Legal Advice

CO of the same regiment headed SCM: Can I challenge the proceedings of SCM?

Question: I was detailed on duty on 2045 hours thereafter, an officer came and found me sleeping. He then slapped me and called me to appear in office on the next day. On the very next day that officer abused me then I slapped him in front of some other soldiers. This incident was recorded and SCM was recommended after the court of inquiry. The CO of the same regiment headed the SCM. He was biased and conducted one sided trial. Thereafter I am discharged from the service. My total length of service is thirteen years nine months sixteen days. Is there any change of reinstatement?

Advise

You want to assail the summary court martial (SCM) on the basis that it was headed by the commanding officer of the same regiment. According to Section 116 of the Army Act, “A summary court martial may be held by the commanding officer of any corps, department or detachment of the regular Army, and he shall alone constitute the court.”

Hence, there is no impediment in holding the court by the CO of same regiment wherein the offence was committed. The law provides that commanding officer of any corps, department or detachment can constitute the court. If he involved in the any stage of investigation, then the constitution of court by that CO would have been void. Thereafter, the entire proceedings of SCM could be set aside.

It is not clear from the facts of your case that there is any infirmity in recording of summary of evidence, framing of charges and holding guilty etc. These infirmities are important and render the proceedings void. Hence, in devoid of entire facts, I am not in position to advice for filing OA in the Armed Forces Tribunal. You should consult along with all records then I can advise whether your reinstatement is possible or not.

Shivendra Pratap Singh

Advocate

High Court Lucknow

Armed Forces Tribunal | Service & Labour

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