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2000 DIGILAW 1332 (RAJ)

Sunil Tiwari v. Union of India

2000-11-08

G.L.GUPTA, J.C.VERMA

body2000
JUDGMENT 1. - The petitioner who was holding the rank of Lance Naik and was posted at Military Hospital at Nasirabad at the relevant time had approached this court for quashing the order passed by the Court Martial, whereby he was found guilty of the charge of Section 69 of the Army Act, 1950 read with Section 307 Indian Penal Code and was sentenced to three years rigorous imprisonment with dismissal from service. 2. The main contentions as put forward by the counsel for the petitioner are, (1) That the finding of the Court Martial against the petitioner is perverse and is not based on evidence; (2) The order of conviction is cryptic and non-speaking and does not discuss or refer to the important witnesses; (3) The impugned order does not even discuss or mention the defence put forward by the petitioner nor the defence has been dealt with; (4) The impugned order does not even refer to the statement of certain witnesses and the conduct of Subhash Kumar. (5) For the above said grounds and reasons the detention of the petitioner is rendered illegal. 3. The prosecution story as put before the Court Martial was that on 2.7.1993 at about 10.15 p.m. while one Subhash Kumar, an injured army personnel produced as PW.11, while having certain discussion with the Sipoy P. Swami and his wife on the road; was stabbed by some person. Said Subhash Kumar was removed to the hospital where he was treated. At the time of incident apart from Subash Kumar there was no body present except P.Swami and his wife. However, after some time, many other people had collected at the spot when the assailant had already run away. 4. It is also in the evidence produced by the prosecution itself that at the time of admission in the hospital, the injured was conscious and on being asked by the medical staff and other officers, he had categorically stated that he did not know the assailant. He had shown total ignorance of the identity of assailant. This evidence has come on record through the statement of number of prosecution witnesses and for the first time the injured started naming the petitioner after about 3-4 days when he was still in the hospital. 5. He had shown total ignorance of the identity of assailant. This evidence has come on record through the statement of number of prosecution witnesses and for the first time the injured started naming the petitioner after about 3-4 days when he was still in the hospital. 5. It is also the story of the prosecution that the injured was stopped by P. Swami on the road and was threatened by P. Swami not to use that road for the purpose of passage for the reason that the injured was having bad intention towards the wife of said P. Swami. The injured had also stated in the evidence that the wife of P. Swami used to make advances whenever he used to pass that way by making certain gestures which he had narrated in the evidence. There is no link what-so-ever in the evidence as to how the petitioner is linked for attacking the injured all of a sudden. 6. P. Swami has also appeared in the Court Martial proceedings as a prosecution witness and had categorically stated that the petitioner was innocent and that he had not committed any crime. The wife of P. Swami who was present at the spot had not been produced. The other witnesses mostly state that at the initial stage the injured had not disclosed the name of the assailant as he was still admittedly not knowing the assailant, but later on had started naming him after few days while he was in the hospital. 7. The other witnesses mostly state that at the initial stage the injured had not disclosed the name of the assailant as he was still admittedly not knowing the assailant, but later on had started naming him after few days while he was in the hospital. 7. There is hardly any necessity for this court to narrate or reproduce the statement of the witnesses produced by the prosecution in the present case, but on the evidence as produced by the prosecution as narrated above, the following facts come to light: (1) That at the time of assault, the injured Subhash Kumar PW-11 did not know the assailant as has been confirmed by number of other prosecution witnesses before whom the said injured had given statement at the time of admission in the hospital; (2) The person who was present at the time of attack was P.Swami PW-16 only and he has categorically stated in the evidence as prosecution witness that the petitioner was not involved in the crime and had not attacked the injured Subhash Kumar; (3) There is nothing on the evidence to show that the petitioner had any reason or grievance or motive to attack Subhash Kumar; (4) There was some quarrel between P. Swami and the injured in the presence of the wife of P.Swami whereby said Swami had taken an objection asking the injured not to use that passage of family quarters for the reasons that he had suspicion about the relations of the injured with his wife. 8. The counsel for the petitioner is aware of this fact that this court cannot reappraise the evidence for reaching a different conclusion as an appellate court, but submits that the order is perverse for the reason that no reasonable man could reach such a conclusion after reading the evidence as had been arrived at by the Court Martial and, therefore, submits that the order is to be quashed as being perverse and based on no evidence which renders the detention of the petitioner as illegal. 9. The next argument of the petitioner is that the Court Martial had commenced on 10.10.1995. The prosecution had examined as many as 17 witnesses and had exhibited 27 documents. The prosecution evidence was closed on 17.11.1995. The case was adjourned to 20.11.1995 when the petitioner/accused in the Court Martial was examined under Rule 58 of the rules framed under the Army Act. The prosecution had examined as many as 17 witnesses and had exhibited 27 documents. The prosecution evidence was closed on 17.11.1995. The case was adjourned to 20.11.1995 when the petitioner/accused in the Court Martial was examined under Rule 58 of the rules framed under the Army Act. To the question put to the petitioner accused whether he wanted to say anything in defence, he had given a statement in writing which was exhibited as Ex.GG as well. 10. On 20.11.1995, the prosecution had submitted a statement in writing as closing evidence as Ex.HH and the case was adjourned to 22.11.1995 for preparing the statement of defence by the accused petitioner. The statement of defence was produced by the petitioner which was exhibited as Ex.JJ. The Judge advocate had also submitted his summing up in writing which was submitted as Ex. KK. 11. The Court Martial was adjourned to the next day i.e. 21.11.1995. The court was closed for the purpose of giving findings and on the same day finding was given against the petitioner which has been attached as Annexure-6 to the writ petition as impugned order. The reasons given by the Court Martial for convicting the petitioner are as under:(Reproduction of impugned order Annexure-6) "The Court, after hearing considered the entire facts and circumstances on record, has found the accused GUILTY of the charges. 1. The Court places reliance on the emphatic testimony of Gnr (DMT) Subhash Kumar that on the night of 2nd July, 1993, he was stabbed by the accused in the abdomen. The natural course of events in which Gnr (DMT) Subhash Kumar had recalled the fact of stabbing by the accused to Naik Nursing Assistant Raju in the MI Room only corroborated by the evidence of Naik Nursing Assistant Raju and colonel Sethia also lends credence to the statement of Gnr (DMT) Subhash Kumar. The accuracy of entire evidence proves it beyond reasonable doubt that Gnr (DMT) Subhash Kumar was under threat to his life by the accused since June 1993 and the said threat culminated into execution on 2nd July 1993. 2. The intention of the accused to murder Gnr Subhash Kumar was unmistakably inferable from his conduct at the site of incident in which he was trying to get himself released from sepoy Palani Swami and was trying to stab Gnr (DMT) Subhash Kumar again by pointing his knife towards him. 2. The intention of the accused to murder Gnr Subhash Kumar was unmistakably inferable from his conduct at the site of incident in which he was trying to get himself released from sepoy Palani Swami and was trying to stab Gnr (DMT) Subhash Kumar again by pointing his knife towards him. The utterances of the accused at the relevant time having been brought on record through Gnr (DMT) Subhash Kumar also reflect the intention of the accused. The type of 'weapon used by the accused and the nature of injury on the abdomen of Gnr (DMT) Subhash Kumar as revealed by Major Rakesh Gupta is relied by the Court fully to substantiate the requisite intent of the accused to kill Gnr (DMT) Subhash Kumar. Last but not the least, the Court does not find any reason to disbelieve that Gnr (DMT) Subhash Kumar was threatened by the accused in Intensive Care Unit on 4 July 1993 and later on in Surgical-I ward. 3. The demeanour and conduct of Sepoy Palani Swamy during examination in the court and the inbuilt inconsistencies in his testimony do not convince the court to place any reliance on his version of the incident. In the light of the above and considering the evidence on record in its entirety the court finds the accused GUILTY of the charge." 12. After finding him guilty the Court Martial had asked the accused to address the court if he so wanted to, wherein the petitioner had stated that he wanted to serve the Army as his father was also in the Army. He stated that he had no temptation for money even though he could earn more money in civil and he wanted to continue wearing the uniform, but on the same day he was convicted for three years and dismissed from service as is clear from the Court Martial proceedings. 13. Counsel for the petitioner states that the statement made by the petitioner as Annexure-GG and also his defence argument Annexure-JJ are on the record which was submitted in the proceedings of Court Martial, but while returning the finding against the petitioner no reference has been made to the defence version of the petitioner. 14. 13. Counsel for the petitioner states that the statement made by the petitioner as Annexure-GG and also his defence argument Annexure-JJ are on the record which was submitted in the proceedings of Court Martial, but while returning the finding against the petitioner no reference has been made to the defence version of the petitioner. 14. In the statement Annexure-GG, the petitioner had brought out certain circumstances creating suspicion on the prosecution story in regard to the weapon of offence, blood stained clothes, motive of offence and also throwing a counter defence story of the fact P. Swami himself being involved in the crime; the non-worthiness of the statement of the witnesses; demeanour and behaviour of the witnesses, categorical statement of P. Swami to the effect that the petitioner was not involved in the case, non-enmity with the injured; knowing the injured previous to the incident and futility of the so called identification parade; inspection of the site by the Court after lapse of about two years; statement of the prosecution witnesses supporting the accused i.e. Col. A.K. Malviya and also certain legal objections in regard to producing the evidence and the procedure of the Court Martial. 15. Counsel for the petitioner states that none of the submissions made in defence in regard to the prosecution witnesses who had not supported the prosecution and had rather supported the story of the petitioner, had been referred to or discussed in Annexure-6. It is further contended that there is no application of mind by the Court Martial and deprivation of liberty of the petitioner of three years by putting him in imprisonment and consequently taking away his livelihood has violated his legal right and thus the impugned order cannot be sustained and the detention of the petitioner is illegal. 16. Counsel for the petitioner relies on the authority (1) Union of India vs. Major A. Hussain (1998) 1 SCC 537 ( AIR 1998 SC 577 ) for the proposition that the Court Martial proceedings are subject to judicial review under Article 226 of the Constitution of India. It was held that the Court Martial proceedings and its nature of functions are judicial. It was held by the Apex Court that it is for the special need of the armed forces that a person subject to Army Act is tried by Court Martial for an act which is an offence under the Act. It was held that the Court Martial proceedings and its nature of functions are judicial. It was held by the Apex Court that it is for the special need of the armed forces that a person subject to Army Act is tried by Court Martial for an act which is an offence under the Act. Court Martial discharges judicial function and to a great extent is a court where provisions of Evidence Act are applicable and it has got the same responsibility as any court to protect the rights of the accused charged before it and to follow the procedural safeguards. The Supreme Court further held that the general Court Martial is to take into consideration all the evidence and other materials produced before it and after considering all the evidence, the court finds the respondent guilty of the charge then no interference is called for. 17. In the case of (2) General Court-Martial and others Vs. Col. Aniltej Singh Dhaliwal (1998) 1 SCC 756 ( AIR 1998 SC 983 ) the contention of the respondent was negatived to the effect that the court martial had not taken into consideration Ex.AW. It was found that the court martial had expressly referred to the evidence of Lt. Col. Khosla himself with the context of evidence Ex. AW. It was held that the High Court should not have interfered in the proceedings of the court martial as there was no omission on the part of the court martial to consider the relevant evidence. 18. In the case of (3) M.S. Bindra Vs. Union of India and others (1998) 7 SCC 310 , it was held on facts the three cases which formed the basis for proceeding against the appellant do not reveal anything for which the appellant's integrity should have been doubted. It was held that there was utter dearth of evidence to support conclusion of Screening Committee that the delinquent official was of doubtful integrity and the conclusion does not stand judicial scrutiny even within limited permissible scope. 19. In the case of (4) S.N. Mukherjee Vs. It was held that there was utter dearth of evidence to support conclusion of Screening Committee that the delinquent official was of doubtful integrity and the conclusion does not stand judicial scrutiny even within limited permissible scope. 19. In the case of (4) S.N. Mukherjee Vs. Union of India 1990(5) SLR it was held that the important consideration of recording the reasons in its decision by the Administrative Tribunal is for the reason that it is subject to the appellate jurisdiction under Article 136 of the Constitution of India as it was supervisory jurisdiction of the High Court under Article 227 of the Constitution of India and the reasons, if recorded, would enable High court to effectively exercise the appellate or supervisory jurisdiction and the requirement of recording reasons-(i) guarantee consideration by the authority; (ii) introduce clarity in the decision; (iii) minimise chances of arbitrariness in decision-making. It was held that the High Court under Article 226 had the power of judicial review in respect of proceedings of courts martial and the proceedings subsequent thereto, and can grant appropriate relief if the said proceedings have resulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said proceedings suffer from a jurisdictional error or any error of law apparent on the face of record. 20. Even though the Apex Court in S.N. Mukherjee Vs. Union of India 1990(5) SLR 8 had held that the reasons are not required to be recorded for an order passed by the confirming authority, confirming the findings and sentence recorded by Court Martial as well as for the order passed by the Central Government dismissing the post-confirmation petition; an express provision has been made for recording of reasons based on merits of the case in relation to the proceedings of the summary court-martial in cases where the said proceedings are set aside or the sentence is reduced and no other requirement for recording of reasons is laid down either in the Act or in the Rules in respect of proceedings for confirmation. Therefore, the only inference that can be drawn from Section 162 is that reasons have to be recorded only in cases where the proceedings of a summary court-martial are set aside or the sentence is reduced and not when the findings and sentence are confirmed. Therefore, the only inference that can be drawn from Section 162 is that reasons have to be recorded only in cases where the proceedings of a summary court-martial are set aside or the sentence is reduced and not when the findings and sentence are confirmed. It was held that with regard to recording of reasons, the considerations which apply at the stage of recording of findings and sentence by the court martial and at the stage of confirmation of findings and sentence of the court martial by the confirming authority are equally applicable at the stage of consideration of the post-confirmation petition. Since reasons are not required to be recorded at the first two stages referred to above, the said requirement could not be insisted upon at the stage of consideration of post-confirmation petition. The position has since changed after amendment of the Rule 62(1) of the Army Rules wherein it is now mandatory to record reasons on every charge. Rule 62(1) as amended is reproduced as under: 62(1) The finding on every charge upon which the accused is arraigned shall be recorded and, except as provided in those rules, shall be recorded as finding of "Guilty" or of "Not Guilty". After recording the finding on each charge, the court shall give brief reasons in support thereof. The judge advocate or, if there is none, the presiding officer shall record or cause to be recorded such brief reasons in the proceeding. The above record shall be signed and dated by the presiding officer and the judge advocate if any.' 21. In the latest judgment of the Apex Court in (5) Union of India and another Vs. Charanjit S. Gill and others (2000) 5 SCC 742 , it was held by the Hon'ble Supreme Court that even today the law remains static which requires to be changed keeping in view the observations made by the Supreme Court in (6) Prithi Pal Singh Bedi Vs. Union of India (1982) 3 SCC 140 . The time has come to allay the apprehension of all concerned that the system of trial by Court Martial was not the archetype of summary and arbitrary proceedings. Union of India (1982) 3 SCC 140 . The time has come to allay the apprehension of all concerned that the system of trial by Court Martial was not the archetype of summary and arbitrary proceedings. In the absence of effective steps taken by Parliament and the Central Government, it is the constitutional obligation of the courts in the country to protect and safeguard the constitutional rights of all citizens including the persons enrolled in the Armed Forces to the extent permissible under the law. It was observed by the Hon'ble Supreme Court that even after lapse of about two decades, neither the Parliament nor the Central Government appears to have realised their constitutional obligations, as were expected by this Court, except amending Rule 62 providing that after recording the finding in each charge the court shall give brief reasons in support thereof. The Judge-advocate has been obliged to record or caused to be recorded brief reasons in the proceedings. 22. In view of the above-said clear position of law, it goes without saying that if there is some evidence and that evidence has been believed by the Court Martial, this court cannot exercise the jurisdiction to act as an appellate court over the decision of the court martial or any of the subsequent orders. However, it is the duty of the court martial to examine the case and to give the reasons for coming to the conclusion by discussing or referring to the evidence for and against the officer charged. 23. After going through the order Annexure-6 which has been reproduced above in the judgment in extenso, the Court Martial Tribunal has only mentioned the name of the injured person as prosecution witness and one Naik Nursing Assistant Raju and Col. Sethi apart from mentioning that statement of P. Swami, prosecution witness PW-16 does not convince the court. Annexure-6 seems to be conclusion and cannot be termed as reasons. The petitioner had taken a specific defence. His statement was also recorded. He had given the statement in writing as well which was exhibited as Ex.GG; his defence arguments were Ex. JJ, but none have been referred to. As per the rules the summing up of the case was given by the defence as well as the Judge Advocate which have also been exhibited. His statement was also recorded. He had given the statement in writing as well which was exhibited as Ex.GG; his defence arguments were Ex. JJ, but none have been referred to. As per the rules the summing up of the case was given by the defence as well as the Judge Advocate which have also been exhibited. But the court martial has not even touched or mentioned either the defence version or the defence statement and as a matter of fact has not dealt with at all or any the submission made by the defence on behalf of the petitioner. 24. It is true that the court martial authorities are special Tribunal under the Army Act, but the rules of evidence are applicable to the proceedings of Court Martial. For reaching to the conclusion it is necessary for the Court Martial to deal in brevity in its order of conviction, the evidence produced by the prosecution, the defence taken up or submitted or produced by the respondent accused facing the trial and then to reach its conclusion with reasons. 25. In the present case as many as 17 witnesses were examined on behalf of the prosecution and some witnesses have contradicted the story of the prosecution which went contrary to the evidence of the injured. If the prosecution evidence is read as produced by the prosecution, there was evidence which rebutted the evidence of injured himself. The Court Martial authorities ought to have dealt with such situation and come to its independent conclusion which had been so brought out in the defence arguments Ex.GG and Ex.JJ. The evidence of the prosecution itself was closed on 22.11.1995, the statement of the accused was recorded immediately and on 23.11.1995 when the conviction was pronounced. In our opinion, it was the bounden duty of the Court Martial to deal with the defence version either by accepting or rejecting the same, but in no case the defence arguments could have been totally ignored or omitted completely. In our opinion, it was the bounden duty of the Court Martial to deal with the defence version either by accepting or rejecting the same, but in no case the defence arguments could have been totally ignored or omitted completely. Omission on the part of the Court Martial to consider the evidence which probably threw doubt and suspicion on the story of the prosecution, in our mind does violate the legal and the fundamental right of the petitioner for getting his case considered in accordance with law and in such situation without going into the other arguments raised by the counsel for the petitioner that the order was perverse or that no reasonable person could have reached such a conclusion, the detention of the petitioner vide the impugned order of conviction Annexure-6 and any other consequential order arising out of such order cannot be sustained in the eyes of law. 26. For the reasons that the petitioner is being detained on the basis of the order Annexure-6 which order does violate the fundamental and legal rights of the petitioner, the writ petition succeeds and the petitioner is to be set at liberty. 27. Vide order dated 21.7.1997, the sentence of the petitioner was suspended till the disposal of the present writ petition on furnishing a personal bond of the amount of Rs. 20,000/- and two sound and substantial sureties in the sum of Rs. 10,000/- each for his regular appearance in this court on each and every date of hearing, the bonds furnished by the petitioner are discharged.The petitioner is set at liberty.The writ petition is allowed. No order as to costs.Petition Allowed. *******