the person who made it (IEA. Section 30). When one of several
persons jointly tried pleads guilty, he ceases to be tried jointly with the others, and therefore any confession made by him cannot be taken into
consideration against the others. Though the confession of an accomplice may thus, under certain circumstances, be ""taken into consideration"" and
thus be an element in the consideration of the case against the other co-accused, it must necessarily be of less weight than sworn evidence, less
even than the sworn evidence of an accomplice who is not jointly tried. The courts have accordingly, established the following rules with regard to
this kind of evidence:
(a) Where there is absolutely no other evidence, such a confession alone will not justify the conviction of a person who is being tried jointly with its
author;
(b) The confession of co-accused must be corroborated by independent evidence, both in respect of the identity of all the persons affected by it
and of the fact the crime was committed.
7. It was submitted that since the aforesaid process was not adhered to by the army authorities, the statements made by the petitioner and the
other two co-accused persons, in his case were inadmissible and, therefore, the Summary of Evidence was recorded illegally.
8. The petitioner referring to Para 4 of the Memoranda for the guidance of the officers concerned with the court martial under the heading
Summary of Evidence"" (supra), submitted that if one of the co-accused is put up as a witness against another co-accused without first disposing of
the charges against the co-accused who has been put up as a witness, it tantamounts to forcing the co-accused incriminating himself thus
Constituting violation of Article 20 Sub-clause (3) of the Constitution of India (hereinafter referred to as the Constitution). It also violates Rule 23
of Army Rules, 1954 (for short ""Army Rules"").
9. Rule 23(3) of Army Rules provides as under:
23. Procedure for taking down the summary of evidence. (3) The evidence of each witness after it has been recorded as provided in the Rule
when taken down, shall be read over to him, and shall be signed by him, or if he cannot write his name shall be attested by his mark and witnessed
as a token of the correctness of the evidence recorded. After all the evidence against the accused has been recorded, the accused will be asked -
Do you wish to make any statement"" You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in
writing and may be given in evidence."" Any statement thereupon made by the accused shall be taken down and read over to him, but he will not be
cross-examined upon it. The accused may then call his witnesses, including if he so desires, any witnesses as to character.
10. A perusal of the original record goes to show that the caution required to be given under Rule 23(3) to the accused was not complied with and
the same does not appear to be in continuity of the proceedings but taken on a separate piece of paper that does not even bear the signatures of
the petitioner at the bottom thereof. The aforesaid observed earlier, is also in violation of Para 4 of the Memoranda.
11. It was thus submitted that the proceedings undertaken by the army authorities leading to the dismissal of the petitioner is based upon
proceedings from the stage of consideration of charges till holding of a SCM which are illegal and therefore the punishment imposed upon the
petitioner is liable to be set aside.
12. In the counter affidavit, the respondents seek dismissal of the writ petition on the plea that the petitioner pleaded guilty and that the sentence
has been imposed upon him in accordance with Army rules. It was submitted that in such circumstances, the petitioner is debarred from challenging
the order passed by the SCM. It was also submitted that the petitioner has not even availed the benefit of alternative remedy available to him as
per Section 164(2) of the Army Act, 1950 (for short the said Act).
13. On facts, it has been submitted that on 17th May, 1995, 15 barrels of petrol were collected by Naik (DHT) Om Prakash and others from
FFD Khunsob. All the 15 barrels of petrol were unloaded at the Headquarters camp and kept locked in the POL store in the presence of FOL
NCO, Havaldar (DHT) P.V. Rajan. The key of the stores was handed over to the petitioner on 20th May, 1995 and it is thereafter that the
petitioner along with Naik Om Prakash extracted two barrels of petrol (400 litres each) and loaded the same in a three ton vehicle with malafide
intentions. The barrels were covered with a muff to be hid. Naik Om Prakash drove the three ton vehicle along with the petitioner (as the co-
driver) out of the cantonment area into the civil area with criminal intention and ulterior motive to sell the same in the outside market. They were
caught red-handed by Havaldar (Intelligence) Manohar Lal on 20th May, 1995 at 1650 hours. Both of them confessed before the said Havaldar
(Intelligence) to the effect that the aforesaid quantity of barrels was brought by them from Headquarters to sell the same to civilians. As observed
earlier, the aforesaid facts have not been admitted by the petitioner. It is stated that a Court of Inquiry was conducted from 22nd May, 1995 to
23rd May, 1995 against the petitioner, Naik Om Prakash and Havaldar P.V. Rajan when evidence was recorded against the petitioner and the
co-accused. Thereafter, a joint trial was conducted where they pleaded guilty to the charge and were punished with ""DISMISSAL"" from service in
accordance with the Army rules.
14. We have heard the parties. The petitioner on his part has relied upon the judgment delivered by the Supreme Court in the case of Ranjit
Thakur Vs. Union of India (UOI) and Others, It would be appropriate to take note of the relevant observations made in the aforesaid Judgement
which reads as under:
The ""Act"" constitutes a special law in force conferring a special jurisdiction on the Court-Martial prescribing a special procedure for the trial of the
offences under the `Act''. Chapter VI of the `Act'' comprising of Sections 34 to 68 specify and define the various offences under the `Act''.
Sections 71 to 89 of Chapter VII specify the various punishments. Rules 106 to 133 of the Army Rules 1954 prescribed the procedure of, and
before, the SCM. The Act and the Rules constitute a self contained code, specifying offences and the procedure for detention, custody and trial of
the offenders by the Court - Martial. The procedural safeguards contemplated in the Act must be considered in the context of and corresponding
to the plentitude of the summary jurisdiction of the Court-Martial and the severity of the consequences that visit the person subject to that
jurisdiction. The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the
restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the Statue. The oft quoted
words of Frankfurter, J. in Vitarelli v. Seaton 359 US 535 are again worth recalling:
...if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that
procedure must be scrupulously observed....
This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall
perish with that sword.
The history of liberty"" said the same learned Judge ""has largely been the history of observance of procedural safeguards.
15. On the other hand the respondents have relied upon a judgment delivered by the Supreme Court in the case of Union of India (UOI) and
Others Vs. Major A. Hussain (IC-14827), and have contended that this Court while exercising jurisdiction under Article 226 & 227 of the
Constitution, has no power of superintendence over the army authorities. The relevant observations made in the aforesaid judgment are
reproduced hereinbelow:
Though court-martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the court-martial is not
subject to the superintendence of the High Court under Article 227. If a court-martial has been properly convened and there is no challenge to its
composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter any court must stay its hands.
If one looks at the provisions of law relating to court-martial in the Army Act, the Army Rules, Defence Service Regulations and other
Administrative Instructions of the Army, it is manifestly clear that the procedure prescribed is equally fair if not more than a criminal trial provides to
the accused. When there is sufficient evidence to sustain the conviction, it is unnecessary to examine if pre-trial investigation was adequate or not.
Requirement of proper and adequate investigation is not jurisdictional and any violation thereof does not invalidate the court-martial unless it is
shown that the accused has been prejudiced or that a mandatory provision has been violated. One may usefully refer to Rule 149 of the Army
Rules. The High Court should not have allowed the challenge to the validity of conviction and sentence of the accused when evidence was
sufficient, court-martial had jurisdiction over the subject-matter and had followed the prescribed procedure and was within its powers to award
punishment.
16. Relying upon the aforesaid judgment, the respondent also submitted that aberration of the procedure before holding of SCM cannot come to
the rescue of the petitioner more so, when he has pleaded guilty during the SCM and was guilty of very serious charges i.e. abetting the
commission of theft of two gallons of petrol with the malafide intention to sell them to the civilians unauthorizedly.
17. There may not be any dispute about the proposition laid down in the aforesaid judgment but the proposition starts with a CAUTION, i.e.,
proceedings leading to the award of punishment must be as a result of proceedings held in accordance with the law i.e. Defence Service Regulation
and other administrative instructions. It is also a well settled principle that the sentence should also have been awarded by properly convened
Court Martial conducted in accordance with law and further the conviction should also be based upon sufficient evidence. The punishment
awarded should also not be disproportionate to the guilt and that the judgments have to be understood and applied to the given facts of a case
which is under scrutiny of the Court.
18. At this stage, we also feel it appropriate to make a reference to the procedure which is required to be followed for holding a court martial right
from the stage of consideration of charge as provided for under the said Act and the rules framed thereunder:
(i) The procedure at a court-martial is set out partly in the Army Act (XLVI of 1950) (The Act) itself and partly in the Army Rules 1954 (the rules)
framed by the Government of India, Ministry of defense, in exercise of the powers conferred by Section 191 of the Act. The procedure of trial by
a general court-martial in broad by outlines is this. The first step towards bringing an offender to justice under the military code is to order his arrest
or confinement. (Section 101 of the Act). Military custody may mean open or close arrest at the discretion of the superior officer. A person under
close arrest does not go out of his quarter or place of his confinement except lo take an exercise. An officer placed under arrest is informed in
writing of the nature of his arrest. In order to ensure expeditious disposal of disciplinary cases, the Act requires that whenever a person subject to
military law is taken into military custody, the charge against him must be investigated with all convenient speed, (section 102).
(ii) The first investigation is usually carried out by the company commander who formulates, in the light of investigation made by him, the charge or
charges against the accused. With the list of charges so drawn up, the accused is produced before the commanding officer who holds a formal
investigation into the case. At this investigation the nature of the offence or offences charged is made known to the accused and witnesses present
depose to tads within their knowledge in support of the charge or charges. The accused is present throughout this investigation and is given full
liberty to cross-examine the witnesses. He can also call any witnesses on his own behalf and make any statement in his defense. [rule 22(1)].
(iii) After hearing the witnesses in support of the charge or charges and witnesses, if any, produced by the accused and any statement that he may
make, the commanding officer, according to the view he has formed may either dismiss the charge if the evidence docs not disclose any offence, or
dispose of the case summarily under, Section 80 of the Act, or refer the case to the proper superior military authority, or adjourn the case for the
purpose of having the evidence reduced to writing, or order his trial by a summary court-martial. [rule 22(2) and (3)]
(iv) Suppose the commanding officer remands the case for trial by court-martial, then the case is adjourned for a ''summary of evidence'' to be
taken. Its chief purpose is to give the accused, the commanding officer and the convening officer and to the presiding officer of a court-martial so
convened particulars of the evidence in respect of the charge or charges. The commanding officer may himself prepare the summary of evidence or
appoint some other officer to do so. The statements of witnesses who were present and gave evidence before the commanding officer whether
against or for the accused and any other person whose evidence appears to be relevant, shall be taken down in writing in the presence and hearing
of the accused. [rule 23(1)1.
v) In this regard the caution as mentioned under 23(3) is also required to be given to the accused before recording his statement.
(vi) The next stage is the arraignment of the accused. This is done by the charges being read. The accused is then questioned in respect of each
charge separately whether he pleads ''guilty'' or ''not guilty'' thereto. If he does not plead guilty to the charge the prosecution examines the
evidence. The accused is given full opportunity for making his defense and is afforded every facility for preparing it which is practicable having due
regard to the military exigencies or necessities (rule 36). The military code is quite zealous of the rights of the accused. It provides that the court
shall allow great latitude to the accused in making his defense, [rule 77(3)].
vii) Before recording the plea of guilt a certificate is required under Rule 115(2) quoted elsewhere in this judgment is to be given to the accused. In
appropriate case the procedure mentioned under Rule 116(2) may also have to be adopted.
19. In Lt.-Col. Prithi Pal Singh Bedi and Others Vs. Union of India (UOI) and Others, while recognizing that the Army rules in Army Act have to
be applied and strictly followed the rules not meeting the requirement of Article 21 observed:
The Parliament has the power to restrict or abrogate any of the rights conferred by Part III of the Constitution in their application to the members
of the Armed Forces so as to ensure the proper discharge of duties and maintenance of discipline amongst them. The Act is one such law and,
therefore, any of the provisions of the Act cannot be struck down on the only ground that they restrict or abrogate or tend to restrict or abrogate
any of the rights conferred by part III of the Constitution and this would indisputably include Article 21. But even apart from this, it is not possible
to subscribe to the view that even where the prescribed procedure inheres compliance with principles of natural justice but makes the same
dependent upon the requisition by the person against whom the inquiry is held, it would be violative of Article 21 which provides that no person
shall be deprived of his life or personal liberty except according to the procedure established by law. If the procedure established by law
prescribes compliance with principles of natural justice but makes it dependent upon a requisition by the person against whom an inquiry according
to such procedure is to be held, it is difficult to accept the submission that such procedure would be violative of Article 21. And as far as the Rules
are concerned, they have made clear distinction between an officer governed by the Act and any other person subject to the Act. Expression
Officer; has been defined to mean a person commissioned defined to mean a person commissioned, gazetted or in pay as an officer in the regular
Army and includes various other categories set out therein. By the very definition an officer would be a person belonging to the upper bracket in
the Armed Forces and any person other than an officer subject to the provisions of the Act would necessarily imply persons belonging to the lower
categories in the army service. Now, in respect of such persons belonging to the lower category it is mandatory that Rules 22, 23 and 24 have to
be followed and there is no escape from it except on the pain of invalidation of the inquiry.
20. It may also be relevant to take note of the following observations made in the aforesaid case, i.e.:
Reluctance of the apex court more concerned with civil law to interfere with the internal affairs of the Army is likely to create a distorted picture in
the minds of the military personnel that persons subject to Army Act are not citizens of India. It is one of the cardinal features of our Constitution
that a person by enlisting in or entering armed forces does not cease to be a citizen so as to wholly deprive him of his rights under the Constitution.
In the larger interest of national security and military discipline Parliament in its wisdom may restrict or abrogate such rights in their application to
the Armed Forces but this process should not be carried so far as to create a class of citizens not entitled to the benefits of the liberal spirit of the
Constitution. Persons subject to Army Act are citizens of this ancient land having a feeling of belonging to the civilized community governed by the
liberty oriented constitution. Personal liberty makes for the worth of human being and is a cherished and prized right. Deprivation thereof must be
preceded by an inquiry ensuring fair, just and reasonable procedure and trial by a Judge of unquestioned integrity and wholly unbiased. A marked
difference in the procedure for trial of an offence by the Criminal Court and the Court martial is apt to generate dissatisfaction arising out of this
differential treatment.
21. The aforesaid legal position also finds support with a latest pronouncement of the Division Bench in LPA No. 254/2001, The Chief of Army
Staff and Ors. v. Ex. 14257873 K Sigmm Trilochan Behera, decided on 17.1.2008 some of the portion needs reference:
7. Counsel for the respondent has drawn our attention towards guide to SCM issued in the year 1984, Heading (b) Arraignment at pages 7 & 8, it
is mentioned:
(iii) If the accused pleads guilty to the charge, the implications of the plea should be explained to the accused (s) by the officer holding the trial vide
AR 115(2). He should also make the following record on page ""B"" of the proceedings in the presence of the accused and obtain his signature
thereon:
Before recording the plea of guilty offered by the accused, the Court explains to the accused the meaning of the charge(s) to which he had pleaded
guilty and ascertains that the accused understands the nature of the charge(s)-to which he has pleaded guilty. The Court also informs the accused
the general effect of that plea and the difference in procedure which will be followed consequent to the said plea. The Court having satisfied itself
that the accused understands the charge(s) and the effect of his plea of guilty accepts and records the same. The provisions of Army Rule 115 (2)
are complied with.
(Signature) (Signature)
Accused The Court
iv) Failure to comply with the procedure explained in sub-para 16(b) (iii) above will amount to violation of the procedural safe guard provided in
AR 115 (2) and violation of Article 14 of the Constitution of India and the punishment awarded will have to be set aside. (Auth: HQ Western
Command letter No. 0337/A3 dated 30 Oct 84 attached as Appx F and Judgment of J & K High Court, see Pritpal Singh v. Union of India (J &
K) 984 (3) SLR 680).
22. The Division Bench also relied upon and reiterated the principles as enunciated in the case of Prithpal Singh v. Union Of India and Ors.
(supra).
23. The Division Bench also referred to a recent authority reported in Sukanta Mitra v. Union of India and Ors. 2007 (2) (J & K) 197 where it
was held:
9. This apart the fact remains that the appellant has been convicted and sentenced on the basis of his plea of guilt. The plea of guilt recorded by the
Court does not bear the signatures of the appellant. The question arising for consideration, therefore, is whether obtaining of signatures was
necessary.
In a case T.N. Janardhanan Pillai Vs. State, , a Division Bench of this Court has observed:
The other point which has been made basis of 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 undertakes 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 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 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 have been taken.
24. Lastly, the Division Bench made the following observation:
In the light of the above discussion, we find that the above-said proceedings bristle with a number of question marks. The same stand vitiated. If
dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure
must be scrupulously observed. The LPA is thus dismissed.
25. Some other judgments are also of significance where also non-compliance of the procedure laid down under the Army Act and rules have
been found to be fatal.
26. In Lance Dafedar Laxman Vs. Union of India and Others, it has been observed:
The argument of Mr. Joseph do not hold good because the Rule 22 no doubt pertains to a stage prior to trial but the decision to hold any
investigation and a trial depends upon the procedure laid down under this rule. Therefore, the procedure which has been held by the Supreme
Court is mandatory and has to be followed in letter and in spirit.
27. In Dhananjaya Reddy etc. Vs. State of Karnataka, it has been held as under:
where a law requires something to be done in certain manner that must be done in that manner or not at all if the rules require confession to the
record in a particular manner then it should have been done in that manner having not followed the rules affects the confession even if one go to
Rule 23 and applies the same to the facts of this case it is apparent, that the caution which were given to the accused was after recording the plea
of guilt and not before it. Moreover, in this case there was no evidence except the evidence of the accused regarding summary of evidence.
In that case it was also held: Purpose of Summary of Evidence, as per the rule position itself, cannot be under estimated. Since the record of
Summary of Evidence forms the basis on which it is to be further decided whether to hold General Court Martial or not and, since at the time of
recording witnesses by the Officer nominated to record Summary of Evidence accused is given chance to cross-examine the prosecution witnesses
and to lead his defence witnesses, not giving such an opportunity to the accused person is definitely going to cause prejudice to such a person. The
procedure which is to be followed at the time of recording evidence by the Officer nominated to record Summary of Evidence is, therefore,
mandatory and infraction thereof may entail the entire proceedings including
General Court Martial, to be illegal and these can be quashed.
28. Taking into consideration the material and the evidence placed on record and the law on the subject, it is apparent that the procedure adopted
by the respondent in punishing the petitioner is illegal and vitiates the proceedings; inasmuch as;
(i) The format available on record about compliance of Rule 22 is not in accordance with the requirement of the said Rule.
(ii) Recording of the confessional statement of accused persons against each other is contrary to procedure laid down in Para 4 of Memoranda and
the procedure mentioned in the Manual of Military Law (Vol-1) has not been followed which vitiates the proceedings in its entirety.
(iii) The caution which is required to be given under Rule 23(3) is on a separate page and creates a reasonable doubt about its genuineness.
(iv) The pre-requisite before recording the plea of guilt of the accused has not been followed in terms of Rule 115(2) and the certificate which
forms a part of the record is on a separate paper and again casts a doubt on its authenticity.
(v) The procedure contemplated under Rule 116(2) has not been followed.
29. Thus, we have no hesitation but to hold that the entire proceedings carried out by the respondent against the accused person who was just a
driver and not an Officer right from the stage of holding the so-called Court of Enquiry, recording ""Summary of Evidence"" and the SCM suffers
from grave procedural irregularity and strikes at the root of the case for the reasons stated above. In consequence thereto, we set aside the same
as also the sentence awarded to the petitioner. As a result of the aforesaid the petitioner will have to be reinstated in service, but shall not be
entitled to any financial benefits for the intervening period. At the same time, the respondents shall be at a liberty to hold a fresh Court Martial if
they so choose but treating the plea of the petitioner as that of `not guilty'' by recording independent evidence, if any. The same shall be done by a
different set of officers other than the ones who decided the case earlier. The respondents are thus directed to re-instate the petitioner in service
within a period of three months from today and if the respondents decide to go for fresh Court Martial proceedings against the said petitioner or to
go in for any other proceedings, they can do so within a maximum period of six months from today. Needless to say that in case of an adverse
order passed against the accused/petitioner on conclusion of the said proceedings, the petitioner shall have the right to get the same redressed in
accordance with law.
30. The writ petition accordingly stands disposed of leaving the parties to bear their own costs.