Romesh Bhai vs Union of India

Arun Kumar Goel, J.—Appellant has challenged the judgment passed by a learned Single Judge of this Court on 16.9.1998 in HC (W) No.

940/92. By means of this judgment writ petition filed by the appellant has been dismissed.

Shri Kotwal, learned Counsel appearing for the appellant submitted that no case is made out against his client as there was no evidence before

the General Security Force Court constituted under the Border Security Force Act (hereinafter referred to as BSF Act). He further urged that no

chargesheet was framed against the appellant under Section 304 R.P.C. He also questioned the constitution of General Security Force Court

(hereinafter referred to as G.S.F.C.), when J.P. Mamgain JAD (C) was inducted as a Member in place of Shri R.P. Singh. According to Shri

Kotwal, these discrepancies have been completely ignored by the learned Single Judge while dismissing the writ petition, therefore, this appeal

deserves to be allowed and impugned judgment set aside. Another plea urged was that this court has an overall power of superintendence and

control on all courts and tribunals including G.S.F.C. He also placed reliance on certain decided cases with a view to support his pleas and finally

urged that while allowing this appeal, writ petition may further be allowed and as a consequence of it order of conviction and sentence as also

dismissal imposed upon his client by the G.S.F.C. may be set aside thereby treating the appellant to be in service with all consequential benefits.

On the other hand, learned Senior Central Government Standing Counsel has controverted all these pleas urged on behalf of the appellant. He

pointed out that so far scope of judicial review under Article 226 of the Constitution of India is concerned, it is limited while examining the

proceedings of G.S.F.C. Only jurisdiction vested in this court in such a situation is whether there is any infraction of the provisions of B.S.F. Act

and or the Rules framed thereunder, and if so, whether appellant has been prejudiced in any manner. While buttressing his this line of argument he

pointed out that in exercise of powers under Article 226 of the Constitution of India this court is not exercising appellate jurisdiction over the

proceedings undertaken by the G.S.F.C. constituted as per provisions of B.S.F. Act and the Rules framed thereunder. By referring to Article 227

of the Constitution of India Shri Bhat pointed out that the proceedings before the G.S.F.C. are specifically excluded, as such no advantage can be

taken from the powers of superintendence and control, though at the same time he also urged that Article 227 of the Constitution of India is

inapplicable so far the State is concerned. By referring to referring to the record of proceedings of G.S.F.C. he also urged that all provisions of

B.S.F. Act and the Rules have been complied with and it was only thereafter that the final verdict was given. So far constitution of the G.S.F.C.

with the substitution of Sh. Mamgain for Shri R.P. Singh was concerned, Shri Bhat pointed out that there is neither any illegality nor impropriety

committed in view of the fact that Shri Mamgain was an officer who was a waiting Member and substituted Shri R.P. Singh. Thus he urged for

dismissal of the appeal because there was no merit in it.

In order to properly appreciate the respective submissions, few facts relevant for determination of this appeal need to be noted.

Appellant was recruited as a Constable in the B.S.F. somewhere in the year 1984. While posted at Kupwara in HQ 56 Bn of BSF, on the night

intervening 7/8 June 1990 he is stated to have fired from his service rifle Naik Barinder Singh of the same Unit causing his death. For his trial

G.S.F.C. was constituted. Appellant was arraigned before it. After having been charged, prosecution evidence was recorded against him and his

statement was recorded. He entered upon his defence, appeared as his own witness besides examining the defence witnesses. Parties were heard

in the matter and finally he was found guilty for having committed homicide not amounting to murder and thus was sentenced to undergo four years

rigorous imprisonment as also was ordered to be dismissed from service. This sentence was confirmed by the I.G.P., B.S.F. Kashmir in August,

1991.

In the context of present case it may be noted that file with the heading G.S.F.C. Proceeding, on the subject ExCT Romesh Bhai 56 Bn BSF,

containing pages 1 to 169 was produced by Shri Bhat at the time of hearing.

When a reference is made to the proceedings of G.S.F.C., it cannot be said that either charge was not properly framed or Shri Mamgain could

not have been substituted in place of Shri Singh. Shri Mamgain was an officer in waiting. Proceedings of G.S.F.C. of 29.4.1991 indicate that Shri

R.P. Singh could not come due to operational commitments, therefore waiting member (Shri Mamgain) took over, who after having been

administered oath as per Section 85 of the B.S.F. Act participated in the proceedings. This was at the very threshold of the proceedings of

G.S.F.C.

It is also revealed from the record that appellant had an opportunity to raise a challenge to the substitution of Member of G.S.F.C. under

Section 84 of the B.S.F. Act which he did not. Record suggests that the appellant could not get assistance of a legal practitioner due to prevailing

situation in the valley though attempts were made to engage an advocate from Baramulla, Srinagar. He prayed for transfer of venue of proceedings

to Gujarat. This prayer was not agreed to by the authorities. Thereafter he suggests two names with a prayer that one of them may be appointed as

his defence counsel. This prayer was allowed and Shri T.R. Malik, B.A., LL.B was appointed as such. It has come on record of G.S.F.C. that

Shri Malik was registered Advocate with the Punjab and Haryana High Court, Chandigarh and had served the B.S.F. Law Branch for about 10

years. Appellant had stated that he had consulted Shri Malik and has full faith in him, therefore the trial may proceed further.

After the requirements of law had been met with, it was only then that the G.S.F.C. found appellant guilty at the conclusion of the trial.

Moreover the record suggested that there was direct evidence regarding the offence having been committed by the appellant for which he was

sentenced. In this view of the matter plea urged on behalf of the appellant that it is a case of no evidence is without any basis.

So far the argument that no case under Section 302 is made out and there was no charge under Section 304 RPC having been framed against

the appellant as such he was entitled to acquittal is concerned, it has no basis in law. Reasons being that it is well settled proposition of Criminal

Jurisprudence that when an accused like the appellant is charged for a major offence and ultimately it is found that he is guilty of lessor offence, a

criminal Court is not precluded from imposing punishment for such an offence. Though it cannot be other way round. Appellant was rightly tried by

the G.S.F.C. because he committed the offence while on duty. Similarly when a reference is made to the provisions dealing with the constitution of

G.S.F.C. as per provisions of B.S.F. Act, by no stretch of imagination it can be said that the constitution was bad and or violated any provision of

law.

So far the plea that this court exercises the powers of superintendence and control over the G.S.F.C. is concerned, it is a plea raised simply to

be rejected. This is so because of Subclause 4 of Article 227 of the Constitution of India, which reads as under :

Nothing in this Article shall be deemed to confer on a High Court powers of Superintendence over any court or tribunal constituted by or under

any law relating to the Armed Forces.

This aspect of the case as also applicability of principles of natural justice to the proceedings under the B.S.F. Act has been elaborately dealt with

by the learned Single Judge and on examination of the whole case we see no reason to take a different view therefrom. In addition to this on

examination of the record of proceeding undertaken by G.S.F.C. we are satisfied that there was enough evidence and the trial of the appellant was

undertaken by the said court who had jurisdiction as per procedure prescribed by law, thus it calls for no interference in the present proceedings.

That being so no fault can be found with the proceedings undertaking by the G.S.F.C. which is in accordance with law. It may also be noted that

the Law Officer as per provisions of B.S.F. Act was associated throughout with the proceedings. For taking this view we are supported by a

recent decision of the Supreme Court reported in 1998(1) SCT 288 (SC) : 1998(1) SCC 537, Union of India and others v. Major A. Hussain .

What is relevant for the present case was in the following terms :

We find the proceedings of the General CourtMartial to be quite immaculate where trial was fair and every possible opportunity was afforded

to the respondent to defend his case. Rather it would appear that the respondent made all efforts to delay the proceedings of the courtmartial.

Thrice he sought the intervention of the High Court. Withdrawal of the defence counsel in the midst of the proceedings was perhaps also a part of

his plan to delay the proceedings and to make that a ground if the respondent was ultimately convicted and sentenced. Services of qualified

defending officer were made available to the respondent to defend his case, but he had rejected their services without valid reasons. He was

repeatedly asked to give the names of the defending officers of his choice but he declined to do so. The court martial had been conducted in

accordance with the Act and Rules and it is difficult to find any fault in the proceedings. The Division Bench said that the learned Single Judge

minutely examined the record of the court martial proceedings and after that came to the conclusion that the respondent was denied reasonable

opportunity to defend himself. We think this was a fundamental mistake committed by the High Court. It was not necessary for the High Court to

minutely examine the record of the General Courtmartial as if it was sitting in appeal. We find that on merit, the High Court has not said that there

was no case against the respondent to hold him guilty of the offence charged.

Though courtmartial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the courtmartial is not

subject to the superintendence of the High Court under Article 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 routing though that is also against the provisions of law. It has been rightly said that

courtmartial 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 charted before it and to follow the procedural safeguards. If one looks at the

provisions of law relating to courtmartial in the Army Act, the Army Rules, Defence Service Regulations and other Administrative Instructions of

the army, it is manifestly clear that the procedure prescribed is perhaps equally fair if not more than a criminal trial provides to the accused. 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 the accused has

been prejudiced or a mandatory provision has been violated. One may usefully refer to Rule 149 quoted above. The High Court should not allow

the challenge to the validity of conviction and sentence of the accused when evidence is sufficient, courtmartial has jurisdiction over the

subjectmatter and has followed the prescribed procedure and is within its powers to award punishment.

So far principles of natural justice being not attracted and personal hearing being not necessary in the case of person convicted under the B.S.F.

Act is concerned, reference can usefully be made to 1991(2) SCT 190 (SC) : AIR 1991 SC 564, Union of India v. Ex.Constable Amrik Singh .

Shri Kotwal referred to a number of decisions which have been referred to in the judgment of learned Single Judge in support of the present

appeal. We find that in the face of aforesaid two decisions of the Supreme Court there is no need to deal with those precedents, particularly when

we have found that the proceedings of G.S.F.C. are in accordance with law governing the same and there was no infraction of either the B.S.F.

Act or the Rules framed thereunder.

No other point is urged.

As a result of aforesaid discussion there is no merit in this appeal which is accordingly dismissed.

Record produced by Shri Bhat has been returned to him in court today.