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2009 DIGILAW 673 (JK)

T. K. Singhal v. Union Of India

2009-12-23

BARIN GHOSH, SUNIL HALI

body2009
Barin Ghosh, C.J. 1. The writ petition, challenging the sentence to cashiering and rigorous imprisonment for two years dated November 16, 1999, affirmed on April 18, 2000, having been dismissed by the judgment and order under appeal, the appellant is before us. 2. The appellant was a Captain in the Indian Army. On July 10, 1991, a charge sheet was issued against him. The appellant having denied the charges, the same were tried by a General Court-martial, which resulted in the punishment order dated November 16, 1999, confirmed by order dated April 18, 2000. 3. There were five charges against the appellant. First three of them were under Section 52 (f) of the Army Act. The fourth charge was under Section 69 of the Army Act, relating to an offence under Section 5 (2) of the Prevention of Corruption Act, 2006 (J&K). The fifth charge was under Section 63 of the Army Act. 4. It was the contention of the appellant before the Writ Court and also before us, that the fifth charge was not such a serious charge, that the same could result in a punishment, as grave as cashiering and rigorous imprisonment for two years. It was also the contention of the appellant that the fourth charge was pertaining to an offence committed under Section 5 (2) of the Prevention of Corruption Act, 2006 (J&K) and, in relation thereto, in terms of Section 6 of the said Act, a sanction to prosecute was sine qua non, which having not been granted in the instant case, the said charge could not be proceeded with. In support of the said contention, learned counsel for the appellant cited before us a judgment of the Honble Supreme Court rendered in the case of Union of India and ors v. L. D. Balam Singh, reported in (2002) 9 SCC 73. In that case, an Army personnel was punished by a General Court-martial for having contravening the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985. The Honble Supreme Court held that if the provisions of NDPS Act is to be taken recourse to, then and in that event, the provisions of the said Act would come into play in its entirety. The Honble Supreme Court held that if the provisions of NDPS Act is to be taken recourse to, then and in that event, the provisions of the said Act would come into play in its entirety. The Honble Supreme Court clarified that when a particular statute is taken recourse to, question of trial under another statute without taking recourse to the statutory safeguards would be void and the entire trial would stand vitiated unless, of course, there are existing provisions therefor in the particular statute. In relation to the first, second and third charge, it was contended by the appellant that a look at the said charges would make it amply clear that the said charges are also those pertaining to the offences mentioned in the Prevention of Corruption Act, 2006 (J&K) and in respect of those charges too, the trial could not be proceeded, inasmuch as no sanction to prosecute was granted. 5. The appellant further contended that the offence alleged to have been committed constituting charges 1, 2, 3 were signing of challans by the appellant and another officer. It was contended that same allegation was levelled against yet another officer. It was contended that the trial of the offence alleged to have been committed by three persons should have been conducted simultaneously, which is also the mandate of the law and, that having not been done, the trial was vitiated. It was contended that one of the accused persons deposed against the appellant. In the event, trial had been conducted simultaneously, on the basis of such deposition, the charge could not be proved. It was also contended that prosecution engaged a hand writing expert for obtaining an opinion whether the receipts contained the signature of the appellant, but the said hand writing expert was not produced as a witness at the trial by the prosecution. It was contended that a request was made for production of the said hand writing expert as a witness of the defence, but no step was taken for ensuring his presence. It was submitted that the trial was thus prejudiced. 6. The respondents have contended that the fifth charge may not be of serious nature but the sentence was pronounced on the basis of the cumulative effect of all the five charges and, accordingly, the sentence was not interfereable. It was submitted that the trial was thus prejudiced. 6. The respondents have contended that the fifth charge may not be of serious nature but the sentence was pronounced on the basis of the cumulative effect of all the five charges and, accordingly, the sentence was not interfereable. It was also contended on the basis of a judgment of a Division Bench of Himachal Pradesh High Court rendered in the case of Piar Singh v. Union of India and ors, reported in 1985 Cri. L. J 860, that in view of Section 69 of the Army Act, 1950, protection of Section 6(1) of the Prevention of Corruption Act, 1947, is not available and, as such, there was no requirement of obtaining sanction to prosecute in respect of charge no. 4. It was submitted that first three charges were not commission of offences under the Prevention of Corruption Act, 2006 but were commission of offences under Section 52 (f) of the Army Act and, accordingly, protection of Section 6 of the Prevention of Corruption Act, 2006 were not available in respect of the first three charges. It was submitted that the Army Rules prescribe that charges against officers are to be tried separately. It was contended that the contention that the charges against all the three persons should have been tried simultaneously, is not available. It was contended that not only steps were taken to summon the hand writing expert but special couriers were also dispatched for procuring his attendance. However, his medical condition prevented him to undertake journey to the location of the General Court-martial and the same was conveyed to the appellant. 7. Before the Writ Court, judgment of the Honble Supreme Court in the case of Union of India v. L. D. Balam Singh (supra) was not cited, as the said judgment was rendered after the judgment and order under appeal was rendered. The Writ Court held that the appellant was charged under Section 69 of the Army Act, 1950 and not under Section 5 (2) of the Prevention of Corruption Act, 2006 and, accordingly, was not entitled to the protection under Section 6 of the Prevention of Corruption Act, 2006. The Writ Court, accordingly, held against the appellant. The other points raised before the Writ Court and answered by it, have not been raised in the present appeal and even, if raised, were not pressed before us. The Writ Court, accordingly, held against the appellant. The other points raised before the Writ Court and answered by it, have not been raised in the present appeal and even, if raised, were not pressed before us. 8. Before we deal with the matter further, it would be appropriate on our part to take note of the five charges that were levelled against the appellant. Those are as follows. First charge Army Act Section 52(f) read with Section 34 of Ranbir Penal Code 8."SUCH AN OFFENCE AS IS MENTIONED IN CLAUSE (F) OF SECTION 52 OF THE ARMY ACT WITH INTENT TO DEFRAUD, In that he, at field, between 16 Aug 96 and 25 Sep 96, when R & D Officer, 406 Coy ABC (Pet), alongwith Lt. Col GS Cheema of the same Unit, with intent to defraud, got the challans mentioned in column 2 of Appendix `A to this charge-sheet, fraudulently cleared for the quantity of Kerosene Oil Superior/MS indicated in column 3 of the said Appendix, valued at Rs. 17,82,918/- (Rupees Seventeen Lakhs eighty two thousand nine hundred and eighteen only), purporting to show the receipt of the said quantity of Kerosene Oil superior/MS by the unit, well knowing that no Kerosene Oil superior/MS had been received against the said challans. Second Charge Army Act Section 52(f) SUCH AN OFFENCE AS IS MENTIONED IN CLAUSE (F) OF SECTION 52 OF THE ARMY ACT WITH INTENT TO DEFRAUD, in that he, at field, between 02 Sep 96 to 17 Sep 96, when R&D Officer, 406 Coy ASC (Pet), with intent to defraud, got the following challangs fraudulently cleared for the quantity of Kerosene Oil superior mentioned against each, purporting to show the receipt of said quantity of Kerosene Oil Superior by the unit and thereby obtained a sum of Rs. 2,20,000/- (Rupees two Lakhs twenty thousand only), well knowing that no Kerosene Oil Superior had been received against the said challans:- S. No. Number and date of Challans Particulars of BPL Vehicles Quantity in Ltrs. 1. 003304 dt 02 Sep 96 JK-02-9937 8000 2. 003466 dt. 06 Sep 96 JK-02-4229 8000 3. 003400 dt. 06 Sep 96 JK-02B-5492 8000 4. 003472 dt. 06 Sep 96 JK-02C-6674 8000 5. 003550 dt. 1. 003304 dt 02 Sep 96 JK-02-9937 8000 2. 003466 dt. 06 Sep 96 JK-02-4229 8000 3. 003400 dt. 06 Sep 96 JK-02B-5492 8000 4. 003472 dt. 06 Sep 96 JK-02C-6674 8000 5. 003550 dt. 09 Sep 96 JK-02F-7470 8000 Third Charge to Army Act Section 52(f) read with Section 34 of Ranbir Penal Code SUCH AN OFFENCE AS IS MENTIONED IN CLAUSE (F) OF SECTION 52 OF THE ARMY ACT WITH INTENT TO DEFRAUD, In that he, at field, between 06 Sep 96 and 17 Sep 96, when R & D Officer, 406 Coy ASC (Pet), along with Lt. Col GS Cheema of the same unit, with intent to defraud, got the following challans fraudulently cleared for the quantity of Kerosene Oil superior mentioned against each, purporting to show the receipt of the said quantity of Kerosene Oil Superior by the unit and thereby obtained a sum of Rs. 4,34,000/- (Rupees four Lakhs thirty four thousand only), well knowing that no kerosene Oil superior had been received against the said challans:- S. No. Number and date of Challans Particulars of BPL Vehicles Quantity in Ltrs. 1. 524849 dt 06 Sep 96 HR-37-3491 9000 2. 524856 dt. 07 Sep 96 JHR-OIA-9979 9000 3. 524857 dt. 07 Sep 96 HR-37-5686 9000 4. 524861 dt. 07 Sep 96 HR-37-2178 9000 5. 524854 dt. 07 Sep 96 HR-01B-6468 9000 6. 524867 dt 09 Sep 96 HR-37-5689 9000 7. 524848 dt. 09 Sep 96 HR-37-5668 9000 8. 5248 85 dt. 09 Sep 96 HR-37-3366 9000 9. 524870 dt. 09 Sep 96 HR-37-3258 9000 Fourth Charge Army Act Section 69 COMITTING A CIVIL OFFENCE, THAT IS TO SAY, CRIMINAL MISCONDUCT CONTRARY TO SECTION 5 (2) OF THE PREVENTION OF CORRUPTION ACT, 2006 (J&K), at field, on or about 25 Sep 96, being a public servant was in possession of Rs. 4,63,950/- (Rupees four Lakhs sixty three thousand nine hundred fifty only), a sum disproportionate to his known sources of income, which he could not satisfactorily account for. 4,63,950/- (Rupees four Lakhs sixty three thousand nine hundred fifty only), a sum disproportionate to his known sources of income, which he could not satisfactorily account for. AN ACT PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE, in that he, at field, on 25 Sep 96, when Adm Officer, 406 Coy ASC (Pet), improperly and unauthorizedly permitted Sep KSH Bhai of the same unit to leave the unit on 25 Sep 96 with instructions to deliver the undermentioned articles at his (accused) house at Dehradun, well knowing that Sep KSH Bai had been sanctioned casual leave from 01 Oct 96 to 20 Oct 96 to proceed to his home:- (a) Steel Box. (b) Mixie Package. (c) Package Containing Necklaces." 9. In order to understand how the charges thus levelled can be said to be offences under the Army Act, 1950 and the Prevention of Corruption Act, 2006, one must take note of Sections 52 (f), 63 and 69 of the Army Act , 1950 as well as Sections 5 (1), 5 (2) and 6 of the Prevention of Corruption Act, 2006, which are set out herein below. "Army Act 1950: "52. Offences in respect of property.- Any person subject to this Act who commits any of the following offences, that is to say,- (f) does any other thing with intent to defraud, or to cause wrongful gain to one person or wrongful loss to another person. shall, on conviction by Court-martial, be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as is in this Act mentioned. 69. Civil Offences. shall, on conviction by Court-martial, be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as is in this Act mentioned. 69. Civil Offences. - Subject to the provisions of Sec. 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 Court-martial 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. 63. Violation of good order and discipline.--Any person subject to this Act who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and military discipline shall, on conviction by Court-martial, be liable to suffer imprisonment for a term which may extended to seven years or such less punishment as is in this Act mentioned. Prevention of Corruption Act, 2006. 5. Prevention of Corruption Act, 2006. 5. Criminal misconduct--(1) A public servant is said to commit the offence of Criminal misconduct - (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the State Ranbir Penal Code, Samvat 1989; or (b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consi- deration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceedings or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the persons so concerned; or (c) if he is dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or (d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant obtains for himself or for any other person any valuable thing or pecuniary advantage; or (e) if he or any person on his behalf is in possession or has, at any time during the period of his office, been in possession, for which the public servant can not satisfactorily account, or pecuniary resources or property disproporti- onate to his know sources of income. 5(2). Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine: Provided that the Court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year but not less than six months. Sec. 6. Sec. 6. -- Previous sanction necessary for prosecution--No court shall take cognizance of an offence punishable under section 161 or section 164 of section 165 or section 167-A of the State Ranbir Penal Code, Samvat 1989 or under sub-section (2) or sub-section (3) of section 5 of this Act, alleged to have been committed by a public servant except with the previous sanction- (a) in the case of a person who is employed in connection with the affairs of the State and is not removable from his office save by or with the sanction of the Government; (b) in the case of any other person, of the authority competent to remove him from his office." 10. Section 52 (f) of the Army Act, 1950 and Section 5 (1) of the Prevention of Corruption Act, 2006 have furnished ingredients of offences; whereas Section 69 of the Army Act, 1950 does not furnish ingredients of offence. Section 69 of the Army Act, 1950 authorizes trial of any civil offence committed by a person subject to the Army Act, 1950 by a Court-martial and also authorizes the Court-martial to convict such person for having had committed such civil offence. 11. The fourth charge against the appellant was a civil offence, said to be punishable under sub-section (2) of Section 5 of the Prevention of Corruption Act, 2006. The ingredient of the offence, as was indicated in the charge sheet, was criminal misconduct as described in the Prevention of Corruption Act, 2006. 12. In terms of Section 133 of the Army Act, 1950, the Indian Evidence Act, 1872 is applicable to all proceedings before Court-martial subject to the provisions of the Army Act. The Indian Evidence Act, 1872 gives an inclusive definition of court and provides that court includes all judges and Magistrates and all persons, except Arbitrators, legally authorized to take evidence. There is no dispute that Court-martial is legally authorized to take evidence and, accordingly, it should be deemed to be a court. Section 6 of the Prevention of Corruption Act, 2006 prevents a court from taking cognizance of an offence punishable under sub-section (2) of Section 5 of the said Act. In this background, one must note the following observations of the Honble Supreme Court rendered in the case of Union of India and ors v. L. D. Balam (supra):- "15. Section 6 of the Prevention of Corruption Act, 2006 prevents a court from taking cognizance of an offence punishable under sub-section (2) of Section 5 of the said Act. In this background, one must note the following observations of the Honble Supreme Court rendered in the case of Union of India and ors v. L. D. Balam (supra):- "15. Turning attention on to the procedural aspect, be it noticed that Section 18 is an offence which cannot but be ascribed to be civil in nature in terms of the provisions of the Army Act -- if section 18 is to be taken recourse to then and in that event the provisions of the statute come into play in their entirety rather than piecemeal. The charge levelled against the respondent is not one of misdeeds or wrongful conduct in terms of the provisions of the Army Act but under the NDPS Act. In the event, we clarify, a particular statute is taken recourse to, question of trial under another statute without taking recourse to the statutory safeguards would be void and the entire trial would stand vitiated unless, of course, there are existing specific provisions therefor in the particular statute....." 13. When trial of an offence committed under the Prevention of Corruption Act, 2006 is to be tried by the Court-martial in terms of the authority granted by Section 69 of the Army Act, 1950, the statutory safeguards provided under Section 6 of the Prevention of Corruption Act, 2006 should be deemed to be applicable to such trial and for breach of such safeguards, the trial would stand vitiated. 14. In view of the said pronouncement of the Honble Supreme Court, we are not in a position to accept the ratio of the judgment of the Division Bench of Himachal Pradesh High Court rendered in the case of Piar Singh v. Union of India and ors (supra). We, accordingly, hold that sentence awarded and confirmed in the instant case cannot be sustained even if charge no. 4 stands proved on evidence, inasmuch as no sanction was obtained from any authority under Section 6 of the Prevention of Corruption Act, 2006. 15. It is true that a look at charges no. We, accordingly, hold that sentence awarded and confirmed in the instant case cannot be sustained even if charge no. 4 stands proved on evidence, inasmuch as no sanction was obtained from any authority under Section 6 of the Prevention of Corruption Act, 2006. 15. It is true that a look at charges no. 1, 2 and 3 would show that the ingredients of offences mentioned therein are also ingredients of offences mentioned in sub-section (1) of Section 5 of the Prevention of Corruption Act, 2006. However, it was not contended, nor it can be contended that the ingredients of offences mentioned in the said charges are not akin to the ingredients of offences mentioned in Section 52(f) of the Army Act, 1950. 16. It was urged by the learned counsel appearing on behalf of the appellant that since ingredients of the offences mentioned in the said charges are akin to the ingredients of offences mentioned in sub-section (1) of Section 5 of the Prevention of Corruption Act, 2006, in respect of said charges too, the appellant was entitled to safeguards of Section 6 of the Prevention of Corruption Act, 2006. Learned counsel placed reliance on the judgment of the Honble Supreme Court rendered in the case of Union of India and ors. v. L.D. Balam Singh (supra) also in support of the said contention and, in particular, that part of the judgment, as has been quoted above. 17. We have not been able to find from the said judgment of the Honble Supreme Court or from that part of the judgment, as quoted above, any such view of the Honble Supreme Court. On the other hand, we find the said judgment and in particular, the said part of the judgment, speaks contrary. It clarifies that when a particular statute is taken recourse to, the question of trial under another statute without taking recourse to the safeguards would be void and the entire trial would stand vitiated unless, of course, there are existing specific provisions therefor in the particular statute. In other words, it made clear that if the particular statute, under which the trial is taken recourse to, specifies ingredients of offence to be tried thereunder because similar ingredients have also been mentioned as offence in other statute, would not bring into operation the provisions of the said other statute to the trial. In other words, it made clear that if the particular statute, under which the trial is taken recourse to, specifies ingredients of offence to be tried thereunder because similar ingredients have also been mentioned as offence in other statute, would not bring into operation the provisions of the said other statute to the trial. We, therefore, see no reason to accept the contention of learned counsel for the appellant that the appellant was entitled to the safeguards of Section 6 of the Prevention of Corruption Act, 2006 in relation to charges no. 1, 2 and 3. At this juncture it should also be kept in mind that the Army Act, 1950 has been made in exercise of power under Article 33 of the Constitution of India, which in turn authorize restriction or abrogation of fundamental rights including right of equality. The Army Act, 1950 has abrogated the safeguards of Section 6 of the Prevention of Corruption Act, 2006 by not providing the same in respect of an offence under Section 52 (f) of the Army Act, 1950, although the ingredients of offence mentioned therein may be or are similar to those furnished in Section 5(1) of the Prevention of Corruption Act, 2006. 18. It is not the contention that charges no. 1, 2 and 3 have not been proved. The contention is that the trial of the said charges should have been held not only against the appellant but against the person named in the charge sheet as also against another person simultaneously. It was contended that the same is the mandate of law. 19. We have not been shown any such law. On the other hand, we find from Rule 35 of the Army Rules, 1954 that it is discretionary to charge any number of accused persons jointly and to try them together for an offence alleged to have been committed by them collectively. In the circumstances, the contention that trial of the appellant was in violation of Rules, is not acceptable. 20. It was contended that the hand writing expert was not produced and, accordingly, the trial was prejudiced. The fact that the hand writing expert was summoned and a special courier was sent to fetch him, has not been denied. In the circumstances, the contention that trial of the appellant was in violation of Rules, is not acceptable. 20. It was contended that the hand writing expert was not produced and, accordingly, the trial was prejudiced. The fact that the hand writing expert was summoned and a special courier was sent to fetch him, has not been denied. In terms of sub-section (3) of Section 135 of the Army Act, 1950, in case of a witness not amenable to inquiring authority, the summons are required to be sent to the Magistrate within whose jurisdiction he may be residing and such Magistrate shall give effect to the summons as if the witness was required in the court of such Magistrate. Rule 137 of the Army Rules, 1954 provides that the Court-martial after assembly of the court shall take appropriate steps to procure the attendance of the witnesses, whom the accused desires to call and whose attendance can reasonably be procured. To procure the attendance of hand writing expert, summons were not only sent but a special courier was also sent. Despite that, attendance of the hand writing expert could not be procured in view of his medical disability. The appellant also, at the same time, did not take any step to approach the Magistrate for issuance of a warrant of arrest for production of the hand writing expert as a witness before the Court-martial. 21. In the circumstances, it would not be appropriate on our part to accept the contention that steps to procure attendance of the hand writing expert before the Court-martial was not taken and as a result trial was prejudiced. 22. A look at Section 63 of the Army Act, 1950 makes it clear that the said section too prescribes ingredients of offence. In other words, the offence must be such an act or omission which is prejudicial to good order and military discipline. It is not the contention that the ingredients constituting the fifth charge do not come within the parameters of Section 63 of the Army Act, 1950. It is also not the contention that the said charge has not been proved. It was contended that the nature of the charge, as alleged, even if proved, cannot result in a punishment, as was awarded. That may be true, but when the punishment was awarded, cumulative effect of all the five proved charges were taken note of. It is also not the contention that the said charge has not been proved. It was contended that the nature of the charge, as alleged, even if proved, cannot result in a punishment, as was awarded. That may be true, but when the punishment was awarded, cumulative effect of all the five proved charges were taken note of. Having regard to the nature of all the five charges, it would not be appropriate on our part to hold that if those charges stand proved, the sentence and punishment awarded can be said to be excessive or dis-proportionate. 23. However, the fact remains that even if charge no. 4 stands proved, the same could not be taken into account while awarding the punishment, for the reasons already indicated above. At the same time, there cannot be any dispute that while awarding the sentence and punishment, cumulative effect of all the five charges including the fourth charge, had been taken into account. The question is whether such sentence or punishment is interfereable or not? It is now well settled in law that if punishment can be sustained on a charge or a number of charges but not on all, then the Judicial Review Court is not competent to interfere with the sentence and punishment. It being not the contention that the sentence and punishment, as have been awarded, are not sustainable on the basis of cumulative effect of proof of charges no. 1, 2, 3 and 5, we have no authority as Judicial Review Court to interfere with the sentence and punishment. 24. That being the situation, the appeal fails and the same is dismissed.