Army Rules, 1954 – r.129 – Benefit of legal advise under – Entitlement to – Appellant, Sepoy in the Indian Army was dismissed from service by Summary Court Martial – Challenged before Armed Forces Tribunal (AFT) – Dismissed – Plea of appellant that he was entitled to the benefit of legal advise u/r.129 of the 1954 Rules which he was denied on the ground that legal assistance could be admissible only where the offence was punishable with death – Held: Rule 129 indicates that in Summary Court Martial, the accused may have a person to assist him during the trial, whether a legal adviser or any other person – Expression ‘may’ must be read to mean that the person who is proceeded against has the option on whether or not to engage a legal advisor or any other person – It represents an entitlement to be represented – In view of the specific provisions of r.129, the Commanding Officer was evidently in error in declining the assistance of a lawyer to the appellant – There was a clear violation of the principles of natural justice – Prejudice too is evident – Appellant was dismissed from service and sentenced to six months’ imprisonment – Both his livelihood and liberty were taken away – Judgment of AFT set aside – Armed Forces – Service Law – Army Regulations – Regulation 479 – Doctrines/Principles – Principles of Natural Justice .
Allowing the appeal, the Court
HELD: 1.1 Rule 129, Army Rules, 1954 clearly indicates that in a Summary Court Martial, the accused may have a person to assist him during the trial whether legal adviser or any other person. The expression ‘may’ must be read to mean that the person who is proceeded against has the option on whether or not to engage a legal advisor or any other person. It represents an entitlement to be represented. [Para 7][1315-A-B]
1.2 Regulation 479 of the Army Regulations deals with a situation where a person who is subject to the Army Act is to be tried for a court martial for an offence punishable with death. On the contrary, Army Rule 129 specifically deals with representation in a Summary Court Martial. In view of the specific provisions of Rule 129, the commanding officer was evidently in error in declining the assistance of a lawyer on the ground that legal assistance could be admissible only where the offence was punishable with death. [Paras 10, 11][1315-D-E]
1.3 In the present case, the appellant had rendered seven years service. He was pitted against his commanding officer. In the face of the 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, 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. The judgment of the Armed Forces Tribunal is set aside. [Paras 15-17][1317-E-G]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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