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2004 DIGILAW 266 (JK)

Balbir Singh v. Union Of India

2004-09-24

PERMOD KOHLI

body2004
Conviction and award of sentence by the General Court Martial and its confirmation whereby the petitioner has been dismissed from service and imprisoned for 10 years rigorous imprisonment is sought to be challenged through the present writ petition. 2. Factual background as averred in the writ petition leading to the filing of the present petition is being noticed. 3. Petitioner was appointed as Sepoy on on 9-10-1978, he came to be promoted as Lance Naik in 1981 and Naik on 15-8-1982, He earned further promotion as Havaldar in August, 1988. In the year 1992 he was posted at Asansole where an FIR came to be registered against him under section 307/34 Indian Penal Code. Petitioner was accused of causing injury to one Master Mohinder Pal Singh a Civilian with intent to murder him. On being handed over to the Army Authorities he was charged for offence under section 307 read with section 34 Indian Penal Code and a charge-sheet in terms of section 69 of the Indian Army Act came to be served upon him on 21-2-1995 with the following charge: "The accuded (1) No. 2470609 P Naik (Paid Acting Havaldar) Balbir Singh; (2) No. 2469538M Havildar Gurmeet Singh, and (3) No. 2471540H Havildar Avtar Singh, all of 10th Bengal battalion, national Cadet Corps, Asansol, are charged with COMMITTING A CIVIL OFFENCE THAT IS TO SAY ATTEMPT TO MURDER, CONTRARY TO SECTION 307 OF THE INDIAN PENAL CODE READ WITH SECTION 34 OF THE INDIAN PENAL CODE In that they together, At Asansol on 12 Mar 1992, hit with a `Khukri, Master Mohinder Pal Singh, a civilian with intent to murder him and thereby wounded that said Master Mohinder Pal Singh in the head and rear of neck." 4. He was ordered to be tried by General Court Martial jointly with two other accused namely, Gurpreet Singh and Avtar Singh, who were also shown as co-accused in the FIR vide order dated 23-2-1995. Admittedly no Court of Inquiry was held and summary of evidence was ordered by General officer Commanding on 28-10-1994 which concluded on 16-1-1995. It is based upon the material/evidence collected during the summary of evidence that the charge-sheet came to be issued. The General Court Martial convened on 24-2-1995 under the orders of Major General, General Officer Commanding and the petitioner put to trial. It is based upon the material/evidence collected during the summary of evidence that the charge-sheet came to be issued. The General Court Martial convened on 24-2-1995 under the orders of Major General, General Officer Commanding and the petitioner put to trial. General Court Martial proceedings commenced on 4-3-1995 and the final order came to be passed on 8-7-1995, whereby the petitioner was convicted to undergo imprisonment for life and ordered to be dismissed from service. The conviction and sentence of the Court Martial was confirmed by General Officer Commanding, Bengal area vide order dated 12-8-1995. However, the sentence of imprisonment for life awarded by the General Court Martial was commuted to rigorous imprisonment for 10 years. 5. Statutory appeal preferred by the petitioner under section 164 of the Army Act came to be rejected vide order dated 9-6-1997. Petitioner was lodged in District Jail, Udhampur at the time of filing of this petition. 6. The challenge to the conviction and sentence is made on the following grounds: -- (a) The General Court Martial has been ordered by the General Officer Commanding, who was not empowered under section 109 of the Army Act. It is alleged that no convening order has been passed. (b) There is in-ordinate delay in trial of the petitioner. The convening and holding of Court martial was barred under section 123 of the Army Act. With a view to establish this point, it is stated that the occurrence took place on 12-3-1992, the charge-sheet was issued on 21-2-1995 and the Court Martial held the proceedings from March, 1995 to July, 1995. The Court martial was convened beyond the period of three years as prescribed under section 123 of the Army Act. (c) The provisions of Rules 22 and 23 have not been complied with in as much as there was no hearing on charge nor the petitioner was allowed opportunity to cross-examine the witnesses. (d) The procedural safe-guards provided under section 130 of the Army Act have not been followed in as much as the petitioner was not asked whether he is willing to be tried by the officers on the Board and the Court martial has not appreciated the evidence. There are contradictions in the evidence and the guilt has not been established against the petitioner. 7. The Union of India/Army Authorities have filed detailed objections. There are contradictions in the evidence and the guilt has not been established against the petitioner. 7. The Union of India/Army Authorities have filed detailed objections. The same were treated as counter vide interim order dated 13-11-2002. Giving details of incident, it is stated that on 12-3-1992 at 7.50 PM at Married JCOs/NCOs quarters at Polo Ground Asansol, one Master Mohinderpal Singh aged seven years the son of CHM Joga Singh, who was playing out-side the quarter on a cot was grievously struck on the head with a weapon (Khukhri). The mother of the child, namely, Smt Narinder kour, rushed out of the quarter on hearing the shrieks of the child and saw the child lying in a pool of blood. She saw the petitioner running away with weapon in his hand. She ran after him. Petitioner dropped his weapon. She shouted at him saying that she has recognized him. After a short-while Joga Singh, the father of the child also arrived at the Quarter on a scooter. On seeing his son injured he started shouting angrily. The child was taken to a Doctor. After admitting the child in the Hospital, he approached the Commanding Officers residence alongwith his wife and informed him about the incident. FIR was lodged at Hirapur Police Station, nominating the petitioner and Hav Gurmeet Singh and Hav Avtar Singh. Police registered FIR No. 23/1992 under sections 326/ 307/34 IPC and produced the charge-sheet in the court of Sub Divisional Judicial Magistrate at Asansole. The Army Authorities approached the Court and the Magistrate handed over the case to the Army Authorities vide his order dated 11-4-1994. There-after the Army Authorities proceeded in accordance with the prescribed procedure. The accused/ petitioner was brought before the Commanding Officer on 28-10-1994 and after hearing the accused summary of evidence was ordered on the same day, which concluded on 16-1-1995. During the recording of summary of evidence, the petitioner was given full opportunity to cross-examine the witnesses. It is further stated that the petitioner recorded his confessional statement during summary of evidence before the Commanding Officer and an independent witness. The General Officer Commanding was empowered by the Chief of Army Staff to convene the General Court Martial. The conviction and sentence awarded to the petitioner by the general Court Martial has been confirmed by the competent authority. However, the sentence of life imprisonment commuted to 10 years rigorous imprisonment. The General Officer Commanding was empowered by the Chief of Army Staff to convene the General Court Martial. The conviction and sentence awarded to the petitioner by the general Court Martial has been confirmed by the competent authority. However, the sentence of life imprisonment commuted to 10 years rigorous imprisonment. The statutory appeal stands rejected and communicated to the counsel for the petitioner. 8. I have heard the learned counsel for the parties and examined the record. I will take up the grounds of challenge for consideration in seriatim. 9. Ground No.1. Section 109 of the Army Act deals with the convening of General Court Martial and reads as under: -- "109. Power to convene a general court-martial- A general court-martial may be convened by the Central Government or {the Chief of the Army staff} or by any officer empowered in this behalf by warrant of any such officer." From the perusal of the afore-said section, it is evident that the General Court Martial can be convened by the Central Government or the Chief of the Army Staff or by any officer empowered by a warrant of the Chief of Army Staff. In the present case admittedly, the General Court Martial has been convened by Major General, General Officer Commanding. The only question that arises whether the said Officer was duly empowered by a warrant. Mr. Tashi, learned Additional Central Govt Standing Counsel has referred to Annexure-D to objections filed by him. There are notes appended to Section 109, Note-I refers to a warrant `A-I issued by the Chief of Army Staff to Officers Commanding Army Corps, Division/Area and independent brigade and to officers prescribed by the Central Government empowering them to conve the Court Martial. It is accordingly argued that there is a General warrant issued by the Chief of the Army Staff authorizing the officers Commanding Army to convene the Court Martial, and in view of the general empowerment the General Officer Commanding was competent to convene the court martial. In the record produced by Mr. Tashi, there is a convening order dated 24-2-1995 (exhibit-K) the relevant extract of which reads as under:- "Fork of order for the Assembly of a General Court Martial under the Army Act. Orders by IC-12959W Major General Sinha Kamal Dhari, UYSM, General Officer Commanding Bengal Area. In the record produced by Mr. Tashi, there is a convening order dated 24-2-1995 (exhibit-K) the relevant extract of which reads as under:- "Fork of order for the Assembly of a General Court Martial under the Army Act. Orders by IC-12959W Major General Sinha Kamal Dhari, UYSM, General Officer Commanding Bengal Area. Place: Calcutta Dated 24 Feb 1995 Sir, Please Check No.2470609 Naik (Paid Acting Havildar) Balbir Singh; No. 2469538M Havildar Gurmeet Singh and o.2471540H Havildar Avtar Singh, All of 10th Bengal battalion, National Cadet Corps, Asansol. The details of officers mentioned below will assemble at Central Vehicle Depot Panagarh on the fourth day of March 1995 for the purposes of trying by a General Court Martial the accused persons named in the margin (as such other person or persons as may be brought before them.) The senior officer to sit as Presiding Officer" The order also contained the names of the Members, Waiting Members, Judge Advocate and Prosecutor etc. Learned counsel for the petitioner has referred to case Union of India and others v. Harish Chandra Goswami, (1999) 4 SCC 575, wherein the Apex Court held as under: "Admittedly there is no record whatever in the file to show that the personnel of the Court-martial were appointed by or nominated by the Lt. General. The order for the assembly of a General Court martial did not contain either the signature or the initial of the Lt. General. It was signed only by the Colonel and none else. In the circumstances the said order cannot be considered to be an order evidencing the appointment of personnel of the court martial by the Lt. General. There is no dispute before us that under Rule 37, the Commanding Officer has to apply his mind to satisfy himself that the charges to be tried by the court are for offences within the meaning of the Act and that the evidence justifies the trial of those charges. It is also admitted that the Commanding Officer has also to satisfy himself that the case is a proper one to be tried by the kind of Court martial which he proposes to convene. It is also admitted that the Commanding Officer has also to satisfy himself that the case is a proper one to be tried by the kind of Court martial which he proposes to convene. However, learned counsel for the appellants contends that sub-rule (3) of Rule 37 is only procedural in nature and there is no need for the application of mind by the Commanding Officer in the matter of appointment of the personnel of the Court martial. That contention loses its relevance in the present case in view of the categorical stand taken by the appellant that there was an order by the Commanding Officer appointing or detailing the officers to form the court martial. According to the learned counsel as stated earlier, the form for assembly of a Court martial is the only relevant form and when it is signed by an officer on behalf of the Lt. General, that is sufficient proof of the appointment of the personnel of the court martial by the Lt. General. We are unable to accept this contention in view of the fact that the said form does not contain either the signature or the initial of the Lt.General. Even assuming that the Lt. General passed an oral order, there is no record of any kind whatever to prove it. The form for assembly of a court martial was not contemporaneous to such oral order, if any. In the absence of any record whatever to show that the appointment of the personnel of the court martial was by the Lt. General, we are not persuaded to accept the contention of the appellants that the requirements of Rule 37 were fully satisfied. It is unnecessary for us to consider whether sub rule (3) of Rule 37 requires an order in writing or not in view of the specific stand taken by the learned counsel for the appellants in this case that there was an order in writing and the said order was nothing else but the form for the assembly of the court-martial." 11. In another case Union of India & others v. Gurnam Singh, (2004) 4 SCC 636, the Apex Court observed as under: -- "16. In the instant case, the officiating General officer Commanding, Brig. Raj Kumar Singh approved the constitution of the Court Martial and the officers were detailed for the said purpose. In another case Union of India & others v. Gurnam Singh, (2004) 4 SCC 636, the Apex Court observed as under: -- "16. In the instant case, the officiating General officer Commanding, Brig. Raj Kumar Singh approved the constitution of the Court Martial and the officers were detailed for the said purpose. The proceedings dated 7-5-1987 are signed by Col R.N. Singh and it is stated that it is by the order of the Officer Commanding. Therefore, we find that there was no violation of sub-rule (3) of Rule 37. It is pertinent to note that the respondent did not raise any plea either under Rule 44 or under Rule 51 alleging that the Court Martial was not properly constituted." 12. On the other hand Mr. Tashi, learned counsel for the respondents has referred to a judgment of the Apex Court in case Maj General Inder Jit Kumar v. Union of India and Others, MLJ 1997 SC 92 where-under the Apex Court ruled that it is not necessary to issue specific warrant by the Chief of Army Staff and a general warrant issued by the Chief of the Army Staff under section 109 of the Army Act is sufficient compliance of the Section. The Apex Court in the afore-said case held as under: "The appellant next contends that the convening of the General Court martial in his case is not valid became under section 109 of the Army Act. A General Court Martial can be convened only by any officer who has been appointed by a specific warrant in that connection by the Chief of the Army staff. According to him a specific warrant must be issued in each case. Under section 109 of the Army Act, a General Court martial may be convened by the Central Government or the Chief of the Army Staff or by any other empowered in this behalf by warrant of the chief of the Army staff. There is nothing in Section 109 which requires the Chief of the Army Staff to issue a warrant for each specific case. A general warrant issued by the Chief of the Army staff as in the present case is competent under section 109". 13. In the present case the Note appended to section 109 clearly indicate a general authorization to all Officers Commanding Army for purposes of convening a General Court Martial. A general warrant issued by the Chief of the Army staff as in the present case is competent under section 109". 13. In the present case the Note appended to section 109 clearly indicate a general authorization to all Officers Commanding Army for purposes of convening a General Court Martial. Vide exhibit "K" in the record, the convening order re-produced hereinabove has been signed by K.D. Singh, Major general, General Officer Commanding, Bengal Area. The said Officer being an officer Commanding Army was competent to convene the Court Martial in view of a general warrant issued by the Chief of Army Staff. Therefore, the judgment in case Union of India v. Gurnam Singh (supra) clearly deal with the said situation. In the said case though the convening order was signed by a subordinate officer but was approved by the General Officer Commanding and the Apex Court held the same to be legal and valid. In the present case the convening order itself has been signed by the General officer Commanding. Both the contentions of the learned counsel for the petitioner that the convening officer had no authority to convene the General Court Martial and there is no convening order on record are not sustainable. 14. Ground No.2. Section 122 of the Army Act prescribe the period of limitation for trial by the Court Martial and reads as under:- "122. Period of limitation for trial -- (1) Except as provided by sub-section (2) no trial by court martial of any person subject to this Act for any offence shall be commenced after the expression of a period of three years and such period shall commence -- (a) on the date of the offence; or (b) where the commission of the offence was not known to the person aggrieved by the offence or to the authority competent to initiate action, the first day on which such offence comes to the knowledge of such person or authority, whichever is earlier; or (c) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the authority competent to initiate action whichever is earlier. (2) The provision of sub-section (1) shall not apply to a trial for an offence of desertion or fraudulent enrolment of for any of the offences mentioned in section 37. (2) The provision of sub-section (1) shall not apply to a trial for an offence of desertion or fraudulent enrolment of for any of the offences mentioned in section 37. (3) In the computation of the period of time mentioned in sub- section (1), any time spent by such person as a prisoner of wear or in enemy territory or in evading arrest after the commission of the offence, shall be excluded; (4) No trial for an offence of desertion other than desertion on active service or of fraudulent enrolment shall be commenced if the person in question not being an officer, has subsequently to the commission of the offence, served continuously in any exemplary manner for not less than three years with any portion of the regular Army." 15. This section prescribe the period of three years for trial by a Court Martial and the period is to commence from the date of the commission of offence, where the commission of offence was known. The occurrence in the present case took place on 12-3-1992. The case was handed over to the Army Authorities on 11-4-1994. After recording the Summary of Evidence in Oct/Nov 1994, the charge-sheet came to be issued on 21-2-1995 and the General Court Martial convened on 24-2-1995 and the trial commenced on 4-3-1995 i.e. within three years from the date of offence. There has been no violation of section 122 of the Army Act. This plea of the learned counsel for the petitioner is also without any merit. 16. Ground No.3. It is vehemently argued that the accused-petitioner was not provided opportunity to cross examine the witnesses. Reliance is placed upon Rule 22 (i) and (ii) of the Army Rules, 1954. The same is noticed here-under:- "22. Hearing of charge (1) Every charge against a person subject to the Act shall be heard by the commanding officer in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him and to call such witness and make such statement as may be necessary for his defence. Provided that where the charge against the accused arises as a result of investigation by a court of inquiry, wherein the provisions of rule 180 have been complied with in respect of that accused, the commanding officer may dispense with the procedure in sub-rule (1). (2). Provided that where the charge against the accused arises as a result of investigation by a court of inquiry, wherein the provisions of rule 180 have been complied with in respect of that accused, the commanding officer may dispense with the procedure in sub-rule (1). (2). The Commanding Officer shall dismiss a charge brought before him, if , in his opinion, the evidence does not show that an offence under the Act has been committed and may do so if he is satisfied that the charge ought not to be proceeded with. Provided that the commanding officer shall not dismiss a charge which he is debarred to try under sub-section (2) of Section 120 without reference to superior authority as specified therein." 17. These rules prescribe the hearing of charge by the Commanding officer in presence of the accused, who has the liberty to cross-examine any witness against him and to call such witness and to make any statement in his defence. The respondents in their reply have specifically stated at page 6 of the reply regarding the production of the accused before the Commanding Officer. The relevant averment in the reply is noticed as under: -- "The three accused were brought before the CO on 28 Oct, 1994 and summary of evidence was ordered. The summary of evidence was completed on 16 Jan 1995." 18. From the record it appears that the petitioner has cross-examined the witnesses during the recording of summary of evidence. He was produced before the Commanding Officer, who ordered the recording of summary of evidence. Rule 22 require the hearing of charge by the Commanding Officer and right of the accused to cross-examine any witness and to examine any witness in defence and to make statement. Rule 23 empowers the Commanding Officer to charge the accused for purposes of having the evidence reduced to writing. The accused was produced before the Commanding officer on 28-10-1994, who directed the recording of summary of evidence which was recorded in presence of the accused upto 16-1-1995. During the recording of summary of evidence, the accused has cross-examine the witnesses and also made his own statement. This clearly establish the adherence to Rule 22 & 23 of the Army Rules. I do not find any violation of the same. 19. Ground-4 Section 130 of the Army Act provides certain procedural safe-guards. The same is reproduced as under: -- "130. This clearly establish the adherence to Rule 22 & 23 of the Army Rules. I do not find any violation of the same. 19. Ground-4 Section 130 of the Army Act provides certain procedural safe-guards. The same is reproduced as under: -- "130. Challenges -- (1) At all trials by general, district or summary general court martial, as soon as the court is assembled, the names of the presiding officer and members shall be read over to the accused, whoshall thereupon be asked whether he objects to being tried by any officer sitting on the court. (2) If the accused objects to any such officer, his objection and also the reply thereto of the officer objected to, shall be heard and recorded and the remaining officers of the court shall, in the absence of the challenged officer decide on the objection. (3)If the objection is allowed by one-half or more of the votes of the officers entitled to vote, the objection shall be allowed and the member objected to shall retire and his vacancy may be filled in the prescribed manner by another officer subject to the same right of the accused to object. (4) When no challenge is made, or when challenge has been made and dis-allowed, or the place of every officer successfully challenged has been filed by another officer to whom no objection is made or allowed, the court shall proceed with the trial." 20. Under this section before the commencement of the trial the names of the Presiding Officer and Members are to be read over to the accused and he is to be asked whether he objects of being tried by any officer sitting on the court. Mrs. Kour, learned counsel for the petitioner relies upon case Ranjit Thakur v. Union off India and Others, AIR 1987 SC 2386, wherein the Apex Court held as under: -- "The Act and the Rules constitute a self contained Code, specifying offences and the procedure for detention, custody and trial of the offenders by the Courts Martial. The procedural safeguards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the summary jurisdiction of the court martial and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safeguards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the summary jurisdiction of the court martial and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safeguards should be commensurate with the sweep of the powers.The wider the power, the greater the need for the restrain in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the Statute. The non-compliance of the mandate of Section 130 is an infirmity which goes to the root of the jurisdiction and without more, vitiates the proceedings." It is accordingly stated that the trial is vitiated because of non-compliance of this section. 21. From the record produced, it is evident that after the court assembled the following has been recorded in the proceedings: -- "At 1215 Hrs the trial commences. At the request of the accused persons the right of audience is given to the defending officer. The order convening the court is read and is marked Exhibit-K signed by the Judge Advocate and attached to the proceedings. The names of the Presiding Officer and members of the court are read over in the hearing of the accused persons and they severally answer to their names:- Question: Question by the Do you object to Presiding Officer be tried by me to accused No.1 as PresidingOfficer or by any of the officers whose names you have heard read over? Answer:-1 Answer by accused No.1 No." This clearly establish the compliance of section 130 of the Act. 22. It is lastly argued that the General Court Martial has not appreciated the evidence in its right perspective and the conclusions and inferences drawn there from are erroneous. As far as the question of appreciation of evidence is concerned, it is within the exclusive domain of the Court Martial. The power of Judicial review cannot be exercised to re-appraise the evidence led before the Court martial. This Court in exercised of its power under Article 226 of the Constitution of India is not to sit as a Court of appeal and re-examine/ re-appraise the evidence. The power of judicial review is confined only to violation of rules and mandatory procedure prescribed under the Army Act/Rules. The Apex Court time and again laid down guide-lines for exercise of power of judicial review. The power of judicial review is confined only to violation of rules and mandatory procedure prescribed under the Army Act/Rules. The Apex Court time and again laid down guide-lines for exercise of power of judicial review. In view of the law laid down by the Apex Court this Court cannot exercise the power of judicial review to re-appreciate the evidence. Even if a second view is possible from the evidence, this court is not entitled to interfere in the findings of fact recorded by the General Court Martial. 23. In view of the detailed discussions, I am of the considered view that there is no scope for interference in the order of conviction and sentence awarded to the petitioner. The writ petition accordingly fails and is dismissed. Record produced by Mr. Tashi Rabasan, Addl CGSC be returned to him.