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1991 DIGILAW 356 (PAT)

K. D. Mishra v. Union Of India

1991-09-06

NANUMANI PRASAD SINGH

body1991
Judgment NANUMANI PRASAD SINGH, J. 1. This writ application has been filed for judicial review of the order, dated 5-6-1989 passed by the Lt. Col. V. K. Pohwa, O. C. Troops.Head Quarter, 23rd Infantry Division, Ranchi and quashing the sentence of dismissal of the petitioner from the service. 2. The petitioner K. D. Mishra, joined the Military Service as a Sepoy on I4th December, 1981 in Bihar Regiment. In course of his service he was posted on the Indo-Pak Boarder in Jammu and Kashmir and Rajasthan where J. C. 153773-P Naib Subedar M. M. Razak was also posted. The relation between them was, however, not cordial. They were having some problems sometime. After the joining of the petitioner 23rd Infantry Division at Rachi Shri Razak also joined there as Naib Subedar. On 24-5-1989, in the night, while the petitioner was returning from Mandir towards his barrack after his duty, he saw a man going in the company of a woman. He challenged them and found the Naib Subedar M. M. Razak accompanying the Aaya of the M. I. Room. At that point of time, Jai Ram Razak also suddenly arrived there and he started assaulting the petitioner with a Danda at the instance of Naib Subedar Shri M. M. Razak. The petitioner in retaliation also assaulted them and thereafter he returned to his barrack. 3. On 3-6-1989 the petitioner received a charge-sheet intimating the date of his court-martial. He was charged under Section 40 (a) of the Army, Act, 1950 (hereinafter referred to as the Act) for using criminal force against his Senior Officer. The petitioner appeared before the Summary court-martial and he was awarded sentence of imprisonment for one year and dismissal from the service. 4. Shri S. D. Mishra, learned Counsel for the petitioner has contended that the petitioner has served out the sentence of imprisonment of one. year. The punishment of dismissal of the petitioner from the service is now the bone of contention. He very strenuously argued that under Rule 124 of the Army Act, court-martial can award only one sentence in respect of all the offences of which the accused is found guilty. Two punishments awarded to the petitioner against the same offence is beyond the scope of Rule 124. The Summary court-martial was, therefore, not legally competent to award two punishments to the petitioner for the same offence. Two punishments awarded to the petitioner against the same offence is beyond the scope of Rule 124. The Summary court-martial was, therefore, not legally competent to award two punishments to the petitioner for the same offence. The contention of Shri Mishra is fallacious and it cannot be sustained. 5. It may be relevant to mention here Section 120 of the Act which deals with the powers of Summary courts-martial. The section runs as follows ; Section 120. Powers of the Summary Courts-martial. (1) Subject to the provisions of sub-section (2), a summary court-martial may try any offence punishable under this Act. (2) * * * * * * (3) * * * * * * (4) "A summary court-martial may pass any sentence which may be passed under this Act, except a sentence of death or transportation, or of imprisonment for a term exceeding the limit specified in sub-section (5). (5) "The limit referred to in sub-section (4) shall to one year if the officer holding the summary court-martial is of the rank of lieutenant-colonel and upwards, and three months if such officer is below that rank" 6. The punishments awardable by the courts-martial have been mentioned under various sub-clauses of Section 71 of the Act. The dismissal from the service is one such punishment mentioned under sub-clause (e) of Section 71 of the Act. 7. There is also provision of combination of punishments under Section 73 of the Act. The section reads as follows : "73. Combination of punishments.A sentence of a court-martial may award in addition to or without any one other punishment, the punishment specified in Clause (d) or Clause (e) of Section 71 and any one or more of the punishments specified in Clauses (f) to (1) of that section." It is, thus obvious from Section 73 of the Act mentioned aforesaid that in addition to punishments provided under Section 71 of the Act, a court- martial may also award any other punishments. The summary court- martial, therefore, is quite competent to award two or more punishments against an accused if he is found guilty of the charge. 8 Shri Devi Prasad, learned Counsel for the Union of India has contonded that sentence of imprisonment and dismissal from the service awarded by Summary courts-martial have been upheld by the Supreme Court in a catena of decisions. 8 Shri Devi Prasad, learned Counsel for the Union of India has contonded that sentence of imprisonment and dismissal from the service awarded by Summary courts-martial have been upheld by the Supreme Court in a catena of decisions. Reliance was also placed upon a recent decision of the Court in the case of Union of India V/s. Baleshwar Ram, AIR 1990 SC 65 , wherein the punishment of imprisonment for one year and dismissal from the service awarded to the Respondent Naib Subedar Baleshwar Ram for committing theft of dry ration from the supply base of the Army camp was upheld by the Supreme Court In the present case the petitioner has been awarded only one sentence but two punishments have been given under Section 73 of the Act which the summary court- martial was competent to award. 9. As regards, the judicial review of the punishment of dismissal from the service of the petitioner is concerned, Shri Mishra has contended that the sentence awarded should not be disproportionate to the gravity of the offence. The doctrine of proportionality is a part of the concept of judicial review. Reliance was placed in the case of Ranjit Thakur V/s. Union of India, 1988 East Cr C 86 (SC) : AIR 1987 SC 2386 . In this case the Supreme Court has held that "the question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be. so vindictive or unduly harsh. It should not be disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that the even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review". 10. In the present case, the sentence of dismissal from the service awarded to the petitioner is a disporporationate to gravity of misconduct. The petitioner is alleged to have assaulted the Naib Subedar M. M. Razak and violated the provisions of Section 40 (a) of the Act. Irrationality and perversity are recognised grounds of judicial review". 10. In the present case, the sentence of dismissal from the service awarded to the petitioner is a disporporationate to gravity of misconduct. The petitioner is alleged to have assaulted the Naib Subedar M. M. Razak and violated the provisions of Section 40 (a) of the Act. It is evident from the writ petition that the petitioner was first assaulted and thereafter he assaulted him in retaliation. It appears that the petitioner was examined by D. M. O. Captain in Dr. S. S. Jha and injury report was brought on the record before the Summary court-martial and marked Exhibit B. This supports the case of the petitioner that he had been assaulted. There is nothing on the record that the petitioner had any bad antecedent or even any adverse remarks against him. Therefore, the punishment of dismissal of the petitioner from the service is unduly harsh and disproportionate to the gravity of the offence and calls for and justify interference. 11. Any penalty disproportionate to the gravity of the misconduct has been held to be violative of Article 14 of the Constitution, Reference may be made in the case of Bharat Ram V/s. State of Himachal Pradesh, AIR 1983 SC 454 . 12. For the forgoing reasons, this writ application is allowed. The punishment of dismissal of the petitioner from the service is set aside. The respondents are directed to reinstate the petitioner with all monetary and service benefits with effect from the date the petitioner had served out the sentence of imprisonment.