AFT sets aside enhancement of sentence awarded by SGCM to soldier convicted for unprofessional conduct

Tribune News Service

Vijay Mohan

Chandigarh, November 1

The Armed Forces Tribunal (AFT) has set aside the enhancement of sentence awarded by a Summary General Court Martial (SGCM) to a soldier convicted for unprofessional conduct during a terrorist attack on an Army camp and has directed the court to re-convene and give a fresh sentence.

The Tribunal’s bench comprising Justice Sudhir Mittal and Lt Gen Ravendra Pal Singh has, in its order of October 30, observed that there was no fresh findings by the court after reconvening on the directions of the confirming authority and held that enhancement of sentence without giving any reason in support thereof is not justified.

The soldier was serving with an Artillery Regiment located at Nagrota in Jammu and Kashmir when three terrorists attacked the camp in November 2016. He was on sentry duty at the main gate and allegedly abandoned his post and hid himself instead of challenging the terrorists and firing at them.

He was tried by an SGCM on two charges under Section 34 (c) of the Army Act for cowardice and Section 63 for an act prejudicial to good order and military discipline. He was held not guilty of the charge under Section 34 (c) but convicted on the other charge and sentenced in May 2019 to three months rigorous imprisonment and forfeiture of pay and allowances for the said period. 

The confirming authority of the sentence was of the opinion that evidence on record established that the soldier had abandoned his post and hidden himself in staff quarters. The only positive conclusion, according to the confirming authority, was that he had acted in an unsoldierly manner amounting to cowardice and the finding of ‘not guilty’ on the first charge was perverse. 

The confirming authority also said that under the relevant provisions of Army Rules, the finding of ‘guilty’ on the second charge also needed to be reconsidered by the court as  a person cannot be held guilty on more than one charge if the charges are in the alternative.

Accordingly, the SGCM re-convened in December 2019, but no further evidence was led by either side. The earlier findings on the charges were maintained by the court, but the sentence was enhanced from forfeiture of pay and allowances to dismissal from service, along with three months rigorous imprisonment.

The soldier submitted before the AFT that no new evidence was adduced by either party or any new findings given by the court, yet the sentence was enhanced without any reasons being given by the court in support thereof.

The bench held that in the present case, the two charges are distinct and the second charge is not in the alternative to the first charge and the confirming authority need not have referred to the second charge.

“The court has, in fact, misconstrued and misread the direction given by the confirming authority. It should have re-considered its finding on charge No.1 and if required findings on charge No.2 also could have been reconsidered,” the Bench observed while directing the court to reconsider the orders of the confirming authority in accordance with law.

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