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TMI Blog2019 (7) TMI 1841X X X X Extracts X X X X X X X X Extracts X X X X ..... al principle of law which has been enunciated is that the power to order an SCM is a drastic power which must be exercised in a situation where it is absolutely imperative that immediate action is necessary. Sub-section (2) of Section 120 is prefaced by the words when there is no grave reason for immediate action . In the present case, though the incident took place on 11 August 2007, the SCM took place on 22 May 2008. The convening of an SCM was contrary to law. The appellant had nearly twelve years service when he was dismissed from service. In this view of the matter, the ends of justice would be met if in the exercise of our jurisdiction under Article 142 of the Constitution of India, it is ordered and directed that the discharge o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilty and was dismissed from service. Among those who deposed during the SCM were the victim and her husband. 4 The Armed Forces Tribunal, while holding that the charge had been duly established, came to the conclusion that the punishment of dismissal was disproportionate and should be modified to an order of discharge. 5 Mr. Naresh Ghai, learned counsel appearing on behalf of the appellant has submitted that during the course of the evidence it emerged that in the month of June or July 2007, the appellant had reported the spouse of the victim for unauthorisedly removing petrol from a Maruti Gypsy for which the latter was awarded a punishment. This was specifically brought out in the course of the examination of the spouse of the victi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mind to the findings of fact. We have also duly assessed the submission of the appellant that in the present case, the appellant had lodged a complaint in the past against the spouse of the victim for pilferage of petrol. Be that as it may, it is not necessary for this Court to enter upon the findings of fact since there is an independent ground on which the submissions of the appellant would be worthy of acceptance. 9 Section 120 of the Army Act, 1950 provides as follows: 120. Powers of summary courts- martial. (1) Subject to the provisions of sub- section (2), a summary court- martial may try any offence punishable under this Act. (2) When there is no grave reason for immediate action and reference can without detriment to di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out by two other persons specified therein. However, such persons are not to be sworn or affirmed. Unlike Sections 113, 115 and 114, where composition of the Court-Martial concerned is prescribed to consist of at least three officers, it is the CO alone who constitutes the Court under Section 116 in respect of SCM. Further, under Rules 39 and 40 of the Rules, CO of the accused, or of the Corps to which the accused belongs is specifically disqualified for serving on a GCM or DCM and composition of a GCM ought to compose of officers of different corps or departments. However, no such restriction applies to SCMs and in fact the CO himself must constitute the Court. The Act has thus given drastic power to one single individual, namely, the CO w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of recording reasons for convening a Summary Court Martial shall apply from 5 July 2016. However, the fundamental principle of law which has been enunciated is that the power to order an SCM is a drastic power which must be exercised in a situation where it is absolutely imperative that immediate action is necessary. Sub-section (2) of Section 120 is prefaced by the words when there is no grave reason for immediate action . In the present case, though the incident took place on 11 August 2007, the SCM took place on 22 May 2008. The convening of an SCM was contrary to law. 13 Having come to this conclusion, we would have ordinarily granted liberty to the respondents to pursue proceedings against the appellant in accordance with law. Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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