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2006 DIGILAW 126 (JK)

Pradeep Kumar Singh v. Union Of India

2006-05-17

Y.P.NARGOTRA

body2006
1. The petitioner was engaged in the Indian Army as Sapper/Cook in the year 1989, and was serving in 62 Engineer Regiment. He was attached with the Station Head Quarter, Nagrota and was performing the duties of Sayahak to Lt. Col. Darshan Singh of Station Headquarter, Nagrota. The petitioner applied for going on leave w.e.f. 14.6.2001. However, on 13.6.2001 i.e. a day prior to the proceeding on leave from 1700 hours to 2230 hours he absented himself from duty. He was charge sheeted and tried by the Summary Court Marshal for remaining absent from duty for a period of 5 1/2 hours on 13.6.2001. The accused/petitioner in his statement made during the Summary of evidence stated that he had gone to Jammu city to make purchases for himself. It is the admitted case of the respondents that the accused/petitioner had himself joined back his duty at 2230 hours on 13.6.2001. The accused/petitioner however pleaded guilty to the charges. The offence for remaining absent from duty is covered by Section 39 clause (a) of the Army Act 1950, it carries punishment of imprisonment for a term which may extend to three years or such less punishment as mentioned in the act. Accepting the plea of guilt of the accused/petitioner the Summary Court Martial sentenced the accused/petitioner as follows: - "(a) To suffer rigorous imprisonment for one year and I direct that the sentence of rigorous imprisonment shall be carried out by confinement in civil prison. The accused is recommended for division `C while undergoing the sentence in the civil prison. If there are only two divisions of prisoners, the accused is recommended for Division `B. (b) To be dismissed from service." 2. Pursuant to the order of sentence, the accused/petitioner was sent to prison to suffer his sentence. There he remained in detention for about a period of six month and six days i.e. untill he was granted bail in terms of the order dated 27.12.2001 passed by this Court. 3. The petitioner through this writ petition is questioning the legality of the sentence imposed upon him. The case of the petitioner is that he had absented himself only for 5 1/2 hours from duty and had voluntarily rejoined the same. He had long service to its credit i.e. about 11 years. 3. The petitioner through this writ petition is questioning the legality of the sentence imposed upon him. The case of the petitioner is that he had absented himself only for 5 1/2 hours from duty and had voluntarily rejoined the same. He had long service to its credit i.e. about 11 years. Since he was to proceed on leave on the next day for going to his native place Bihar, he had gone to Jammu City for making purchases for the family. According to the petitioner sentence imposed is very harsh and disproportionate to the gravity of the offence. 4. On the other hand, the stand of the respondents is that the petitioner had voluntarily absented from duty and offence is covered by Section 39 clause `a of the Army Act, which carries the maximum punishment of three years. Mr.Rabstan, submits Summary Court Martial on accepting the plea of guilt of the accused/petitioner had awarded the sentence, which commensurates with the gravity of the offence, therefore, no judicial review is permissible. 5. I have heard learned counsel for the parties and perused the record. 6. Mr. Sakal Bhushan, learned counsel for the petitioner argues that the sentence imposed is manifestly disproportionate to the gravity of the offence, therefore, this Court can exercise the power of judicial review in the circumstances of the case. In support of his contention he relies upon Ex-Naik Sardar Singh Vs, Union of India and others (1991) 3 SCC 213 . 7. Mr.Tashi, learned counsel for the respondents submits that prior to this incident the accused/petitioner on previous occasions had also been convicted and sentenced to under go imprisonment on the charge of remaining absent from duty in the year 1992. According to him, the Summary Court Martial by keeping the antecedents of the accused/petitioner in view had imposed the sentence, which cannot be said to be disproportionate on any count. 8. Admittedly, the accused/petitioner had remained absent for a period of 5 1/2 hours without leave, at that time he was performing the duties of a Sayahak to Lt. Col. Darshan Singh of Station Headquarters, Nagrota. It is also not disputed by the respondents that on the relevant date i.e 13.6.2001, the accused/petitioner had absented after performing all of his domestic duties assigned to him. Col. Darshan Singh of Station Headquarters, Nagrota. It is also not disputed by the respondents that on the relevant date i.e 13.6.2001, the accused/petitioner had absented after performing all of his domestic duties assigned to him. In such a situation the question is; can the sentence imposed by the Summary Court Martial upon the accused/petitioner be said to be reasonable and proportionate. In my view, it cannot be. The offence, which falls under Section 39 of the Army Act, provides for maximum punishment of three years. However, there is a provision in Section 71 of the Army Act, which also enumerates the other punishments, which can be awarded by the Court Martial, whereas Section 72 makes a provision for imposition alternative punishments instead of the one provided by Section 39 by the Court Martial. It reads as follows:- " 72. Alternative punishments awardable by court-martial.- Subject to the provisions of this Act, a court -martial may, on convicting a person subject to this Act of any of the offences specified in sections 34 to 68 inclusive, award either the particular punishment with which the offence is stated in the said sections to be punishable, or in lieu thereof, any one of the punishments lower in the scale set out in section 71, regard being had to the nature and degree of the offence." Then Section 73 provides:- "Combination of punishments.- A sentence of a court martial may award in addition to, or without any one other punishment, the punishment specified in clause (d) or clause (e) of section 71 and any one or more of the punishments specified in clause (f)to (I ) of that section." 9. From the bare reading of the Sections 72 and 73, it is manifest that the Court Martial possesses the jurisdiction to award lesser punishment than the one provided by Section under which the offence is constituted by taking into consideration the circumstances in which the offence would have been committed. Section 39 for which the accused/petitioner has been tried also leaves a discretion with the court martial to award any punishment upto three years only. 10. The question of the choice of quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. 10. The question of the choice of quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence that it shocks the conscience. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an out-rageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review.(Ref. Ranjit Thakur Vs. Union of India 1987 (4) SCC 611). In Bhagat Ram V. State of H.P 1983 (2) SCC 442, Supreme Court held:- " It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution." 11. Taking not of the above quoted authorities Their Lordships of the Supreme Court in Ex-Naik Sardar Singh Vs. Union of India and ors 1991(3) SCC 213 found the punishment of three months rigorous imprisonment and dismissal from service awarded by the Summary Court Martial disproportionate on the charge that the accused was having more than the permitted quota of wine bottles issued from Army canteen in his possession while he was proceeding for his home town on leave and en route passing through an area under prohibition, liquor bottles had been confiscated and he handed over by the civil police to the unit authorities for action, when the case fell under Section 63 of the Army Act, which was punishable with the sentence extending to 7 years. Their Lordships held:- "Having regard to the nature and degree of the offence in the instant case, it must be held that the punishments awarded to the appellant namely, three months RI and dismissal from service are severe and are also violative of Section 72. There is an element of arbitrariness in awarding these severe punishments to the appellant. Ends of justice will sufficiently be met if a lesser punishment as provided under Section 71(f) is awarded to the appellant." 12. There is an element of arbitrariness in awarding these severe punishments to the appellant. Ends of justice will sufficiently be met if a lesser punishment as provided under Section 71(f) is awarded to the appellant." 12. Taking into consideration the facts and circumstances of the case, in my considered opinion the learned Summary Court Martial was not justified in awarding the sentence of rigorous imprisonment for a period of one year coupled with dismissal from service. The sentence imposed on the face of it shocks the conscience of the Court, being grossly disproportionate to the nature of the offence. The accused/petitioner who was serving at a far off place from his home town, had after performing his duty gone for making purchases for his family as he was to proceed on leave from the next day. Though the accused/petitioner ought to have been proceeded for shopping after obtaining permission or leave from the competent authority, yet his failure to seek such leave or permission does not make his offence so serious for being punished that harshly and severely . This is a fit case where this Court should not hesitate to exercise its power of judicial review. 13. The sentence imposed by the learned Summary Court Martial being disproportionate to the gravity of offence deserves interference and the same is set aside and for deciding the issue of sentence afresh the matter is remanded back to the Summary Court Martial which shall re-consider the question of awarding punishment by giving due regard to the circumstances of the case and the fact that accused/petitioner has already undergone six months and six days rigorous imprisonment. However, the sentence imposed has been set aside, any detention suffered by the petitioner/accused after the orders of the Summary Court Martial shall not be treated as a disqualification for being reinstated into service but it shall, be subject to any minor punishment which may be awarded by the Court Martial. 14. This writ petition is accordingly allowed. Learned Summary Court Martial shall decide the issue within a period of four months. After the Summary Court Martial is convened, a notice shall be served upon the petitioner/accused before proceeding into the matter. Writ petition along with connected CMP is disposed of.