Sobharan Singh vs Union of India & Ors.

Heard Counsel for the parties.

At the outset it is relevant to mention that this writ petition was dismissed for want of prosecution on 3172009. Thereafter, Counsel for the petitioner moved an application for recall of the aforesaid order, which remained pending and ultimately came up for orders on 4112009. As the cause shown for absence was found sufficient, the writ petition was restored. As the matter was quite old, Counsel for the parties consented for final disposal of the writ petition. Accordingly, the arguments were finally heard.

The Parliament enacted Armed Forces Tribunal Act, which received the assent of the President on December 25,2007 and was published in the Gazette of India dated 28th December, 2007. The Central Government, in exercise of the powers conferred by subsection (2) of section 1 of the Armed Forces Tribunal Act, 2007, appointed the 15th day of June, 2008 as the date on which the provisions of the Act shall come into force. The Regional Bench at Lucknow was inaugurated only on Saturday 7th November, 2009 and became functional later on. Section 34 of the Armed Forces Tribunal Act deals with the transfer of pending cases. In the instant case, the arguments were heard on 4112009 and as such it cannot be said to be a ''case pending''.

By means of this writ petition, the petitioner has assailed the validity of the order passed by General Officer, Commanding inChief, Central Command, Headquarters Central Command, Lucknow [opposite party No.2] dated 2041993 and also prayed for quashing the verdict and sentence awarded by the Summary Court Martial on 811993 as embodied in Annexures Nos. 11 and (sic) to the writ petition inter alia on the grounds that the petitioner did not have a fair trial, adequate opportunity was not afforded to challenge the Officers composing the Summary Court Martial, which is a statutory right under Section 130 of the Army Act, 1950; in spite of request the opportunity to crossexamine the vital witnesses was denied; the assistance of civil lawyer was also not given in spite of specific written request; thus the findings of summary court martial are perverse being based on illegal and irrelevant evidence; and the sentence awarded to him is too harsh.

The facts as averred in the writ petition are that the petitioner was enrolled as a Sepoy in the Army Ordnance Corps on 23rd November, 1970. He was promoted to the rank of Naik with effect from 25th December, 1980. As a substantive Havaldar, the petitioner was to retire after completion of 24 years service with colours or 47 years of age whichever is earlier, in accordance with his terms of service. It is said that when the petitioner left for posting, one Rakesh Kumar visited his house along with brotherinlaw of the petitioner and stayed for a day or so. Later on, Rakesh Kumar came alone to his house and stayed for the night in room but while leaving his house, he took away the tape recorder belonging to the petitioner. This information was given to the petitioner by the members of family. When the petitioner returned to his house, he inquired regarding the tape recorder from Rakesh Kumar. When the petitioner was making inquiry, one Narotam Joshi, an employee of the Zonal Recruiting Office, came there and took the petitioner and Rakesh Kumar to Major Karnail Singh, the Administrative Officer of ZRO, who took down the statement of said Rakesh Kumar, Lance Naik Kanwar Singh and Narotam Joshi including the petitioner. Various false allegations were made by said Rakesh Kumar against the petitioner. Consequently, the petitioner was kept in close arrest from 5th July to 7th July, 1990 in the Central Command Provost Unit, which is akin to police custody. During custody, the intelligence personnel and military police interrogated the petitioner and obtained signature on a false statement. The said statement was produced in the subsequent disciplinary proceedings against the petitioner. The petitioner was attached to Central Command Signals Regiment, Lucknow2 with effect from 7th July, 1990 for disciplinary purposes. When the petitioner came to know that a Summary of Evidence was to be recorded against him, he gave an application for giving copies of the previous statements of the witnesses recorded during investigation hut the authorities did not provide the same either on this application or on the subsequent applications.

A General Court Martial assembled at Central Commandon 20th July, 1992 and subsequent days to, try the petitioner on two charges based on allegation made by Rakesh Kumar. The petitioner took a plea regarding jurisdiction of the. Court under Rule 51 of the Army Rules, 1954 on various grounds including non supply of previous statements of witnesses in spite of repeated requests. This plea of the petitioner was allowed and the General Court Martial was dissolved.

Petitioner wassubsequently attached to 11Gorkha Rifle Regimental Centre, Lucknow for progressing the disciplinary case. When the petitioner came to know that disciplinary proceedings are going to restart, he moved an application to the Commandant for supply of copies of previous statement of witnesses to enable him to crossexamine the witnesses, who would appear before the Commanding Officer. On the commencement of Second Summary of evidence the petitioner moved application for allowing Civil Counsel as friend of the accused to assist him in his defence before the Summary Court Martial as provided under Rule 129 of the Army Rules, 1954. The petitioner also gave an application for change of Officer as he believed fair trial would not be conducted by Lt. Col. J.N.S. Pathania, Administrative Battalion Commander. Thus the mandatory provision under Section 130 was not followed. Petitioner pleaded not guilty to the charges before the Summary Court Martial but the finding of guilty was recorded on both the charges without considering the defence and evidence material to the defence. The petitioner was not even given opportunity to examine Lance Naik Kulwant Singh without any reason causing serious prejudice to the petitioner. Ultimately, the petitioner was awarded the sentence of (a) reduction, to be reduced to ranks and (b) Imprisonment, to suffer rigorous imprisonment for three months.

It has been urged by the petitioner''s Counsel that"as a consequence of harsh, unjust and illegal punishment/sentence the service as non commissioned officer has been knocked off. Being aggrieved by the finding and sentence Awarded by the Summary Court Martial the petitioner submitted a petition under Section 16,2 of the Army Act, 1950 which was also rejected summarily without assigning reasons''/though the same is mandatory under Section "162 of the Army Act, and giving no consideration to the grounds urged by the petitioner in his petition particularly that he was not permitted to have the services of a Civil counsel at the trial as friend of the accused.

Thereafter the petitioner moved an application to the Central Government under Section 165 of the Army Act for the annulment of the proceedings of the Summary Court Martial but all went in vain. Ultimately, the petitioner was discharged on 30th September, 1993.

Counsel for the Union of India submits that the summary of evidence is recorded in presence of accused and the petitioner was given opportunity to examine any witness. However, the petitioner has no right to ask for copy of the previous statements of the witnesses recorded during the investigation and as such request of the petitioner was turned down. As regard the services of Civil Counsel as friend, it has been argued that no such request was made by the petitioner during trial. However, the services of Major J S Ahlawat were provided as friend of the accused in accordance with Army Rules.

Elaborating his contention, learned Counsel for the Union of India submitted that the petitioner was not in close arrest as alleged by him. As a matter of fact he was only attached. Further, the statement of Lance Naik Kulwant Singh, who could not be produced for examination during proceedings of Summary Court Martial, was similar to the statement given by Hawaldar Pravin Kumar of 11 Kumaon, therefore, the statement of Lance Naik Kulwant Singh was not considered essential in the Summary Court Martial. The fact of pensionable service of the petitioner was also considered while awarding punishment by the Summary Court Martial.

Concluding his argument, learned Counsel for the respondents submitted that there is no illegality in the impugned orders, which have been passed after following due procedure of law and giving ample opportunity of hearing to the petitioner.

At the outset it is expedient to reproduce the relevant paragraphs of Army Order 24/94 which deals with the hearing of charge by the Commanding Officer. It reads as under:

Disciplinary process under the Military Law commences with Army Rule 22 which lays down that every charge against a person subject to the Army 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. This is a mandatory requirement and its nonobservance will vitiate any subsequent disciplinary proceedings. However, where the charge against the accused arises as a result of investigation by a Court of inquiry, wherein the provisions of Army Rule 180 have been complied with in respect of that accused, the Commanding Officer may dispense with the procedure as prescribed in Army Rule 22(1) in so far as it relates to calling and hearing of the witnesses. It may be noted that even in such cases the commanding Officer shall read out and explain the charge(s) to the accused and make appropriate orders on conclusion of the hearing.

It is, therefore, incumbent on all Commanding Officers processing the disciplinary case to ensure that "Hearing of the Charge" enjoined by Army Rule 22 is scrupulously held in each and every case and the provisions of the ibid Rule are complied with in letter and spirit.

Section 130 of the Army Act, 1950 deals with the challenges and provides that at all trials by general, district or summary general court martial, as soon as the Court is assemble the names of the Presiding Officer and member shall be read over to the accused, who shall thereupon be asked whether he objects to being tried by any officer sitting on the Court. This Section reads as unden

"130 Challenges.(1) At all trials by general, district or summary general court martial, as soon as the Court is assembled, the names of the Presiding Officer and member shall be read over to the accused, who shall thereupon be asked whether he objects to being tried by any officer sitting on the Court.

(2) If the accused objects to any such offer, his objection, and also the reply thereto of the officer objected to, shall be heard and recorded, and the remaining officers of the Court shall, in the absence of the challenged officer, decide on the objection.

(3) If the objection is allowed by one half or more of the votes of the officers entitled to vote, the objection shall be allowed and the member objected to shall retire, and his vacancy may be filled in the prescribed manner by another officer subject to the same right of the accused to object.

(4) When no challenge is made, or when challenge has been made and disallowed, or the place of every officer successfully challenged has been filled by another officer to whom no objection is made or allowed, the Court shall proceed with the trial.

The provisions, referred to above, requires that if the accused objects to any such officer, his objection and the reply thereto of the officer objected to shall be heard and recorded and the remaining officers of the Court shall in the absence of the challenged officer decide the objection. There is no denial in the counter affidavit that the petitioner never objected. The petitioner had made a specific averment that he had given application raising objection of presence of Lt. Col J.N.S. Pathania but the petitioner was not given any opportunity at the Summary Court Martial to challenge him in accordance with the provisions of Section 130 of the Army Act. There is also no averment in the counter affidavit that the aforesaid application was considered and was rejected.

There is one more reason due to which I am inclined to interfere in the matter. Rule 129 of the Army Rules, 1954 provides that in any summary court martial, an accused person may have a person to assist him during the trial whether a legal advisor or any other person. The petitioner had given an application to the Commandant 11 GRFC Lucknow2, through proper channel [Annexure7 to the writ petition] that he may be permitted to have his Civil Counsel as friend of the accused but his request was turned down and Major J.S. Ahlawat, who was Member of the General Court Martial, was provided as a friend which was objected by the petitioner as he was a member of the General Court Martial, which had been dissolved. In paragraph 6 of the counteraffidavit it has been stated that the petitioner did not ask for attendance of Counsel but there is no denial of the application given by the petitioner contained in Annexure7 to the writ petition. Therefore, it is incorrect to say that the petitioner never made any request for a Civil Counsel as friend of the accused. It is also incorrect to say that the petitioner never objected to the presence of Major J.B. Ahlawat as friend of the accused. The choice of the friend of the accused could not be restricted to a service officer at the trial. The petitioner was entitled under the aforesaid rule to avail the service of any one whether he was any Army Personnel or a civilian.

In MZH Khan v. Chief of the Army Staff, New Delhi; 2001 All LJ 2461 this Court held that denial of assistance of legal practitioner vitiates the proceeding of Summary Court Martial.

In Union of lndia v. Sepoy/Driver, 1993 All WC 883, the Division Bench observed that from a plain reading of Rule 129 it is ineluctably clear that an accused who is being tried in a Court martial is entitled to be assisted by a legal advisor or any other person, of his choice for the purpose mentioned therein.

Lastly, it may be added that Section 133 of the Army Act, 1950 deals with regard to rule as to evidence and says as under:

General rule as to evidence: The Indian Evidence Act, 1872, shall subject to the provisions of this Act, apply to all proceedings before a court martial.

From the perusal of the aforesaid provisions, it is evident that the general principles of Evidence Act are applicable to the court martial also for the purpose of appreciation of evidence. Section 145 of the Indian Evidence Act provides that a witness may be crossexamined as to previous statements made by him in writing or reduced into writing and relevant to matters in question. Section 26 of the Indian Evidence Act deals that no confession made by any person whilst he is in the custody of the police officer unless it is made in the presence of a Magistrate shall be proved as against such person. It has been vehemently argued on behalf of the petitioner that a valuable right given to an accused person under Section 145 of the Indian Evidence Act to crossexamine the witnesses on the earlier previous statement has been denied to him by not giving true copies of the previous statements. Denial of statements, in my view, has caused serious prejudice to the petitioner as he could not effectively controvert the allegations or examine the witnesses.

It is incumbent upon Court of inquiry to give full opportunity to delinquent official/ officer for crossexamining the witness [s] to elicit situation and character of witness[s] deposing against him. Such opportunity should be effective opportunity and not farce. Therefore, the adequate opportunity to defend with the help of legal advisor or to cross examine the witness was denied to the petitioner. It may be added that right to be defended by a lawyer of one''s choice is expressly provided for in Rule 129 and, therefore, it was incumbent upon the respondents to provide the petitioner with a lawyer of his choice. In case the petitioner had not exercised such a right, the respondents might have appointed a person to assist him as his friend, but as in the instant case the record clearly shows that the petitioner had asked for the assistance of a legal advisor and such right was denied, it must be said that the petitioner was prejudiced in his defence and the principles of natural justice were violated. In view of this Summary Court Martial proceedings are vitiated.

As averred above, the learned Counsel for the petitioner has contended that the petition submitted under Section 162 read with Section 179 of the Army Act, 1950 before the CommandinginChief, Central Command was rejected without assigning any reason. In this petition several grounds have taken against the finding of guilty and sentence awarded to him and had prayed that either the proceedings of the Summary Court Martial be setaside or alternatively, he may be given mercy and the sentence may be remitted.This petition was rejected by the communication contained in Annexure13 to the writ petition. In this communication, it has been mentioned that the application of the petitioner was examined and placed before GOCinC, Central Command, who had rejected the same after due consideration. Reasons are live links. The giving of reasons is one of the fundamentals of good administration. Failure to give reasons amounts to denial of justice. Moreover, transparency and fair play is the essence of State actions.

For the reasons aforesaid, the writ petition is allowed and the impugned order passed by respondent No.2 communicated vide letter No.1 90108/GCM/SS/U/Al dated 2041993 contained in Annexure13 to the writ petition and the verdict of Summary Court Martial held on 811993 awarding punishment to the petitioner are hereby set aside. As a consequence thereof, the petitioner shall be entitled for consequential benefits permissible to him in accordance with the Army Act and Rules including pension.