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PETITIONER: OMBIR SINGH

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT05/05/1993

BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) RAY, G.N. (J)

CITATION:  1994 SCC  Supl.  (1) 273

ACT:

HEADNOTE:

JUDGMENT: ORDER 1.This  appeal is directed against the order of the  High Court  of Delhi.  The appellant was tried by  Summary  Court Martial  and  was  sentenced to undergo  nine  months  civil imprisonment  and dismissal from service.  The  question  of law   raised  is  that  Summary  Court  Martial   that   was constituted was not presided over by a Commanding Officer as required under Section 116 of the Army Act.  The  submission is  that some of the records supplied to the appellant  show that  it was only an officer of the rank of a  Captain  that presided and he cannot be deemed to be a Commanding Officer. The High Court dismissed the writ petition observing that it had  perused  the record as well as the evidence and  it  is satisfied  that the Summary Court Martial was presided  over by Lt.  Col.  Sandhu, a Commanding Officer. 2.The learned counsel, however, submits that the  records supplied to the appellant do not disclose the same fact.  We have  perused the records and we agree with the  High  Court that the Summary Court Martial constituted was presided over by  Mr Sandhu, the Commanding Officer.  Therefore, there  is no force in the submission. 3.The   learned  counsel,  however,  submits   that   the appellant was released on bail by this Court and he has been in jail for a period of over five months and that it is  not a case where the appellant may be sent back to jail at  such distance  of  time.  The act of indiscipline  was  committed sometime prior to 1980.  So far as this aspect is concerned, it  is  for  the Army Authority  concerned  to  consider  it whether the appellant should again be sent back to jail  for serving out the remaining small portion of sentence or remit the same.  The appeal is dismissed with these observations. 275