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2006 DIGILAW 1450 (BOM)

Rajabhau Sambhajirao Kamble v. Union of India

2006-09-13

A.P.DESHPANDE, R.M.BORDE

body2006
R. M. BORDE, J.:- The Petitioner, in this petition, is assailing the order passed by the Confirming Officer, dated 25th September, 1998, thereby confirming the sentence awarded by Summary General Court Martial directing the Petitioner to under go rigorous imprisonment for three months and further order of dismissal from army services. 2. The Petitioner was selected and appointed as Sepoy at K-3 Mahar regiment. He joined the armed services on 26th December, 1989. The Petitioner served armed forces and was posted at various places. At the relevant time, the Petitioner was posted as Sepoy at 56, Mountain Brigade and was stationed in Kashmir region. The Petitioner, while he was posted in Kashmir, was allegedly involved in commission of offence like extortion of money by giving threats to the persons, possessing fire-arm without valid licence. The charges framed against the Petitioner were: (i) under section 69 of Army Act - committing social offence that is to say, Robbery, as punishable under section 392 of the Ranbir Penal Code (allegation that at Shrinagar on 2nd August, 1997, by putting Mustak Ahmed in fear of instant death, extracting sum of Rs.500/- from him), and (ii) under section 69 of the Army Act - committing social offence that is to say, that possessing fire Arm without valid licence, contrary to section 25 (IB) (a) of the Army Act, 1959 (allegation that at Shrinagar on 2nd August, 1997, was found in possession of Chinese Pistol bearing registration No.M-11887, without valid licence, issued by the competent authority). 3. According to the Petitioner, he has been falsely involved in the alleged offence, at the instance of ill-wishers of the petitioners in the army, who were indulging in such type of offence. It appears that a Summary General Court Martial inquiry was directed against the Petitioner and the Summary General Court Martial, after recording evidence, placed before it, found the petitioner guilty and directed him to suffer rigorous imprisonment for three months, by order dated 1st May, 1998. It is contended by the Petitioner that he had undergone a sentence of 80 days of custody earlier and after pronouncement of sentence he was taken in custody for a period of 10 days. 4. It is contended by the Petitioner that he had undergone a sentence of 80 days of custody earlier and after pronouncement of sentence he was taken in custody for a period of 10 days. 4. It is further the contention of the petitioner that the Revisional Authority being of the opinion that the sentence awarded by Summary General Court Martial was too lenient, directed the matter to be taken up in revision. The Petitioner was, thereafter, again summoned to appear for the purpose of summary court martial inquiry and after following the due procedure, the sentence proposed earlier was enhanced upwards and he was ordered to be dismissed from service. The sentence imposed by the Summary General Court Martial was subject to confirmation by the Confirming Authority. The Confirming Authority, by order dated 25th September, 1998 confirmed the finding and sentence in the revision proceedings. The said order, passed on confirmation, in revision proceedings, is subject matter of challenge in this petition. 5. Shri. S. B. Bhapkar, learned Advocate for the Petitioner raised mainly two challenges, while assailing the order. Firstly, it is contended that Shri. Mohinder Puri, Major General Officer Commanding who had participated in initial summary general court marital proceedings, has himself directed the revision of the proposed sentence and he himself is the Confirming Officer who has confirmed the sentence which has been upwardly enhanced in revision proceedings. The Petitioner, therefore, contends that the participation of Shri. Mohinder Puri at both the stages of proceedings is violative of the principles of natural justice and as such the whole inquiry as well as revisional proceedings are vitiated. 6. The another challenge to the order is on the ground of failure to afford proper opportunity of leading evidence, to the Petitioner, while taking up the revision for hearing by the Summary General Court Martial. It is contended that the order dated 15th August, 1998, puts an embargo for leading evidence in the revision proceedings by the Petitioner. As such, the order passed by the Revisional Authority, which has been confirmed by the Confirming Officer, being passed without observing the principles of natural justice, is liable to be quashed. 7. It is contended that the order dated 15th August, 1998, puts an embargo for leading evidence in the revision proceedings by the Petitioner. As such, the order passed by the Revisional Authority, which has been confirmed by the Confirming Officer, being passed without observing the principles of natural justice, is liable to be quashed. 7. Per contra, the learned Assistant Solicitor General Shri. Alok Sharma, appearing for the Union of India, has contended that participation of Shri. Puri in the Court Martial Proceeding is restricted only to the extent that he was the Convening Officer who has convened Court Martial proceedings. It is denied that the said officer had participated in the Summary General Court Martial proceedings. It is pointed out by the learned counsel for the Respondent, that the convening officer is empowered to direct the matter to be taken up in revision and is also the confirming authority as per the provisions of the Army Act. The Respondents, therefore, contend that there is no violation of the principles of natural justice. As regards, the second argument advanced by the learned Advocate for the Petitioner, it is replied by the respondents, that the Petitioner had been given full opportunity of hearing and canvassing his case before the Summary General Court Martial. It is brought to our notice that, initially the petitioner pleaded not guilty to the charge before the Summary General Court Martial. However, after examination of nine witnesses, the petitioner changed his stand and pleaded guilty to the charge. On recording the plea of guilt, of the petitioner, the Summary General Court Martial recorded the sentence and directed the Petitioner to undergo rigorous imprisonment for three months. The sentence passed by the Summary General Court Martial is subject to confirmation by the confirming authority. It is further pointed out that the Revisional Authority, having found the sentence, suggested by the Summary General Court Martial, being inadequate, directed that the matter be taken up in revision. In these peculiar circumstances of the case, it was directed that the Petitioner be heard in the revision proceedings. However, it was further directed that no fresh evidence would be admissible. This was in the facts and situation that the petitioner had pleaded guilty before the Summary General Court Martial, after examination of nine witnesses. In these peculiar circumstances of the case, it was directed that the Petitioner be heard in the revision proceedings. However, it was further directed that no fresh evidence would be admissible. This was in the facts and situation that the petitioner had pleaded guilty before the Summary General Court Martial, after examination of nine witnesses. Therefore, no error can be found in directing that no further examination of witness would be permitted in revision proceedings. It is further pointed out that, before the Revisional Authority, the petitioner declined to put up his case in defence and as such after examining the record, afresh, the Summary General Court Martial, directed enhancement of the sentence which was confirmed by the Confirming Authority. It is contended that on perusal of the provisions of Army Act and Rules, no error can be found in the procedure adopted while conducting the summary general court martial or the proceeding in revision or the confirmation of the order by the confirming authority. 8. It would be appropriate to make mention of the provisions of Army Act, 1950. Section 69 of the Act provides civil offences, which reads as under: "69. Civil offences. - Subject to the provisions of section 70, any person subject to this Act who at any place in or beyond India, commits any civil offence, shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be tried by a courtmartial and, on conviction, be punishable as follows, that is to say, (a) if the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and (b) in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned." 9. Section 71 of the Act prescribes the punishment awardable by the court martial. Section 71(e) prescribes dismissal from service as a punishment which can be awarded by the Court martial. Section 71 of the Act prescribes the punishment awardable by the court martial. Section 71(e) prescribes dismissal from service as a punishment which can be awarded by the Court martial. Section 153 of the Army Act provides "no finding or sentence of a general, district or summary general, court-martial shall be valid except so far as it may be confirmed as provided by this Act." Section 157 provides that the finding and sentence of summary general court marital may be confirmed by the convening officer or if so directs, by an authority superior to him. 10. Section 160 of the Army Act provides, as under : 160. Revision of finding or sentence. (1) Any finding or sentence of a courtmartial which requires confirmation may be once revised by order of the confirming authority and on such revision, the court, if so directed by the confirming authority, may take additional evidence. (2) The court, on revision, shall consist of the same officers as were present when the original decision was passed, unless any of those officers are unavoidably absent. 11. Section 164 of the Act provides for remedy against the order, finding or sentence or court martial. In the instant case, the petitioner had petitioned to the Chief of the Army Staff against the punishment imposed during summary general court martial. However, the petition filed by the petitioner has been turned down by the Chief of Army Staff. The power to convene the summary general court martial is provided for in section 112 whereas composition of summary general court martial is given in section 115 of the Act. 12. So far as the first contention raised by the Petitioner that Shri. Mohinder Puri, Major General, General Officer Commanding had participated in summary general court martial proceedings and himself is a confirming authority, is not factually correct. As provided by section 157 of the Army Act, the Convening Officer has an authority to confirm the findings and sentence of the summary general court martial. The argument of the petitioner, therefore, that no proper procedure has been followed, while conducting the proceedings, is without any substance. It is also to be taken note of that as provided under section 153 of the Act, the finding or sentence of the Court marital proceeding shall not be --valid unless confirmed, as provided by the Act. The argument of the petitioner, therefore, that no proper procedure has been followed, while conducting the proceedings, is without any substance. It is also to be taken note of that as provided under section 153 of the Act, the finding or sentence of the Court marital proceeding shall not be --valid unless confirmed, as provided by the Act. Therefore, the initial recommendation of the sentence by the summary general court martial made on 1st May, 1998 was required to be confirmed by the confirming authority. The confirming authority, having found that too lenient view has been taken by the summary general court martial, in suggesting the sentence, looking to the gravity of the offence charged, has directed the matter to be taken up in revision. No error can be found in recommendation that no evidence would be led during the revision proceedings. It is to be taken note of that, at initial stage, while the evidence was being lead, after recording evidence of nine witnesses, the petitioner, who at the beginning pleaded not guilty to the charge, has re-considered his earlier stand and pleaded guilty. In view of this fact, it was not necessary to record any further evidence. No error, therefore, could be found in the recommendation, while passing the revision order that no evidence would be permitted. 13. Section 160 of the Act provides for review of finding or sentence. Sub-section (2) of section 160 provides that the court, on revision, shall consist of same officers as were present when the original decision was passed unless any of those officers are unavoidably absent. In view of this provision, the case was taken up for revision by the same officers who conducted the summary general court martial proceedings. The findings and sentence arrived at, during the revision proceedings, were confirmed by the confirming authority, after going through the record of the case. As laid down under section 157 of the Act, the finding and sentence of summary general court martial can be confirmed by the convening officer. In view of this, no error can be found in the order of confirmation passed by the convening officer, who had convened the summary general court martial. 14. Reliance is placed by the learned Advocate for the Petitioner on an authority reported in 1973(3) SCC 319 in the matter of "Capt. Harish Uppal Vs. Union of India and others". In view of this, no error can be found in the order of confirmation passed by the convening officer, who had convened the summary general court martial. 14. Reliance is placed by the learned Advocate for the Petitioner on an authority reported in 1973(3) SCC 319 in the matter of "Capt. Harish Uppal Vs. Union of India and others". The matter before the Apex Court arose in identical facts and the provisions of sections 160 and 158 of the Act required consideration. While dealing with the matter, the Apex Court, in para 4 of its judgment, observed as under: "4. It was contended that in the face of such strong observations by the General Officer Commanding the Division the officers constituting the Court-martial would have felt compelled to enhance the sentence and the revised sentence passed on the petitioner was not the free act of the Court-martial but One forced on them by the Officer Commanding and that this militates against the principle of natural justice. But it should be remembered that under the provisions of the Army Act set out earlier the confirming authority could himself mitigate or remit the punishment awarded by the Court Martial or commute that punishment for any lower punishment and, therefore, when a sentence is directed to be revised by the confirming authority it necessarily means that the confirming authority considers that the punishment awarded by the Court-martial is not commensurate with the offence and it should, therefore, be revised upwards. To object to this is to object to the provisions of Section 158 itself. A direction by the confirming authority merely showing that the punishment awarded by the CourtMartial is not commensurate with the offence, would be certainly unexceptionable and would be in accordance with the provisions of law. Instead of baldly stating so the confirming authority in this case has given reasons as to why be considers that the punishment awarded to the petitioner was wholly inadequate. We consider that the reasons given by him cannot be taken exception to. It was urged that the confirming authority proceeded on the basis that in respect of the charges against the petitioner the evidence available was as he had set out in his order directing revision and the this was not correct. We must point out that this Court cannot go into the evidence in support of the charge against the petitioner. It was urged that the confirming authority proceeded on the basis that in respect of the charges against the petitioner the evidence available was as he had set out in his order directing revision and the this was not correct. We must point out that this Court cannot go into the evidence in support of the charge against the petitioner. Indeed the Court-martial itself could not have set out the evidence against the petitioner; it should have only given the finding and the sentence. Under the provisions of Article 136(2) of the Constitution this Court cannot grant special leave in respect of any judgment, determination or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces. In considering a petition filed under Article 32 of the Constitution this Court can only consider whether any fundamental right of the petitioner has been violated and the only Article relevant is Article 21 of the Constitution. There is no doubt that the procedure established by law as required under Article 21 has been completely followed in this case." In the instant case, therefore, when the revision authority directed the sentence be revised it necessarily means that the confirming authority considered the punishment awarded by the court martial as too lenient and requires upward revision. In view of this, no fault can be found in the order passed during the revision proceeding directing upward revision of the sentence. In the instant case, the sentence of three months rigorous imprisonment, imposed earlier, was further directed to be coupled with the sentence of dismissal from service. It was urged that during summary general court martial the order of dismissal from service could not have been passed. However, taking into consideration the provisions of section 71 (e) of the Act, we find that it is permissible for the court martial to direct the sentence of dismissal from service. This Court, therefore, does not find any error either in the procedure adopted by the summary general court martial or the revision or confirming authority and also there does not appear to be any error in prescribing the sentence. 15. The learned counsel for the Petitioner has placed reliance on a judgment of Apex Court reported in AIR 1982 SC 1413 in the matter of "Lt. Col. Prithi Pal Singh Bedi etc. etc. Vs. Union of India and others". 15. The learned counsel for the Petitioner has placed reliance on a judgment of Apex Court reported in AIR 1982 SC 1413 in the matter of "Lt. Col. Prithi Pal Singh Bedi etc. etc. Vs. Union of India and others". The Apex Court, while dealing with the challenge to the procedure prescribed under the Army Act, in relation to court martial proceedings and deficiencies, as pointed out in that case, is in not providing a remedy of appeal, observed: "45. . .. ... Absence of even one appeal with power to review evidence, legal formulation, conclusion and adequacy or otherwise of punishment is a glaring lacuna in a country where a counter part civilian convict can prefer appeal after appeal to hierarchy of Courts. Submission that full review of finding and/or sentence in confirmation proceeding under Section 153 is provided for is poor solace. A hierarchy of Courts with appellate powers each having its own power of judicial review has of course been found to be counter productive but the converse is equally distressing in that there is not even a single judicial review with the expanding horizons of fair play in action even in administrative decision, the universal declaration of human rights and retributive justice being relegated to the uncivilised days, a time has come when a step is required to be taken for at least one review and it must truly be a judicial review as and by way of appeal to a body composed of non-military personnel or civil personnel. Army is always on alert for repelling external aggression and suppressing internal disorder so that the peace loving citizens enjoy a social order based on rule of law; the same cannot be denied to the protectors of this order. And it must be realised that an appeal from Ceaser to Ceaser's wife - confirmation proceeding under S.153 - has been condemned as injudicious and merely a lip sympathy to form. The core question is whether at least there should be one appeal to a body composed of non-military personnel and who would enjoy the right of judicial review both on law and facts as also determine the adequacy of punishment being commensurate with the gravity of the offence charged. The core question is whether at least there should be one appeal to a body composed of non-military personnel and who would enjoy the right of judicial review both on law and facts as also determine the adequacy of punishment being commensurate with the gravity of the offence charged. Judicial approach by people well-versed in objective analysis of evidence trained by experience to-look at· facts and law objectively, fair play and justice cannot always be sacrificed at the altar of military discipline. Unjust decision would be subversive of discipline. There must be a judicious admixture of both. And nothing revolutionary is being suggested. ...." "46. . .. ... Ours is still an antiquated system. The wind of change blowing over the country has not permeated the close and sacrosanct precincts of the Army. If in Civil Courts the universally accepted dictum is that justice must not only be done but it must seem to be done, the same holds good with all the greater vigour in case of court-martial where the judge and the accused don the same dress, have the same mental discipline, have a strong hierarchical subjugation and a feeling of bias in such circumstances irremovable. We, therefore, hope and believe that the changes all over the English speaking democracies will awaken our Parliament to the changed value system. In this behalf, we would like to draw pointed attention of the Government to the glaring anomaly that court-martial do not even write a brief reasoned order in support of their conclusion, even in cases in which they impose the death sentence. This must be remedied in order to ensure that a disciplined and dedicated Indian Army may not nurse a grievance that the substance of justice and fair play is denied to it." The observations of the Apex Court are in the nature of recommendation to the Parliament for prescribing a further remedy of appeal against the orders that may be passed during the court marital proceedings under the Army Act and it does not help the petitioner any further unless he points out that there is any glaring error in the procedure adopted during the conduct of proceedings which calls for interference by this Court. 16. 16. It may further be taken note of that the Petitioner had petitioned against the finding as well as sentence by approaching the Chief of the Army Staff by filing a petition as contemplated under section 164 of the Army Act. The Petitioners case was considered by the authority prescribed under the Act and the petition, filed by the petitioner, came to be rejected. In view of all these facts, as well as for the reasons recorded in this judgment, as above, we do not find any merit in the petition. The petition, therefore, is liable to be dismissed and the same accordingly is dismissed. Rule discharged. However, in the circumstances of this case, there will be no order as to costs. Petition dismissed.