Major J. S. Brar v. Union Of India — 1991 DIGILAW 256 (ALL)

JUDGMENT M.L. Bhat 1. For proper understanding of the case it is necessary to give a brief resume of the facts as set out in the pleadings of the parties. 2. The petitioner is said to have been posted as Major in Central Ordnance Depot, Agra and he was assigned the duties of Security Officer. There were other officers also besides the petitioner who were assigned their respective duties. One Captain Tony George was the Officer Incharge of salvage store and the branch of Director General of Ordnance store. He is said to have made a statement that a theft was committed in the department of salvage on 27-9-1983 and 9-2-1984. On 15-2 1984 a FIR was also lodged against the civilian persons said to have been involved in the commission of theft. Besides the petitioner a number of officers were implicated whose names are given in para 7 of the writ petition. The matter was taken up against the petitioner and three officers only and all others were left out. Mr. Tony George, who is said to have accepted Rs. 20,000/- and a cooler for supplying additional material to the Kabadis was not impleaded as an accused. He was however, reprimanded. A tentative charge sheet was given after the Staff Court enquiry In the said charge sheet the petitioner was chargesheeted for criminal breach of trust and for negligence of duty. Rules 22 and 23 of the Army Rules consequently were attracted in the case which would mean that the charge against the petitioner was to be heard in his presence and the petitioner was at liberty to cross examine any witness against him and he could also call any witness in defence and make his own statement in defence. The Commanding Officer at this stage is empowered to dismiss the charge it there is no evidence to substantiate the same. If there are grounds for proceeding further, the Commanding Officer has to refer the case to the superior Military authority or could adjourn the case for recording evidence in writing. Rule 23 prescribes the procedure for taking down the summary evidence. The Commanding Officer, para Training Centre, Agra was asked to hold enquiry, who collected evidence. At this stage he was bound to follow the mandates of Rules 22 to 24 of the Army Rules. Rule 23 prescribes the procedure for taking down the summary evidence. The Commanding Officer, para Training Centre, Agra was asked to hold enquiry, who collected evidence. At this stage he was bound to follow the mandates of Rules 22 to 24 of the Army Rules. After collection of evidence which consisted of 300 pages the Commanding Officer seems to have taken decision on 17-5-1984. He declared on 18-5-1984 that the case was a fit one for being tried by the General Court Martial. The petitioner alleges that the Commanding Officer while doing so has committed infraction of rules 22 to 25 of the Army Rules. 3. On 14-2-1985 the petitioner is said to have been convicted and sentenced to one year R.I. for charge No. 2 i.e. in respect of the occurrence dated 9-2-1984. For charge No. 1 the petitioner was acquitted as no case is said to have been made out against him. All other accused persons, who were tried along with the petitioner, were acquitted. The value of the property, which was the subject matter of charge No. 2, was reduced to 8412.22 the petitioner is said to have filed an appeal against the order of the General Court Martial on 10-3-1985. Chapter XII of the Army Act under the heading 'Confirmation and Revision' contams certain provisions which were invoked by the petitioner. Section 154 lays down that the findings of sentence of general court martial are subject to the confirmation of the confirming authority. The confirming authority is the Central Government or any other officer empowered in this behalf by the Central Government. The revisional authority to which the papers were sent on 31-5-1985 remanded the matter for fresh decision to the general court matrial. The revisional authority remarked that without in any way wishing to interfere with the discretion of the court to arrive at their findings, I as Confirming Officer, feel that the courts findings on the aforesaid charges being against the weight of evidence should be reconsidered in the light of the succeeding paragraphs. The revisional authority pointed out that the petitioner with two more persons, who were performing the duties of Administrative Officer, Installation Security Officer, these there Officers were in a position to control the internal Office procedure (Administrative Officer) and could control the entry/exit rights at the main gate. The revisional authority pointed out that the petitioner with two more persons, who were performing the duties of Administrative Officer, Installation Security Officer, these there Officers were in a position to control the internal Office procedure (Administrative Officer) and could control the entry/exit rights at the main gate. Tony George, at the relevant time, was the Officer Incharge Salvage and he continued to hold the charge till 13-2-1984. About the petitioner it was remarked that he had told another accused on 27-9-1983 that four trucks would be coming for salvage collection and one of them will not have store gate pass and asked him to pats out the trucks. The trucks are said to have entered the gate at 11:30 Hrs and left at 15:30 hrs. The three trucks were loaded as per the proper documents and the fourth track was unauthorisedly loaded. This incident is said to be relevant for proving the charge of theft against the petitioner. When the four trucks are said to have reached the place, the petitioner along with other officers are also said to have reached there. Tony George also arrived. The fourth truck is said to have been loaded in the presence of the petitioner and other officers and in this regard the statement of PW 2 Havaldar K. D. Upadhyaya and the statement of PW 19 Havaldar MDN Islam were relied upon by the revisional authority. The gate pass is said to have been made only for three trucks. The fourth truck had unauthorisedly entered and left the salvage area. The gate pass is said to have been signed by PW 1 and PW 3. The revisional authority refers the statement of PW 5 also in this connection. One civilian 'Kabadi' had left Rs. 20,000/- at the residence of Tony George on 28-9-1983. Tony George has stated that the petitioner and another accused asked him whether he had named the petitioner and other officers in the incident. Lt. Mohinder Pratap (PW 22), another officer, who has been acquitted, is said to have admitted his guilt, it is pointed out by the revisional authority that it was the duty of the petitioner and other accused, who were at the helm of affairs to take cognizance of the theft by the salvage staff and apprehend the thieves. Lt. Mohinder Pratap (PW 22), another officer, who has been acquitted, is said to have admitted his guilt, it is pointed out by the revisional authority that it was the duty of the petitioner and other accused, who were at the helm of affairs to take cognizance of the theft by the salvage staff and apprehend the thieves. PW 6 Gian Singh and PW 7 Megh Raj Singh are said to have allegedly seen two trucks being loaded from shed No. 21 and 319 of Group No. 1 PW 12 Havaldar Kal shetty and Sepoy Puran Chand PW 5 are said to have supervised the loading from the two sheds, they were deputed on duty by the accused and another officer. PW 8 Dep Puran Chand is said to have been threatened by the petitioner with dire consequences if he divulged the said illegal lifting of stores to any one. The petitioner is said to have also been seen and meeting with other officers and one of the contractors according to PW 30 Shiv Charan The revisional authority also observed that it was incumbent on the court to have examined Major Raghunathan, who was a member of the said stock taking board and was present right from its inspection. It directed the court to record additional evidence by examining Major Raghunathan. It also dircted for calling of Sep. Puran Chand. It also observed that it would be in the interest of justice to examine Brig. Chatrath to enquire whether any theft was committed by the petitioner and other officers. The confession of accused No. 4 is said to have been ignored. The revisional authority says that he has named the petitioner and other officers on the second charge. He is said to have retracted the confession but the revisional authority says that his retracted confession may be considered along with the evidence on record. It gave direction to the court martial how it should proceed to record fresh sentence against the petitioner and other officers. It also desired to give opportunity to produce evidence and address the court. It asked the court martial to bear in mind the provisions of section 160 of the Army Act and Rule 68 of the Army Rules. 4. It gave direction to the court martial how it should proceed to record fresh sentence against the petitioner and other officers. It also desired to give opportunity to produce evidence and address the court. It asked the court martial to bear in mind the provisions of section 160 of the Army Act and Rule 68 of the Army Rules. 4. In pursuance of the directions and observations made by the revisional authority the general court marital was again constituted and proceedings against the petitioner and other accused were started afresh. The proceedings commenced on 25th June, 1985 and concluded by the pronouncement of the judgment on 8-7-1985. After the remand additional evidence and the statements of Brig. S. C. Chatrath, Capt. Raghunandan, Sri Bhojraj and some others were recorded. The petitioner was found guilty of both the charges. The petitioner is said to have filed an appeal on 25-2 1986. The said appeal was rejected by the confirming authority and the petitioner was informed about its rejection on 4-10-1986. Against the said order the petitioner is said to have filed a petition to the Government of India under section 164 (2) read with paragraph 364 (a) (ii) of the Regulations on 6-11-1986. The Government of India on 25-1-1988 rejected the appeal of the petitioner. The petitioner submits that serious irregularities were committed by the general court martial in holding him guilty under section 379 IPC. It is the case of the petitioner that the findings are based on in admissible evidence, these ate perverse and these, who are responsible for committing theft, were left out. 5. The proceedings are said to have been started on the written confession of Tony George, Incharge of the Salvage and D. G. S. and D. Stores, Agra. From the reading of his confession it would be seen that he was himself responsible for removing the stores. He is said to have accepted to sign the gate pass of the vehicles. He is said to have accepted Rs. 20,000/- from a private contractor at his residence. Tony George has not committed the offence of removal of stores either with the consent or within the knowledge of the petitioner. Therefore, the petitioner could not be held responsible for commission of theft of army stores for which he has been illegally convicted. He is said to have accepted Rs. 20,000/- from a private contractor at his residence. Tony George has not committed the offence of removal of stores either with the consent or within the knowledge of the petitioner. Therefore, the petitioner could not be held responsible for commission of theft of army stores for which he has been illegally convicted. The only evidence against the petitioner is the confessional statement of the accused Subedar R. N. Pradhan, which he gave in summary of evidence, the said accused was produced as one of the witnesses during the general court martial. In his statement before the general court martial he did not mention the petitioners name. It may be recalled here that the revisional authority has stated about the retracted confession of this witness that the said confession can be used as a corroborative evidence along with other evidence on record. The revisional authority had also directed to prove the stock on the date on which the alleged theft was committed. In the stores a register was maintained which was not produced by the prosecution to prove if there was any deficiency in the stocks on the date of theft. Major Raghunalhan was produced as a witness after the remand to prove the deficiency/surplus on the date of commission of theft. He did not produce any stock register. 6. It is stated by the petitioner that the revisional authority had directed the general court marital to fill up the lacunae in evidence by examining certain witnesses and statements of these witnesses were recorded after the remand. The direction to fill up the lacunae is against the principles of natural justice and against the Army Act and Rules. Appendix of the Army Rules, which is a part of the Act, would not permit recording of statement of Mr. R. N. Pradhan when he himself was accused No. 4 in the case. The charge against him should have first been dismissed or he should have been acquitted at court martial so as to enable him to appear as a witness but being accused No. 4 he could not stand as a witness for the prosecution. The said witness was convicted and against him a joint trial with the petitioner was held. The petitioner is said to have prayed for a separate trial but his request was rejected. The said witness was convicted and against him a joint trial with the petitioner was held. The petitioner is said to have prayed for a separate trial but his request was rejected. The petitioner was not permitted to cross examine Brig. S. C. Chatrath, who was examined after the remand. The petitioner's application for cross examining him was rejected. He being one of the material witnesses after the remand was necessarily to be cross-examined by the petitioner. The petitioner's right in this regard was denied, which has vitiated the trial. The petitioner also submits that the statement of the witness was not considered. In respect of the charge of theft, which is said to have been committed on 27-9-1983 the FIR was lodged after five months. On the aforesaid grounds the petitioner wants the orders of the general court martial dated 14-2-1985 and 8-7-1985. contained in Annexures 3 and 6 to the writ petition, to be quashed. He also wants the order of the confirming authority dated 31-5-1985 and 4-10-1986 (Annexures 5 and 8 to the writ petition) as also the rejection order of his appeal dated 25-1-1988 (Annexure 10 to the writ petition) to be quashed. He prays for quashing of Rule 62 of the Army Rules. He prays for a writ of mandamus to direct the respondents to reinstate the petitioner and to pay him the entire back salary and other consequential benefits. The petitioner also prays for any other suitable writ, which may be granted to him in the facts and circumstances of the case. 7. In their reply affidavit, which is filed by the Administrative Commandant M. R. Allahabad the respondents have stated that Tony George had reported that on 27-9-1983 and 9-2-1984 the Kabadis with the help and concurrence of Lt. Col. Balwant Singh and others removed the stores. It may be stated at the outset that Lt. Col. Balwant Singh is not the petitioner. It also gives the list of officers who have been convicted for commission of theft. It states that Army Rules 22 and 23 were strictly complied with. It is stated that this Court cannot appreciate the evidence in writ jurisdiction. The General Court Martial has accepted the evidence and no fault can be found with their findings. The petitioner is said to have committed theft and there was evidence against him. It states that Army Rules 22 and 23 were strictly complied with. It is stated that this Court cannot appreciate the evidence in writ jurisdiction. The General Court Martial has accepted the evidence and no fault can be found with their findings. The petitioner is said to have committed theft and there was evidence against him. Besides Subedar R. N. Pradhan, there are other witnesses who have given evidence against the petitioner. They are named as Capt. Tony George, Sepoy Puran Chand and Major Gian Chand and others. The petitioner's guilt is established on evidence which was in the form of circumstantial and documentary evidence, therefore he was convicted by the general court martial. It is denied that there is any perversity in the findings of the court martial. However, it is admitted that Brig. S. C. Chatrath's statement was recorded after the remand. Reporting the matter to the police after five months is admitted. About position of stores Sep. Puran Chand said to have taken notes of loading of trucks. After going through the counter affidavit which was very cryptic, I directed the learned counsel for the respondents to produce the record of the trial before me. The learned counsel did produce the record and took me through the record of the investigation as also of the trial of the petitioner. Most of the record is placed in the writ petition because the petioner has obtained certified copies from the main documents which were true copies of the record. 8. I have heard the learned counsel for the parties in details The learned counsel for the petitioner has argued on the grounds which are set out in the writ petition. The learned counsel for the respondents has stated that in general court martial confirmation and post-confirmation petition, if filed, the confirming authority in the Central Government need no record reasons. The reasons are to be recorded only where they are required to be recorded. Reliance was placed on an authority of the Supreme Court, S M. Mukherji v. Union of India, AIR 1990 SC 1984 . However, in the said authority a guideline is laid down for the Administrative authorities as to how they should proceed to deal with the matters which came in their purview. It lays down as under. Reliance was placed on an authority of the Supreme Court, S M. Mukherji v. Union of India, AIR 1990 SC 1984 . However, in the said authority a guideline is laid down for the Administrative authorities as to how they should proceed to deal with the matters which came in their purview. It lays down as under. "In view of the expanding horizon of the principles of natural justice, the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authority. The rules of natural justice are not embodies rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. 9. I have perused the relevant rules and the provisions of the Army Act and after going through the record of the court [martial I feel that there is no infraction of rules 22 to 25 of the Army Rules as alleged by the petitioner. There is no defect in the investigation of the case. So at the pretrial stage the rules and provisions of the Army Act have been observed. However, during the trial there has been an infraction of the principle of natural justice in as much as Mr. R. N. Pradhan, who was examined as a witness against the petitioner and about whom, it has been stated by the revising authority that his retracted confession could be used as a corroborative piece of evidence, though it may not be used as confession against the co- accused. It is a settled principle that a retracted confession of an accused cannot bind this co-accused nor can such a statement be used to corroborate the statement of other witnesses during the trial. He is said to have made the confession at the investigation stage. Therefore, that confession, if retracted subsequently, may be proved by the prosecution and may be used against him but it cannot be used as a corroborative piece of evidence against the co-accused nor can other evidence be tested against the co-accused in the light of his retracted confession. If Mr. pradhan's statement is removed, how would the mind of the general court martial work is not known. 10. Mr. If Mr. pradhan's statement is removed, how would the mind of the general court martial work is not known. 10. Mr. pradhan could appear as a witness against the petitioner if the charge against him was dismissed first or if he was acquitted, then he could be asked to appear as a witness against his co-accused. The general principles of Evidence act are applicable to the court martial also for the purposes of appreciation of evidence, if those principles are not repugnant to the provisions of the Army Act and Rules. It is in the Army Act itself that as far as possible the provisions of the Evidence Act will apply during the proceedings before the Court martial. The Evidence Act does not permit a Court to rely on the statement of an accomplice against the co-accused nor would it permit to use the statement during the investigation for corroborating any statement which is recorded during the trial. These are salurory principles of the Evidence which are applicable to the general court martial also. If this principle is given a go bye, it may violate the principle of natural justice which is to be observed by every administrative authority. The petitioner has protection of laws and he has a guarantee of fair procedure. The Army Act and Rules guarantee him fairness in trial and that fairness is to be ensured. He may not have been tried by ordinary court but the general court martial is also bound by rules of evidence and they have to observe the principle of natural justice by ensuring that the procedure they adopt is consistent with the Array Act and Rules and principles of Evidence Act during trial. Therefore, the statement of Mr. R. N. Pradhan cannot be used against the petitioner. 11. The revisional authority has ordered the court martial to revise its opinion about the findings on the charges. It also directed the general court martial to record the statement of some witnesses. The revisional authority has competence to satisfy itself whether the sentence recorded against the petitioner was correct and whether on the basis of evidence brought before the court martial the petitioner could be convicted and if he was acquitted on any charge whether that acquittal was fair or not. This power is not disputed. However, the revisional authority has gone a step further. This power is not disputed. However, the revisional authority has gone a step further. It issued directions to the court martial as to how it should proceed in the trial. The choice of trial by the court martial seems to have been restricted by the revisional authority. It has directed the court martial to examine fresh witnesses and recall certain witnesses and the court martial has followed the directions. The question that falls for consideration is whether the petitioner was entitled to cross examine the said witnesses and whether he was entitled to be given an opportunity of leading defence to rebut the evidence which came on record after the remand. So far as the cross examination of the witnesses is concerned, that is governed by Rule 142 of the Army Rules. The questions can be put by the accused through the members of the court martial to the witness and the accused's right to put questions to the witnesses cannot be curtailed. 12. No fault can be found if the witness is recalled or if fresh witnesses examined by the court martial after the remand but such power of recalling or calling fresh witnesses is to be exercised in exceptional circumstances where it appears for the first time from the evidence given at the trial that a person, who has not been called either by the prosecutor or on behalf of the defence, was material witness and witnesses of actual occurrence which is subject matter of charge being tried, such a witness may be called but witnesses are not to be called or recalled to supplement any negligent conduct on the part of the prosecution. If the witnesses are called or recalled, then the accused should be invited to suggest any relevant question which in his opinion should be put by the court. The Court martial or any authority having power of confirming the sentence is bound to follow the rules of fairness in regard to the conduct of trial of an officer. The witness, who is called does not seem to have been cross examined by the petitioner. The Court martial or any authority having power of confirming the sentence is bound to follow the rules of fairness in regard to the conduct of trial of an officer. The witness, who is called does not seem to have been cross examined by the petitioner. The court martial should have asked the petitioner to suggest any question that he would have chosen to put to the witness and in fact after the remand it was all the more necessary that the members of the court martial should have given him a fair opportunity to put questions because they teem to have been advised to fill up the lacuna, as pointed out by the revisional authority in the prosecution. That not having been done, the sentence against the petitioner cannot be sustained unless the petitioner is given option to put such questions as may be relevant to the witnesses who have been recalled or called afresh. 13. The second lacuna which is apparent on the face of the record is that after recalling fresh witnesses the petitioner was entitled to produce defence in court. The general court martial should have asked the petitioner to rebut the evidence, which was brought against him under the directions of revisional authority. That has not been done and this, in my opinion, has a very serious affect on the trial in as much as the petitioner's right of rebuttal has been denied to him and that has violated not only the provisions of natural justice but also principle of fair ness which are to be observed during the trial. The petitioner of course, is entitled to adduce defence in respect of those witnesses, who have been examined for the first time after the remand. In respect of those witnesses, who have been recalled for further questioning the petitioner may not have any right to produce defence against them, but in respect of the fresh witnesses like Brig. S. C. Chartarth who was examined after the remand the petitioner had a right to rebut his statement and the statement of any other witness, who was examined afresh after the remand. The court martial should have given an opportunity to the petitioner to produce the defence. 14. The statement of Tony George has no evidenciary value so far as the accused is concerned. The court martial should have given an opportunity to the petitioner to produce the defence. 14. The statement of Tony George has no evidenciary value so far as the accused is concerned. If has statement is used against the accused, that will be inadmissible and the petitioner's conviction on that basis is bad. These aspects of the case which I have pointed out, have not been noticed by the confirming authority and the appellate authority. Therefore, their findings are also vitiated. The petitioner has feebly challenged Rule 62 of the Rules. In may opinion, the said rule does not suffer from any vice. Therefore, the contention of the petitioner in that regard has to be rejected. 15. From what has been discussed above, it becomes clear that the sentence and punishment imposed on the petitioner cannot be sustained and fresh directions are required to be issued to secure the ends of justice. Actordingly while allowing the writ petition I quash the orders of the general court martial dated 14-2-1985 and 8-7-1985 (contained in Annexures 3 and 6 to the writ petition) and that of the confirming authority dated 31-5-1985 and 4-10-1986 and dated 25-1-1988 of the Union of India (Annexure 10 to the writ petition). The proceedings of the court martial, however, are not quashed. If the respondents are so advised, they may proceed to reconstitute the general court martial and after affording an opportunity to the petitioner of cross- examining the witnesses, who have been recalled or who are fresh witnesses and after affording an opportunity of producing evidence in defence to rebut the statement of those witnesses, who have appeared for the first time after the remand, they may proceed to decide the matter afresh in accordance with the rules and the law applicable on the subject. This Court would not have interfered with the findings of domestic tribunal but because some glaring breaches of principles of natural justice have occurred, therefore, in order to maintain the dignity of law it is necessary that the general court martial trial should be conducted fairly in accordance with the procedure established law. The petitioner as a defence personnel has a right to have a fair trial and to ensure that right to the petitioner this Court was constrained to interfere.