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2005 DIGILAW 1345 (RAJ)

Kulwant Singh v. Union of India

2005-05-06

AJAY RASTOGI

body2005
Judgment Ajay Rastogi, J.-As both the petitions arise out of common order of penalty for self same incident, at joint request, they were heard together and are being disposed of by this common order. .2. Facts relevant for consideration of arguments, in a narrow compass are stated out of CWP No. 3602/1992. Petitioners have assailed order (Annexure 3) dated 23.08.1991 whereby each of them, after being tried in common summary Court martial, has been inflicted with following punishments: .(a) To be reduced in rank. .(b) To suffer rigorous imprisonment for six months in military prison. 3. Both the petitioners were holding post of Halvaldar in Papa Battery, 1811, Light Regiment. The alleged incident took place on 11.08.1991 in the night at 2030 hrs, wherein No. 14387175L Gnr (GD) Gurpal Singh, assisted by No. 14452627Y HAV (IMT) Manjit Singh (petitioner) and No. 14328292Y HAV (GD) Kulwant Singh (petitioner) of 1811 LT Regt had beaten up No. 14344198NK (GD) Darshan Singh with a stick causing grievous injuries. Incident was reported under army order SAO 13/S/80. A Court of inquiry was ordered by HQ 18 Army Bde vide letter No. 302301/A dated 14.08.1992 and both of them were blamed for abetting in the incident of crime. Commanding officer ordered for summary of evidence to be reduced in writing (Annexure R-1) which has recorded as per procedure provided under Army Rules. Upon recording of summary of evidence, charge sheet dated 26.09.1991 (Annexure 2) under Section 66 of the Army Act, 1950, was served upon each of them to the effect that they intentionally aided Gnr (GD) Gurpal Singh to cause grievous hurt to NK (GD) Darshan Singh by inflicting lathi blows thereby abetted the commission of an offence under Section 326, IPC, and the same was forwarded to FMC HQ as required vide letter No. 302301/A dated 14.08.1991 and Section 120(2) of Army Act. Cdr 18 Army endorsed remarks "to be tried by Summary Court Material". Accordingly each of them was tried by Summary Court Martial under Section 66 of Army Act, where they pleaded guilty to the charge in following terms: "1.14328292Y HAV. Kulwant Singh - Do you wish to make any statement? You are not obliged to say any thing unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence. Kulwant Singh - Do you wish to make any statement? You are not obliged to say any thing unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence. Ans : No. I do not want to make a statement." .4. Afore quoted version was duly supported by independent witnesss attestation Capt QA Siddiqui of 1811 Light Regitment as is evident from Annexure R-1. After petitioners pleaded guilty to the charge in summary Court martial, they were punished as under: .(a) To be reduced in rank. .(b) To suffer rigorous imprisonment for six months in military prison. 5. However, petitioners preferred appeal to Chief of Army Staff-that too was rejected and communication whereof was sent to each of them. 6. Shri Samunder Singh, Counsel for petitioners urged that in course of summary Court martial, no doctor was produced in evidence to prove that Darshan Singh sustained grievous injuries and initially when statement was recorded of injured Darshan Singh on 20.08.1991, he has not named petitioners but subsequently they were falsely implicated and entire trial in course of summary Court martial was held in English language while each of them does not know English and, therefore, action of respondents is in violation of Section 277, CrPC. 7. Respondents have filed reply to writ petitions, inter alia, submitting that in summary of evidence, statement of petitioners was recorded and full opportunity of hearing was afforded to them and thereafter charge-sheet was served upon them under Section 66 of Army Act. Summary Court martial was ordered to be held in term of Section 120(2) of Army Act-in the course of summary Court martial, petitioners pleaded guilty to the charge and accordingly afore quoted punishment was inflicted upon them vide order dated 010.1991 (Annexure 3), and the appeal preferred by them to Chief of Army Staff have also been considered and rejected as there was no merit therein. It has been submitted in the reply that full opportunity was afforded to them to cross-examine the witnesses in the course of hearing under Rule 22 of Army Rules, as is evident from Annexure R-1. It has been submitted in the reply that full opportunity was afforded to them to cross-examine the witnesses in the course of hearing under Rule 22 of Army Rules, as is evident from Annexure R-1. It has been denied that entire proceedings in summary Court martial were conducted in English language but the fact is that they were provided with interpretor so as to understand proceedings and apart from it, Major R.S. Joon had also been provided as friend of the accused to assist them and thus no prejudice in any manner has caused. In additional plea, it has been submitted that Shri Darshan Singh NK (GD) had sustained fracture of his right hand as is evident from medical report of injured (Annexure R-3), therefore, punishment has rightly been inflicted upon them by competent authority. 8. I have considered rival contentions of both the parties and pondered over material on record. Initial incident of 11.08.1991 was reported immediately and it was ordered for summary of evidence to be reduced in writing and petitioners were allowed to be participated-in course of which full opportunity of hearing at all stages were afforded to them. Based on summary of evidence, charge-sheet was served upon each of them and summary Court martial was ordered and which was held under Section 120(2) of Army Act; and while being tried in summary Court martial under Section 66 of Army Act, petitioners pleaded guilt to the charges. In such circumstances, in my opinion, no error has been committed by competent authority in inflicting penalty upon them vide order dated 23.08.1991(Annexure 3). 9. So far as objection raised by petitioners that proceedings were initiated in English language, which they do not know, and has caused prejudice to them, is concerned, I find from material on record, as referred to in para 11 of the reply to writ petition, that apart from interpretor provided to each of them, they were also provided assistance of Maj. R.S. Joon as friend of the accused in summary Court martial. In such facts situation, there is no prejudice having caused to them. 10. R.S. Joon as friend of the accused in summary Court martial. In such facts situation, there is no prejudice having caused to them. 10. As regard contention with regard to quantum of punishment, in my opinion, the charges imputed against each of petitioners are of serious and of grave nature of their misconducts, and, therefore, keeping in view nature and gravity of imputed charges, I am satisfied that punishment inflicted against them, is not shockingly disproportionate, and hence I am not prone to interfere in quantum of punishment also in writ jurisdiction of this Court under Article 226 of the Constitution of India. 11. Consequently, both the writ petitions are dismissed with no order as to costs.