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2010 DIGILAW 459 (JK)

Santokh Singh v. Union Of India

2010-08-20

Hasnain Massodi, J.P.Singh

body2010
J.P. Singh, J 1. The appellant’s Writ Petition SWP No.1218/1997 questioning his reduction to Rank and dismissal from Service, in terms of the sentence awarded by the Summary Court Martial held at Kargil on the 28th day of February, 1997 on a charge of dishonestly mis-appropriating sixty liters of DHPP "W" from the Tank of Vehicle BA No. 95D-101745L valuing Rs.531/-, which had been entrusted to his charge, by selling it in the market, was dismissed by a learned Single Judge of this Court vide judgment dated May 30, 2000, aggrieved whereby he has filed this Writ Appeal seeking aside of his conviction and sentence besides the judgment of the learned Single Judge. 2. Mrs. Kour, his learned counsel pressed only one plea in support of the appellant’s Appeal urging that the appellant was entitled to be acquitted of the charge and restored his Employment, as his trial stood vitiated, in that, the Officiating Commanding Officer, 166 Field Regiment had no jurisdictional competence to hold the Summary General Court Martial, which, in law could be conducted only by a substantive Commanding Officer. 3. Referring to the provisions of Rule 5 of the Army Rules, 1954 and Para 9 of the Defence Service Regulations, M/s K.K.Pangotra and S.S.Chib, learned Union Counsel urged that in terms of the Rules and the provisions of the Defence Service Regulations, in the absence of the Commanding Officer, the Officiating Commanding Officer was competent to hold the appellant’s trial, and the findings arrived at and the punishment awarded, by the Summary Court Martial, presided over by the Officiating Commanding Officer, did not suffer from any error of law or jurisdiction. 4. We have considered the submissions of learned counsel for the parties and perused the provisions of law, referred to by the learned counsel appearing for the Union of India. 5. Perusal of Rule 5 of the Army Rules 1954 reveals that any power or jurisdiction given to and any act or thing to be done by, to, or before any person holding any Military Office for the purposes of the Rules, may be exercised by, or done by, to, or before any person for the time being authorized in that behalf according to the custom of the service. 6. 6. Regulation 9 of the Defence Service Regulations, defines the Commanding Officer to be either:- (a) the officer who has been appointed by Higher Authority to be a Commanding Officer while able effectively to exercise his power as such, OR (b) where no appointment has been made, the Officer who is, for the time being, in immediate command of (i) the Unit to which the person belongs or is attached to, OR (ii) any detachment or a distinct sizeable separate portion of a Unit with which the person is for the time being serving, and in respect of which it is the duty of such Officer under the Regulations or by the custom of the service, to discharge the functions of a Commanding Officer. 7. Perusal of the two provisions of law, referred to hereinabove, demonstrates that any person performing the duties of a Commanding Officer, is empowered to exercise all those powers under the Army Act and Army Rules which the substantively appointed Commanding Officer may so exercise. 8. As the Officiating Commanding Officer, by the custom of the service, performs the same functions and duties as the Commanding Officer would so do, which fact was not disputed at the hearing of the Appeal, so in terms of Rule 5 of the Army Rules and Regulation 9 of the Defence Service Regulations, the Officiating Commanding Officer, 166 Field Regiment, did not suffer from any disability to exercise the powers of the Commanding Officer and in this view of the matter, the appellant’s trial, findings recorded and the sentence pronounced and promulgated by the Officiating Commanding Officer cannot be said to suffer from any error of law or jurisdiction. 9. Thus finding no merit in the appellant’s learned counsel’s submission, we reject it. 10. Perusal of the records pertaining to the appellant’s trial made available by the learned Union Counsel reveals that the respondents have complied with the provisions of the Rules in letter and spirit, in recording the summary of evidence, appellant’s plea of guilty, holding his trial, and recording the conviction and sentence. 11. We, therefore, do not find any ground to interfere with the judgment impugned in the Appeal and the conviction and sentence of the appellant. 12. This Appeal, therefore, lacks substance and is, accordingly, dismissed.