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2002 DIGILAW 331 (GAU)

Bhagaban Talukdar v. Union of India

2002-08-08

RANJAN GOGOI

body2002
R. GOGOI, J.: The challenge in the present writ application is against the order dated 22.5.96 passed in a Summary Court Martial held against the petitioner in respect of a charge of using criminal force against his superior officer brought vide chargesheet dated 13.5.96. A sentence of imprisonment as well as dismissal from service having been imposed, the present writ application was instituted calling into question the aforesaid order. The present writ application was initially allowed by this Court on the basis of the ratio of the law laid down by a Division Bench of this Court in the case of Hemantakumar Rathor Vs. Union of India & Ors. The aforesaid decision of the Division Bench in the case of Hemantakumar Rathor (supra) having been reversed by the Full Bench of this Court in the case of Union of India Vs. SPR CLK Jamil Ahmed, reported in 2001(1) GLT 572, an appeal against the order allowing the present writ petition was filed and a Division Bench of this Court by order dated 20.9.2001 set aside the order of the learned Single Judge allowing the writ petition and remained the matter for reconsideration on such other points which may be open to the writ petitioner to urge. It is pursuant to the order passed by the Division Bench that this case has been taken up for consideration. ' 2. Mr. J.M. Choudhury, learned Sr. counsel appearing for the writ petitioner has urged one solitary ground in respect of the challenge made in the writ application. According to the learned Sr. counsel, the impugned order passed in the Court Martial held against the writ petitioner is vitiated in law on account of non-compliance of the provisions of Rule 115 of the Army Rules, 1954 framed under the provisions of the Army Act, 1950. It has been urged by Mr. Choudhury that the record of proceedings of the Court Martial as enclosed to the writ petition would go to show non-compliance with the provisions of Rule 115(2) of the Army Rules, 1954 and such non-compliance, according to the learned counsel, has the effect of vitiating the sentence as well as the dismissal order passed in the case of the petitioner. The provisions of Rule 115(2) on which reliance has been placed by the learned Sr. The provisions of Rule 115(2) on which reliance has been placed by the learned Sr. counsel may be usefully extracted hereinbelow :- "(2) If an accused person pleads "Guilty" that plea shall be recorded as the finding of the Court; but before it is recorded, the court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea, and in particular of the meaning of the charge to which he has pleaded guilty, and of the difference in procedure which will be made by the plea of guilty, and shall advise him to withdraw that plea if it appears from the summary of evidence (if any) or otherwise that the accused ought to plead not guilty." 3. A perusal of the records in original produced by Mr. B.M. Choudhury, learned C.G.S.C. would go to show that in the minutes of the proceedings of the Summary Court Martial, it is recorded that the charge being explained, the charged Officer pleaded guilty thereafter made the Presiding Officer made the following endorsement :- "Before recording the plea of guilty offered by the accused, the Court explained to him the meaning of charge to which he had pleaded guilty and ascertaining that the accused understands the nature of the charge to which he has pleaded guilty. The Court also explained the general effect of plea and the difference in procedure to be followed consequent to said plea. The Court having satisfied itself that the accused has understood the charge and effect of his plea of guilty, accepts and records the same." 4. Mr. J.M. Choudhury, learned Sr. counsel, on perusal of the records in original, has contended that endorsement recorded as reproduced hereinabove do not satisfy the requirement of Rule 115(2). According to the learned Sr. counsel, the endorsement is in effect a mere reproduction of the language of Rule 115(2) and such reproduction would not satisfy the requirements of the aforesaid provisions of the Rules. According to the learned Sr. counsel, the Presiding Officer of the Court Martial ought to have recorded the details of the charge as had been explained as well as of the possible consequence that may follow if the finding of plea of guilt is recorded, as pointed out to the charged Officer. 5. Mr. B.M. Choudhury, learned Addl. According to the learned Sr. counsel, the Presiding Officer of the Court Martial ought to have recorded the details of the charge as had been explained as well as of the possible consequence that may follow if the finding of plea of guilt is recorded, as pointed out to the charged Officer. 5. Mr. B.M. Choudhury, learned Addl. C.G.S.C., on the other hand, while controverting the submissions advanced by Mr. J.M. Choudhury, learned Sr. counsel, has contended that the writ petitioner / charged Officer by virtue of the position held by him must be understood to have full realisation of the gravity of charge brought against him as well as possible consequences that may visit him on his plea of guilt being recorded. According to the learned Addl. C.G.S.C., the endorsement made by the Presiding Officer of the Court Martial in the minutes of the proceedings would go to show that the charge against the Officer had been explained to him as also general effect of the plea of guilt being recorded. In such a situation, it is contended by the learned Addl. C.G.S.C., that there has been full compliance with the provisions of Rule 115(2) of the Army Rules, 1954. 6. I have considered the submissions advanced on behalf of the rival parties. The provisions of Rule 115(2) of the Army Rules confers an additional protection to the charged Officer to ensure that the plea of guilt as made by the charged Officer has been made voluntarily and upon full realisation of the possible adverse consequence. In the very nature of things, the recording made in the course of the proceedings of the Court Martial in compliance with the provisions of Rule 115(2) cannot be put in any strait jacket formula. What is important is not the language used but the substance of the matter. The charged Officer had held the post of a skilled worker (Mechanic) in the army establishment. The Presiding Officer of the Court Martial in his endorsement, as reproduced in the earlier part of the present judgment, had categorically recorded that the charge to which he had pleaded guilty had been explained to him and that the Presiding Officer had ascertained that the accused had understood the nature of the charge. The Presiding Officer of the Court Martial in his endorsement, as reproduced in the earlier part of the present judgment, had categorically recorded that the charge to which he had pleaded guilty had been explained to him and that the Presiding Officer had ascertained that the accused had understood the nature of the charge. The Presiding Officer has further recorded that he had explained to the charged Officer the general effect of the plea of guilt being recorded to the satisfaction of the Presiding Officer that the accused understood the charge and the possible consequences of plea of guilt being recorded is also mentioned. In such a situation, it would be difficult for the writ Court in exercise of its limited jurisdiction of overseeing the fairness of procedure adopted to conclude that in the instant case, there has been any infraction of Rule 115(2) of the Army Rules, 1954. The language used while recording the satisfaction, mandatorily required under the provisions of Rule 115(2), in the considered view of the Court, is of no significance and on consideration of the records as produced in original, this Court is inclined to take the view that in the facts of the present case, the provisions of Rule 115(2) have been fully complied with by the authority. 7. For the foregoing reasons, I do not find any merit in the present writ application and the same, therefore, shall stand dismissed but without any costs.