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2001 DIGILAW 431 (PNJ)

Balbir Singh Saini v. Union Of India

2001-04-18

N.K.SODHI, R.C.KATHURIA

body2001
JudgmentJudgment R.C.KATHURIA, J. 1. Shri Balbir Singh Saini-petitioner has prayed for issuance of a writ of mandamus to respondent No. 2 to delete the portion of proceedings recorded in the case of Squadron Leader K.S.V. Bhupesh by the General Court Martial held at Ambala relating to the petitioner and in particular proceedings dated 20-10-2000, copy of which is Annexure-P-1. 2. According to the stand of the petitioner Squadron Leader K.S.V. Bhupesh accused is being tried by the General Court Martial assembled at Ambala. He has been engaged to defend the accused in that case. During the course of the trial on 20-10-2000, the Presiding Officer of the General Court Martial read out from a piece of paper "defence counsel is excluded from the Court." Soon after he requested the Presiding Officer to supply him the copy of the order upon which the Judge Advocate had shouted at him. "You want written order? Get out and clear the Court." Against the oral order of his exclusion from Court proceeding, he had filed C.W.P. No. 14779 of 2000 which was allowed to be withdrawn with the permission to file afresh after obtaining a copy of the order. As the copy of the order was not supplied to him, he had to file another Civil Writ Petition No. 15080 of 2000. Copy of the order dated 20-10-2000 (Annexure-P.1) was accordingly supplied to him in the Court on 13-2-2001 and thereafter he filed the present petition. It has been averred by him that the proceeding has been conducted in violation of Rules 97 and 99 of the Air Force Rules, 1969 (hereinafter referred to as the Rules) as no shorthand writer was present in the Court for taking down the proceedings in shorthand. Even there was no Typist in the Court at that time and the facility of computer typing was not provided for the purposeof recording the Court proceedings. In fact, no proceedings were recorded by the Presiding Officer or the Judge Advocate in his presence and for that reason the documents prepared during the course of trial on 19-10-2000 and 20-10-2000 are false documents. It was also pleaded that in the proceedings recorded on 18-10-2000 leading questions were allowed to be put to the witness despite his objection with regard to hearsay evidence and the identification of the accused was got done from him. It was also pleaded that in the proceedings recorded on 18-10-2000 leading questions were allowed to be put to the witness despite his objection with regard to hearsay evidence and the identification of the accused was got done from him. His objection was only recorded once in the proceedings prepared. Convening of the General Court Martial as per order dated 30-6-2000 has been assailed being in violation of the provisions of Rules 97 and 99 of the Rules. The further case of the petitioner is that the General Court Martial was not competent to record the proceedings regarding anything done by him in defence of the accused on 20-10-2000 and pass the order excluding him to appear before the said Court on account of his having committed contempt of Court. On these premises he has invoked jurisdiction of this Court under Article 226 of the Constitution. 3. We have heard the petitioner in person. The grievance of the petitioner is in two-fold. First grievance relates to the procedure which was followed by the General Court Martial during the course of trial conducted against Squadron Leader K. S. V. Bhupesh. The other is with regard to the utterances attributed to the petitioner during the proceedings and the consequential action taken in this regard as recorded in the proceeding on 20-10-2000, copy of which is Annexure-P. 1. 4. Dealing with the points in issue in seriatim, it has to be noticed that Squadron Leader K.S.V. Bhupesh has not challenged the composition of the General Court Martial and the proceedings conducted by the General Court Martial after it assembled in pursuance to the order dated 20-10-2000. Therefore, the petitioner cannot substitute himself for his client and is not entitled to personally invoke the jurisdiction of this Court to challenge the same. 5. Coming to the other submission made, it would be appropriate to notice the relevant portion of the proceedings qua which challenge has been made by the petitioner. It reads as under : "NINTH DAY :On the Twentieth day of October, 2000 at 2000 hrs. the Court reassembles pursuant to adjournment, present same members and the Judge Advocate as on Nineteenth day of October, 2000. The Defence Counsel, in a loud voice, acompanied by gestures shouts as follows :- "YOU PEOPLE HAVE ASSEMBLED TO TRY THE ACCUSED. YOU HAVE NO JURISDICTION OVER ME. YOU CANNOT COMMENT ON MY CONDUCT. the Court reassembles pursuant to adjournment, present same members and the Judge Advocate as on Nineteenth day of October, 2000. The Defence Counsel, in a loud voice, acompanied by gestures shouts as follows :- "YOU PEOPLE HAVE ASSEMBLED TO TRY THE ACCUSED. YOU HAVE NO JURISDICTION OVER ME. YOU CANNOT COMMENT ON MY CONDUCT. I DO NOT CONSIDER YOU PEOPLE (POINTING TOWARDS THE COURT) AS A COURT. YOU CANNOT ASK ANY EXPLANATION FROM ME ANY TOM DICK AND HARRY CANNOT BE A COURT. YOU DO NOT KNOW WHO I AM AND WHAT I CAN DO TO YOU." The Judge Advocate advises the Defence Counsel to cool his temper and address the Court in a respectful manner. The Judge Advocate further informs the counsel that if he is unable to control his emotions, he may leave the Court till he controls himself.The Defence counsel sits down on his chair. Further he takes out a copy of submission to the Court in an affidavit form. The counsel hands over the said affidavit to the Court. When the Presiding Officer confirmed from the Defence counsel as to whether he had included in the affidavit whatever he had stated before the Court, the counsel replied that it was not. When the Judge Advocate asked the counsel for copies of his submission, the counsel again started shouting "you have no right to ask me for copies. Yesterday, you dictated the allegations to me and made me to write down. I am giving one copy to you and you may make whatever number of copies you want."Exh. Y- Submissions by the Defence counsel is read marked Exh. Y signed by the Judge Advocate and attached to the proceedings.The Court is closed to consider the submissions made by the Defence counsel.Decision : The Court decides to exclude Shri B. S. Saini, Advocate from the General Court Martial for the following reasons :- (a) The counsel has committed contempt of Court, and is continuing to treat the Court with contempt. (b) Even after repeated opportunities, the counsel has refused to amend his offensive behaviour. (c) The above necessitates initiation ofcontempt proceedings against the individual in a Court of competent jurisdiction. (d) Now that the contempt proceedings need to be initiated against the counsel, on behalf of the Court, it will be inappropriate for the counsel to appear before the same Court, in his capacity to represent the accused. (c) The above necessitates initiation ofcontempt proceedings against the individual in a Court of competent jurisdiction. (d) Now that the contempt proceedings need to be initiated against the counsel, on behalf of the Court, it will be inappropriate for the counsel to appear before the same Court, in his capacity to represent the accused. The Court is opened and the above decision is announced.Shri B. S. Saini, Advocate withdraws from the Court, Shri P. Gaur, Advocate, the Assistant Counsel also withdraws from the Court along with the Defence counsel." 6. It cannot be disputed that the provisions of Indian Evidence Act, 1872, (hereinafter referred to as the Act of 1872) apply to all the proceedings before the General Court Martial as laid down in Section 32 of the Act. It also has powers to summon witnesses and appoint commission for examination of the witnesses. Detailed procedure has been provided under the Rules for taking down the evidence and the manner in which the trial of the accused has to be conducted. The responsibility of the Presiding Officer to conduct the trial in a proper order has been laid down in Rule 83. It has also been emphasized, that he should take care that everything is conducted in a manner befitting the Court of justice. Equally Rules 105 and 106 of the Rules of 1969 guarantees the counsel representing the prosecution and the accused free hand to perform their duties subject to one rider that both are liable to be stopped and restrained by the Court Martial in the manner provided in sub-rules (2) and (3) of Rule 84 of the Rules. While examining the contraversy it cannot be ignored that the obligation of the counsel representing the accused has been clearly specified in Rule 106 of the Rules. At this stage, it would be appropriate to notice the provisions of Rule 84 which reads as under :- "84. While examining the contraversy it cannot be ignored that the obligation of the counsel representing the accused has been clearly specified in Rule 106 of the Rules. At this stage, it would be appropriate to notice the provisions of Rule 84 which reads as under :- "84. Power of Court over address of prosecutor and accused.- (1) It shall be the duty of the prosecutor to assist the Court in the administration of justice, to behave impartially, to bring the whole of the transaction before the Court, and not to take any unfair advantage of or suppress any evidence in favour of the accused.(2) The prosecutor may not refer to any matter, not relevant to the charge or charges than before the Court and it is the duty of the Court to stop him from so doing and also to restrain any undue violence of language or want of fairness or moderation on the part of the prosecutor.(3) The Court shall allow great latitude to the accused in marking his defence; he must abstain from any remarks contemptuous or disrespectful towards others, but he may for the purpose of his defence impeach the evidence and the motives of witnesses and prosecutors, and charge other persons with blame and even criminality subject, if he does so, to any liability to further proceedings to which he would otherwise be subject. The Court may caution the accused as to the irrelevance of his defence, but shall not, unless in special cases, stop his defence solely on ground of such irrelevance." 7. The above provisions of sub-rule (3) of Rule 84 leave no manner of doubt that not only the Court Martial is empowered to caution the counsel for the accused to the irrelevance of his stand but he can also be stopped on the ground of such irrelevancy. In this case, the General Court Martial, during the course of trial, had recorded the utterances attributed to the counsel for the accused contained in Annexure-P. 1 quoted above. It is also stated that the General Court Martial had decided to initiate contempt proceedings and for that reason had prevented him from appearing before it. The order of exclusion of the counsel for the petitioner to take part in the trial proceedings is an integral part on the basis of which contempt proceedings are sought to be initiated. It is also stated that the General Court Martial had decided to initiate contempt proceedings and for that reason had prevented him from appearing before it. The order of exclusion of the counsel for the petitioner to take part in the trial proceedings is an integral part on the basis of which contempt proceedings are sought to be initiated. The fact remains that so far no reference has been made in this regard by the General Court Martial as is apparent from the material produced before us by the petitioner. Therefore, at this stage, the order of exclusion of the counsel for the petitioner from the proceedings to be conducted by the General Court Martial which have been assailed in the present petition cannot be read in isolation of the context of the circumstances under which it came to be recorded. The question as to what extent freedom of expression and arguments is given to the counsel practising the profession of law is not required to be gone into at this stage as his prayer relates only to deletion of above noted portion from the record of the proceedings of the General Court Martial. 8. In view of the facts and circumstancesof the case noted above, no case for exercise of our jurisdiction under Article 226 of the Constitution of India has been made out. Consequently, we dismiss the petition.