MEWA SINGH v. UNION OF INDIA — 1997 DIGILAW 958 (DEL)

Jaspal Singh,j. ( 1 ) IN the year 1987 Subedar Mewa Singh (Petitioner) was serving the Indian Army in the Branch Recruitment Office, Secunderabad. He was attached to 3, Training Battalion, 1, EME Centre, Secunderabad. Allegedly on 15th June, 1986. while working as Assistant Recruiting Officer, the petitioner accepted a sum of Rs. 2,000. 00 from one Hav. M. Kondaiah, a decoy, as a motive for procuring enrolment of a few persons. Consequently a Court of Enquiry was ordered by Head Quarters Andhra Sub Area for the purpose of investigating into the circumstances under which the petitioner allegedly took illegal gratification. The Court of Enquiry commenced the proceedings on 18th June, 1986 and the petitioner was examined as the first witness. Needless to say the petitioner claimed to be innocent. This was followed by hearing of the charge by the Commanding Officer and the recording of Summary of Evidence. Ultimately, the Commanding Officer remanded the Officer for trial by the Court Martial which was conveyed by order dated 4th April, 1987. The trial which commenced on 11th April, 1987 was concluded on 15th May, 1987. It appears that the General Court Martial found the petitioner guilty of the charge and sentenced him to suffer rigorous imprisonment for 9 months. He was also ordered to be dismissed from the service. The confirming authority, however, directed the Court to reconsider its finding. To petitioner s disappointment, the General Court Martial returned the same finding and sentence which was confirmed on 24th December, 1987. On 7th of January, 1988 the sentence was promulgated. Finding himself dissatisfied, the petitioner submitted a post confirmation petition. However, that too was rejected. The petitioner still remains dissatisfied. Hence, this writ petition seeking quashing of the finding and sentence of the General Court Martial and praying for reinstatement with all consequential benefits. ( 2 ) THE petitioner has challenged his conviction and sentence on number of grounds but during arguments the writ petition was pressed only on the following grounds: 1. The petitioner was compelled to appear as a witness against himself in violation of Rule 180 of the Army Rules. 2. During the Court of Enquiry the petitioner was made to sit outside the room and was neither afforded opportunity of being present throughout the enquiry nor of cross-examining the witnesses. As per the petitioner on account of this, Rule 180 of the Army Rules was violated. 2. During the Court of Enquiry the petitioner was made to sit outside the room and was neither afforded opportunity of being present throughout the enquiry nor of cross-examining the witnesses. As per the petitioner on account of this, Rule 180 of the Army Rules was violated. 3. The Commanding Officer violated Rule 22 of the Army Rules during the hearing of the charge as he allegedly did not allow the petitioner to cross-examine any witness and that none of the witnesses actually deposed and their earlier statements during Court of Enquiry were taken in and copied in the Summary of Evidence. This as per the petitioner, was in gross violation of Army Rule 23. 4. Petitioner sought permission to engage a civil lawyer but it was not granted and thus great prejudice was caused to him. ( 3 ) IT need hardly be mentioned that as per the respondents none of the Army Rules cited above was flouted. The respondents claim that all the proceedings were held strictly in accordance with the Army Rules. Is it so? But then, let s first have a look at the relevant Rules. ( 4 ) CHAPTER 6 of the Army Rules relates to Court of Enquiry and Rule 180 deals with the procedure to be adopted when character of a person subject to the Army Act, 1950 is involved. I may mention that during arguments it was not disputed that in the Enquiry proceedings the character of the petitioner was actually involved and that consequently Rule 180 of the Army Rules was attracted. The Rule runs as under : "180. Procedure when character of a person subject to the Act is involved.-- Save in the case of a prisoner of war who is still absent, whenever any inquiry affects the character or military reputation of a person subject to the Act, full opportunity must be afforded to such person of being present throughout the inquiry and of making any statement, and of giving any evidence he may wish to make or give, and of cross- examining any witness whose evidence, in his opinion, affects his character or military reputation and producing any witnesses in defence of his character or military reputation. The presiding officer of the court shall take such steps as may be necessary to ensure that any such person so affected and not previously notified receives notice of and fully understands his rights, under this rule. " ( 5 ) WHILE dealing with the procedure laid down in Rule 180 of the Army Rules, I may mention at the outset that the learned Counsel for the petitioner could not draw my attention to any material on the record to substantiate or even lend support even obliquely to the petitioner s allegation that during the Enquiry proceedings he was kept outside the room where the proceedings were conducted and was not permitted to participate in the proceedings or to cross-examine the witnesses and it must be said to the credit of the learned counsel for the petitioner that he too readily agreed that the petitioner was not in a position to substantiate his allegation. In fact, the proceedings recorded do lend support to the assertion of the respondents that the petitioner was not only permitted to actively participate in the proceedings but that he was also allowed to cross-examine the witnesses. ( 6 ) UNDOUBTEDLY, the proceedings do go to show that the petitioner was the first to be examined in the Enquiry. Was it in violation of Rule 180 of the Army Rules? It is in the petition itself that the petitioner was duly warned which, I was told, would mean that he was made aware of his rights under the Rule. There is nothing on the record to show that any pressure was put upon the petitioner to make a statement. It is alleged by the respondents that the statement was made voluntarily under Rule 180 of the Army Rules. The petitioner had the right to make a statement under that Rule and since he did make the statement and as there is nothing on the record to show that making of the statement was not voluntary, I fail to see as to how on that score Rule 180 can be said to have been violated. ( 7 ) HAD the Army Authorities in any manner violated Rules 22,23 and 24 of the Army Rules? This, then, is the next question. ( 7 ) HAD the Army Authorities in any manner violated Rules 22,23 and 24 of the Army Rules? This, then, is the next question. Since, as far as Rule 22 of the Army Rules is concerned, reference was made by the petitioner s counsel only to Sub-Rule (1), let me reproduce the said Sub-Rule. It lays down : "22. Hearing of Charge.-- (1) Every charge against a person subject to the Act other than an officer, shall be heard in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call any witnesses and made any statement in his defence. " ( 8 ) WITH regard to Sub-Rule (1) of Rule 22 of the Army Rules, the petitioner has not placed on record any material to show that the charge was not heard in his presence or that he had not been granted full liberty to cross-examine any witness against him or to call any witnesses and make any statement in his defence. Needless to say, the respondents have asserted that the charge was heard in the presence of the petitioner and that he was given full liberty not only to cross- examine the witnesses against him but to call any witness and to make any statement in his defence. I may mention that the record was gone through in court in the presence of the parties counsel and nothing could be detected which could, even prima facie, lead to the impression that Sub-Rule (1) had not been followed. ( 9 ) SINCE the next contention centred around Rule 23, I may reproduce the same as well. It is in following terms : "23. Procedure for taking down the summary of evidence. (1) Where the case is adjourned for the purpose of having the evidence reduced to writing, at the adjourned hearing evidence of the witneses who were present and gave evidence before the commanding officer, whether against or for the accused, and of any other person whose evidence appears to be relevant, shall be taken down in writing in the presence and hearing of the accused before the commanding officer or such officer as he directs. " (2) The accused may put in cross- examination such questions as he thinks fit to any witness, and the questions together with the answers thereto shall be added to the evidence recorded. " (2) The accused may put in cross- examination such questions as he thinks fit to any witness, and the questions together with the answers thereto shall be added to the evidence recorded. (3) The evidence of each witness after it has been recorded as provided in the rule when taken down, shall be read over to him, and shall be signed by him, or if he cannot write his name, shall be attested by his mark and witnessed as a token of the correctness of the evidence recorded. After all the evidence against the accused has been recorded, the accused will be asked: "do you wish to make any statement? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence". Any statement thereupon made by the accused shall be taken down and read over to him, but he will not be cross-examined upon it. The accused may then call his witnesses, including if he so desires, any witnesses as to character. (4) The evidence of the witnesses and the statement (if any) of the accused shall be recorded in the English language. If the witness or accused, as the case may be, does not understand the English language, the evidence or statement, as recorded, shall be interpreted to him in a language which he understands. ( 5 ) WHILE dealing with the procedure laid down in Rule 180 of the Army Rules, I may mention at the outset that the learned Counsel for the petitioner could not draw my attention to any material on the record to substantiate or even lend support even obliquely to the petitioner s allegation that during the Enquiry proceedings he was kept outside the room where the proceedings were conducted and was not permitted to participate in the proceedings or to cross-examine the witnesses and it must be said to the credit of the learned counsel for the petitioner that he too readily agreed that the petitioner was not in a position to substantiate his allegation. In fact, the proceedings recorded do lend support to the assertion of the respondents that the petitioner was not only permitted to actively participate in the proceedings but that he was also allowed to cross-examine the witnesses. In fact, the proceedings recorded do lend support to the assertion of the respondents that the petitioner was not only permitted to actively participate in the proceedings but that he was also allowed to cross-examine the witnesses. ( 6 ) UNDOUBTEDLY, the proceedings do go to show that the petitioner was the first to be examined in the Enquiry. Was it in violation of Rule 180 of the Army Rules? It is in the petition itself that the petitioner was duly warned which, I was told, would mean that he was made aware of his rights under the Rule. There is nothing on the record to show that any pressure was put upon the petitioner to make a statement. It is alleged by the respondents that the statement was made voluntarily under Rule 180 of the Army Rules. The petitioner had the right to make a statement under that Rule and since he did make the statement and as there is nothing on the record to show that making of the statement was not voluntary, I fail to see as to how on that score Rule 180 can be said to have been violated. ( 7 ) HAD the Army Authorities in any manner violated Rules 22,23 and 24 of the Army Rules? This, then, is the next question. Since, as far as Rule 22 of the Army Rules is concerned, reference was made by the petitioner s counsel only to Sub-Rule (1), let me reproduce the said Sub-Rule. It lays down : "22. Hearing of Charge.-- (1) Every charge against a person subject to the Act other than an officer, shall be heard in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call any witnesses and made any statement in his defence. " ( 8 ) WITH regard to Sub-Rule (1) of Rule 22 of the Army Rules, the petitioner has not placed on record any material to show that the charge was not heard in his presence or that he had not been granted full liberty to cross-examine any witness against him or to call any witnesses and make any statement in his defence. Needless to say, the respondents have asserted that the charge was heard in the presence of the petitioner and that he was given full liberty not only to cross- examine the witnesses against him but to call any witness and to make any statement in his defence. I may mention that the record was gone through in court in the presence of the parties counsel and nothing could be detected which could, even prima facie, lead to the impression that Sub-Rule (1) had not been followed. ( 9 ) SINCE the next contention centred around Rule 23, I may reproduce the same as well. It is in following terms : "23. Procedure for taking down the summary of evidence. (1) Where the case is adjourned for the purpose of having the evidence reduced to writing, at the adjourned hearing evidence of the witneses who were present and gave evidence before the commanding officer, whether against or for the accused, and of any other person whose evidence appears to be relevant, shall be taken down in writing in the presence and hearing of the accused before the commanding officer or such officer as he directs. " (2) The accused may put in cross- examination such questions as he thinks fit to any witness, and the questions together with the answers thereto shall be added to the evidence recorded. (3) The evidence of each witness after it has been recorded as provided in the rule when taken down, shall be read over to him, and shall be signed by him, or if he cannot write his name, shall be attested by his mark and witnessed as a token of the correctness of the evidence recorded. After all the evidence against the accused has been recorded, the accused will be asked: "do you wish to make any statement? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence". Any statement thereupon made by the accused shall be taken down and read over to him, but he will not be cross-examined upon it. The accused may then call his witnesses, including if he so desires, any witnesses as to character. (4) The evidence of the witnesses and the statement (if any) of the accused shall be recorded in the English language. The accused may then call his witnesses, including if he so desires, any witnesses as to character. (4) The evidence of the witnesses and the statement (if any) of the accused shall be recorded in the English language. If the witness or accused, as the case may be, does not understand the English language, the evidence or statement, as recorded, shall be interpreted to him in a language which he understands. (5) If a person cannot be compelled to attend as a witness, or if owing to the exigencies of service or any other grounds (including the expense and loss of time involved), the attendance of any witness cannot in the opinion of the officer taking the summary (to be certified by him in writing), be readily procured, a written statement of his evidence purporting to be signed by him may be read to the accused and included in the summary of evidence. (6) Any witness who is not subject to military law may be summoned to attend by order under the hand of the commanding officer of the accused. The summons shall be in the form provided in Appendix III. " ( 10 ) UNDOUBTEDLY, the petitioner being not an Officer, Rule 23 of the Army Rules was required to be followed scrupulously. It was argued that witnesses No. 2,3,11 and 12 were not examined and that in fact the statements given by them before the Court of Enquiry were lifted verbatim and taken as evidence and that as such, those witnesses could not be taken to have given evidence before the Commanding Officer nor could their statements be regarded as having been taken down in writing in the presence and hearing of the accused. ( 11 ) I have, with the assistance of the counsel for the parties, made a comparison of the statements given by witnesses 2,3,11 and 12 before the Court of Enquiry and have compared the same with the statements alleged to have been made by them before the Commanding Officer. It is true that substantially the statements are the same but it cannot be said that they are verbatim the same. At places I find significant changes or omissions/ additions. That it is admittedly so was accepted by the learned counsel for the petitioner. It is true that substantially the statements are the same but it cannot be said that they are verbatim the same. At places I find significant changes or omissions/ additions. That it is admittedly so was accepted by the learned counsel for the petitioner. In any case, what is significant to note is that at no stage of the alleged transposition did the petitioner make any objection though it is proved from the record that he was present during the proceedings. However, the matter does not come to an end here. It appears from the record that the stenographer concerned was examined as a witness and in his cross-examination he categorically denied the suggestion with regard to transposition of the depositions. In view of all this, I am not inclined to agree with the learned counsel for the petitioner that the witnesses in question had not actually been examined and that their depositions before the Enquiry Officer were transposed verbatim. It may also be of significance to notice that the witnesses were allowed to be cross-examined and even in their cross-examination no such suggestion was put. It is, however, the last submission which needs to be examined in some depth. Before I come into grip with the same, it may be noticed that after the petitioner had been found guilty by the General Court Martial, the Confirming Authority had directed the General Court Martial to reconsider its finding. In another words, there was a direction by which the General Court Martial proceedings were to be revised. On being informed on 4th November, 1987 that the General Court Martial was reassembling for revision on 07th November, 1987, the petitioner moved an application for permission the represented by a civil lawyer "to safeguard" his interest before the General Court Martial. This application was moved on November 05, 1987. Admittedly, the application was allowed and intimation of the same was given to the petitioner on November 07, 1987 at 10. 15 A. M. It may be noticed that the General Court Martial had admittedly assembled on November 07, 1987 at 9. 30 A. M. and the petitioner has alleged in his affidavit that intimation of the order allowing him to be represented by a civil lawyer was communicated to him after the proceedings of the General Court Martial were over. It was not disputed before me by Mr. 30 A. M. and the petitioner has alleged in his affidavit that intimation of the order allowing him to be represented by a civil lawyer was communicated to him after the proceedings of the General Court Martial were over. It was not disputed before me by Mr. S. S. Sabharwal representing the Army Authorities that as far as the Authorities were concerned, they had come to know of the order allowing the petitioner to engage a civil lawyer on 6th of November, 1987 itself. Unfortunately, despite the authorities having come to know of the same on 6th November, 1987 itself, it took no steps to inform the petitioner forthwith. The authorities also did not take any step to inform the General Court Martial that petitioner s application for permission to be represented by a civil lawyer had been allowed. In short, thus, despite the permission having been communicated to the authorities on 6th November, 1987 the petitioner could not be represented by a civll lawyer of his choice and came to know of that permission only after the General Court Martial proceedings were over. Is all this of any consequence? ( 12 ) THE learned counsel for the petitioner submitted that since the petitioner had a right to be represented by a civil lawyer of his choice and had actually been granted such a permission, the non-communication of that order had resulted in great prejudice to the defence of the petitioner more so when the Army Officer provided as a defence counsel, though holding a paper-degree in law, had no legal expertise or legal background. On the other hand, it was contended by Mr. S. S. Sabharwal representing the respondents that it was for the petitioner to inform the General Court Martial that he had made an application for being represented by a civil lawyer and that since he made no such submission he could not now be allowed to make a grievance of what transpired. However, it was not disputed by Mr. Sabharwal that the authorities had come to know on the 6th itself that the request of the petitioner had been allowed and that the General Court Martial was not informed about the same. ( 13 ) MAY be the petitioner was subject to the Army Act but then thereby he neither ceased to be a citizen. Sabharwal that the authorities had come to know on the 6th itself that the request of the petitioner had been allowed and that the General Court Martial was not informed about the same. ( 13 ) MAY be the petitioner was subject to the Army Act but then thereby he neither ceased to be a citizen. It is not a case where no request was made for being represented by a civil lawyer of his choice. It is also not a case where such a request, though made, was turned down. [see Ram Sarup v. U. O. I. AIR 1965 SC 247 ; Lt. Col. Prithi Pal Singh Bedi v. U. O. I. 1982 SCC (Cri) 643]. It is a case where a request was made and allowed and yet the permission so granted was frustrated by non-communication of the same to the petitioner and so also to the General Court Martial. It was observed by Prof. Paul Jackson that "a standard of behaviour" is an obligation even where the duty to observe natural justice is inapplicable (See: Prof. Paul Jackson: Natural Justice 2nd Edn. p. 11 ). Surely, that "standard of behaviour" envisages a duty to act fairly. Here, the petitioner had applied for permission to be represented by a Counsel of his choice and no time had been lost in allowing it. It is unfortunate that despite the authorities concerned having been informed a day before the date fixed for General Court Martial, no steps were taken to inform the General Court Martial that the petitioner had been granted permission by the higher authorities to engage a counsel of his choice. Strangely, even the petitioner was not told about it before or during the General Court Martial proceedings. To say that it was for the petitioner to inform the General Court Martial that he had applied for permission to be represented by a civil lawyer, is untenable, to say the least. ( 14 ) I feel the authorities by not informing the petitioner that he had been allowed to be represented by a counsel of his choice and by keeping back that information from the General Court Martial also failed to act fairly. ( 14 ) I feel the authorities by not informing the petitioner that he had been allowed to be represented by a counsel of his choice and by keeping back that information from the General Court Martial also failed to act fairly. They, thereby, not only gave a grave blow to the rights of the petitioner but harmed the General Court Martial as well reducing it to "a deserted edifice; the walls standing, no life going on within" (Carlyle, quoted in 70 PMLA at 677 ). ( 15 ) THE romantic in Llewellyn spoke of the ideal of law in one of his "ballades of the Grievous law". "justice is never a thing, but a quest; shifting and subtle and deep the relations; but Quest builds fearless, on sure foundations: here the Law calls for the law-man s best Queer the way it stirs in the breast, queer our rejection of immitations: Among our folk, as among the nations Justice is never a thing, but a quest. " ( 16 ) I wish the authorities had realised it. On the one scale was the Army discipline, allegedly violated by a crime; on the other was the defendant, fallible, perhaps, but, nonetheless, human and while, dealing with him what was needed was fair play in action. The sad part of the story is that it was lacking resulting in grave prejudice to him. As a result, the revised finding and sentence dated November 7, 1987 and its confirmation dated December 24, 1987 stand set aside. ( 17 ) WHAT next? The learned counsel for the petitioner prayed for all benefits including pensionary. I think the charge against the petitioner is too serious to be ignored or to be washed away merely because of the order passed by me or on account of lapse of time. Let the General Court Martial re- assemble and afford to the petitioner the benefit of being represented by a civil lawyer of his choice. Remaining things would automatically flow from the result. ( 18 ) THE petitioner shall be entitled to costs assessed at Rs. 1000. 00.