IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH) WRIT APPEAL NO.

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1 IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH) WRIT APPEAL NO.329/2007 APPELLANT Shri Lal Kumar Shrestha, Hav/Clk C/360945M 24 Assam Rifles Presently serving at 24 Assam Rifles, Moreh, Imphal By advocates : Mr GN Sahewalla, Sr Adv Mr P Bora, Md Aslam, Mr D Senapati VERSUS RESPONDENTS 1) Union of India represented by the Secretary to the Government of India, Ministry of Home Affairs 2) Director General of Assam Rifles, Arbuthnot Road, Shillong 3) Deputy Inspector General, Assam Rifles Hqr, B Range C/o 99 APO 4) Commandant, 20 Assam Rifles, C/O 99 APO By advocates : Ms B Das, CGC BEFORE HON BLE THE CHIEF JUSTICE MR MADAN B. LOKUR HON BLE MR JUSTICE K. MERUNO Date of hearing : Date of judgment and order : WA No.329/07 Page 1 of 5

2 JUDGMENT AND ORDER (Madan B. Lokur, CJ) The appellant is aggrieved by a judgment and order dated passed by a learned Single Judge in WP(C) No.310(SH)/ The appellant was tried by a summary court martial conducted by the Assam Rifles on the following allegation :- CHARGE SHEET The accused No.C/ Nk/Clk Lal Kumar Shrestha of HQ B Range ASSAM RIFLES attached to 20 ASSAM RIFLES a person subject to the Army Act, 1950 being so under the provisions of Section 4(1) thereof, read with SRO 117 of 28 Mar 60 and 318 of 6 Dec 62 as amended by SRO 325 of 31 Aug 77 is charged with :- Army Act 1950 Sec 39(b) WITHOUT SUFFICIENT CAUSE OVERSTAYING LEAVE GRANTED TO HIM in that he, at field, on 28 Oct 96, having been granted leave of absence from 29 Oct 96 to 01 Nov 96 to proceed to Alugodam (village), failed without sufficient cause, to rejoin at Rear Dimapur, on 02 Nov 96 (FN), on expiry of the said leave till voluntarily rejoined at Rear Imphal on 14 Oct 98 (AN) Total absence period 1 year, 11 months and 13 days. 3. A perusal of the above would show that the appellant was unauthorisedly absent for almost two years. In the Summary Court Martial (for short SCM) the appellant pleaded guilty to the WA No.329/07 Page 2 of 5

3 charge and was sentenced to three months imprisonment in military custody and reduction in rank. 4. Before the learned Single Judge, the appellant raised several contentions, all of which were negatived. The writ petition was dismissed and so this appeal. Before us, the only contention urged by learned counsel for the appellant was that his client did not plead guilty as recorded by the SCM and as observed by the learned Single Judge. Therefore, the entire case proceeded on a factual error. 5. When this writ appeal came up before a Division Bench on , the original records of the SCM were called for. Learned counsel for the appellant urged us to go through the original records and determine whether in fact the appellant had pleaded guilty as held. 6. We have gone through the original records of the SCM and find that it is recorded that the appellant had pleaded guilty. We have also gone through the statement made by the appellant in the SCM. The appellant did not deny the charge levelled against him, and therefore in a sense, admitted his guilt. The appellant also did not produce any witness in his defence in the SCM. The relevant paragraphs of the statement of the appellant, recorded in the presence of an independent witness, are reproduced below:- 2. During my leave, I got sick and reported at HQ DGAR (Med Branch) MI Room. During the leave, I received a phone call from my home at Nepal that my younger brother is seriously ill so I rushed to Nepal to WA No.329/07 Page 3 of 5

4 attend him. On reaching Nepal, unfortunately, I myself fell sick and was under treatment of Dr Raju Gautam, MO, Western Regional Hospital, Pokhra, Nepal from 15 June 96 to 23 Aug 96. I had informed regarding my condition to HQ B Range (AR) by registered post. 3. On recovery from my illness, I returned to Shillong as all my luggage was there. On reaching Shillong, I again fell sick and reported to Dr DJ Goswami, Civil Hospital, AMA, Shillong and was under his treatment from 21 Aug 96 to 04 Oct 96. During the period, I received a message through HQ DGAR (Est Br) vide their letter No.I.38011/2-Est/96 dated 07 Oct 96, addressed to my wife, who is working in HQ DGAR (UPAO Br) to report to HQ 19 Assam Rifles by 11 Oct 96 and my remaining leave period has been cancelled. 4. I reported at HQ 19 Assam Rifles on due date and was there till 28 Oct 96. As the court was adjourned for 15 days, I reported to Maj Lalit Sood of 20 Assam Rifles, who was performing the duties of prosecutor of Maj DK Sawhney, for granting me four days of EL to solve my problems at Shillong. My four days EL was sanctioned and the leave certificate was issued by HQ 19 Assam Rifles. 5. On reaching Shillong, I again fell sick and was on continuous treatment of Dr DJ Goswami, Civil Hospital, AMA, Shillong from 01 Nov 96 to 12 Oct 98. Regarding my condition I had also despatched an application to HQ B Range through registered post on 04 Nov 96 but I failed to receive any reply from HQ B Range (AR). I finally rejoined my duty from leave on 14 Oct 98 at Rear Imphal. 7. A perusal of the above would clearly show that the appellant claimed to have fallen sick in Shillong and was under treatment of a civil doctor from 1 st November 1996 to 12 th October During this entire period he did not report to any competent or authorised medical officer even though the Headquarters of the Assam Rifles is located at Shillong and adequate medical facilities are available over there. The only defence given by the appellant in his statement is that he had dispatched an application through registered post on 4 th November 1996 but since he did not receive any reply, he did not take any further steps. There is nothing to WA No.329/07 Page 4 of 5

5 show that such a letter was in fact sent by the appellant by registered post at all. 8. The contention now sought to be raised before us is clearly an afterthought as held by the learned Single Judge. The record of the SCM shows, without doubt, that the appellant did not deny the charge levelled against. The natural consequence of this would be a finding of his guilt. We cannot agree with learned counsel for the appellant that there was no admission of guilt by his client. No other submission was urged before us 9. We find no merit in this appeal. It is accordingly dismissed. JUDGE CHIEF JUSTICE Mazumdar/ WA No.329/07 Page 5 of 5

IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH CRIMINAL APPEAL NO.

1 IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH CRIMINAL APPEAL NO.168/2004 APPELLANTS 1. Md Kurban Ali, S/o- Mofed Ali, Resident