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2010 DIGILAW 482 (JK)

Satbir v. Union Of India

2010-08-31

Aftab H.Saikia, MOHAMMAD YAQOOB MIR

body2010
Per Mohd. Yaqoob Mir, J. 1. By medium of this appeal, judgment dated 29.12.2000 rendered by Writ Court is assailed. Against the dismissal order, as passed against the appellant by General Court martial, writ petition filed by appellant, has been dismissed vide the impugned judgment. 2. Precise factual matrix shall be advantageous to be noticed. The appellant had received a postcard on 7th April 1990, containing information that his father-in-law had died, he requested the officiating CHM for any type of twenty days’ leave. In connection thereof he met Subedar Jeet Ram at his residence and was promised that his leave application would be put before the Commandant and was accordingly told to appear before the Commanding Officer on 9th April 1990. However, according to the appellant when on 8th April 1990, he was performing night guard Santiri duty at Company’s main gate in Badami Bagh Cantonment, during patrolling he found someone moving in the area, who, on being called upon did not stop, which prompted the appellant to use his fire arm. The person as was fired upon was found to be Subedar Jeet Ram. The appellant as a result thereof was arrested. 3. According to the appellant, the person fired upon was moving in suspicious circumstances, which prompted him to open fire. The authorities concerned fell suspicious about opening of the fire as result thereof enquiry was instituted. Court of Enquiry consisted of IC-1829W Lt. Col. E.M. DANIELS, (PO) with IC-29620Y Major S. C. Bhola Member and SS 32648K Capt. A. K. Kohli. On conclusion of the enquiry opinion was recorded as under: "1. The Court is of the opinion that number 14235632 L/NK Satbir of 31 Sub Area Sig Coy is found guilty for the firing of JC-125468N Sub(OSL) Jeet Ram of the same Unit on 08 Apr 1990. He is to be solely blamed for the act. 2. The injury sustained by JC-125468N Sub (Jeet Ram) is attributable to military service in the full. Presiding officer: Sd/- (IC-18289W Lt Col EM Daniels) Members 1.Sd/- (IC-29620Y Major SC Bhola) 2.Sd/- (SS-32648K Capt AK Kohli)" 4. Based on the said opinion charge was to the same effect. The Commandant held the proceedings under Rule 22 of the Army Rules. In the process he recorded the statements of four witnesses namely Harinder, M. K. Choudhary, Lal Ram and Rajinder Kumar. Based on the said opinion charge was to the same effect. The Commandant held the proceedings under Rule 22 of the Army Rules. In the process he recorded the statements of four witnesses namely Harinder, M. K. Choudhary, Lal Ram and Rajinder Kumar. It is recorded therein that the accused declined to cross-examine the said witnesses. On conclusion Commandant has given following order: "Evidence to be reduced in writing." 5. Finally charge sheet has been framed by Commandant against the accused to the following effect CHARGE SHEET The accused no. 14235632K Sigmn (l/NK) Satbir, 31 Sub Area Sig Coy, is charged with:- COMMITTING A CIVIL OFFENCE, THAT IS TO SAY, ATTEMTP TO MURDER, CONTRARY TO SECTION 307 OF THE RANBIR PENAL CODE, In that he, At field, on 08 April 90, fired a shot from rifle 7.62 mm SLR Registered Number BB-7753, Butt No 17, at JC-125468N Sub Jeet Ram of the same unit with intent to murder him and thereby wounded the said JCO in the right shoulder. Sd/- Place:Field (Bushal Lal Sapru) Lieutenant Colonel(Time Scale) Date:22 Oct 90 Officer Commanding 31 Sub Are Sig Coy Based on said charge sheet, Lt. General Officer Commanding recorded as under: "To be tried by a General Court Martial." 6. Finally accused was tried and was found guilty; resultantly he has been sentenced to suffer rigorous imprisonment for seven years and was also dismissed from service. Post conformation petition under Section 164(1) of the Army Act 1950 stands dismissed. The sentence was confirmed by the confirming authority on 15 January 1991. Appellant filed the petition OWP no. 392/1992, which has been dismissed. 7. Heard learned counsel for the parties. 8. Learned counsel for the respondents produced the record of Court Martial as well as record of Court of enquiry. 9. Learned counsel for the appellant at the very outset stated that he will restrict his challenge viz-a-viz non-adherence to the Rules 22, 23 and 24 of the Army Rules, 1954 (herein after referred to as Rules). According to the learned counsel non-adherence to the said rules vitiates both, the proceedings of the enquiry Court as well as of the Court Marital. According to him proviso to Rule 22 of the Rules has been incorporated w.e.f. 6 December 1993. The occurrence is of 1990, proceedings came to be initiated in the year 1990. According to the learned counsel non-adherence to the said rules vitiates both, the proceedings of the enquiry Court as well as of the Court Marital. According to him proviso to Rule 22 of the Rules has been incorporated w.e.f. 6 December 1993. The occurrence is of 1990, proceedings came to be initiated in the year 1990. Therefore, the said proviso was not applicable at that relevant time. 10. Proviso to Rule 22 of the Rules will provide that when charge against the accused arises, as a result of investigation by a Court of enquiry, where in the provisions of Rule 180 have been complied with, then the Commanding Officer may dispense with the procedure in Sub -- Rule 1. Sub Rule 1 of the Rule 22 provides that every charge has to be heard by the Commanding Officer in presence of the accused and the accused shall have liberty to cross-examine any witness and also to make such statements as may be necessary. 11. In the instant case, admittedly enquiry has been instituted and the Court of enquiry has held the proceedings and had also recorded a certificate to the following effect: "It is certified that the provisions of AR 180 have been complied with in which number 14235632 L/NK Satbir has been given full opportunity to cross-examine the witness and however, he has examined witnesses number 4 and 6 and declined to cross-examine the rest of the witnesses." 12. When it is so, in terms of the proviso Commanding Officer was not required to proceed under Sub-Rule 1 of Rule 22, but the proviso was not available at that time, therefore, the question as arises for consideration is to what can be its effect. 13. The effect could be that Commanding Officer had to hear the charge. Perusal of the record available would indicate that despite investigation by Court of enquiry, the Commanding Officer in accordance with Rule 22 has heard the charge and in the process has heard four witnesses, named above, therefore the position of proviso being there or not, has no impact. 14. Perusal of the record available would indicate that despite investigation by Court of enquiry, the Commanding Officer in accordance with Rule 22 has heard the charge and in the process has heard four witnesses, named above, therefore the position of proviso being there or not, has no impact. 14. Now an important position of law is that what was required to be done after Commandant had complied with Sub-rule 1 of Rule 22, is that Commandant presumably on conclusion by recording "Evidence to be reduced in writing" would mean that he has proceeded in accordance with Sub Rule 3 ( c) of Rule 22. When it is so, the procedure as was to be adopted was to take down the summary of evidence as envisaged by Rule 23 of the Rules which provides that the witnesses who were present and gave evidence before the Commanding Officer, whether against or for accused and of any other person who appeared was to be taken down in writing in presence of accused before the Commandant Officer or such Officer as he directs. Further more, accused has a right to put in cross-examination such question as he thinks fit to any witness and all the question together with the answers thereto, shall be added to the evidence recorded. 15. The submission that Rule 23 of the Rules has not been adhered to, has the substance, for the reasons to follow. The record viz-a-viz recording of summary of evidence presents a ambiguous situation, i.e., the record of the Court of enquiry, indicates that the Court of enquiry while investigating the circumstances viz-a-viz the occurrence has recorded the statements of as many as 13 witnesses, based on which Court of enquiry has framed opinion as earlier referred to. Certificate as quoted above viz-a-viz compliance with the provisions of Rule 180 has been issued by the PO of the Court of enquiry. 16. If the recording of the evidence is taken to have been recorded prior to the order of Commandant ordering evidence to be recorded in writing, then whether provisions of Rule 180 of the Rules have been fully complied with and in case said summary of evidence is reduced to writing pursuant to the order of Commanding Officer then again a question as to whether Rule 23 has been fully complied with. In accordance to Rule 180 of the Rules the accused person has to be given full opportunity of being present through out the enquiry and to cross-examine any witness. 17. While going through the statements of witnesses as recorded. What emerges is that out of 13 witnesses, two witnesses have been cross-examined by the accused, whereas accused has declined to cross-examine witness number 5, 11 and 13, which is clearly indicated therein Viz-a-viz rest of the witnesses, it is no where recorded beneath there statement that the accused has declined to cross-examine or accused has cross-examined the witnesses the way it is recorded beneath the statement of witness nos. 4, 6, 5, 11 and 13, which would mean that the accused has not been given an opportunity nor the accused has been present when the statements of the remaining witnesses were recorded. The certificate as quoted herein above, to the effect accused declined to cross-examine rest of the witnesses, appears to be against the records. 18. In case the said summary of evidence is taken to have been done in compliance to Rule 23, then again the accused had every right to be present all along when the evidence was taken down and to cross-examine the witnesses. As noticed above Commandant had only heard four witnesses namely M. K. Choudhary-witness no.4 and Lala Ram- witness no.6, have been cross-examined, whereas statements of witnesses Harinder and Rajinder Kumar have been recorded but it has not shown as to whether their statements were recorded in presence of the accused, neither it is shown that the accused declined to cross-examine them. In the said backdrop, compliance of Rule 23 of the Rules has become a casualty. When law directs to do a particular thing in a particular way, it is to be done in the same way, so as to achieve logical object. The recording of evidence in presence of the accused and then right of cross-examination in the wisdom of the legislator is a safeguard to provide an opportunity to the accused to defend and to bring on forth the reality. When out of 13 witnesses only with regard to five witnesses mention is made, i.e., accused has cross -- examined witnesses no. When out of 13 witnesses only with regard to five witnesses mention is made, i.e., accused has cross -- examined witnesses no. 4 and 6 and has declined to cross-examine witnesses 5, 11 and 13, would mean that he has been deprived of being present when other witnesses were examined and has also been deprived of cross-examining them. It shall be quite apt to quote relevant portion, as applicable to the instant case, from the judgment rendered by Hon’ble Apex Court in case captioned Shanti Sarup Gupta v. Anjuman Isnai Ashria, (1982) 3 SCC: "In respect of such person belonging to lower category it is mandatory that Rule 22, 23 and 24 have to be followed and there is no escape from it except on the pain of invalidation of the enquiry" 19. In the backdrop of the details as stated herein above, it is to be said with certainty that there has been flagrant violation of the mandatory provisions of the Rule 23. When it is so, the invalidation of the enquiry is the only result and the consequent Court martial proceedings fall to the ground. 20. It is true that in disciplined force utmost discipline is a hall mark and has to be maintained. For indiscipline severe stern action is imperative but in the process necessary safe guards as made available by law have to respected otherwise there was no requirement of providing all such safe guards. Law is law so is to be respected and adhered to. Procedural irregularities sometimes may not invalidate the proceeding but those irregularities must be such which may not deprive the effected person of his valuable guaranteed rights. When mandate of procedure is such wherein safe guards are inbuilt, then its mandatory position cannot be diluted unless there are cogent reasons which in the present case are none. 21. In the upshot what emerges is that it can be safely concluded that non-adherence to Rule 180 vitiates enquiry proceedings and thereafter non-adherence to Rule 23 of the Rules, as detailed above, also renders the subsequent proceedings as invalid. 21. In the upshot what emerges is that it can be safely concluded that non-adherence to Rule 180 vitiates enquiry proceedings and thereafter non-adherence to Rule 23 of the Rules, as detailed above, also renders the subsequent proceedings as invalid. Therefore, the order of sentence and dismissal passed by the Court Martial is unsustainable so the order of Court Marital is set aside, leaving it open to the authorities concerned, if they choose to proceed in the matter afresh and in the process the Rules and law shall be followed strictly, as the observance is imperative. 22. The record of the enquiry proceedings and of proceedings of General Court Marital as produced by the learned Central Government Standing Counsel be returned to him. 23. The appeal accordingly succeeds.