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2010 DIGILAW 333 (JK)

Indra Kumar Rai v. Union Of India

2010-06-03

J.P.SINGH

body2010
1. Amendment sought for in the Writ Petition is contested by the Union of India on the ground that being afterthought and belated, its grant may not be permissible. 2. I have considered the submissions of learned counsel for the parties and gone through Ex-constable Ramvir Singh v. Union of India and others, reported as (2009) 3 SCC, 97, referred to by the learned Union Counsel to support his submissions. 3. Before considering the submissions of learned counsel for the parties, reference needs to be made to paragraph No.33 of the Writ Petition, which is sought to be amended, along with its proposed amendment. Paragraph No.33 as it exists in the Writ Petition reads thus:- "That, the proceedings before the Court Martial, and the finding of guilt and sentence recorded by it, are vitiated for another reason; it is that the same was not properly constituted. There is no evidence or material on record to show that the accused or the deceased was at the time of the commission of the alleged offence attached to or formed part of a force which was engaged in any activity in the circumstances and conditions envisaged in Section 3(i) of the Army Act. The trial of the Summary General Court Martial is incompetent and without jurisdiction." The proposed amendment to paragraph No.33 of the Writ Petition is as follows:- "In any event, the Court Martial, in the present case has been convened by the Major General, the Commanding Officer of a Division, and not by the General Officer Commanding, Northern Command, who alone is competent to convene Summary General Court Martial in terms of Section 112 (2) of the Army Act. The officer who convened the Summary General Court Martial in the present case was not an officer empowered in this behalf by an order of the Central Government or of the Chief of the Army Staff, nor, as stated earlier, the officer commanding the forces in the field or an officer empowered by him in this behalf. The Court Martial Proceedings and the findings therein, including confirmation thereof by the convening Authority on 20.07.2004 are vitiated as incompetent and without jurisdiction; and so is the trial, conviction and sentence of the petitioner. The same, therefore, deserves to be quashed even on this score; and the petitioner prays accordingly." 4. The Court Martial Proceedings and the findings therein, including confirmation thereof by the convening Authority on 20.07.2004 are vitiated as incompetent and without jurisdiction; and so is the trial, conviction and sentence of the petitioner. The same, therefore, deserves to be quashed even on this score; and the petitioner prays accordingly." 4. Reading of the proposed amendment to Paragraph No.33 indicates that what is sought to be introduced by way of amendment to Paragraph No.33 of the Writ Petition, is only an elucidation of the petitioners plea as to the jurisdiction of the Court Martial to hold and conclude the Petitioners trial. 5. Perusal of the existing Paragraph No.33 of the Writ Petition and the amendment sought to be introduced therein indicates that the proposed amendment does not introduce, in any way, any such plea which, as projected by the respondents learned counsel, may amount to a new plea altogether. 6. By introducing amendment to Paragraph No. 33 of the Writ Petition, the petitioner intends to refer to the provisions of Section 112 (2) of the Army Act, to demonstrate that the Court Martial was not properly constituted, which, in my view, he is, even otherwise, entitled so to do, without introducing any formal amendment to the Writ Petition. 7. The plea projected by the petitioner, is a plea of jurisdiction which goes to the very root of the matter respecting the competence and Authority of the Court Martial to deal with the offence alleged to have been committed by the petitioner. Such a plea, may permissibly be raised at any time regardless of the nature and stage of the proceedings, where such a plea was raised. 8. The petitioner, who has already raised the plea of jurisdiction of the Court Martial to hold his trial, in the original pleadings, cannot thus be denied permission to refer to a provision of law to support his already existing plea of jurisdiction additionally because the petitioner does not intend to introduce, in any way, any such plea, which, as projected by the respondents learned counsel, may be a new plea altogether. 9. 9. Ramvir Singhs case, referred to by the respondents learned counsel is not attracted to the facts of the present case as the plea sought to be projected in that case did not pertain to the jurisdiction of the Court Martial and was a plea of prejudice, based on facts, which the Honble Supreme Court of India, had opined, could not be permitted to be raised for the petitioners omission to raise it before the Summary Security Force Court. 10. That apart, Union of India has filed its Response to the proposed amended Writ Petition of the petitioner urging that the Summary General Court Martial was properly constituted and the petitioners plea in this respect was untenable on the grounds pleaded in support thereof. 11. As the case has already been heard in part and the proposed amended pleadings too have been placed on records, so, in the circumstances too, it would be appropriate to hear the parties on the amended plea of the petitioner as well. 12. I, therefore, do not see any merit in the respondents Objection that the amendment sought for in the Writ Petition, was impermissible, being belated and afterthought. CMP No. 313/2010 is, therefore, allowed, permitting the petitioner to amend the Writ Petition. The Amended Writ Petition and the respondents Response thereto, are taken on records. Registry to list the Writ Petition along with the Connected Petition for further hearing.