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2010 DIGILAW 865 (ALL)

SHIV KUMAR JOSHI v. UNION OF INDIA

2010-03-16

JANARDAN SAHAI, P.R.GANGADHARAN

body2010
JUDGMENT JANARDAN SAHAI, J.-The applicant Shiv Kumar Joshi was a Havildar in the Indian Army. He has challenged the sentence of dismissal and reducing him to the ranks in Summary Court Martial. A tentative charge-sheet dated 12.3.2009 was issued to him in which there were two charges. First; he at Meerut on 6th March, 2009 committed theft of HDFC Bank A TM Debit Card, the property belonging to No. 15135702Y Naik (Driver Special) Vijay Kumar of the same Regiment, and Second, that he at Meerut on 6th March, 2009 with intent to cause wrongful loss to No. 15135702Y Naik (Driver Special) Vijay K1.lffiar of the same regiment, withdrew a sum of Rs. 15,000/- (Rs. Fifteen thousand only) from HDFC Bank Account No. 028511550012322 of said person by using A TM Debit Card. After proceedings under Rule 22 of the Army Rules, Summary of evidence was recorded. Five witnesses were examined on behalf of the prosecution, namely, Maj. Himanshu Kalia, who identified the applicant. He stated that the A TM card was kept in the Almirah in the Battery Office from where it was stolen. He also stated that the Videography clipping showed that the money was withdrawn by the applicant by using the ATM card. Prosecution witness No. 2 is Capt Ozarkar Sachin Deepak. He also deposed about the video footage clipping. Prosecution witness No. 3 is Sub. Kashmir Singh, he also deposed about the video clipping. Prosecution witness No. 4 is Sub. Maj. Ram Nath Yadav. He stated about the withdrawal of Rs. 15,0001- by using ATM card which was not in possession of the individual. He also deposed about the video clipping. PW-5 is Vijay Kumar, from whose account money was withdrawn by the applicant. He has stated about the withdrawal from his account and that he suspected the applicant. 2. The statement of the accused was also recorded. He stated that he had taken the A TM/Debit Card from the Battery Office and thereafter having withdrawn a sum of Rs. 15,0001-. 3. After the summary of evidence was recorded, a charge-sheet dated 27th May 2009 was served upon the petitioner. In the original charge-sheet the date 27 is written in pen below which a line has been drawn where under the entire date 21 May 2009 is written in hand. 15,0001-. 3. After the summary of evidence was recorded, a charge-sheet dated 27th May 2009 was served upon the petitioner. In the original charge-sheet the date 27 is written in pen below which a line has been drawn where under the entire date 21 May 2009 is written in hand. At the bottom there is an endorsement that the date was rectified by the CO and reference is made to a certificate. The certificate is appended on the next page of the Summary Court Martial proceedings. The Commanding Officer Mohit Verma has certified that the petitioner was handed over a copy of the charge-sheet on which the Court Martial was carried out on 21.5.2009 and that the date of the charge-sheet was 21 May 2009, but it was mentioned erroneously by the Commanding Officer as 27 May, 2009. in the proceedings. The charge-sheet dated 27.5.2009 is in the same terms as the tentative charge-sheet dated 12.3.2009. By a letter dated 21.5.2009, the following documents were handed over to the petitioner. (i) One copy of the charge-sheet (The word 'tentative was printed before 'charge-sheet' but has been scored out by pen) (ii) One copy of the summary of evidence; (iii) Letter No. CF/14399116L/SKJ/A dated 21 May, 2009; and (iv) Vishesh Kaman Adhesh Bhag Pradham dated 21 May, 2009. 4. This letter is addressed to the petitioner and below it is, borne a receipt dated 21.5.2009 of the abovementioned documents obtained from the petitioner. 5. On the basis of the aforesaid charge-sheet. Summary Court Martial proceedings were held and the petitioner was arraigned. The petitioner, it is stated, had pleaded guilty to both the charges and, awarded punishment of dismissal from service and reduction to the ranks. 6. Learned Counsel for the petitioner Shri B.N. Singh made three submissions. The first contention of the Learned Counsel for the petitioner is that after the conviction was recorded, the petitioner was not given any opportunity of hearing on the question of sentence. Learned Central Government Counsel drew our attention to the difference of language used on this point between trial of Summary Court Martial on the one hand and the trial in a General or District Court Martial on the other hand. Rule 123 of the Army Rules reads as follows: "123. Learned Central Government Counsel drew our attention to the difference of language used on this point between trial of Summary Court Martial on the one hand and the trial in a General or District Court Martial on the other hand. Rule 123 of the Army Rules reads as follows: "123. Procedure on conviction-(l) if the finding on any charge is 'Guilty' the Court may record of its own knowledge, or take evidence of and record, the general character, age, service, rank, and any recognized acts of gallantry or distinguished conduct of the accused, and previous convictions of the accused either by a Court-Martial, or a Criminal Court, any previous punishments awarded to him by an officer exercising authority under section 80; the length of time he has been in arrest or in. confinement on any previous sentence, and any military decoration, or military reward, of which he may be in possession or to which he is entitled. (2) If the Court does not record the matters mentioned in this rule of its own knowledge, evidence on these matters may be taken in the manner provided in Rule 64 for similar evidence at general and District Court-Martial. In contrast Rule 64 of the Army Rules which applies to General Court Martials and District Court Martials is as follows : "64. Procedure on conviction (1) If the finding on any charge is "guilty " then, for the guidance of the Court in determining its sentence, and of the confirming authority in considering the sentence, the Court, before deliberating on its sentence, shall, whenever possible, take evidence of an record the general character, age, service, rank and any recognized acts of gallantry or distinguished conduct of the accused, any previous convictions of the accused either by a Court Martial or a Criminal Court any previous punishments awarded to him by an officer exercising authority under sections 80, 83, 84, or 85 as the case may be, the length of time he has been in arrest or in confinement on any previous sentence, and any military decoration, or military reward, of which he may be in possession or to which he is entitled. (2) Evidence on the above matters may be given by a witness verifying a statement which contains a summary of the entries in the regimental books respecting the accused and identifying the accused as the person referred to in that summary. (2) Evidence on the above matters may be given by a witness verifying a statement which contains a summary of the entries in the regimental books respecting the accused and identifying the accused as the person referred to in that summary. (3) The accused may cross examine any such witness, and may call witnesses to rebut such evidence; and if the accused so requests, the regimental books, or a duly certified copy of the material entries therein, shall be produced, and if the accusea alleges that the summary is in any respect not in accordan(:e with the regimental books, or such certified copy, and if it finds it is not in accordance therewith, shall cause the summary to be corrected. (4) When all the evidence on the above matters has been given, the accused may address the Court thereon and in mitigation of punishment." 7. A perusal of the Army Rule 64 indicates that after the summary of evidence, and record of general character and punishments earlier awarded to the accused, the accused has a right to lead evidence. The accused is also entitled to be heard" on the question of sentence, in view of sub rule (4) of Rule 64. Rule 64 as its language indicates provides for hearing on the mitigation of sentence after conviction. Sub- I Rule (3) of Rule 116 which applies to Summary Court Martials gives right to the accused to be heard in reference to the charge and in mitigation of punishment and to call witnesses as to character. We, however find that the Form in which the proceedings have been held in this (sic) wishes to make any statement in reference to the charge or in mitigation of punishment. The petitioner has answered 'No' which has been recorded in the proceedings. We do not therefore find any merit in this contention of the petitioner. 8. The learned Counsel for the petitioner then drew our attention to the arraignment of the petitioner from page 2 of he proceedings of the Summary Court Martial which also bears heading 'B': The arraignment is being reproduced by us verbatim from the proceedings: ARRAIGNMENT Question to the accused-1 Number 14399116L Havildar (Technical Assistant Shiv Kumar Joshi By the Court-How say you . . . .. are you guilty or not guilty of the SAID TWO charges preferred against you? . . .. are you guilty or not guilty of the SAID TWO charges preferred against you? Answer-1 GUILTY Sd/ Sd/ (Signature of accused) (Mohit Verma) Colonel The Court Question :- Are you guilty or not guilty of the. . . . . . . . . .. . .charge? Answer :- The accused having pleaded guilty to THE SAID TWO charges the provision of Army Rule 115 (2) are here complied with. 9. Learned Counsel for the petitioner drew our attention to Rule 111 (2) of the Rules framed under the Army Act. Rule 111 (2) reads as follows: "111 (1)... ... ... (2) The charges on which the accused is arraigned shall be read and, if necessary, translated to him, and he shall be required to plead separately to each charge” The Rule is specific and clear to the effect that arraignment is to be made in respect of each charge separately. The provision appears to be a mandatory one, as the Legislature has used the word "shall" and also in view of the scheme of the rules and the effect the plea of guilty has upon the trial of the accused. It is also •evident that Rule 115 of the Army Rules have not been complied with inasmuch as the plea of guilty or not guilty has to be separately recorded in respect of each charge whereas the Commanding Officer has recorded the plea of guilty in a composite manner. Rule 115 (1) reads as follows: "115. General plea of "Guilty or "Not Guilty"-(I) The accused person's plea- "Guilty" or "Not Guilty" (or if he refuses to plead, or does not plead intelligible either one or the other, a plea of "Not Guilty") shall be recorded on each charge". The provisions of Rule 115 (1) also appear to be mandatory in view of the word "shall" used therein and the scheme of the Rules which we shall now deal with. It is to be noted that the Army Rules ensure that there is no mistake in recording of the plea of guilty and to ensure this the Legislature has provided safeguards at different stages. The charge-sheet is to be given 96 hours in advance of the arraignment and if necessary, the charges are to be explained, vide Rule 34. The arraignment is to be made separately in respect of each charge. The charge-sheet is to be given 96 hours in advance of the arraignment and if necessary, the charges are to be explained, vide Rule 34. The arraignment is to be made separately in respect of each charge. The plea of guilty or not guilty is to be recorded separately. Even these were not considered sufficient safeguards and a further safeguard in sub-rule (2-A) of Rule 115 was inserted by amendment in the Army Rules. In case the accused pleads guilty a certificate of the Commanding Officer is required to the effect that the accused has understood the nature of the charges and was informed of the general effect of the plea of guilty and about the difference in procedure which will be followed in consequence of the plea. Rule 116 contains further safeguards. Sub-rule (2) of Rule 116 provides that after the accused has pleaded guilty the Court shall read the summary of evidence. Sub-rule (4) of Rule 116 casts a duty upon the Court that if from the statement of the accused or from the summary of evidence or otherwise it appears to the Court that the accused did not understand the effect of the plea of guilty it shall alter the record and enter a plea of 'Not guilty' and proceed with the trial accordingly. The plea of 'guilty' or 'not guilty' has a very serious effect upon the trial. If the accused pleads guilty the prosecution does not have to prove the charge by leading evidence to discharge the heavy burden which rests upon it. The accused also loses the right to lead evidence in defence. If the Court accepts the even in respect of trials under the Cr. PC that the Court is not bound to accept the plea of guilty unless it is satisfied that the accused has understood ,the effect of the plea vide Abdul Kader v. Emperor. In view of the use of the word 'shall' the scheme of the Rules and the nature .and effect of the plea of guilty we are of the view that Rule 111(2) and Rule 115(1) are mandatory and they have not been complied with. It is well settled that noncompliance of a mandatory provision will vitiate the entire proceeding which follow after the stage of the non-compliance vide Chief of Army Staff v. Ex. Sep. Dvr. It is well settled that noncompliance of a mandatory provision will vitiate the entire proceeding which follow after the stage of the non-compliance vide Chief of Army Staff v. Ex. Sep. Dvr. (MT) M.Z.H. Khan,2 where the certificate of the Commanding Officer was not in accordance with Rule 115 (2) the defect was found to be fatal vide Union of India v. Exhil Begaram,3 and Devi Lal Sahu v. Union of India. 10. The learned Central Government Counsel, however, submits that the petitioner has not been prejudiced in this case as the petitioner was fully aware of the charges in that a tentative charge-sheet was first issued to the petitioner and thereafter a regular charge-sheet was also served upon him and he knew that there were two charges against him. In our opinion, the contention does not have any merit The tentative charge-sheet is a charge-sheet which can be modified after the summary of evidence is recorded. As regards regular charge-sheet, there is some confusion about the date upon which the charge-sheet was served upon the petitioner. This is clear from the manner in which the proceedings were recorded by the Commanding Officer: The charge-sheet, as already observed, was originally dated 27.5.2009. It appears that the petitioner (sic.) date a receipt was also obtained from him. The letter dated 21.5.2009 also indicates that the word tentative charge-sheet was typed but the word "tentative" was scored out. The scoring out has been initialed but the date on which that was done has not been disclosed. However, as the petitioner has not alleged that he was not served with the regular charge-sheet at all or not on 21.5.2009 we take it that the charge-sheet was duly served upon him. We are however of the view that the Commanding Officer has not been cautious in conducting the proceedings. When the accused is arraigned with two charges together a possibility always exists that he could get confused and may answer 'guilty', understanding only one of the charges. Thus real prejudice may have been caused to the petitioner and the submission of the learned Central Government Counsel therefore that the accused was not prejudiced can not be accepted by us. Moreover, we are of the view that Rule 111(2) and Rule 115(1) are mandatory and they having not been complied with the entire proceedings are vitiated and it is not necessary to prove prejudice. 12. Moreover, we are of the view that Rule 111(2) and Rule 115(1) are mandatory and they having not been complied with the entire proceedings are vitiated and it is not necessary to prove prejudice. 12. The learned Central Government Counsel then pressed Rule 149 of the Army Rules and submitted that non compliance of Rule 111(2) and Rule 115 (1) is a mere irregularity and will not vitiate the trial. Rule 149 reads as follows: "149. Validity of irregular procedure in certain cases.-Whenever, it appears that a Court-Martial had jurisdiction to try any person and make a finding and that there is legal evidence or a plea of guilty to justify such finding and any sentence which the Court-Martial had jurisdiction to pass thereon may be confirmed, and shall, if so confirmed and in the case of a summary Court-Martial where confirmation is not necessary, be valid, notwithstanding any deviation from these rules or notwithstanding that the charge-sheet has not been signed by the commanding officer or the \ convening officer, provided that the charges have, in fact, before trial been approved by the commanding officer and the convening officer 9r notwithstanding any defect or objection, technical or other, unless it appears that any injustice has been done to the offender, and where any finding and sentence are otherwise valid, they shall not be invalid by reason only of a failure to administer an oath or affirmation to the interpreter or shorthand writer; but nothing in this rule shall relieve an officer from any responsibility for any wilful or negligent disregard of any of these rules." It is submitted that as there is a plea of guilty the irregularity is cured by Rule 149. The contention has to be rejected outright. What Rule 149 contemplates is a plea of 'guilty' recorded in the manner provided by law. We have found that the plea of guilty was not recorded in accordance with law. 13. The next contention advanced by the learned Counsel for the petitioner is that there was non-compliance of Rule 129 of the Rules. On this point. learned Central Government Counsel has produced at the time of hearing a copy of the Commanding Officer requesting that Maj. D.S. Mankotia of 57 Fd. Regt. will be the a friend of the accused in the Trial. On this point. learned Central Government Counsel has produced at the time of hearing a copy of the Commanding Officer requesting that Maj. D.S. Mankotia of 57 Fd. Regt. will be the a friend of the accused in the Trial. It is difficult for us to appreciate how this letter could have been sent on 15.5.2009 by the applicant when the charge sheet is said to have been served upon him on 21.5.2009/27.5.2009. The trial begins after the charge-sheet is issued and not earlier to that stage. In what circumstances this letter was written on 15.5.2009 intimating that Maj. D.S. Mankotia is the next of friend of the accused in the trial, is not quite clear. We, however, need not go into die question any further because we are setting aside the conviction on another ground. 14. For the reasons given above, we are of the view that the proceedings of Summary Court Martial have not been held in accordance with law. We accordingly set aside the sentence and conviction of the applicant and quash the proceedings and direct the respondents to hold re-trial from the stage of the arraignment of charges. It would be open to the petitioner to seek the change of the friend of the accused. 15. The Original Application (Appeal) is allowed.