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2007 DIGILAW 1187 (DEL)

LT. COL. M. J. REDDY v. UOI

2007-05-31

S.N.AGGARWAL, T.S.THAKUR

body2007
T. S. THAKUR, J. ( 1 ) JUDICIAL review of an order passed by the Court Martial is limited to finding out whether there is any illegality, procedural irregularity or perversity in what the court martial has done. A writ court examining a challenge to the order does not sit in appeal over what the court martial has held or directed. It does not reappraise evidence to find out whether a view contrary to the one taken by the court martial is possible. Even if a contrary view is possible, it does not substitute that view for that of the court martial. Even on the question of quantum of punishment, the court interferes only when the punishment is so disproportionate to the gravity of offence committed by the offender that it shocks the conscience of the court. These guiding principles are settled by the decisions of the Supreme Court in B. C. Chaturvedi v. Union of India and Ors. (1995) 6 SCC 749 , Apparel Export Promotion council v. A. K. Chopra (1999) 1 SCC 759 , Ranjit Thakur v. Union of India (1987) 4 SCC 611 , Union of India v. K. G. Soni (2006) 6 SCC 794 . ( 2 ) THE petitioner has in this writ petition assailed an order of punishment imposed upon him by the Summary General Court Martial who tried him on the following three charges :- (i) Committing a civil offence that is to say criminal misconduct contrary to section 5 (2) of Prevention of Corruption Act, 2006 (Jandk) (ii) An act prejudicial to good order and military discipline. (iii) Using criminal force to a person subject to the Army Act being his subordinate in rank. ( 3 ) THE court martial found the petitioner not guilty in so far as charges (i) and (ii) above are concerned. As regards charge No. (iii), the Court martial found him guilty and imposed upon him the punishment of a severe reprimand. Dissatisfied with the punishment, the confirming authority ordered a revision of the punishment in exercise of its powers under Section 160 of the army Act. The summary General Court Martial accordingly revised the sentence to make the same more severe. Dissatisfied with the punishment, the confirming authority ordered a revision of the punishment in exercise of its powers under Section 160 of the army Act. The summary General Court Martial accordingly revised the sentence to make the same more severe. The revised sentence was as under: "a) To take rank and precedence as if his appointment as a substantive Lieutenant Colonel bore date the Ninth day of February, 2004, b) To forfeit five years past service for the purpose of pension, c) To be severely reprimanded. " ( 4 ) AGGRIEVED by his conviction and the revised sentence imposed upon him, the petitioner submitted a pre-confirmation petition to the GOC-in-C Northern command, in which he highlighted the infirmities in the procedure adopted by the authorities including the Summary General Court Martial and the finding of guilt recorded by them. ( 5 ) THE GOC-in-C allowed the said pre-confirmation petition in part and while upholding the findings recorded by the Summary General Court Martial, granted remission in the sentence imposed upon him. The sentence after remission was as under : " (i) To take rank and precedence as if his appointment as if his appointment as Substantive Lt. Col. bore date the Thirteenth day of June, 2002, (ii) To forfeit one year past service for the purpose of pension. (iii) To be severely reprimanded. " ( 6 ) DISSATISFIED with the order passed by the GOC-in-C, the petitioner filed a post-confirmation petition to the Chief of Army Staff, which was examined and rejected by him by order dated 14th September, 2004 The COAS said: "5. The Rules do not restrict a court of inquiry from investigating all collateral issues connected with the case even though not included in the terms of reference. The interpretation of the policy letter on the subject by the petitioner is erroneous and not in conformity with the guidelines on the subject. The case against him had been duly investigated first by the Court of inquiry then by hearing of charge followed by a detailed Summary of Evidence where he was given full opportunity to cross-examine the prosecution witnesses. He had full liberty and opportunity to put across his defence at the trial. The finding of 'guilty' on the third charge is duly supported by direct and cogent evidence. He had full liberty and opportunity to put across his defence at the trial. The finding of 'guilty' on the third charge is duly supported by direct and cogent evidence. The petitioner was attached in accordance with provisions of law and there were no incidents of any excessed reported by the petitioner while he was under attachment. He was provided with requisite facilities applicable to an officer placed under attachment. Hav Krishan Pal the victim of the criminal force used by the petitioner had reported the matter to Col. JP Singh who was his CO and on having received the report, Col JP Singh initiated action as per the rules. The SGCM examined Hav Krishan Pal, who was slapped by the petitioner and he was cross-examined by the defence at length. The non-examination of the witnesses named by the petitioner has not caused any prejudice to the defence case. The Court appreciated the evidence in its totality as is evident from the brief reasons given in support of the findings. The SGCM was conducted in a fair manner, which is evident from the fact that the petitioner was found 'not guilty' of the first and the second charges. The sentence is on the side of leniency considering the gravity of the offence on which he stands convicted. 16. I find that the contentions of the petitioner are bereft of any merit. The findings of the court are based on cogent and reliable evidence. The sentence, as confirmed, is commensurate with the gravity of the offences for which the petitioner stands convicted. " ( 7 ) THE petitioner has assailed the proceedings of the Summary General court Martial and the orders passed on his pre and post confirmation petitions in the present writ proceedings before us. ( 8 ) APPEARING for the petitioner, Major Ramesh argued that the finding of guilt recorded by the Summary General Court Martial was without any evidence to support the same. He was at pains to point out the contradictions and improvements made by the prosecution witnesses particularly Hav. Krishan Pal, the alleged victim of the offence alleged against the petitioner. He contended that in the absence of any corroboration from any independent source, the statement of Hav. Krishan Pal could not be relied upon by the court martial to find the petitioner guilty. Krishan Pal, the alleged victim of the offence alleged against the petitioner. He contended that in the absence of any corroboration from any independent source, the statement of Hav. Krishan Pal could not be relied upon by the court martial to find the petitioner guilty. This was particularly so in view of the fact that the incident of beating was alleged to have been witnessed by Hav. Pratap Singh and Hav. Clerk DC Joshi who were withheld by the prosecution without any plausible explanation. ( 9 ) SECONDLY, it was argued that the court of inquiry convened on 13th july, 2001 had the following two terms of reference only: " (i) To examine the incidents occurring in 213 Transit Camp on or prior to 13 July, 2001. (ii) To investigate the circumstances under which false arrival/despatch slips were being issued to transients by the staff of 213 Transit Camp on acceptance of illegal gratification. " ( 10 ) THE incident of beating alleged to have taken place on 14th July, 2001 was thus clearly beyond the scope of the court of inquiry, argued the learned counsel. ( 11 ) THIRDLY, it was argued that even if the finding of guilt recorded by the Court Martial was held to be legally valid, yet the punishment of a severe reprimand imposed by the court martial was sufficient to meet the ends of justice. The revision of sentence ordered by the confirming authority, the replacement of the Judge Advocate General for the revisional proceedings and the backdrop in which the entire controversy had arisen had according to the learned counsel an element of bias against the petitioner in which an insignificant incident (assuming the same had occurred) was used to punish the petitioner even for charges which had not been proved against him at the trial. The punishment was later reduced by the confirming authority but the reduced sentence also remained far too harsh to suit the offence and the offender. The Court would, therefore, be justified in interfering with the order of revision of sentence and restoring the sentence imposed by the Summary General Court Martial. ( 12 ) ON behalf of the respondents, it is argued by Ms. Palli that the present was not a case where there was no evidence to support the finding recorded by the court martial. The version given by Hav. Krishna Pal and Col. ( 12 ) ON behalf of the respondents, it is argued by Ms. Palli that the present was not a case where there was no evidence to support the finding recorded by the court martial. The version given by Hav. Krishna Pal and Col. J. P. Singh had been found reliable by the court martial and accepted for holding the petitioner guilty of charge No. (iii ). There was, therefore, no room for this court to interfere with that finding. On the question of the Court of inquiry proceedings qua the incident of 14th July, 2001 being unauthorized, Ms. Palli contended that there was no bar for the court of inquiry to go into the same, especially when the incident was intrinsically connected to the terms of reference made to it. As regards the quantum of punishment, Ms. Palli argued that the scope of interference with the quantum of punishment was limited and that the present was not a case where this court ought to step in to either reduce or direct reduction of the sentence. ( 13 ) WE have given our anxious consideration to the submissions made at the bar and perused the record. As already noticed, in the beginning of this order, the scope of judicial review does not extend to reappraisal of the evidence on which the court martial has recorded its findings. That does not, however, mean that the court cannot look to the evidence for the limited purpose of finding out whether there is any evidence whatsoever to support the charge against the petitioner. It is only when the Court finds that there is no legal evidence whatsoever that a finding of fact may be interfered with on the ground of perversity but not otherwise. Stated differently, so long as there is some evidence which if believed can sustain the charge, the writ Court would not embark upon a process of appreciation of the same, arrive at its own finding and then substitute the same for that of the court martial. Those are the functions of an appellate court or authority. A writ court cannot convert itself into an appellate court only because a contrary view on a fresh appreciation of evidence is equally plausible. ( 14 ) LET us, in the above background, see whether there is any evidence to support the charge. The answer is provided by the deposition of Hav. A writ court cannot convert itself into an appellate court only because a contrary view on a fresh appreciation of evidence is equally plausible. ( 14 ) LET us, in the above background, see whether there is any evidence to support the charge. The answer is provided by the deposition of Hav. Krishan pal and Col. J. P. Singh, his Commanding Officer. Hav. Krishan Pal has stood by his version that the petitioner had abused and slapped him on 14th July, 2001. The court martial, the confirming authority and the Chief of the Army Staff have found nothing in the cross-examination of this witness that could render his version suspect, hence liable to be rejected. On the contrary, the deposition of Col. J. P. Singh, the Commanding Officer, has been found to be corroborating the version of Hav. Krishan Pal that he had complained to the former about the incident. That being the position, the court martial could believe the two witnesses and find the petitioner guilty as they have done, even when some further evidence that could have been produced by the prosecution but had not been produced. Suffice it to say that the present is not a case of there being no evidence whatsoever to support the finding recorded by the Court Martial. The best that may be stated in favour of the petitioner is that another Court martial or, for that matter, this Court could take a contrary view and hold that the charge was not proved. But the mere possibility of a second view on a fresh appraisal of the evidence is not enough for a writ court to interfere. We have, therefore, no difficulty in rejecting the first limb of the argument of Major ramesh. ( 15 ) EQUALLY untenable is the alternative submission urged by the learned counsel that the court of inquiry could not have gone into the incident of beating as the same was outside the scope of reference made to it by the convening authority. The reference made to the court of inquiry was in our opinion wide enough to include the incident forming the basis of charge No. 3 framed against the petitioner. That apart, the Court of inquiry was no more than an investigation into the incident and did not in itself cast any reflection upon anyone. The reference made to the court of inquiry was in our opinion wide enough to include the incident forming the basis of charge No. 3 framed against the petitioner. That apart, the Court of inquiry was no more than an investigation into the incident and did not in itself cast any reflection upon anyone. It is not in dispute that consequent upon the findings recorded by the court of inquiry, the petitioner was tried by a summary general court martial in which he had the fullest opportunity to cross-examine the prosecution witnesses and to adduce his defence. No prejudice is either claimed by the petitioner or is demonstrable from the record on account of the procedure followed by the Court Martial. The contention that the court of inquiry did not have the authority to investigate the incident of 14th July, 2001, therefore pales into insignificance and is accordingly rejected. ( 16 ) THAT brings us to the only other submission urged on behalf of the petitioner touching the proportionality of the sentence imposed upon the petitioner. The Summary General Court Martial had initially sentenced the petitioner only to a severe reprimand. That sentence was subsequently revised on a direction issued by the confirming authority in terms of Section 160 of the army Act. Upon revision, the sentence was substantially heavier in comparison to the sentence initially awarded to the petitioner. The GOC-in-C had then intervened to substantially reduce the sentence, having regard to the petitioner's past record of service and the future of his family who was economically dependent upon him. The confirming Authority has, in the order extracted earlier, clearly recorded that the has had an unblemished career in the past. The Chief of the Army Staff has not however considered the circumstances pleaded by the petitioner against the quantum of sentence and simply stated that the sentence is on the side of leniency considering the gravity of the offence of which he stands convicted. Neither the confirming authority nor the Chief of the Army Staff have drawn any support from any precedent where a superior officer has been so severely punished for having slapped a PBOR. While no one can approve of superior army officer slapping a nco on his face, the punishment that ought to be given for such misconduct should suit not only the offence but the offender as well. While no one can approve of superior army officer slapping a nco on his face, the punishment that ought to be given for such misconduct should suit not only the offence but the offender as well. A severe recordable reprimand is one of the recognized punishments which the Court Martial had initially awarded and which was in our opinion perfectly commensurate with the nature of the offence committed by the officer. Its revision at the instance of the confirming authority to a much more severe punishment was not justified. In any event, the punishment imposed upon revision was totally disproportionate having regard to the nature of the misconduct; the circumstances in which it was committed and the humiliation which the officer had suffered during the time the matter remained pending at different stages. The officer has, in this connection, enumerated the following circumstances in his statutory petition, a copy whereof forms a part of the writ petition: " (a) I have been attached to various units since 02 August 2001 even before finalization of proceedings of court of inquiry. (b) I have been denied work since 02 August 2001 and forced to while away time in unproductive jobs. (c) I have been denied leave up to 15 Dec 2001, which has caused irreparable damage in relations on domestic front, in relations between my parents, inspite of the fact that my father had written to General Officer commanding, 26 Infantry Division giving reasons for my requirement in clear and unambiguous manner. (d) I have been denied opportunity to spend Christmas with my family during 2002 and 2003. (e) I have been placed under close arrest for about one month and placed under armed guard consisting of subordinates. I have been forced to travel in body of vehicles while escort officers much junior in rank and service traveled in second seat. (f) Some colleagues have even refused to sit on the same dining table to share meals. (g) No social interactions since August 2001. (h) My activities have been severely curtailed, as conditions of attachment are similar to those in Open Arrest. (i) The pain of continued separation from family, dropping of school grades of my only child and financial loss due to delayed plans of premature retirement. (g) No social interactions since August 2001. (h) My activities have been severely curtailed, as conditions of attachment are similar to those in Open Arrest. (i) The pain of continued separation from family, dropping of school grades of my only child and financial loss due to delayed plans of premature retirement. (j) My reputation has been maligned and tarnished beyond redemption as 213 transit Camp is a hub through which almost the entire Indian Army has passed in the last two and a half years and this case would have been a point of discussion. (k) Till date I have spent 923 (nine hundred twenty three only) days in isolation and faced tyrannical oppression of fundamental rights and suspension of service privileges. " ( 17 ) WE are conscious of the fact that a writ court would interfere with the quantum of punishment only if the punishment imposed upon the delinquent officer is outrageously disproportionate to the gravity of the offence but we are also of the view that the revised punishment imposed upon the petitioner was wholly disproportionate to the gravity of the offence in the facts and circumstances of the case. ( 18 ) WE accordingly allow this petition; quash the revised punishment imposed upon the petitioner as also the orders passed by the confirming authority and the Chief of the Army Staff. Consequently, the punishment of severe reprimand shall stand restored and confirmed against the petitioner. Needless to say that all consequential benefits flowing from the modification made by us, shall be released in favour of the petitioner expeditiously but not later than six months from the date of this order. No costs.