In a civil appeal filed by the appellant challenging the order of the Armed Forces Tribunal rejecting his appeal to punishment of dismissal and rigorous imprisonment for a period of six months by a Summary Court Martial, the two judge Bench of Justice DY Chandrachud and Justice MR Shah of the Supreme Court has held that the appellant was entitled to seek the benefit of legal representation which he desired at his own expense.
The appellant was a Sepoy in the Indian Army and was accused of assaulting a superior officer as well as abusing a Subhedar using foul language when the appellant was found improperly dressed during a parade. Although the Summary Court Marital acquitted the Appellant on the second charge, it convicted him on the charge of assaulting the superior officer and accordingly punished with dismissal and rigorous imprisonment for six months. His appeal to the Armed Forces Tribunal was also dismissed.
The Appellant contended that there has been a violation of the principles of natural justice as the appellant had sought for assistance of a civil advocate which was denied on the grounds that legal assistance is only for an offence involving a possible death sentence. The Appellant cited the provision of Rule 129 of the Army Rules, 1954 in support of its contentions which reads as follows:
“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.”
The Respondent submitted that that no prejudice was caused to the Appellant and hence, appeal was not maintainable. The Respondents relied to the judgment of the Supreme Court in Major G.S. Sodhi vs. Union of India (1991) 2 SCC 382 in support of its contentions.
The Bench allowed the appeal stating that Rule 129 of the Army Rules, 1954 clearly indicates that the accused may have a person to assist him during the trial in a Summary Court Martial and held that:
“In the present case,the appellant had rendered seven years of service. He was pitted against his Commanding Officer. In the face of Army Rule 129, there was no reason to deny him the benefit of legal representation which he desired at his own expense. For these reasons, we are of the view that there was a clear violation of the principles of natural justice. The prejudice too is evident. The appellant was dismissed from\ service and sentenced to six months’ imprisonment. Both his livelihood and liberty were taken away.”
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