TMI Blog2008 (8) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... e justified a trial on those charges. Such a satisfaction cannot be arrived at without any evidence. If an order is passed without any evidence, the same must be held to be perverse. The High Court was also not correct in opining that the appellant did not raise any objection in the said proceedings. Thus the impugned judgment in regard to the charge Nos.1, 2 and 3 cannot be sustained. They are set aside accordingly. It has not been disputed that witnesses for proving charge Nos.4 to 7 have been examined. The General Court Martial Proceedings shall continue in respect of charge Nos.4 to 7 and not in respect of charges No.1 to 3 - CIVIL APPEAL NO. 5307 OF 2008 - - - Dated:- 29-8-2008 - SINHA, S.B. AND JOSEPH, CYRIAC, JJ. JUDGMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E ACT, 1950 BEHAVING IN A MANNER UNBECOMING THE POSITION AND CHARACTER OF AN OFFICER In that he, At New Delhi on the night of 28/29 Apr 05, used offensive language to Sh. Dependra Pathak, Deputy Commissioner of Police, South West District, New Delhi and behaved in a riotous manner. THIRD CHARGE SECTION 48 AIR FORCE ACT, 1950 INTOXICATION In that he AT New Delhi on the night of 28/29 Apr 05, was found in a state of intoxication. FIFTH CHARGE SECTION 40(a) AIR FORCE ACT, 1950 ASSAULTING HIS SUPERIOR OFFICER In that he, At Gandhinagar (Gujarat), on 06 Jan.06, assaulted Gp.Capt. SS Kothari (16788) F (P) of Headquarter South Western Air Command, Indian Air Force. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned. Was it violative of Rule 43 of the Air Force Rules is the question. It reads as under : 43.Convening of General and District Courts-martial : (1) An officer before convening a general or district courts-martial shall first satisfy himself that the charges to be tried by the court-martial are for offences within the meaning of the Act, and framed in accordance with Law, and that the evidence justifies a trial on those charges, he may amend the charges if he deems fit, and if not so satisfied order release of the accused, or refer the case to superior authority. (2) He shall also satisfy himself that the case is a proper one to be tried by the description of court-martial he proposes to convene. (3) The officer convening the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first time in the Court Martial itself which is in violation of all the aforementioned AF Rules and the principles of Natural Justice. Inter alia, the Fourth to Seventh Charges have been made out after analyzing the evidence in the Summary of Evidence but in the First three charges not a single prosecution witness had deposed in the Summary of Evidence which is open to verification. I was also given a Good Conduct Certificate by my CO. 3. Therefore, I pray in all humility that the Convening orders of the General Court Martial is not only based on summary of evidence but it also lacks jurisdiction as the only competent authority to convene the GCM is an officer of the rank of Air Marshal in the appointment of AOC-in-C and this power and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion could have been done as regards the correctness or otherwise of the report, if the contents of them were proved. The principles analogous to the provisions of the Indian Evidence Act as also the principles of natural justice demand that the maker of the report should be examined, save and except in cases where the facts are admitted or the witnesses are not available for cross-examination or similar situation. No reason has been assigned as to why the named witnesses who only could prove the change had not been examined. Indisputably, they were the prime witnesses. 14. The High Court in its impugned judgment proceeded to consider the issue on a technical plea, namely, no prejudice has been caused to the appellant by such non-examinati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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