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2006 DIGILAW 2083 (PNJ)

Prashant Srivastava v. Union Of India

2006-05-12

RAJIVE BHALLA

body2006
Judgment 1. Prayer in the present petition, filed under Article 226 of the constitution of India, is for the issuance of an appropriate writ, order or direction quashing the order dated 12.7.1999 (Annexure P-14), whereby punishment of forfeiture of two years service for the purpose of promotion, increased pay, pension, as also a severe reprimand were imposed upon the petitioner, and the order dated 3.5.2000, whereby the statutory petition, filed by the petitioner, against the aforementioned order, was dismissed. 2. As per averments in the petition, on 29.9.1997, the petitioner was posted in 37th Squardron of the Indian Air Force at Nal Air Base in western Command. On 3.3.1998, a Signalman U. D Garge misbehaved with the wife of Flying Officer (Acting Flt. Lt.) S. Verma. The aforementioned officer complained to the Incharge, Maintenance Section Squadron Leader c. S. Patankar. The said Officer failed to initiate any action. Thereafter, flying Officer S. Verma filed a complaint on 6.3.1998 to the Commanding officer (C. O) Wing Commander M. S. Mander. On 6.3.1998, at about 5 pm, when the petitioner was packing his luggage for going to his residence, flying Lt. S. Verma requested the petitioner to accompany him to the signals Billet. The petitioner accordingly accompanied Flying Lt. S. Verma to the Signals Billet. Flying Lt. S. Verma asked Signalman (U. D. Garje) to report to his Commanding Officer. U. D. Garje misbehaved, whereupon flying Lt. S. Verma ordered him to come to attention, to which the signalman retorted that he should come to attention first. The Signalman refused to obey the orders, issued by Flying Lt. S. Verma. At that instant, the petitioner noticed the Commanding Officers gypsy (Wg Cdr m. S. Manders) in front of the billet and informed Flying Lt. S. Verma about the arrival of Wing Commander M. S. Mander. All of them proceeded towards the Commanding Officers vehicle. The petitioner thereafter left the place but the Commanding Officer, Flying Lt. S. Verma and the signalmen left in the Commanding Officers vehicle. Thereafter, the petitioner went to Flying Officer Sandeep Singhs residence where he left his car, as the aforementioned Officer had to go to the Railway Station. The petitioner proceeded to his residence to change his uniform and returned to the residence of Flying Officer Sandeep Singh. Both of them thereafter proceeded to the Railway Station. Thereafter, the petitioner went to Flying Officer Sandeep Singhs residence where he left his car, as the aforementioned Officer had to go to the Railway Station. The petitioner proceeded to his residence to change his uniform and returned to the residence of Flying Officer Sandeep Singh. Both of them thereafter proceeded to the Railway Station. The petitioner returned to the Camp at 8 pm and attended a party for bachelor officers at the Station Commanders residence. 3. It is further averred in the petition that after leaving the billet, the Commanding Officer, Flying Lt. S. Verma, and the Signalman went to the Air Crew Rest Room. The Signalman allegedly made an attempt to flee but some Officers and the Airmen apprehended him and brought him back to the Air Crew Rest Room. Flying Lt. A. N. Menon and Flying Officer i. S. Shahab also arrived. It was apparently decided that the Signalman be taken before Flying Lt. S. Vermas wife, who had alleged that the Signalman had attempted to molest her. However, enroute, Signalman U. D. Garje jumped from the vehicle and received injuries that led to his demise on the next day. The petitioner claims to be unaware of the aforementioned incident. 4. A preliminary inquiry was conducted into the death of u. D. Garje Signalman, followed by a commission of inquiry and a summary of evidence. Dissatisfied with the outcome of the inquiries, it was decided to convene a General Court Martial. Five officers, including the petitioner, were arraigned as accused, namely, (i) Wing Commander M. S. Mander, (ii)Flying Lt. AN Menon, (iii) Flying Officer (Acting Flt Lt.) S. Verma, (iv)Flying Officer I. S. Shahab and (v) Flying Officer P. Shrivastava. On 12.5.1998, a joint charge sheet was served upon them. The petitioner and his co-accused were charged with various offences, primary amongst them, was an offence of committing murder, punishable under Sec.302 read with Sec.149 of the IPC. 5. On 13.5.1998, a General Court Martial was ordered to be convened by Air Commodore M Dutt. Sqn. Ldr. T. P. Hariprasad was detailed as Judge Advocate. The prosecution examined 36 witnesses, whereas in defence, the petitioner and his co-accused examined 8 witnesses. 5. On 13.5.1998, a General Court Martial was ordered to be convened by Air Commodore M Dutt. Sqn. Ldr. T. P. Hariprasad was detailed as Judge Advocate. The prosecution examined 36 witnesses, whereas in defence, the petitioner and his co-accused examined 8 witnesses. After the conclusion of the proceedings, the petitioner was held guilty of charges No.1 and 4, namely, committing a civil offence i. e murder punishable under Sec.302 read with Sec.149 of the IPC, and behaving in a manner unbecoming the position and the character of an officer. The petitioner was awarded punishment of cashiering alongwith four years rigorous imprisonment. His co-accused were also punished. Aggrieved by the aforementioned findings, the petitioner preferred a petition, under Sec.161 (1) of the Air Force Act (for short hereinafter referred to as "the Act" ). His co-accused also filed similar petitions. On 12.7.1999, the confirming authority i. e the Air Chief Marshal, altered the punishment to one of forfeiture of two years of past service for the purpose of promotion,increased pay,pension,alongwith severe reprimand counsel for the petitioner contends that the proceedings of the general Court Martial, the punishment imposed, as also the dismissal of the statutory petition, are liable to be quashed, on the ground that the Judge advocate held a rank inferior to one of the accused, namely, Wing commander M. S. Mander. Rule 46 (2) of the Rules provides that all members of the General Court Martial shall be equal, if not superior in rank to an accused, unless in the opinion of the convening officer, to be stated in the order convening the court, officers of the required rank are not available. Rule 110 of the Air Force Rules, 1969 (for short herein after referred to as "the Rules"), postulates that an officer, disqualified for sitting in a General court Martial, shall be disqualified for acting as a Judge Advocate. As admittedly, the Judge Advocate was holding a rank inferior to the rank of one of the accused, the impugned proceedings, as also the orders are liable to be set aside. It is further contended that the order, convening the General court Martial, reveals that no satisfaction was recorded, in terms of rule 46 (2) of the Rules that an officer, above the rank of a Wing Commander, was not available to discharge functions of a Judge Advocate. It is further contended that the order, convening the General court Martial, reveals that no satisfaction was recorded, in terms of rule 46 (2) of the Rules that an officer, above the rank of a Wing Commander, was not available to discharge functions of a Judge Advocate. It is, thus, argued that on account of this statutory violations, the impugned proceedings, as also the orders, are liable to be quashed. 6. Another argument, pressed into service, by counsel for the petitioner, is that the General Court Martial, upon assembly, did not satisfy itself as to the qualifications/disqualifications of the Judge Advocate and, therefore, the proceedings, against the petitioner, should be quashed. Reliance for the above contentions is placed upon a judgment of the HON BLE Supreme Court reported as Union of India and another vs charanjit S. Gill and others, 2000 (2) RSJ 552, wherein the HON BLE Supreme court, while examining a similar controversy, under the Army Act and the rules framed thereunder, held that a Judge Advocate, though not a part of the Court, but being an integral part thereof, was required to possess all qualifications necessary for a member of a General Court Martial. It has been further held that in case, an officer, junior in rank to that of officer facing trial, is detailed as Judge Advocate, the proceedings of the General court Martial would be void, except where an officer of higher rank is not available and satisfaction regarding his non-availability is specifically recorded in the order, convening the General Court Martial. 7. In response to the arguments, addressed by counsel for the petitioner, counsel for the respondents states that the assertions, made by counsel for the petitioner, are legally and factually incorrect. It is contended that a Judge Advocate has to be an officer holding a rank equal to or senior to an Officer being tried, but where such an officer is not available, the convening authority may appoint an officer of a lower rank, as envisaged by rule 46 (2) of the Rules. In the present case, as no Judge Advocate of a rank equal to or higher than Wing Commander M. S. Mander was available, the convening officer appointed Sqn. Ldr TP Hariprasad as Judge Advocate. A perusal of the record would bear out that the convening officer, while considering the composition of General Court Martial, ordered that Sqn. In the present case, as no Judge Advocate of a rank equal to or higher than Wing Commander M. S. Mander was available, the convening officer appointed Sqn. Ldr TP Hariprasad as Judge Advocate. A perusal of the record would bear out that the convening officer, while considering the composition of General Court Martial, ordered that Sqn. Ldr TP Hariprasad be appointed as a Judge Advocate. The convening authority recorded its satisfaction, in terms of rule 46 (2) of the Rules, which fact is borne out from the record. It is further argued that the aforementioned assertion is not available to the petitioner, as the petitioner held the rank of a Flying Officer, whereas the Judge Advocate, was Sqn ldr, a rank higher than that of the petitioner. The grievance, if any, would have been raised by Wing Commander M. S. Mander and, therefore, the contentions, raised by counsel for the petitioner, be discarded. 8. It is further asserted that a perusal of the General Court Martial proceedings reveals that upon assembly and after complying with other statutory requirements, the charge-sheet and summary of evidence were laid before the Court. The Court thereafter satisfied itself as to the matters, provided for in rules 49 and 50 of the Rules and proceeded to record the presence of Mr. G. V. Singh, Advocate, who appeared for the petitioner and his co-accused. Thereafter, a question was put to each accused, including the petitioner, whether they had any objection to the constitution of General court Martial. The accused, including the petitioner, did not raise any objection, whereupon, the Judge Advocate was duly sworn in. It is, thus, contended that as neither the petitioner nor his co-accused raised any objection as to the disqualification of the Judge Advocate, they cannot be permitted now to raise this plea for the first time in a writ petition. It is also pointed out that no such plea was ever raised in the post confirmation petition. 9. I have heard learned counsel for the parties and perused the record. The death of Singleman U. D. Garje led to the present General court Martial. As per the petitioner, and as noticed herein before, signalman U. D. Garje jumped out of the vehicle and suffered injuries, that led to his demise. 9. I have heard learned counsel for the parties and perused the record. The death of Singleman U. D. Garje led to the present General court Martial. As per the petitioner, and as noticed herein before, signalman U. D. Garje jumped out of the vehicle and suffered injuries, that led to his demise. As per the case, as set out by the prosecution, the petitioner and his co-accused, who were charged, under Sec.71 of the air Force Act, 1950 for committing a civil offence that is to say murder punishable, under Sec.302 read with Sec.149 of the IPC. The factual basis for the aforementioned charge was that the petitioner alongwith his co-accused, being members of an unlawful assembly, and in prosecution of their common object, intentionally inflicted bodily injuries to signalman U. D. Garje, which injuries were sufficient, in the ordinary course of nature, to cause death. The petitioner and his co-accused were also charged, under Sec.71 of the Air Force Act for committing a civil offence that is to say wrongful confinement, punishable under Sec.342 of the IPC, and under Sections 45 and 65 of the Air Force Act for behaving in a manner unbecoming the position and the character of an officer, and an act prejudicial to good order and air force discipline respectively. 10. The General Court Martial found the petitioner and his coaccused guilty of charges No.1 and 4, namely, committing a civil offence i. e murder punishable under Sec.302 read with Sec.149 of the IPC, and behaving in a manner unbecoming the position and the character of an officer. Punishment of cashiering and four years RI was imposed. Pursuant to the petition, filed under Sec.161 of the Air Force Act, the punishment was reduced to one of forfeiture of two years service for the purpose of promotion, increased pay, pension, alongwith severe reprimand. Before I proceed to adjudicate the present controversy on merits, it would be appropriate to reproduce the relevant statutory provisions. Rules 46, 49, 52 and 110 read as follows :- "46. Composition of general court-martial.- (1) The senior member of a general court-martial shall be of a rank not below that of a Group Captain, unless in the opinion of the convening officer, to be stated in the order convening the court and to be conclusive, an officer of that rank is not (having due regard to the public service)available. Composition of general court-martial.- (1) The senior member of a general court-martial shall be of a rank not below that of a Group Captain, unless in the opinion of the convening officer, to be stated in the order convening the court and to be conclusive, an officer of that rank is not (having due regard to the public service)available. (2) All members of a general court-martial for the trial of an officer shall be of equal if not superior rank to the accused, unless in the opinion of the convening officer, to be stated in the order convening the court and to be conclusive, officers of the required rank are not (having due regard to the public service) available: provided that in no case shall an officer below the rank of Flight Lieutenant be appointed a member of a courtmartial for the trial of an officer of or above the rank of squadron Leader. " 49. Inquiry by court as to legal constitution.- (1) On the court assembling, the order convening the court shall be read, and also the names, rank and unit of the officers appointed to serve on the court; and it shall be the first duty of the court to satisfy itself that the court is duly constituted that is to say- (a) that, so far as the court can ascertain, the court has been convened in accordance with the Act and these rules; (b) that the court consists of a number of officers not less than the required minimum, and, save as mentioned in rule 44, not less than the number detailed; (c ) that each of the officers so assembled is eligible and not disqualified for serving on that court-martial. (2) The court shall, further, if it is a general or district court-martial to which a judge-advocate has been appointed, ascertain that the judge-advocate is duly appointed and is not disqualified for acting at that courtmartial. The court, if not satisfied on the above matters, shall report its opinion to the convening authority, and may adjourn for that purpose. " 52. Proceedings for challenges of members of court.-The order convening the court and the names of the presiding officer and members of the court shall them be read over to the accused and he shall be asked, as required by section 129, whether he objects to be tried by any officer sitting on the court. " 52. Proceedings for challenges of members of court.-The order convening the court and the names of the presiding officer and members of the court shall them be read over to the accused and he shall be asked, as required by section 129, whether he objects to be tried by any officer sitting on the court. Any such objections shall be disposed of in accordance with the provisions of section 129. Provided that- (a) the accused shall state the names of all the officers to whom he object before any objection is disposed of; (b) the accused may call any person to give evidence in support of his objection, and such person may be questioned by the accused and by the court; (c ) if more than one officer is objected to, the objection to each officer shall be disposed of separately, and the objection in respect of that officer lowest in rank shall be disposed of first; and on an objection to an officer, the remaining officers of the court shall in the absence of the challenged officer, vote on the disposal of such objection notwithstanding that objections have also been to any of the officers; (d) when an objection to an officer is allowed that officer shall forthwith retire, and take no further part in the proceedings; (e) when an officer objected to retires, and there are any officers in waiting, the vacancy shall be forthwith filled by one of the officers in waiting being directed by the presiding officer to serve in lieu of the retiring officer. If there is no officer in waiting available, the court shall proceed as directed by rule 44; (f) the eligibility, absence of disqualification, and freedom from objection of an officer filling a vacancy shall be ascertained by the court, as in the case of other officers appointed to serve on the court. " 110. Disqualifications of judge-advocate.- An officer who is disqualified for sitting as a court-martial, shall be disqualified for acting as judge-advocate at that courtmartial. " Rule 110 of the Rules prescribes that an officer, who is disqualified for sitting as a General Court Martial, shall be disqualified for acting as Judge Advocate at that Court Martial. " 110. Disqualifications of judge-advocate.- An officer who is disqualified for sitting as a court-martial, shall be disqualified for acting as judge-advocate at that courtmartial. " Rule 110 of the Rules prescribes that an officer, who is disqualified for sitting as a General Court Martial, shall be disqualified for acting as Judge Advocate at that Court Martial. Rule 46 (2) of the Rules postulates that all members of General court Martial convened for the trial of an officer, shall be of equal, if not superior rank to the accused. Thus, where an officer is to be tried, the judge Advocate must be of a rank equal to, if not superior, to that held by an accused. Rule 46 (2) of the Rules, however, permits relaxation of the aforementioned condition, provided, in the opinion of the convening officer, an officer of the required rank is not available. This opinion is conclusive of the fact so stated and shall, as required by Rule 46 (2) of the rules, be recorded by the officer, convening the Court Martial. The Rule, however, does not set down any specific mode or manner for recording of such satisfaction. 11 A perusal of the record reveals that while examining the question of convening a Court Martial, and all questions relating thereto, a detailed consideration of all aspects ensued. After a perusal of the names of the proposed members of the Court Martial, the names of the prosecutor, the Judge Advocate, and the counsels to be provided, the officer convening the Court Martial penned a note that the composition of the court, the Presenting Officer etc. and the civil counsels for defence were approved and the composition was found to be in order. The authority, convening the Court Martial, also approved Sqn. Ldr. T. P Hariprasad as judge Advocate. As noticed herein before, an officer, convening the Court martial is statutorily empowered by Rule 46 (2) of the Rules, to detail an officer of a rank lower than an accused, provided he records a satisfaction that a senior officer is not available. The Act or the Rules do not set down the precise mode and manner for recording a satisfaction in terms of the provisions of Rule 46 (2) of the Rules. The Act or the Rules do not set down the precise mode and manner for recording a satisfaction in terms of the provisions of Rule 46 (2) of the Rules. It would also be appropriate to notice that during the proceedings of General Court Martial, at no stage did the petitioner raise any plea with respect to the rank, held by the Judge advocate. It would also be necessary to notice here that the petitioner held the rank of Flying Officer, whereas the Judge Advocate held the rank of sqn. Ldr, a rank higher to that of the petitioner. The objection, if any, could have been available to Wing Commander MS Mander but no such objection having been raised by him, the petitioner or any of the other accused, cannot be allowed to raise such a plea at this belated stage. A perusal of the record reveals sufficient compliance of the provisions of rule 46 (2) of the Rules by the officer convening the General Court Martial, and, therefore, the appointment of a Sqn. Leader, though junior to one of the officers, who faced trial, would not vitiate the General Court Martial. The next contention, pressed into service by counsel for the petitioner is that the General Court Martial is required, by virtue of the provisions of rule 49 of the Rules, to inquire whether the Court is legally constituted. As the General Court Martial failed to inquire, whether the judge Advocate was qualified, the proceedings are illegal. Rule 49 (2) of the Rules requires a Court to ascertain whether the Judge Advocate is disqualified in any manner. Upon assembly, the Court, as is apparent from the record, passed an order that it had satisfied itself, as required by rules 49 and 50 of the Rules. The satisfaction so recorded, in my considered opinion, renders the Court to satisfy itself as to the qualification of the judge Advocate. Rule 49 (2) of the Rules does not set out the manner in which a Court is required to record its satisfaction. Though satisfaction recorded could have been more explicit, the satisfaction recorded, by referring to the relevant Rules, in my considered opinion, meets the requirement of law. 12. Rule 49 (2) of the Rules does not set out the manner in which a Court is required to record its satisfaction. Though satisfaction recorded could have been more explicit, the satisfaction recorded, by referring to the relevant Rules, in my considered opinion, meets the requirement of law. 12. It would also be appropriate to mention here that the petitioner did not raise any objection as to the qualification/dis-qualification of the judge Advocate, whether during the General Court Martial or thereafter in his petition, filed under Sec.161 (1) of the Act. These pleas, cannot be raised for the first time in a writ petition. 13. In so far as the judgment of HON BLE Supreme Court, relied upon by counsel for the petitioner, there can be no quarrel with the proposition that if the Judge Advocate is disqualified from being a Member of the General Court Martial, he cannot participate in its proceedings. However, in the present case, the facts, noticed herein above, being different, the said judgment does not aid the petitioner, in any manner. No other argument has been raised by counsel for the petitioner. In view of what has been stated above, the present petition, being devoid of any merit, is dismissed.