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N.K.Assumi (Advocate)     13 May 2009

Summary Court Martial a Misuse power?

Is Summary Court martial unreasonable provisions or a misuse power of the Commanding Officers of the Corps, department or detachment  of the soldiers to which the accused belongs? is there a need for change in Summary Court Martial under the Army Act?



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 4 Replies


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NANDKUMAR B..SAWANT.,M.COM.LL.B.(MUMBAI),ADVOCATE

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REGARDING THE COURT MARTIAL AND ARMY ACT KINDLY NOTE THAT

ANY PERSON BEING AGGRIEVED BY THE ACTION TAKEN  OR ORDER PASSED AT ARMY COURT MARTIAL ,THE PERSON CAN APPROACH THE HIGH COURT FOR LEGAL REMEDY UNDER ARMY ACT AND OTHER RELEVENT ACTS.

IN CASE ANY FURTHER DETAILS ARE REQUIRED KINDLY SEND DETAILS

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NANDKUMAR B.SAWANT.,M.COM.LL.B.(MUMBAI),ADVOCATE

 

N.K.Assumi (Advocate)     13 May 2009

Thank you for your feed back. But I am harping on the nature of the Summary Court martial proceedings and not the appeal.

veenzar (Advocate)     14 May 2009

Indian Army has four kinds of Court Martial - General Court Martial (GCM), District Court Martial (DCM), Summary General Court Martial (SGCM) and Summary Court Martial (SCM). According to the Army act, army courts can try personnel for all kinds of offences except for murder and rape of a civilian, which are primarily tried by a civilian court of law.



Introduction:



The Indian Army is still following the system of military justice it inherited from the British though the law in the UK has changed to keep pace with the modern practices of justice. The right of the individuals enshrined in the Indian Constitution is not reflected in the laws that govern the personnel of the armed forces. The Army Act 1950 especially the provisions relating to summary courts martial are in essence a continuation of the then prevalent system with all its inherent defects. It denies the accused the minimum degree of decency and fair play that must be guaranteed in any democratic society professing to follow the concept of rule of law and causational system the military justice system off other democracies. Which are moving towards granting all the fundamental rights to the members of the armed forces have led to a demand for reviewing the existing military justice system in India- a system conceived to keep the native army under strict control.



The existing provisions relating to summary courts martial are peculiar to the Indian Army. No other democracy in the work has concentrated such sweeping powers in the hands of an individual to deprive another citizen of his livelihood and freedom, that too, without recourse to any appeal.



Origin:



The provisions for summary courts martial were not introduced into the regular army till after the mutiny in the Bengal Army in 1857. The discipline of the regular Indian Army had, for some time before that catastrophe, seriously deteriorated and it was noticed that irregular troops, especially the Punjab irregular Force, were in this respect in a much better state than their comrades of the regular army. After the suppression of the mutiny the reason for this difference was sought, and it was found to be the position of comparative insignificance occupied by the commandant of a regular regiment, who had practically no power to punish or reward his own men. In contrast the commanding officer of a regiment of the Punjab irregular Force had almost absolute power and could himself deal promptly and effectively with all military of fenders. This system appears to have had its origin in the union, frequent in those days on the Frontier, of the functions of deputy commissioner, political officer and military commandant combined in one and the same person. This union of power enabled the commanding officer to convict and sentence a military offender, and thereafter to issue a warrant for the execution of the sentence, which was respected by the civil and prison officials as an emanation from him in his civil and magisterial capacity. When a new Indian Army came to be organized on the ruins of the old, it was realized that the hand of the regimental commanding officer would have to be strengthened if the 'evils' which had affected the Army were to be avoided. With this object in mind summary courts martial were at first introduced tentatively and in 1869 established definitely as part of the legal machinery of the Indian Army. The procedure and powers relation to the summary court martial were contained in Articles 93-97 and 107 of the Indian Articles of War of 1869.  

Yogesh pandey (QC (ASM))     21 June 2011

Sir i was enroled in indian air force as a airmen on 12 jan 2004. The working cultre of the organisation never suit me. Since it is very diffcult to get discharge from defence services i made myself absent without leave for 156 days on year 2010.after 156 days i was apprehended by indian air force police on 22 oct 2010. They brought me back to my unit. i.e. 16 wg hasimara (W.B.). During my charge trail by my comnding officer i admitted i am awol for 156 days. and do not want to continue in service. He ordred a summary of evidence (SOE). and after that i am tried by district court martail. In front of court i pleaded my gulity by saying that i do not wish to continue in service because after 7years(approx) i felt that it is hard for me to accustomed in defence rules and regulation. After hearing the court gave the sentence as (1) to suffer regirous imprisonment of 3 months in air force custody. And (2) to be dismised from service. After three months i got what i want i.e. Discharge from service. I was only charged with single line " overstaying of leave granted to him by 156 days till apprehended by iaf police" (not any other type of misconduct) Its ok i have no complain aginst indin air force. But i want to know does THIS DISHONRABLE DISHARGE CREAT PROBLEM FOR ME TO JOIN ANY OTHER GOVT. JOB? In my case the term "dismised from service"is sutible. Or it should be released from service. As i already in detention for 3 months in air force coustdy(i tiink it is enough punishment awarded to me). sir now i am selected for two govt jobs. but they mention in notification that "Any person who is dismised from any state,central and P.S.U. is not eligible for joining" (but its not clear it is applicable for all dismisl or dismisl which in on other serious misconduct) . kindly help me.thnx . Is this event put a total bar on me to join any govt job. Any remady.

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