Court Martial set aside after 10 years by the Armed Forces Tribunal

In an order passed recently, the Principal Bench (Delhi) of the Armed Forces Tribunal (AFT) has set aside the dismissal of a soldier by a Summary Court Martial (SCM) in 2013 and has ordered a retrial.

The soldier was convicted and sentenced to dismissal from service by an SCM after he remained absent without leave for more than 2 years. The AFT found gross irregularities in the way the proceedings were conducted, especially in the effectuation of the provision of the “friend of the accused”. The AFT has set aside the trial as having been vitiated and has ordered a fresh trial (retrial).

The final conclusion on ordering a retiral, however, appears curiously impractical after the lapse of almost a decade. More so since the Supreme Court of India and various State High Courts have repeatedly held that an SCM is an emergent provision where immediacy of action is required and which cannot be invoked as a regular recourse. The invocation of an SCM itself has been held to be bad in law by Constitutional Courts, let alone a retrial. Courts, in the past, have set aside such trials by grating notional benefits to personnel by treating a person having retired from service instead of dismissal by an SCM.

The judgment, nevertheless, again brings into focus the desirability of adhering to proper procedures while carrying out military trials so as not to vitiate them or to cause any prejudice to the accused.

A news-report on the case by The Tribune can be accessed here.