Dhir Singh Pundir vs Union of India

R.L. Anand, J.

Shri Dhir Singh Pundir has filed the present writ petition under Articles 226/227 of the Constitution of India with a prayer that this Court should quash the proceedings of General Court Martial, its finding and sentence, order of confirmation and promulgation thereof as the same are allegedly illegal, arbitrary and based on no evidence and without jurisdiction, passed in violation of the various statutory and mandatory provisions. It has further been prayed by the petitioner that the order rejecting the post confirmation petition filed by the petitioner be quashed, being a nonspeaking order.

According to the petitioner, he was tried by the General Court Martial held at Pathankot for offence alleged to have been committed under Section 69 of the Army Act. According to him, he was directed to undergo imprisonment for life and he was also dismissed from service for that reason. The petitioner has alleged that the findings returned by the Court are based on no evidence at all; suffer from serious infirmities and violation of procedural safeguard. The petitioner preferred pre and post confirmation petitions against the finding and sentence in view of the statutory provisions as contained under Section 164 of the Army Act, but his fundamental right and legal pleas have been ignored by the authorities, who have finally rejected his appeals. The petitioner has stated that he was arrested by the Civil Police on 30th May, 1994 and was brought to Police Station Sadar, Pathankot, District Gurdaspur on 31st May, 1994. He was tortured and physically assaulted. He was produced before the Court of Judicial Magistrate, Pathankot on 13th June, 1994 and two days'' remand was taken by the Police. He was produced before the Judicial Magistrate on 15th June, 1994 and the police took remand for one day. On 16th June, 1994 he was sent to Central Jail, Gurdaspur, and on 24th September, 1994 he was finally handed over to the Army Authorities.

As per the petitioner, he was enrolled in the Army on 25th May, 1984. He served to the best of his ability to the entire satisfaction of his superior officers. The petitioner submits that while posted at 46 Armoured Regiment, he was detailed for guard duty along with 7 other Jawans to proceed to Supply Depot, Kandrori under the authority of Headquarter 2(I) Armoured BDE vide letter No. 3212/A dated 28th October, 1993. The petitioner and other Jawans were issued weapons as shown in the movement order and they were required to leave existing Guard Personnel at the Depot. The petitioner was detailed on guard duty on 17th April, 1994 and time of his duty was from 8 P.M. to 10 P.M. An incident took place in which Naib Sub. Dharampal Singh of the same unit was shot down by someone. The petitioner was ordered to be tried by the General Court Martial. According to the petitioner he was falsely implicated on the basis of suspicion, conjectures and surmises and without any evidence.

The petitioner has challenged the General Court Martial proceedings, inter alia, on the grounds that there was absence of notice on his part; that all the prosecution witnesses had stated that neither on the date of occurrence nor on any previous occasion they had seen, heard or had any information about the alleged illwill between the deceased and the petitioner. It is the grouse of the petitioner that the Arms Issue Register, which is the base of this incident, has been purposely and with ulterior motive has been withheld by the prosecution. What was produced before the Court is the photostat copy of that register and there are interpolations etc. in that sheet. It is further alleged by the petitioner that the Civil Police came into action on coming to know about the incident. The Civil Police was informed by Lt. Col.C.A. Chawade. That information has been suppressed with ulterior motive. Subsequently, the report which was given to the police was the result of deliberations and consultations. Also it is pleaded by the petitioner that there are discrepancies about the time of the occurrence and that it is not established on the record as to which S.L.R. was issued to him. The alleged recovery of the weapon, allegedly issued to the petitioner, is also doubtful. It has further been pleaded by the petitioner that the Court (General Court Martial) has based the findings on conjectures etc. His pre and post confirmation appeal has been wrongly rejected by the concerned authorities.

With the above main allegations, the petitioner has filed the present petition through his wife Smt. Anita Pundir.

Notice of the petition was given to the respondents, who filed the written statement and denied the allegations. According to the respondents, present writ petition was not maintainable as the statutory petitions under Section 164(1) and (2) of the Army Act submitted by the petitioner had already been duly considered and rejected, especially when the High Court was always reluctant in interfering with the findings of the General Court Martial and that the High Court could not appraise the evidence led by the parties before the Court in exercising the powers under Article 226 of the Constitution of India. On merits the stand of the respondents is that the petitioner was tried and convicted by the General Court Martial, convened under Army Act for an offence committed under Section 69 of the Army Act read with Section 302 of the Indian Penal Code. The petitioner was awarded sentence of life imprisonment and dismissed from service by the General Court Martial. The allegations of the petitioner with regard to unfair trial etc. are baseless and mala fide as the General Court Martial was conducted strictly as per Army Act and the Rules made thereunder and the Court after affording all the opportunities to the petitioner to defend himself has found him guilty of the charges based on legal and cogent evidence on record and sentenced him keeping in view the gravity of the offence and the interest of maintenance of discipline in the Army. The pre and post confirmation petitions against the finding and sentence were rejected by the competent authorities after full application of mind and consideration of the case. It has also been submitted by the respondents that the petitioner did not serve to the satisfaction of his superiors. During his service in the regiment, he has been previously sentenced on 14th June, 1992 to suffer three months rigorous imprisonment in Military Custody for an offence of desertion. The petitioner showed lack of discipline.

The petitioner was detailed for guard duty at the ration store area of 388 Coy Supply ASC (located at Kandrori) on 17th April, 1994 from 8 P.M. to 10 P.M. Naib Risaldar Dharampal Singh of 46 Armoured Regiment, the JCO incharge of the guard died at about 10 P.M. on 17th April, 1994 due to gun shot wound in the head, at `Bhoot Bangla'' located in the premises of 388 Coy Supply, Kandrori. The petitioner was found absconding immediately after the firing incident resulting in the death of Naib Risaldar Dharampal Singh. The General Court Martial after appraisal of the entire evidence on record had returned the finding of guilt against the petitioner after affording full opportunity to him to defend himself. The charge against the petitioner was heard by the Commanding Officer in the presence of the petitioner and three independent witnesses wherein the petitioner was afforded full opportunity to cross examine the prosecution witnesses, to make a statement in his defence and to examine his defence witnesses. Having been satisfied that there was prima facie case existed against the petitioner, the Commanding Officer ordered recording of summary of evidence against the petitioner. During summary of evidence also the petitioner was afforded full opportunity to crossexamine the prosecution witnesses, to make a statement and to examine his defence witnesses. Thereafter the petitioner was duly tried by a General Court Martial as per Army Act and Rules made thereunder. During the trial, the prosecution examined 28 witnesses in support of the charge and the petitioner, who was represented by a defence counsel crossexamined all of them at length. The petitioner also made an unsworn statement at the trial and declined to examine any defence witness. The General Court Martial after appraisal of the entire evidence on record found the petitioner guilty of the charge. The finding of the General Court Martial is based on reliable, legal and cogent evidence on record. The preconfirmation petition submitted by the petitioner was examined in detail by the competent authority, who after considering the issues raised therein had rejected the same being devoid of any merit. All the documents required to be supplied to the petitioner before and after the trial were supplied to him. The petitioner is not entitled to the proceedings under Army Rule 22 and pretrial report and the same are not required to be handed over to him. Finally it has been submitted by the respondents by denying the main averments of the writ petition, that it is without any force and it may be dismissed.

I have heard Shri B.S. Sehgal, Advocate, appearing on behalf of the petitioner and Shri D.D. Sharma, Advocate, appearing on behalf of the respondents and with their assistance have gone through the record of this case.

Before I deal with the arguments raised by the learned counsel appearing on behalf of the parties, I may refer to the citation of the Hon''ble Supreme Court reported as Union of India and others v. Major A. Hussain, 1998(1) RCR(Crl.) 300 : AIR 1998 Supreme Court 577 , wherein their Lordships of the Supreme Court have highlighted the powers of the High Court while raising the case of a Court Martial. It has been laid down therein that "though court martial proceedings are subject to judicial review by the High Court under Art. 226 of the Constitution, the courtmartial is not subject to the superintendence of the High Court under Art. 227 of the Constitution. If a courtmartial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter any Court must stay its hands. Proceedings of a courtmartial are not to be compared with the proceedings in a criminal Court under the Code of Criminal Procedure where adjournments have become a matter of routine though that is also against the provisions of law." The Hon''ble Supreme Court further held, "It has been rightly said that court martial remains to a significant degree, a specialised part of overall mechanism by which the military discipline is preserved. It is for the special need for the Armed Forces that a person subject to Army Act is tried by courtmartial for an act which is an offence under the Act. Courtmartial discharges judicial function and to a great extent is a Court where provisions of Evidence Act are applicable. A courtmartial has also the same responsibility as any court to protect the rights of the accused charged before it and to follow the procedural safeguards." Finally it was held by the Hon''ble Supreme Court, "When there is sufficient evidence to sustain conviction, it is unnecessary to examine, if pretrial investigation was adequate or not. Requirement of proper and adequate investigation is not jurisdictional and any violation thereof does not invalidate the courtmartial unless it is shown that accused has been prejudiced or a mandatory provision has been violated." Present case will be looked into in the light of the observations made by the Hon''ble Supreme Court.

Mr. B.S. Sehgal, learned counsel appearing on behalf of the petitioner, advanced only argument to the effect that the mandatory provisions of Rule 22 of the Army Rules had been violated when the petitioner was deprived of the findings of the pretrial stage and in these circumstances the entire trial before the General Court Martial was without jurisdiction and was violative of the provisions of the Army Act.

On the contrary it was submitted by Shri D.D. Sharma, Advocate, appearing on behalf of the respondents, that the Army Authorities had complied will all the provisions before conducting the General Court Martial. The representations made by the petitioner under Section 164(1)(2) were also considered and duly disposed of as per procedure.

After hearing the learned counsel for the parties, I am of the considered opinion that the petitioner has no case and the submissions raised by the learned counsel for the petitioner are totally devoid of any merit. Rule 33 of the Army Rules, 1954 deals with the preparation for defence by the accused and it has given some rights to the accused to prepare his defence. According to Rule 33(1), correspondence between the accused and his legal advisers shall not be liable to be censured. The accused shall inform his Commanding Officer of the names of such advisers and shall also inform him of any distinctive marks that such correspondence will bear. According to sub rule (2) of Rule 33, the accused person shall have the right to interview any witness whom he may wish to call in his defence. Subrule 7 of Rule 33 is of some importance. According to this rule, "As soon as practicable after an accused has been remanded for trial by a general or district courtmartial, and in any case not less than ninetysix hours or on active service twentyfour hours before his trial, an officer shall give to him free of charge a copy of the summary of evidence, an abstract of the evidence, and explain to him his rights under these rules as to preparing his defence and being assisted or represented at the trial, and shall ask him to state in writing whether or not he wishes to have an officer assigned by the convening officer to represent him at the trial, if a suitable officer should be available. ..." Rule 34 has also been incorporated for the benefit of the accused, who has a right to be informed of every charge for which he is to be tried. The accused has the right to give names of the witnesses, whom he desires to examine in defence.

Rule 22 deals with the hearing of the charge at the state of investigation of charges and remand for trial power of Commanding Officers. As per subrule (1) of Rule 22, "Every charge against a person subject to the Act shall be heard by the Commanding Officer in the presence of the accused. The accused shall have full liberty to crossexamine any witness against him, and to call such witness and make such statement as may be necessary for his defence." Annexure P1 is the chargesheet, which was given to the petitioner. A reading of this document clearly indicates that the petitioner was charged of committing a civil offence, that is to say murder, contrary to Section 302 of the Indian Penal Code, on 17th April, 1994, when he allegedly intentionally caused the death of Naib Risaldar Shri Dharampal of the same unit. Thus it can be said that the petitioner was informed and was supplied a copy of the chargesheet. It has been clearly stated by the respondents in the written statement that the petitioner was afforded full opportunity to crossexamine the witnesses etc. Even a reading of the present petition would show that the petitioner has not specifically alleged about the violation of Rule 21. Even in the preconfirmation stage under Section 164 of the Army Act, he has not raised this issue, as is evident from Annexure P5, i.e., PreConfirmation Appeal. Annexure P9 is a document addressed to the counsel for the petitioner. A reading of the above would show that a request was made by the petitioner for supplying some documents pertaining to pre/post General Court Martial in respect of the present offence. The reply was given by the respondents to the counsel and he was appraised that the desired documents had already been handed over to the petitioner, such as, (a) Court of Inquiry and Exhibits; (b) Rejection order of the competent authority in preconfirmation petition; (c) Summary of evidence; (d) Additional summary of evidence; and (e) Chargesheet. So much so the receipt which was obtained from the petitioner was also sent to Shri B.S. Sehgal in response to his notice. This letter clearly indicates that there was no violation of Rule 22, Rule 33 or Rule 34 of the Army Rules.

Now it is to be seen whether the findings of the General Court Martial are based on evidence or the same were without any evidence. I have already quoted the observation of the Hon''ble Supreme Court that this Court is not to sit as a court of appeal, but I have only to see whether the findings passed on the General Court Martial proceedings were, in fact, based on no evidence and that the Court Martial Authorities had acted without jurisdiction or not. Annexure P3 are the findings given by the Presiding Officer of the Court of General Court Martial. It is true that there was no eyewitness to the occurrence but it does not mean that when an offence is on circumstantial evidence, it cannot be proved. If the circumstances collected or relied upon by the prosecution/Investigating Agency are so strong that it talks of only hypothesis that the petitioner has committed the offence, there was no wrong on the part of Court to record the finding of conviction. Annexure P3 would show that the Court scrutinised scrupulously and examined carefully the circumstantial evidence of this case. Firstly, it tried to determine about the death of Risaldar Dharampal Singh to the effect that it took place on 17th April, 1994. In para No. 4 of Annexure P3 the General Court Martial gave as many as 9 strong reasons for coming to the conclusion that it was the petitioner alone who committed the murder of Shri Dharampal Singh, Risaldar. These findings are based on evidence. Sufficiency of evidence is not to be seen by the High Court in the proceedings under Article 226 of the Constitution. At the cost of repetition I would like to incorporate the findings of the Court, which are to the following effect :

(a) That No. 1082756 A SWR Dhir Singh Pundir of 46 Armed Regt was detailed to perform guard duties from 2000 hrs to 2200 hrs at ration stores area of 388 Coy ASC Supply on 17 April 94. This fact has been admitted by the accused and there is no dispute on this issue. There is also adequate evidence on record to that effect.

(b) That the accused was issued in the evening of 17 April 94, a 7.62 mm SLR bearing Registration No. CX4792 and Butt No. 21 and five live rounds of ammunition for performance of duty. It has come in the evidence of LD Virpal Singh (PW27) that he had issued a 7.62 mm SLR bearing Registration No. CX 4792, Butt No. 21 and five live rounds of ammunition to the accused in the evening of 17 April 94. It has also come in the evidence of prosecution witnesses that the weapon which they had taken from their parent unit in their name, used to be the one which was issued to them for performance of guard duties at 388 Copy ASC Supply. The accused had been issued a 7.62 mm SLR Registration No. C4792, Butt No. 21 from 46 Armd Regt on 01 April 94 is not in dispute in view of the deposition of LD Robidas KS (PW12) Exhibit `FF'' and the answer of the accused to the question by the Court. In Exhibit `GG'' also the accused''s signature has been identified by LD Virpal Singh (PW27) for withdrawal of the said SLR and ammunition. The accused has also answered to a question by the court that on 17 April 94 he was issued with a 7.62 mm SLR bearing Butt No. 21 and five live rounds of ammunition. However, in the statement of the accused, the accused claimed that he was issued with a SLR with Butt No. 141 on 17 April 94, and that Exhibit `GG'' is not the true photostat copy of the entries of 17 April 94 of the Arms Issue Register of attached guard personnel, but is a photostat copy of a forged document.

After weighing the above issues objectively the court is fully convinced that Exhibit `GG'' is not a photostat of a forged documents as overwriting exists in the column of Bult No. against the name of the accused, which would not have existed had it been a forgery prepared deliberately to fix the blame on the accused. Also the signature of the accused exists in Exhibits `GG''. The defence claim that Exhibit `GG'' is a photostat of a forged document is an afterthought as at the time of producing it before the Court, the defence did not object to its production. Moreover concurrence of so many personnel from different units for forging the said documents is ruled out. It is unfortunate that the original Register has not been produced and that the maintenance of the said Register by the inexperienced Kote NCO LD Virpal Singh (PW27) was not upto the standard required for an Arms Issue Register. It is a sad commentary that neither the said Register nor issue of arms and ammunition was checked/supervised by the Kote NCO''s superiors. In view of the unequivocal deposition of PWs as stated above, Exhibit `FF'', Exhibit `GG'' and the answer given by the accused to a question by the Court, it is proved beyond any doubt that the accused was issued with a 7.62 mm SLR bearing Registration No. C4792, and Butt No. 21 along with five live rounds of ammunition on 17 April 1994. The Court is satisfied from the evidence on record that Registration No. C4792 in Exhibit `GG'' and the said number pertains to one and the same rifle i.e. Butt No. 21 as reflected in Exhibit `FF''.

(c) That on hearing firing sound at about 2145 hrs on 17 April 94, Sep Ram Singh (PW13), Swr Satyavir Yadav (PW4) and Shri Nahar Singh (PW5) shouted and called for the accused, but the accused did not respond to their calls. The accused in his answer to the Court has stated that since he did not hear the calls, he did not respond. This circumstance of the accused not responding to the calls has been adequately corroborated by Sep Ram Singh (PW13) and Swr Satyavir Yadav (PW4). This circumstance indicates clearly that the accused was not present anywhere nearby, or intentionally did not respond to the calls for reasons best known to the accused.

(d) It has come in the evidence of prosecution witnesses that the accused was missing along with his 7.62 mm SLR and five rounds of ammunition during and after the fallin conducted after the incident. The Defence also has not disputed this fact that there is enough corroborating evidence on record to this effect.

(e) It has come in the evidence of prosecution witnesses that accused had illegally absconded from duty after the incident having abandoned his 7.62 mm SLR and five rounds of ammunition. The accused has also not disputed this fact. However, the accused has stated that he absconded from his place of duty due to disillusionment of Army service, mental tensions of problems at his home, and he having been denied leave by Unit authorities. He also states that he had preplanned that he would become absent without leave (AWL) in light of the circumstances and the conduct of human beings this statement does not inspire any confidence, let alone create any doubt in the mind of the court due to the facts that if the claim of the accused that he had pre planned to be AWL is true, then he had ample opportunity and convenience to do so during day time and when not on duty or when not in possession of such an important item as a weapon with ammunition. The accused has not brought on record any compelling reasons to abscond during that particular point of time knowing fully well that firing incident had occurred and there being a lot of commotion at the main gate. Further not rejoining the Unit voluntarily and arrest by Punjab Police after a lapse of about 45 days, being the statement of the accused that he absented without leave due to the reasons stated by him.

It has come in the evidence of Ris Bahadur Singh (PW18) that the missing SLR was found by his search party in the bushes near old bath room area, in ration stores area, which SLR the Civil Police seized from the said place. Search for the said SLR was carried on from the night of 17/18 Apr 94 and its recovery in the morning of 18 Apr 94 has been corroborated by many prosecution witnesses. When viewed in the light of the above, the statement of the accused that he had left his SLR and five rounds of ammunition on his cot is neither believable nor true. From the evidence on record the defence contention that two persons, i.e, Ris Bahadur Singh and ASI Kashmiri Lal (PW 19) had recovered the said SLR is incorrect. Both Army and Civil Police personnel had carried on the search, however, it was ASI Kashmiri Lal who had seized the SLR.

(f) It has come in the evidence of Dfr Bachu Singh (PW3) that he had recovered five empty 7.62 mm fired cases from outside the window of the room of the deceased in the night of 17/18 Apr 94 and that he had handed them over to CBM S Jayakode (PW23). This has been corroborated by the deposition of CBM S Jayakode (PW23). The said fired cases, after being shown to Sub Maj PVC Kutty and Lt Col CA Chawade were handed over by CBM S Jayakode (PW23) to LD Virpal Singh (PW27) who kept them in the Kote of attached guard personnel for the night. The next morning i.e. on 18 Apr 94, LD Virpal Singh (PW27) handed over the said fired cases to Civil Police through Ris Rama Shankar Singh (PW 28). The deposition of ASI Kashmiri Lal that he recovered five fired cases outside the window of the room of the deceased after 0400 hrs on 18 April 94 is unbelievable, as his statement is totally uncorroborated, whereas on the other hand the recovery and movement of the said recovered fire cases are so linked and complete in its chain as deposed and adequately corroborated by PW3, PW23, PW16, PW27 and PW28. In view of the above, the defence contention that a total of 15 empty fired cases had been recovered in unsustainable, more so when all other ammunition of attached guard personnel and that of 388 Coy ASC Supply were checked and found correct. LD Virpal Singh (PW27) has stated that no empty fire cases other than the said recovered once given to him by CBM S Jayakode (PW23) existed in the Kote of attached guard personnel. Lt Col CA Chawade (PW16) has stated that ammunition magazine of 388 Coy ASC Supply was not opened at all either on 17 or 18 April 94. The above evidence conclusively rules out any replacement/tampering of the said five recovered empty fired cases.

(g) It has come in the evidence of Dr. S.N. Sharma (PW22) that the five fired empty cases marked `C1'' to `C5'' (ME2) by him had been fired from 7.62 mm SLR bearing Registration No. C4792 (ME1). The said recovered fired cases had been packed and sealed by ASI Kashmiri Lal (PW19) on 18 April 94 and handed over them at the Malkhana of Police Station Sadar, Pathankot, the same day rules out the possibility of tampering with the said material exhibits even though there was delay on the part of civil police personnel to despatch the recovered SLR to C.F.S.L. Chandigarh. However, it is pertinent to note that the seal was checked with sample seals forwarded and found correct by Dr. S.N. Sharma at C.F.S.L. Chandigarh. In view of the above and the scientific accuracy of the said ballistic examination of Dr. S.N. Sharma it is proved beyond doubt that the five recovered 7.62 mm empty fired cases had been fired from 7.62 mm SLR bearing Registration No. C4762 which was issued to the accused on 17 April 94."

A reading of the above findings would show that the authorities of the General Court Martial (sic) produced before them. All the pros and cons of the case, including the defence of the petitioner were taken note of and thereafter the finding of guilt was returned.

Finally in para 5 of the report the authorities came to the conclusion that the prosecution has been able to establish beyond reasonable doubt that the petitioner was issued with a 7.62 mm. SLR bearing Butt No. 21, Registration No. C4792 along with five rounds of live ammunition on 17 April 94 and these have been used in the commission of the offence and that the accused had been in possession of the said SLR at that point of time, as also the accused had crossed over the barbed wire fencing and perpetrated the crime charged against him and absconded abandoning his weapon to avoid apprehension with evidence on his person. Lack of apparent motive does not absolve the guilt of the accused when all other circumstances clearly and decisively bring out the guilt. It was also observed that lack of apparent motive does not absolve the guilt of the petitioner when all other circumstances clearly and decisively bring out his guilt.

Finally it was remarked by the General Court Martial authorities that the prosecution has been able to prove the charge by leading evidence which conclusively establishes his guilt. After scanning through this finding it can be said that it was a case of no evidence. Sufficiency or insufficiency of evidence is not supposed to be seen by the High Court.

Learned counsel for the petitioner relied upon Subedar Mewa Singh v. Union of India, 1998(1) RCR 206 . This citation is not helpful to the counsel. In the cited case, the army personnel, who was charged of an offence of bribery, made a request to engage a civil lawyer and this request was accepted by the authorities, but was not conveyed to the General Court Martial or to the accused. As a result thereof, the accused could not engage a civil lawyer for his defence. The Delhi High Court in this situation held that keeping in view the gravity of the charge, the findings of the General Court Martial could not be sustained and directions were given to it to reassemble and benefit of a civil lawyer be provided to the accused. In the present case the petitioner was given a lawyer, who crossexamined the witnesses etc. The counsel for the petitioner also relied upon another authority of the Delhi High Court reported as Lance Dafedar Laxman Singh v. Union of India and others, 1993(1) RCR 357 , and submitted that the compliance of Rule 22 of the Army Rules if mandatory. So far as the legal proposition is concerned, there is no quarrel, but in the present case the petitioner was served with a chargesheet. He was supplied with the findings of the Commanding Officer. Moreover it is not shown at all by the petitioner in what manner that alleged prejudice occurred to him.

Net result is that the present petition is totally devoid of any merit and the same is hereby dismissed with no order as to costs.