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2000 DIGILAW 1084 (PAT)

Ranjana Anand v. Union Of India

2000-09-06

A.K.PRASAD, N.PANDEY

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Judgment 1. This petition under Article 226 of the Constitution of India has been filed on behalf of the wife of Capt. Anand Kumar for a writ of habeas corpus or any other appropriate writ, calling upon the respondents to set her husband at liberty, who has been detained in custody since the morning of 10th August, 2000 under the orders of Col. H.C. Chawla, Commanding Officer, 23 Inf. Division, Ordinance Unit, Namkum, Ranchi. 2. In brief, the facts of the case is that Capt. Anand Kumar is posted at 23 Inf. Division Ordnance Unit (DOU) under the command of Col. H.C. Chawla since January, 1998. It is stated that Capt. Anand Kumar while posted at this unit had informed the Commanding Officer about certain unauthorised and accounted ammunitions kept in the Army Command. Since there was no response by the Commanding Officer, he, therefore, wrote a letter to the General Officer, Commanding (respondent no. 2) for necessary action. It is alleged since the above steps of Anand Kumar were not liked by the Commanding Officer, he was removed from the Administrative Command of the Ammunitions Technical Services Wing by the Order dated 2.4.1998 and was also made a victim of false and concocted enquiry. The matter was brought to this Court vide C.W.J.C. No. 3118 of 1999 (R), which was ultimately disposed of on 4.11.1999, directing the husband of the petitioner to file representation before respondent no. 2, but that was however, rejected on 3.1.2000 and Capt. Anand was sentenced with forfeiture of his promotion for two years and against the said order the appeal filed by him is still pending. 3. It is further alleged that on 21.7.2000 the husband of the petitioner was transferred to Assam Regiment in Dipatoli, Ranchi under the orders of respondent no. 3, where he reported for duties, but instead of allowing him to join respondent no. 3 abused and asked him to go out of the Unit. Ultimately when the husband of the petitioner reported the matter to the Army Command, he was allowed to join. 4. The petitioner further alleges that on 10.8.2000 respondent no. 8 called Capt. Anand to appear before him in the morning at about 8 O Clock and since then he was not allowed to go back to his residence, either for breakfast or lunch. 4. The petitioner further alleges that on 10.8.2000 respondent no. 8 called Capt. Anand to appear before him in the morning at about 8 O Clock and since then he was not allowed to go back to his residence, either for breakfast or lunch. Ultimately the petitioner, however, could gather from certain Military personnel that her husband was brutally assaulted by respondent no. 3 and was kept in confinement in the Army Mess. It is stated although the petitioner tried to meet her husband, but she was not allowed. The petitioner also learnt that her husband had sustained several injuries because he was assaulted by respondent no. 3, which would be evident from injury reports. 5. A counter affidavit has been filed on behalf of respondent nos. 2 and 3, denying all the allegations and it has been alleged, in fact, on 10.8.2000 Capt. Anand Kumar had used criminal force against the Commanding Officer Sri H.C. Chawla (respondent no. 3) which was considered to be a grave and serious offence as defined under Section 40 of the Army Act. Therefore, as per the provisions of Section 101 of the Army Act, he was put under close arrest with effect from 10th August, 2000 itself and the investigation of the charge against him commenced and, accordingly, the reasons for arrest were also communicated by the letter, contained in Annexure-A. 6. While submitting reply to the above counter affidavit, a further grievance was made by the petitioner alleging that during pendency of the enquiry her husband was illegally and arbitrarily transferred to another Unit at a distance of 20 kms. so that he may not be able to take effective part in the enquiry nor the proper treatment for which the doctors had already advised. In proof of the allegation that the husband of the petitioner was assaulted during arrest, an injury report issued by the Army Doctor dated 17.8.2000 has also been brought on record as Annexure-4. In the opinion of the doctor, the injuries were 3-6 days old. 7. Apart from what has been stated above, it has also been alleged that detention of the husband of the petitioner was completely illegal and without jurisdiction as there was no authorisation by the High Command to keep him under detention beyond the period of 48 hours. In the opinion of the doctor, the injuries were 3-6 days old. 7. Apart from what has been stated above, it has also been alleged that detention of the husband of the petitioner was completely illegal and without jurisdiction as there was no authorisation by the High Command to keep him under detention beyond the period of 48 hours. As per Section 102 of the Army Act, it is the duty of the Commanding Officer to communicate the High Command the reasons for detention of any officer in custody beyond the period of 48 hours, after the committal of such person into custody. In this case, neither there is any material on record nor statement in the counter affidavit that any such information was given to High Command for the detention of the husband of the petitioner beyond a period of 48 hours. 8. In reply to the above grievance of the petitioner, respondent no. 3 has reiterated the facts, which he had disclosed in the counter affidavit. He has attached a copy of Signal which was sent to the General Command, Army Headquarter after the committal of Sri Anand Kumar under custody under Section 102 of the Army Act. A reference has also been made to Annexure-D, a copy of the confidential report dated 12th August, 2000, whereby, a report regarding close arrest of Capt. Anand Kumar was communicated to the Headquarters. It would further appear that in response to the above intimation, the General Command, Headquarters by the order dated 12.8.2000 directed that Capt. Anand Kumar be attached to 19 MAHAR with immediate effect till finalisation of the disciplinary enquiry and pursuant to the said order Sri Kumar was accordingly, shifted and attached. 9. While denying the allegation of assault etc. by respondent no. 3, it has been stated that Capt. Anand Kumar had, in fact, received injuries due to fall from a scooter of his nephew. The allegation of assault etc. against him was false and concocted. In support of the above statement, a copy of the statement of certain Guards has been filed as Annexure-G. 10. From the materials, noticed above, there is no dispute that there are several allegations of prejudices and bias against respondent no. 3. On the other hand, there are also counter allegations of misbehaviour and insubordination against the husband of the petitioner. From the materials, noticed above, there is no dispute that there are several allegations of prejudices and bias against respondent no. 3. On the other hand, there are also counter allegations of misbehaviour and insubordination against the husband of the petitioner. Therefore, having regard to such disputed facts, it would not be possible for a writ court to accept arguments based on such facts. But at the same time it is well known that nobody can be allowed to be the victim of bias and malafide of any higher authority. According to the petitioner, since her husband had reported about certain unauthorised and unaccounted ammunitions kept in the Army Command, he was being tortured and harassed. Therefore, in our view, this aspect must be examined by the High Command including the General Officer Commanding (respondent no. 2) so that the truth should come on sur face. 11. Keeping in mind the limited scope of this writ petition as noticed above, the question that is relevant for consideration is : whether in view of the bar on transfer contained in Regulation 453, the order of attachment of Capt. Anand Kumar to 19 MAHAR during the pendency of the disciplinary proceeding can be held justified, and if the above answer is found in the affirmative, whether infraction of the said Regulation would render the impugned action without jurisdiction and, therefore, non-est? Secondly: whether the detention of the husband of the petitioner in custody, in absence of any intimation to and approval of the General of the Central Command, can sustain? 12. Before elaborating the discussion on the rival contentions of the parties with regard to the order of transfer, it would be apt to shortly refer the relevant provision of the particular Regulation 453 of Chapter X of the Defence Service Regulations , as under: "453. Transfer of Personnel from a Command before completion of Disciplinary Cases. (a) No individual against whom a disciplinary case is pending should be posted away from his unit/formation until disposal of the disciplinary cases against him. However, this may be permitted due to administrative expediency with prior approval of DV Directorate, AGs Branch, Army Headquarters. (b) If the offence alleged to have been committed by an individual comes to light after his transfer to a unit/formation at another station, he should be recalled and disciplinary action against him should be completed at earliest possible date. However, this may be permitted due to administrative expediency with prior approval of DV Directorate, AGs Branch, Army Headquarters. (b) If the offence alleged to have been committed by an individual comes to light after his transfer to a unit/formation at another station, he should be recalled and disciplinary action against him should be completed at earliest possible date. Before recalling, the formation concerned should satisfy itself that a prima facie case exists and that disciplinary action is definitely possible, as otherwise such recall will result in unnecessary expense to the State. In cases where disciplinary action is not possible, that is, it is doubtful that the individual will be convicted, his new CO should be informed of the full details of the case. 13 According to the learned counsel for the petitioner, the instant provision squarely applies in the facts and circumstances of this case. He contended that when the decision was taken to set up the court of enquiry and to record summary evidence it is implied necessarily that the disciplinary proceeding had commenced against Capt. Anand Kumar. He drew our attention to the wider expression of Regulation 453, namely, disciplinary case in respect to the court-martial. In other words, according to him, this would include both the proceedings in nature of summary enquiry as also regular trial at court martial. He therefore, contended that having regard to the bar on transfer imposed by Regulation 453, the order of Transfer of Capt. Anand Kumar, contained in Annexure-E dated 12th August, 2000 from 23 Inf. DOU to 19 MAHAR was in complete infraction of the mandatory provision of the instant Regulation. In support of the contention, learned counsel placed reliance to a decision of the Apex Court in the case of Major Chandkumar V/s. Union of India & Ors., 1987 LAB. IC. 283. 14. On the other hand, the above contention was sought to be repelled on behalf of the respondents while urging that Reg. 453 is not attracted on the facts and in the circumstances of the present case. He contended that the stage of framing of the charge having not arrived, the present petition invoking the bar of Reg. 453 is premature. In our view, from a bare reference to the order of transfer/attachment as contained in Annexure-E, it is manifest that such a transfer was made until finalisation of the disciplinary proceeding. He contended that the stage of framing of the charge having not arrived, the present petition invoking the bar of Reg. 453 is premature. In our view, from a bare reference to the order of transfer/attachment as contained in Annexure-E, it is manifest that such a transfer was made until finalisation of the disciplinary proceeding. True it is such steps are permitted in case of any administrative exigency with prior approval of the DV Directorate, AGs Branch, Army Headquarters, but from a plain reading of the impugned order, it would appear that this was not a transfer/attachment on the ground of administrative exigencies. Therefore, the crux of the problem is whether the condition precedent prescribed for operation of the bar is satisfied or not. 15. In this case, we have already noticed that as per the case of the respondents, on 10th August, 2000 Capt. Anand Kumar was placed under close arrest at 23 Inf. DOU and thereafter, on 12th August, 2000, detailed information regarding such close arrest etc. were furnished to the Central Command by respondent no. 8 and on the same day by Annexure- E, the order of transfer of Sri Kumar from 23 Inf. DOU to 19 MAHAR was issued without disclosing any reasons for such transfer. In normal course, if the disciplinary action had already started on 10th August, 2000 at the Unit of 23 Inf. Div. there was no justification to attach Sri Kumar to another division at a different place. As it has already been observed we are not inclined to go into the larger question, but since we find in the present case that there is a clear violation of Reg. 453, therefore, certainly the order, whereby, such a provision has been breached, should not be allowed to sustain. In the result, therefore, we have no option but to quash the order dated 12th August, 2000, as contained in Annexure-E, whereby, Sri Kumar was transferred from 23 Inf. DOU to 19 MAHAR. 16. Coming to the second question regarding the validity of detention of Capt. Anand Kumar beyond the period of 48 hours from the date of his close arrest, our attention was drawn to the provisions of Section 102 of the Act to show that in absence of approval of General or any other Officer as required under Sub-sec. 16. Coming to the second question regarding the validity of detention of Capt. Anand Kumar beyond the period of 48 hours from the date of his close arrest, our attention was drawn to the provisions of Section 102 of the Act to show that in absence of approval of General or any other Officer as required under Sub-sec. (2) of Section 102, the detention of Sri Kumar beyond the period of 48 hours has become illegal and unauthorised. In our view, from a plain reading of the materials brought on record and the provisions of Section 102 there appears no substance in such submission. As would appear from the order of the Commanding Officer, contained in Annexure-A, Sri Anand was placed under close arrest for misbehaviour and using criminal force and thereafter, the reason for close arrest was communicated to the higher authority, which would be evident from the letter, contained in Annexure-D. 17. That apart, as would appear from the instant provision of Section 102 that the Commanding Officer is to take care that any person under his command when charged with an offence, is not detained in custody for more than 48 hours after the committal of such person into custody. In case detention of such person beyond a period of 48 hours is necessary, the reasons thereof shall be reported to the General or other Officers as defined under Sub-sec. (2). In this case, there can not be any dispute that by the letter, contained in Annexure-D, required intimation was already given to the High Command. Therefore, it can not be said that for non-compliance of the requirements of Sec. 102, arrest of Mr. Kumar has become illegal. 18. In the result, for the reasons stated above, we feel not inclined to interfere with the order of detention. But the order of transfer of Sri Kumar having been found illegal, is hereby quashed, and the petition is thus disposed of.