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2006 DIGILAW 8 (JK)

Union Of India v. Bipan Lal

2006-02-10

B.A.KHAN, J.P.SINGH

body2006
Per J.P Singh, Judge: 1. This Letters Patent Appeal is directed against writ Court judgment dated 1.2.2000 whereby finding of sentence of Dismissal from Service recorded by Summary Court Martial has been set aside and appellants directed to pass fresh order in accordance with law. 2. Facts necessary for the decision of this appeal may be summarized thus. A tentative charge-sheet was issued to the writ petitioner on 10.12.1991 by his Commanding Officer, which reads as follows:- "The accused No.9081904L NK Bipin Lal of 3 Jammu and Kashmir, Light Infantry is charged with:- "WITHOUT SUFFICIENT CAUSE OVERSTAYING LEAVE GRANTED TO HIM." in that he, at peace on 08 November, 1991, having been granted leave of absence from 28 October 1991 to 08 November 1991 to proceed to his home, failed without sufficient cause, to rejoin at unit lines on 08 November 1991, on the expiry of the said leave, till he rejoined voluntarily on 08 December 1991 (AN) Place ; Peace (J.S. Sambyal) Dated : 10 December, 1991 Colonel Commanding Officer." 3. The charge was heard by the Commanding Officer under Army Rule 22. The prosecution witness IC-39201P Major Manoj Kumar was heard in presence of the accused writ petitioner who declined to cross examine the witness. No defence witnesses were produced by the writ petitioner. On conclusion of the hearing, the Commanding Officer directed the recording of Summary of Evidence. These proceedings were held at Ranchi. 4. Summary of Evidence was recorded on the orders of IC 28338F COL J.S. Sambyal, CO 3 JAK LI. Statements of two witnesses were recorded in presence of the writ petitioner who declined to cross examine. The writ petitioner was cautioned in terms of Army Rule 23 in presence of independent witness JC 144601A Subedar Mohd. Maqbool Lone of 3 JAK LI in following terms:- "Do you wish to make any statement.You are not obliged to say anything unless you wish to but whatever you say will be taken down in writing and may be given in evidence." 5. It was recorded that the writ petitioner had understood the caution, who voluntarily elected to make statement, verbatim of the statement is reproduced hereunder:- "Statement of Accused: 14. On about 04 Oct. 91, I received a registered letter stating that my wife was seriously ill. I reported the matter in the Coy and the Coy Cdr. sanctioned my CL. It was recorded that the writ petitioner had understood the caution, who voluntarily elected to make statement, verbatim of the statement is reproduced hereunder:- "Statement of Accused: 14. On about 04 Oct. 91, I received a registered letter stating that my wife was seriously ill. I reported the matter in the Coy and the Coy Cdr. sanctioned my CL. However, since I fell ill and was admitted in the MH, and was discharged from MH on 25 Oct, 91. I proceeded on 12 day CL on 28 Oct, 91. By the time, I reached home the condition of my wife had worsened. My wife has been sick since 1988 and the matte was known to my Coy. Cdr. On the basis of the ailment of my wife I had also requested the unit for my att. or posting on compassionate grounds to any unit in Jammu through an application along with an authority letter from the doctor who was treating my wife. 15. On reaching home I took my wife to the same doctor who advised that she should take complete bed rest. He said that my wife should not even be moved to go to toilet also. 16. I have two young children who are to be looked after. As there was nobody at home I had to prepare their food and look after their other needs. At the same time, my wife was also in agony. Seeing the plight of my wife and young children, I was mentally disturbed and upset and forgot to inform the unit. My prime concern at that time centered around saving my wife. 17. When my wifes condition improved slightly I returned to unit and reported at the unit on 08 Dec, 91. 18. The statement of the accused is read over and explained to him in the language he understands and he signs the same as correct. Sd/- xxx Sd/- xxx JC-144601A No 9081904L Sub Mohd. Maqbool Lone NK Bipin Lal Independent Witness The Accused. @L2PLACE : C/O = APO Dated : 11 Dec, 91" 6. During the course of recording of Summary of Evidence a certificate was issued that provisions of Army Rule 23(1) (3) and (4) have been compiled with. After recording of Summary of Evidence the writ petitioner was ordered to be tried by Summary Court Martial which was held on 17.12.1991. 7. During the course of recording of Summary of Evidence a certificate was issued that provisions of Army Rule 23(1) (3) and (4) have been compiled with. After recording of Summary of Evidence the writ petitioner was ordered to be tried by Summary Court Martial which was held on 17.12.1991. 7. The charge sheet was read and explained to the accused writ petitioner, who was asked as to whether he pleaded `guilty or `not guilty of the said charge. The writ petitioner pleaded `guilty. Before recording the plea of guilty, the following certificate was recorded by the Commanding Officer:- "Before recording the plea of guilty offered by the accused the court explains to the accused the meaning of charge to which he has pleaded guilty and ascertains that the accused understands the nature of the charge to which he had pleaded guilty. The court also informs the accused that the general affect of that plea and the difference in procedure which will be followed consequent to the said plea. The Court having satisfied itself that the accused understands charges and the effect of his plea of guilty accepts and records the same. The provisions of AR 115 (2) are compiled with." 8. The certificate specifically records that the provisions of Army Rule 115 (2) were compiled with. The statement of the accused was recorded after he had submitted his plea of guilty. Accused had stated as follows:- "I have committed a mistake. I do not want to call any witness." The Summary Court Martial thereafter proceeded to announce the punishment of Dismissal from Service. 9. A writ petition, being SWP No. 808/93 was filed by the writ petitioner in this court which was allowed on November 22, 1993 with a direction to Union of India to supply requisite copies of the proceedings to the writ petitioner. These proceedings were accordingly supplied to the petitioner who thereafter filed SWP No.330/94, which has been allowed by a learned Single Judge of this Court. Sh. Tashi Rabstan questions the finding of the Writ Court that "The original record does not indicate that the petitioner has signed any proceedings which may indicate that he had pleaded guilty or did not want to produce evidence" as against records and scheme of the Army Act and Army Rules. 10. Sh. Tashi Rabstan questions the finding of the Writ Court that "The original record does not indicate that the petitioner has signed any proceedings which may indicate that he had pleaded guilty or did not want to produce evidence" as against records and scheme of the Army Act and Army Rules. 10. Plea of guilty is required to be signed only by the Court and not by the accused, submits the counsel. Reliance has been placed on `Union of India and Ors. V. Ex. Havildar Clerk Prithpal Singh & Ors. Reported as 1991 KLJ 513. Relying further on `Union of India & Ors. V. Himmat Singh Chahar, reported as AIR 1999 SC 1980 and `Union of India v. Major A. Hussain reported as AIR 1998 SC 577, it has been urged that Roving Inquiry and Judicial Review of the findings of the Summary Court Martial is impermissible. 11. Sh. J.S Kotwal , learned Senior Counsel, supports the judgment of learned Single Judge on the basis of law laid down in `Union of India & Ors. V. Ex. Havildar Clerk Prithpal Singh & Ors. Reported as 1991 KLJ 513 and reiterates that view taken by the Ld. Single Judge that recording of the plea of guilty of the accused cannot be accepted as lawful unless the accused signs the proceedings. We have considered the submissions of learned counsel, examined the Army Rules and the judgments cited at the Bar. 12. Although, the writ petitioner has not set up any such case in his petition, questioning either expressly or by necessary implication that he had not pleaded `guilty of the charge and in view of the law laid down by Honble Supreme Court of India reported in the two judgments cited by learned Counsel for Union of India that Roving inquiry and Judicial review of the proceedings of Court Martials may not be permissible except in special circumstances, yet we propose to deal the issues raised before us, because these issues having been dealt with have resulted in upsetting the finding and sentence awarded by the Summary Court Martial. 13. We will first take up the issue as to whether the writ petitioner had requested for leading any defence during his trial by the Summary Court Martial. 14. Examination of the copies of the records of Summary Court Martial does not indicate any such request by the writ petitioner. 13. We will first take up the issue as to whether the writ petitioner had requested for leading any defence during his trial by the Summary Court Martial. 14. Examination of the copies of the records of Summary Court Martial does not indicate any such request by the writ petitioner. It on the other hand records specifically as under:- "I have committed a mistake I do not want to call any witness." 15. It appears that the learned Single Judge imported the statement of the writ petitioner mentioned during the course of recording of Summary of Evidence into the proceedings held by the Summary Court Martial. 16. These are essentially separate proceedings, one before the on set of trial and second during the currency of the trial. Even the statement of the writ petitioner made during the recording of Summary of Evidence, which is a detailed statement, does not indicate his request for defence evidence because even during recording of Summary of Evidence, he had admitted him to have remained absent without authorized leave. 17. We, in the absence of any such statement of the accused during Summary Court Martial, seeking opportunity to lead defence evidence, cannot sustain the finding of learned Single Judge that the plea of the writ petitioner to lead defence evidence has not been dealt with by the Summary Court Martial. 18. After having opted to plead guilty and specifically stating that he did not want to lead any defence, it cannot be countenanced that the accused had intended to produce evidence in defence. 19. The first plea raised by Sh.Tashi Rabstan, thus, succeeds and we hold that the finding of the learned Single Judge, that accused was not afforded opportunity to produce defence evidence, though specifically asked for, is factually incorrect and legally untenable. 20. We will now examine the second plea raised before us as to whether a plea of guilty needs to be signed by the accused when made before a Court Martial. In order to resolve this issue, we would refer to Rule 115 of the Army Rules, which reads as follows:- "115. General plea of `Guilty or `Not Guilty :- (1) The Accused persons plea -- `Guilty or `Not Guilty (or if he refuses to plead, or does not plead intelligible either one or the other, plea of `Not Guilty) -- shall be recorded on each charge. General plea of `Guilty or `Not Guilty :- (1) The Accused persons plea -- `Guilty or `Not Guilty (or if he refuses to plead, or does not plead intelligible either one or the other, plea of `Not Guilty) -- shall be recorded on each charge. (2) If an accused person pleads `Guilty that plea shall be recorded as the finding of the court; but before it is recorded, the court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea, and in particular of the meaning of the charge to which he has pleaded guilty and of the charge to which he has pleaded guilty and of the difference in procedure which will be made by the plea of guilty, and shall advise him to withdraw that plea if it appears from the summary of evidence (if any) or otherwise that the accused ought to plead not guilty. [2(A) Where an accused pleads `Guilty, such plea and the factum of compliance of sub-rule (2) of this rule, shall be recorded by the court in the following manner :- "Before recording the plea of `Guilty of the accused the court explained to the accused the meaning of the charge (s) to which he had pleaded `Guilty and ascertained that the accused had understood the nature of the charge (s) to which he had pleaded `Guilty. The court also informed the accused the general effect of the plea and the difference in procedure, which will be followed consequent to the said plea. The court having satisfied itself that the accused understands the charge (s) and the effect of his plea of `Guilt accepts and records the same. The provisions of rule 115(2) are thus compiled with."] (3) Where an accused person pleads guilty to the first of two or more charges laid in the alternative, the court may, after sub-rule (2) of this rule has been compiled with and before the accused is arranged on the alternative charge or charges, withdraw such alternative charge or charges without requiring the accused to plead thereto, and a record to that effect shall be made upon the proceedings of the court." 21. Perusal of this rule does not indicate any requirement of the accuseds signing the proceedings and plea of guilt. Perusal of this rule does not indicate any requirement of the accuseds signing the proceedings and plea of guilt. Rule 115 of the Army Rules contemplates that before a plea of guilty is so recorded the court shall ascertain that the accused understands the nature of charge to which he had pleaded guilty and shall inform him of the general effect of that plea and in particular of the meaning of the charge to which he pleaded guilty and of the difference in procedure which will be made by the plea of guilty. A record to this effect is required to be made in the proceedings. 22. We are, thus of the view that the statute does not require the accused to sign the plea of guilty recorded in terms of Rule 115 (2) of the Army Rules. 23. We have gone through the judgment "Union of India & Ors. V. Ex. Havildar Clerk Prithpal Singh & Ors. Reported as 1991 KLJ 513, relied upon by both sides. The judgment does not support the plea projected by Sh. J.S Kotwal, it on the other hand, supports the plea raised by Sh. Tashi Rabstan in support of the appeal. 24. We would quote relevant portion of the judgment, which reads as follows:- "The other point which has been made for quashing the sentence awarded to respondent-accused relates to clause (2) of rule 115. Under this mandatory provision the court is required to ascertain before it records plea of guilt of the accused, as to whether the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea and in particular of the meaning of the charge to which he has pleaded guilty. The court is further required under this provision of law to advise the accused to withdraw that plea it appears from summary of evidence or otherwise that the accused ought to plead not guilty. How to follow this procedure is the main crux of the question involved in this case. Rule 125 provides that the court shall date and sign the sentence and such signatures shall authenticate whole of the proceedings. It comes out from this rule that the signing of the proceedings by the court will amount to authentication of the same. How to follow this procedure is the main crux of the question involved in this case. Rule 125 provides that the court shall date and sign the sentence and such signatures shall authenticate whole of the proceedings. It comes out from this rule that the signing of the proceedings by the court will amount to authentication of the same. We may take it that the signatures of the accused are not required even after recording plea of guilt but as a matter of caution same should be taken." 25. There is, thus, no merit in the submission of Sh. J.S Kotwal, learned counsel appearing for the writ petitioner, that the proceedings are rendered invalid because the accused had not signed such plea. 26. Both the issues on which the learned Single Judge had proceeded to allow the writ petition, having been decided against the writ petitioner and in favour of the appellants, this appeal succeeds and is, accordingly, allowed. The judgment of the learned Single Judge is set aside and writ petition dismissed. There will, however, be no order as to costs.