TMI Blog1990 (11) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... ng officer was prejudiced and biased against the petitioner and malafides are also alleged against him. The next submission is that the initiation of summary of evidence was irregular and illegal as the same was not in conformity with the Army Rules 22 to 25. The further submission is that the general court-martial proceedings were not conducted as per law and that no grounds were made out for court-martial. Another submission is that the punishment was awarded in an arbitrary manner and that there is no confirmation of sentence as per law. 4. To appreciate these submissions it becomes necessary to state few more facts and then refer to the relevant provisions of the Army Act and Rules. 5. The petitioner became a Commissioned Officer of the Army on 30th April, 1972. On 30th April, 1985 he joined 18 FD Regiment Dharandhera. It is stated that in May 1985 he was responsible for controlling the riots in Ahmedabad city while on internal security duty and was recommended for Sena Medal. On 10th September, 1988 there was a scuffle between the petitioner and another two officers. As per the charge-sheet the allegation is that the petitioner assaulted Captain S.R. Shukla and Captain S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges. Rule 23 lays down the procedure for taking down the summary of evidence. Rule 24 deals with remand of accused and lays down that the summary of evidence recorded under Rule 23 shall be considered by the Commanding Officer who thereupon-shall either remand the accused for trial by a court-martial or refer the case to the proper superior military authority and if the accused is remanded for trial by a court-martial the commanding officer shall without unnecessary delay either assemble a summary court- martial or apply to the proper military authority to convene a court-martial. Rule 25 provides for the procedure to be followed on a charge against an officer. Rule 28 deals with framing of charges and lays down that the charge-sheet shall contain the whole issue or issues to be tried by a court-martial. Rule 33 deals with the defence by the accused person. Rule 37 deals with the convening of general court-martial and District court- martial. Rule 40 provides for composition of court-martial. Rule 41 deals with the procedure at the trial. A provision is also made for the participation of the Judge-Advocate and Rule 61 lays down that the Court shall deliberate upon its findings in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore prejudice per se must be inferred. 9. We shall first examine the contention of malafide and bias. It is submitted that Lt. Col. S.K. Maini who ordered summary of evidence against the petitioner was inimical towards him because of certain prior incidents. It is alleged that the petitioner made a report against Lt. Col. S.K. Maini on 7th April, 1986 alleging that there was loss of unit ammunition and there was an accident of a unit vehicle resulting in the death of a civilian and also about bringing a lady in the single-officer quarter. On this report was a court of enquiry against Lt. T.C. Rawal. The further allegation is that Lt. Col. S.K. Maini who joined 18 FD Regiment as its Second-in-command was thoroughly briefed by Lt. T.C. Rawal as against the petitioner and thus bore grudge. It is alleged that Lt. Col. S.K. Maini took the petitioner's belt away and put him under arrest on 12th January, 1987 and on a complaint made by the petitioner there was an inquiry and summary of evidence was ordered. According to the petitioner though he wanted a copy of that summary of evidence, it was not supplied. It is also alleged that on 7th March, 1987 the petitioner filed a non-stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with the preliminary enquiry and it was for the court-martial to try the case and give verdict. Therefore the more allegations of bias and malafides against Lt. Col. S.K. Maini do not affect the court- martial proceedings. The learned Counsel in this context relied on a judgment of this Court in Ranjit Thakur v. Union of India and Ors. 1988CriLJ158 It is observed therein that: The test of real likelihood of bias is whether a reasonable person, in possession of relevant information would have thought that bias was likely and is whether respondent 4 was likely to be disposed to decide the matter only in a particular way. It is further observed that: As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the judge is not to look at his own mind and ask himself, however, honestly, Am I biased? but to look at the mind of the party before him. So far as aspects of bias and malafides are concerned we have already discussed and held that the plea cannot be accepted. We reiterate once again that the allegations made against Lt. Co. S.K. Maini are not really substan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a copy also was provided. In view of this denial we are unable to give any weight to the submission. Further we have also examined Annexure 16 and there is nothing to indicate that the words blocked out were during AL and not the word attendance . This is a highly disputed question of fact and this Court can in no manner accept any argument based on such a disputed question, and we have to proceed on the basis that the petitioner did not require as provided under Rule 25 that the recording of summary of evidence under Rules 22 and 23 should be in-his presence. At any rate the copy of the chargesheet in fact was given to the petitioner and there is no prejudice caused because later we find that he had as well crocs-examined the witnesses examined. Yet another submission in this regard is that Lt. Col. S.K. Maini did not make the requisite deletions in the form that has been filled at the time of hearing of the charge. It appears in para 2 of that form Annexure 17A, in the words requires or does not require the necessary deletion has not been made inspite of the instructions appended to the form. Therefore there is a non-compliance of the requisite rule. In para 31 of the count ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from 31.1.89 to 1.3.89 and according to the petitioner there is no recalling. Therefore according to the petitioner it has to be presumed that charges were dropped and when such presumption is permissible the enquiry itself is vitiated. We see no substance in this submission. We are not shown any provision of law in support of such a submission. We have gone through annexures and the material on records. We are not able to find any serious infraction of these rules. 14. The next submission is that the additional summary of evidence is not contemplated under law and therefore the proceedings in relation to such additional summary of evidence is vitiated. It must be remembered that it is only an additional recording of summary of evidence for which no special provision is necessary because it is only in addition to the summary of evidence (SOE) already commenced and once the SOE is permitted under rule the additional SOE is its necessary con- commitment We may, however, point out that the entire proceedings contemplated under Rules 22 to 25 are only preliminary and it is meant for the purpose of Commanding Officer satisfying himself whether court- martial should be ordered or n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23 in case of persons subject to the Act other than officers. Any lurking doubt in that behalf is removed by the language of Rule 25 which provides that if an officer is charged with an offence under the Act, the investigation, if he requires, shall be held and the evidence, if he requires it, shall be taken in his presence. x x x Therefore, it is crystal clear that in the absence of a request from the petitioner as required by Rule 25, failure to comply with Rules 22, 23 and 24 would not vitiate the trial by the general court-martial . (emphasis supplied) As already mentioned the petitioner who is an Officer on the other hand did not choose to be present as is evidenced by Annexure 16 though he now tries to explain it away. We have already found that the explanation cannot be accepted. Therefore there was no request as required under Rule 25 and consequently even if there is any failure to comply with Rules 22, 23 and 24 that would not vitiate the trial. 16. In this context the learned Counsel also submitted that the convening order constituting the court of inquiry is defective and that Col. B. Bahadur is junior to the petitioner. According to the petitioner he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence or in respect of other steps contemplated under Rules 22 to 25. 17. One other submission is that the charges are either fabricated or fictitious. The learned Counsel in support of this submission relied on some of the alleged defects in the charge- sheet namely the format of charges and the variations between this and the charge-sheet before the general court-martial. There is a prescribed format of the charge-sheet in respect of an offence of using criminal force punishable under Section 47 of the Act. It is submitted that the tentative charge-sheet is not in this prescribed form. It is also stated that this charge-sheet contains three charges whereas the general court-martial contains only two charges and that from the comparison of these two charge-sheets it emerges that the first charge in the tentative charge-sheet is superfluous and the same was done because Lt. Col. S.K. Maini gave a twist to the discussion in the officers' mess. But this charge, however, was dropped and the matter came up before the general court-martial. It is also submitted that the second charge of the tentative charge-sheet mentioned altercation while the third charge referred to a scuffle. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that if the officer on whom the command devolves is the commanding officer of the person to be tried or an officer who had investigated the case, he cannot afterwards act as convening officer in the same case but must refer it to a superior authority. The submission is that the General Officer Commanding 9 Infantry Division because of the above steps taken by him must be deemed to have investigated the case, therefore he could not have convened the general court-martial. From the record we find the order convening the general court-martial is signed by D.M. Jadhav, Lt. Col. for General Officer Commanding 9 Infantry Division. It is stated that he is the Principal Staff Officer. From this endorsement it can be seen that he has signed for the General Officer. In the form for convening the general court-martial annexed to the Rules, we find an endorsement to the effect that the convening order must be signed by the officer personally or for him by a Staff Officer. Therefore there is no noticeable defect because the convening order is ultimately deemed to have been signed by a superior officer namely General Officer and not the Officer who investigated the case. 19. The next s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detailed Lt. Col. R:S. Bhatt who is of his own choice. It is also pointed out that on 18th May, 1989 the petitioner during the court-martial requested for adjournment of the court for 10 days in order to engage a defence counsel. This request was turned down on the wrong advice of the Judge Advocate. The further submission is that the petitioner on 19th May, 1989 wrote a communication to the convening officer and apprised them with the prejudice caused to his defence. Considerable reliance is placed on this letter. We have perused the same. In that there is a reference to Rule 95 which deals only with the 'defending officer' and 'friend of the accused to be provided for on request. The complaint made in the letter is about not providing the defending officer of his choice at the trial. There are some of the circumstances which according to the learned Counsel should be taken into account in appreciating the prejudice caused to the petitioner's defence. Rule 95 to 101 deal with the appointment of defending officers and providing defence to the accused. Rule 95 lays down that at any general or district court-martial the accused person should be represented by any pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d defects pointed out in the procedure preceding the court-martial and we are not convinced even remotely that anyone of them is of vital nature so as to affect the trial substantially. 22. The next submission is in respect of the alleged unfair manner in which the general court-martial was conducted. It is submitted that the witnesses cited as D.Ws were examined as PWs. However, according to the petitioner Maj. B.N. Lawerence, Capt. R. Choudhury and Capt. Pranvir Singh gave false evidence and the Judge advocate failed in his duties. According to the petitioner when his Kurta was torn Maj. B.N. Lawerence, Lt. Col. Sukhdev Singh and Capt. R. Choudhury were present. It is also his submission that S.S. Bisht, Maj. B.N. Lawerence and Capt. Gandhi denied having seen the petitioner's head hitting Capt. Shukla's face and that this aspect has not been taken into consideration by the general court-martial. It must be noted that under Rule 77(1) it is the duty of the prosecutor to assist the court in the administration of justice, to behave impartially, to bring the whole of the transaction before the court, and not to take any unfair advantage of, or suppress any evidence in fav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons for the Army Act, 1987 the Central Government has restricted the powers to confirm the findings and sentence in respect of persons below the rank of Brigadier in the General Officer Commanding-in-Chief Command (GOC-in-C Command). It can be seen that in the instant case the confirmation of findings and sentence were forwarded to the GOC-in-C Command who on 18th August, 1989 confirmed the same. It is also stated to the same effect in the Counter-affidavit. 24. We have noticed that Warrant A-3 is issued under Section 154 read with Section 156 of this Act subject to certain restrictions and that the Chief of Army Staff and other officers mentioned therein are empowered to confirm the findings and sentence of general court-martial. Apart from this Para 472 of the Regulations regulates the exercise of powers of confirmation under which the Central Government has vested the powers to confirm the findings and sentence passed by general court-martial in respect of persons below the rank of Brigadier in the General Officer Commanding-in-chief Command. The record shows that the confirmation of findings and sentence awarded by the general court-martial in respect of the petitioner were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the petition dated 5th July, 1989. It is a very lengthy one. The main prayer in the petition is that the petitioner's posting at Dharandhera may be carried through and that the court-martial proceedings may be annulled and that guilty be court-martialed. It can therefore be seen that this petition in substance is a post confirmation one though dated 5th July, 1989 and the same cannot vitiate the verdict passed by the court-martial and the confirmation thereupon even if this petition is not disposed of. 26. Relying on these above-mentioned so-called irregularities from the point of view of the petitioner, the learned Counsel in a general way relied on the two judgments of this Court. In Ranjit Thakur's case it is observed that: The procedural safe-guards contemplated in the Act must be considered in the context of and corresponding the plenitude of the Summary jurisdiction of the Court Martial and the severity or the consequences that visit the person subject to that jurisdiction. The procedural safe-guards shall be commensurate with the sweep of the powers. In Capt. Virendra Kumar v. Union of India AIR1981SC947 the termination order passed in non-compliance of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on petition filed by the petitioner. The findings and sentence were promulgated on 20th February, 1987. After the said confirmation the petitioner submitted a post-confirmation petition on 14th April, 1988 which was rejected by the Central Government on 13th March, 1989. Questioning the above mentioned proceedings, the conviction and the sentence, the petitioner has filed this writ petition. Learned counsel for the petitioner submitted that the charge-sheet is not framed as per the provision of the Army Act and Rules and the proceedings dated 29. 10.83 were not given to the petitioner. One of the grievances is that the tentative charge-sheet was not signed but only final charge-sheet was signed. Alternatively it was contended that the Rules do not provide for a tentative charge-sheet. The next submission is that the convening of general court-martial is defective. Rule 37 has not been complied with. Learned counsel also submitted that recording of summary of evidence is not in accordance with Rules 22 to 25. In support of this submission touching upon the procedural aspects, the learned Counsel placed reliance on Article 33 of the Constitution of India and contended that there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verted to the relevant Rules. A combined perusal of all these Rules would go to show that what all that is required is that the delinquent should be apprised of the charges that he has to answer so that he is not caught unaware and handicapped in preparation of his defence. The main question is one of prejudice but in this case the charge-sheet shows that all the details are mentioned and the trial went on and that the petitioner participated in the trial duly. The next grievance is that these charge-sheets were not duly signed. We are mainly concerned with the final charge-sheet dated 5th October, 1985. In that we find that all the details are mentioned elaborately and it is signed by Commanding Officer as well as Col. (Admn.) for the General Commanding Officer. Therefore even if the tentative charge-sheet is not signed it does not make any difference. The same reasoning applies to the alleged non- compliance of Rule 25 read with Rule 22. The scope and object of these Rules have been considered by us in the other case. In any event the summary of evidence was recorded and we find there is a substantial compliance. Even otherwise as held in the other case, the recording of summary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the sentence was confirmed and that left no option with the confirming officer except to confirm the sentence in its entirety. In the counter-affidavit it is slated that promulgation followed the confirmation and we do not see any reason to doubt the same. In conclusion on this point we hold that the proceedings and sentence have been duly confirmed. 31. The learned Counsel also alleged that discrimination was there against the petitioner at the point of recommendation and in awarding some sentences prior to the final sentence awarded by the general court-martial. It is stated that first sentence of reduction of rank, retrospective recovery of the petitioner's since-drawn salaries, deduction of the petitioner's 25% of the basic pay and ordering of non-release of the petitioner's duly earned pension accrued and other benefits. In our view these are all internal administrative matters. We are unable to see as to how they can constitute the grounds warranting interference in this Writ Petition. 32. The next contention is that the petition submenu under Section 164(1) of the Act was not disposed of before confirmation. We have already dealt with this aspect in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recording of summary of evidence. At the risk of repetition we must say that there is no violation of these Rules and at any rate no prejudice has been caused to the petitioner in his defence. However, as already noted the petitioners who were officers did not exercise their options under Rule 25. Therefore the question of violation of Rules 22 to 24 in the manner alleged by them does not arise. 36. In Lt. Col. Prithi Pal Singh Bedi's case 2 it is tersely observed in this context that: Although in respect of persons belonging to the lower category Rules 22 to 24 are mandatory, in respect of persons belonging to the upper bracket the necessary presumption is that he is a highly educated knowledgeable intelligent person and compliance with these rules is not obligatory. But the rules have to be complied with if the officer so requires it. This is quite rational and understandable. An officer cannot be heard to say that he would not insist upon an inquiry in which he would participate and then turn round and contend that failure to hold the inquiry in accordance with the principles of natural justice would invalidate the inquiry. A further observation which may usefully b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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