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2000 DIGILAW 662 (DEL)

BALWAN SINGH v. UNION OF INDIA

2000-08-09

C.M.NAYAR, M.S.A.SIDDIQUI

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M. S. A. Siddiqui ( 1 ) BY this petition under Article 226 of the Constitution of India, the petitioner seeks quashing of the court-martial proceedings held against him including the confirmation of sentence of imprisonment for life passed against him by the court-martial. ( 2 ) BRIEFLY stated, the facts giving rise to this petition are that a general court-martial under the Army Act (for short the Act ) was convened to try the petitioner for having committed murder of the deceased B. N. Tripathy on 30th May, 1992. After conclusion of the court-martial proceedings, the petitioner was held guilty of the offence of murder punishable under Section 302 Indian Penal Code and was sintenced to suffer inprisonment for life vide orders dated 26th May, 1993. . The petitioner filed a petition under Section 179 of the Act before the Chief of the Army Staff against his conviction and sentence and the same was dismissed vide orders dated 28th November, 1994. ( 3 ) THE petitioner has challenged validity of the impugned order of conviction and sentence on the following grounds: (A) that the court-martial ignored the broad features of the prosecution case and over-looked the material discrepancies ijn the evidence of the prosecution witnesses and the medical evidence and so its findings are vitiated; (b ). the inpugned order of conviction and sentence is vitiated for non-compliance with the mandatory requirements of Rules 22, 23, 24 and Rule 180 of the Army Rules; (c) That the petitioner s prosecution was bad for want of sanction under Section 197 of the Code of Criminal Procedure. ( 4 ) AT the outset, we must make it clear that the plenitude of power available to this Court under Article 226 of the Constitution is not the same as that avilable to a Court hearing an appeal against conviction. It is axiomatic that judicial review is not an appeal from a decision but a review of the mann in which the decision is made and the power of judicial review is meant to ensure that the judicial or quasi-judicial Tribunals exercising quasi-judicial powers do not exceed their statutory jurisdiction and correctly administer the law laid down by the statute under which they act. The judicial review is not designed to ensure that the conclusion which such Tribunal reached is necessarily correct in the eye of the Court; (B. C. Chaturvedi v. Union of India and Others, (1995) 6 SCC 749 ). In S. N. Mukherjee v. Union of India, AIR 1990 SC 1984 , it was held that the proceedings in respect of court-martial can be quashed in exercise of power of judicial review if they suffer from a jurisdictional error any error of law apparent on the face of the record. (See also Ex. Major R. S. Budhwar v. Union of India and Others, 58 (1995) DL T 339 (DB) ( 5 ) CHAPTER V of the Army Rules deals with investigation of charges. Rule 22 provides that every charge against a person subject to the Act other than an Officer shall have full liberty to cross-examine any witness against him and to call any witness and make any statement in his defence. The Commanding Officer shall dismiss the charge brought before him if, in his opinion, the wvidence does not show that an offence under the Act has been committed. Rule 23 prescribes the procedure for taking down the summary of evidence. Rule 24, provides for remand of the accused. ( 6 ) IN the instant case, the record of the court-martial proceedings reveals that a court of enquiry was ordered to investigate into the matter in accordance with the Army Rules. During the course of enquiry, in all thirteen witnesses were examined and adequate opportunity was given to the petitioner to cross-examine them. Thus, the petitioner was afforded full opportunity to be present throughout the proceedings in the court of enquiry in accordance with Rule 180 of the Army Rules and for submitting anything in his defence. That being so, no fault could be found with the recording of summary of evidence. The petitioner has been unable to show if there was non-compliance with the Rules 22, 23 and 24. Thus, there was no floagrant violation of any procedure or provision of the Army Act/rules causing any prejudice to the petitioner. It is also relevant to mention that a court of enquiry is primarily a fact finding body which is required to collect evidence and to make a report thereon. Thus, there was no floagrant violation of any procedure or provision of the Army Act/rules causing any prejudice to the petitioner. It is also relevant to mention that a court of enquiry is primarily a fact finding body which is required to collect evidence and to make a report thereon. It is set up whenever an incident occurs of which true and correct position is to be ascertained at precharge stage contemplated by law. It is not concerned with the determination of guilt. Moreover, a reference to Rule 149 of the Army Rules may be made which lays down that a court martial would not be held to be invalid even if there was an irregular procedure where no injustice was done. The Rule is as under :- "149. Validity of irregular procedure in certain cases - Whenever, it appears that a court-martial had jurisdiction to try any person and make a finding and that there is legal evidence or a plea of guilty to justify wuch finding and any sintence which the court-martial had jurisdiction to pass thereon may be confirmed, and shall, if so confirmed and in the case of a summary court-marial where confirmation is not nesessary, be valid, notwithstanding any deviation from these rules or notwithstanding that the charge-sheet has not been singed by the commanding officer or the convening officer, provided that the charges have, in fact, before trial been approved by the commanding officer and the convening officer or notwithstanding any defect or objiction, technical or other, unless it appears that any injustice has been done to the offender, and where any finding and sentenceare otherwise valid, they shall not be invalid by reason only of a failure to administer an oath or affirmation to the interpreter or shorthand writer; but nothing in this rule shall relieve an officer from any responibility for any wilful or negligent desregard of any of these rules. " ( 7 ) THE record reveals that the Commanding officer of the petitioner requested the trial of the petitioner by a court-martial which was approved by the convening authority. The petitioner was informed that he would be tried by court-martial and was advised to submit a list of defence witnesses. The petitioner was supplied with copy to the charge-sheet, copy of the court of enquiry proceedings and summary of proceedings. A defence counsel, namely Mr. The petitioner was informed that he would be tried by court-martial and was advised to submit a list of defence witnesses. The petitioner was supplied with copy to the charge-sheet, copy of the court of enquiry proceedings and summary of proceedings. A defence counsel, namely Mr. Prabin Mahanta, Advocate was provided to the petitioner for proper conduct of the defence of the case. This was done in accordance with Rule 96 of the Army Rules, which provides that a civil coucsel can also be allowed in court-martial to represent the accused subject to his being allowed by the convening officer. Thus, the petitioner was represinted by a counsel of his choice. It is significant to mention that during the cource of the proceedings, the defence counsel did not raise any grievance regarding non-compliance of the provisions of any rule of the Army Rules. We also find that full opportunity was granted to the petitioner to conduct his case and the proceedings could not be more fair. We further find that court-martial was presided over by an Officer of the rank of Colonel. The prosecution examined thirteen witnesses and also brought on record various documents. The petitioner was also examined by the court-martial. The court-martial meticulously juxtaposed the evidence of the prosecution witnesses of the disputed points and accepted the prosecution case. While exercising powers of judicial review under Article 226 of the Constitution, this Court cannot re-appeciate the evidence. On perusal of the record of the court-martial proceedings, we are satisfijed that proceedings of the court-martial had been conducted in accordance with the Act and Rules in a fair manner and every possible opportunity was afforded to the petitioner to defend his case. The evidence adduced by the prosecution is sufficient to sustain the conviction of the petitioner for the offence punishable under Section 320 Indian Penal Code. In Union of India and Others v. Major A. Hussian, 1998 SC 577, it was held that when there is sufficient evidence to sustain conviction, it is unnecessary to examine if pre-trial investigation was adequate or not. ( 9 ) LASTLY, learned counsel for the petitioner submitted that the petitioner s prosecution was bad for want of sancation under Section 197 of the Code of Criminal Procedure. We are not impressed by the said submission of the learned counsel for the petitioner. ( 9 ) LASTLY, learned counsel for the petitioner submitted that the petitioner s prosecution was bad for want of sancation under Section 197 of the Code of Criminal Procedure. We are not impressed by the said submission of the learned counsel for the petitioner. In Union of India and another v. Charanjit S. Gill and others, JT 2000 (5) SC 135, it was held that the court-martials under the Act are not courts in the strict sense of the term as understood in relation to inplementation of the civil laws. The proceedings before court-martial are more administrative in nature and of the executive type. That being so, the provisions of Section 197 of the Code of Criminal Procedure are wholly inapplicable to the court-martial proceedings under the Act. Consequently, we hold that the impugned order of conviction and sentence passed by the court-martial does not suffer from any legal infirmity warranting interference of this Court under Article 226 of the Constitution of India. For the foregoing reasons, the petition is dismissed. No costs.