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2010 DIGILAW 910 (GAU)

Bram Chand v. Union of India

2010-12-03

BIPLAB KUMAR SHARMA

body2010
JUDGMENT B.K. Sharma, J. 1. The Petitioner was enrolled in the Assam Rifles in the year 1986 as Rifleman. While was posted in the 15th Battalion Assam Rifles, the Petitioner was placed under close arrest and charge-sheeted under Section 69 of the Army Act, 1950. Pursuant to such charge sheet followed by Summary Court Martial, the Petitioner had been dismissed by the impugned order dated 3.4.2000. Along with such dismissal from service, the Petitioner was also imposed with penalty of 6 (six) months' Rigorous Imprisonment in Civil Prison. Being aggrieved, the Petitioner filed a writ petition being Civil Writ Petition No. 1059/2001 in the Delhi High Court. The writ petition was disposed of by order dated 26.2.2001 on the basis of the prayer of the Petitioner to withdraw the same enabling him to approach the competent Court having territorial jurisdiction over the subject matter of the writ petition. 2. Even after the aforesaid order dated 26.2.2001 permitting the Petitioner to approach the competent Court having territorial jurisdiction of the subject matter, the Petitioner once again approached the same Court i.e. the Delhi High Court by filing another writ petition being WP(C) No. 1177/2002 and by order dated 4.12.2008, the said writ petition was disposed of on the ground of lack of territorial jurisdiction. However, liberty was granted to approach the competent Court. It is not known as to whether the fact of filing the earlier writ petition was brought to the notice of the Court. 3. The two charges brought against the Petitioner under Section 46(a) and Section 63 respectively of the Army Act, 1950 were as follows : First Charge Army Act 1950 Section 46(a) Disgraceful Conduct of An Indecent Kind In that he, at Zunheboto on 03 November 99 at about 1530 hours with indecent intent took Kumari Jyoti Samant, four years old, daughter of No. 153910 Rifleman/GD Bhawan Singh Samant and carried her to the toilet. Second Charge Army Act 1950 Section 63 An Act Prejudicial To Good Order And Military Discipline In that he, at Zunheboto on 03 November 1999 at about 1530 hours caused a disturbance in the lines by carrying the four year old of No. 153910 Rifleman/GD Bhawan Singh Samant to the toilet. 4. Second Charge Army Act 1950 Section 63 An Act Prejudicial To Good Order And Military Discipline In that he, at Zunheboto on 03 November 1999 at about 1530 hours caused a disturbance in the lines by carrying the four year old of No. 153910 Rifleman/GD Bhawan Singh Samant to the toilet. 4. While Section 46(a) of the Army Act provides that any person subject to Army Act who commits any of the offences indicated under Clause (a) (b) and (c) shall, on conviction by court-martial be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in the Act mentioned, Section 63 of the Act provides that any person subject to the Act who is guilty of any act or omission which, though not specified in the 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 extend to seven years of such less punishment as is in the Act mentioned. In the Summary Court Martial, the Petitioner was provided with "the friend of the accused" and an interpreter was also engaged. The Petitioner was asked as to whether he would plead guilty of the charges, to which his reply was in the negative. Accordingly, the proceeding followed thereafter, on conclusion of which the Petitioner was sentenced to suffer 6 (six) months' Rigorous Imprisonment in Civil Prison coupled with dismissal from service. 5. Being aggrieved by the said impugned order dated 3.4.2000, the Petitioner made Annexure-D petition dated 12.6.2000 addressed to the Home Minister, Government of India, on the basis of which the Deputy Director General of Assam Rifles passed the Annexure-E order dated 23.11.2000 rejecting the petition submitted by the Petitioner. For a ready reference, Annexure-E order dated 23.11.2000 is quoted below: I.12015/14/BC/2000-DV/ Orders of The Deputy Director General Assam Rifles on The Petition Submitted By Ex Number 153420 Rifleman/General Duty Bram Chand Of 15 Assam Rifles. 1. I have carefully considered the petition dated Nil submitted by Ex Number153420 Rifleman/General Duty Bram Chand of 15 Assam Rifles to the Home Minister of India alongwith relevant records and recommendations of the commanders in the chain of command. 2. 1. I have carefully considered the petition dated Nil submitted by Ex Number153420 Rifleman/General Duty Bram Chand of 15 Assam Rifles to the Home Minister of India alongwith relevant records and recommendations of the commanders in the chain of command. 2. Number 153420 Rifleman/General Duty Bram Chand of 15 Assam Rifles was sentenced to be dismissed from service and to undergo six months rigorous imprisonment by a Summary Court Martial that found him guilty of an offence under Section 46(a) of the Army Act i.e. disgraceful conduct. The various issues raised by the Petitioner are misconceived. The findings of the court have been supported by cogent evidence. The Summary Court Martial proceedings have been found to be in order by Deputy Judge Advocate General Headquarters Eastern Command. The punishment awarded to the individual is just, fair and meets the ends of justice. 3. I, therefore, reject the petition submitted by Ex Number 153420 Rifleman/General Duty Bram Chand as it lacks merit. Station : Shillong Sd/- (S.J.B. Sharma) Place : 23 Nov 2000 Major General Deputy Director General, Assam Rifles. 6. After the aforesaid order, the Petitioner made a further representation dated 14.5.2001 (Annexure-F to the writ petition) to the same authority i.e. the Home Minister, Government of India followed by Annexure-G notice dated 14.5.2001 to the Home Secretary to the Government of India. By Annexure-H Office Memorandum dated 16.10.2001, the Petitioner was intimated about the dismissal of his petition/appeal by the Ministry being devoid of merits. As to what followed thereafter has been noted above. The Petitioner filed the instant writ petition on 8.5.2009. 7. According to the Petitioner, he being under control and general superintendence of the Respondent No. 1 i.e. the Union of India in the Ministry of Home Affairs and being a member of the Assam Rifles was governed by the provisions of the Assam Rifles Act, 1941 and the Rules framed there under and thus, he could not have been charged as per the provisions of the Army Act, 1950. As regards the charge brought against him, his stand is that the particular complaint was lodged by the father of the victim girl out of strained relationship. As regards the charge brought against him, his stand is that the particular complaint was lodged by the father of the victim girl out of strained relationship. As regards the procedure adopted in the Summary Court Martial, it is his case that the Commanding Officer did not explain to him the charges in the language he understood nor was he explained his right as an accused person in terms of the Army Rules (Rule 34). It is the further contention of the Petitioner that since he was in the captivity and later on, had to face the Summary Court Martial, he did not get enough opportunity to defend his case by making any contact with his family members and the same resulted in miscarriage of justice. Another ground urged by the Petitioner is that he was entitled to engage a legal practitioner in his defence, but being semi-illiterate, he was totally ignorant about the contents of the Army Act and the Rules. It is his further plea that the authority ought to have provided him with the assistance of legal practitioner as per Rule 129 of the Army Rules. Another plea taken by the Petitioner is that although the Summary Court Martial was convened on 2.12.1999 but surprisingly and for reasons not known to the Petitioner, the Commanding Officer signed the typed proceedings only on 3.4.2000 in violation of Rule 125 of the Army Rules. 8. The Respondents have filed their counter affidavit denying the aforesaid contentions raised in the writ petition. As regards the applicability of the Army Act, it has been stated that though Assam Riffles personnel are subject to the Assam Rifles Act, 1941, the provisions of Army Act, 1950 are also applicable to the personnel of Assam Rifles as per the Government of India's notification SRO No. 318 dated 6.12.1962 under Army Act, Section 4(1) as amended vide SRO No. 325 dated 31.8.1977 whereby the provisions of Army Act have been made applicable to the personnel of Assam Rifles for disciplinary purposes. It has been stated that by the notification, the Army Act, 1950 has been made applicable when the unit is either acting with regular Army or is attached to the regular Army. It has been stated that by the notification, the Army Act, 1950 has been made applicable when the unit is either acting with regular Army or is attached to the regular Army. It has also been stated that the unit of the Petitioner at the time of commission of the offence was under the operational control of the regular Army and thus, the Army Act, 1950 was made applicable for disciplinary purposes in terms of the aforesaid notification dated 6.12.1962 as amended vide SRO No. 325 dated 31.8.1977. 9. As regards the plea of the Petitioner that the Commanding Officer did not explain to the Petitioner, the charges in the language he understood nor was he explained the right as an accused person in terms of Rule 34 of the Army Rules, the plea of the Respondents is that such stand on the part of the Petitioner is incorrect and misleading. It is the categorical stand that the Commandant before convening the Summary Court Martial had issued Battalion Special Routine order dated 29.11.1999 wherein it was published that the trial by Summary Court Martial in respect of the Petitioner would commence at 1100 hours on 2.12.1999 along with other requisite information as envisaged under Rule 34. It has also been pointed out that one Sri Prasad Thapa an Assistant Commandant was appointed as "friend of the accused". It has also been brought on record that the Petitioner himself signed the receipt copy of compliance of Rule 34 of the Army Rules. In this connection, the Respondents have annexed the Annexure-R/2 certificate dated 2.12.1999 signed by the Petitioner himself. 10. As regards the plea of the Petitioner that he was denied access to justice, it has been stated that the said contention of the Petitioner is incorrect and misleading. It is the stand of the Respondents that the Petitioner was provided with all reasonable opportunities to prepare his defence, in which, he was given a copy of the charge sheet and Summary of Evidence prior to the commencement of the trial. Referring to Rule 34 in terms of which the charge sheet is to be handed over to the accused 24 hours prior to the commencement of the trial, it has been stated that the unit of the Petitioner being deployed in active service, he was provided with charge sheet well ahead of 24 hours of the commencement of the trial. Referring to Rule 34 in terms of which the charge sheet is to be handed over to the accused 24 hours prior to the commencement of the trial, it has been stated that the unit of the Petitioner being deployed in active service, he was provided with charge sheet well ahead of 24 hours of the commencement of the trial. It has also been stated that the Petitioner was provided with the service of Assistant Commandant as a "friend of accused". The Commandant had kept Next of Kin of the Petitioner informed of the charges and progress of the Summary Court Martial from time to time. An important aspect of the matter that has been disclosed in the counter affidavit is that the Petitioner declined to cross examine any witness and also to make any statement in his defence or to offer any explanation when the Court gave with opportunity. As regards the right to engage a legal practitioner, the plea of the Respondents is that the same cannot be asked for as a matter of course. However, the Petitioner was provided with assistance of the Assistant Commandant as a "friend of accused". 11. As regards the contention raised by the Petitioner that although the Summary Court Martial was commenced on 2.12.1999, but the Commanding Officer signed the typed proceeding on 3.4.2000 only, the Respondents have denied the same. It has been stated that the Summary Court Martial was commenced on 2.12.1999 and concluded on 3.4.2000. Referring to the Summary Court Martial proceeding, it has been stated that the trial was in progress as the Summary Court Martial was carrying out by examining various prosecution witnesses. The proceedings were signed when the trial was concluded. It has been stated that the proceeding was concluded only on 3.4.2000 after following due procedure and hence, there is no violation of Rule 125 of the Rules. 12. I have heard Mr. H.G. Baruah, learned Counsel for the Petitioner as well as Mr. S.C. Shyam, learned Central Govt. Counsel representing the Respondents. I have also considered the submissions advanced by the learned Counsel for the parties, which are on the basis of the aforesaid pleadings made in the writ petition and the counter affidavit. 12. I have heard Mr. H.G. Baruah, learned Counsel for the Petitioner as well as Mr. S.C. Shyam, learned Central Govt. Counsel representing the Respondents. I have also considered the submissions advanced by the learned Counsel for the parties, which are on the basis of the aforesaid pleadings made in the writ petition and the counter affidavit. Learned Counsel for the Petitioner has also referred to the rejoinder affidavit, in which, the plea of the Respondents have been denied while reiterating and re-affirming the contentions raised in the writ petition. While Mr. Baruah, learned Counsel for the Petitioner emphasized on the purported procedural irregularities in conducting the Summary Court Martial proceeding, Mr. Shyam, learned Central Govt. Counsel, referring to the decisions reported in (1998) 1 SCC 537 Union of India v. Major A. Hussain and (2007) 11 SCC 612 Pradeep Singh v. Union of India submitted that unless the prejudice is shown in defence, mere irregularity in conducting the Summary Court Martial, even if said to be there in the instant case, will not affect the trial. 13. Throughout the writ petition, although the Petitioner has raised the plea of the aforesaid irregularities committed in the Summary Court Martial trial, but no where even a whisper has been made to show any prejudice caused to him in his defence. On perusal of the documents relating to the Summary Court Martial annexed to the writ petition and the counter affidavit, what is found is that the procedure to be followed in conducting the Summary Court Martial was duly followed. The Petitioner was asked as to whether he would plead guilty or not. As regards the plea of the Petitioner that the Commanding Officer did not explain to the Petitioner the charges in the language he understood nor was he explained his right as an accused person in terms of Rule 34 of the Army Rules, the real state of affairs is that the Commandant before commencement of the Summary Court Martial had issued Battalion's Special Routine Order dated 29.11.1999 wherein it was published that the trial by Summary Court Martial in respect of the Petitioner would commence at 1100 hours on 2.12.1999. The Petitioner was also provided with assistance of an Assistant Commandant namely, Sri Prasad Thapa, who was appointed as such as a "friend of the accused". The Petitioner was also provided with assistance of an Assistant Commandant namely, Sri Prasad Thapa, who was appointed as such as a "friend of the accused". That apart, the Petitioner himself signed the Annexure-R/2 certificate dated 2.12.1999, by which it was certified that the provisions of Rule 34 of the Army Rules had been complied with in the trial by Summary Court Martial in respect of the Petitioner. 14. The learned Counsel for the Petitioner placing reliance on Rule 129 of the Army Rules, submitted that the Petitioner ought to have been provided with assistance of a legal practitioner. Rule 129 provides for engagement of a person for assistance as a "friend of accused". In any Summary Court Martial, an accused person may have a person to assist him during the trial, whether a legal adviser or any other person. In the instant case, the Petitioner took the assistance of Assistant Commandant Sri Thapa as "the friend of accused" and at no point of time insisted for engagement of a legal adviser. The legal adviser does not necessarily mean a legal practitioner. Moreover, the Petitioner had the assistance of "friend of accused" in the form of an Assistant Commandant. Thus, it cannot be said that the Petitioner was deprived of right to engage his defence assistant. 15. It was argued that the Summary Court Martial proceeding was in violation of Rule 125 of the Army Rules. According to Rule 125, the Court shall date and sign the sentence and such signature shall authenticate the whole of the proceedings. It has been noted above that although the Summary Court Martial proceeding started on 2.12.1999, but the same stood concluded on 3.4.2000. The trial was in progress as the Summary Court Martial was carrying out the examination of various prosecution witnesses. The requirement of Rule 125 is that the Court shall date and sign the sentence and such signature shall authenticate the whole of the proceeding. In the instant case, the date and sign was affixed towards authenticating the whole of the proceeding. 16. An important aspect of the matter, which requires mentioning at this stage is that the grounds on which the writ petition has been structured, are not to be found in the petition/appeal, which the Petitioner had preferred to the Ministry of Home Affairs. It is in this context, Mr. Shyam, learned Central Govt. 16. An important aspect of the matter, which requires mentioning at this stage is that the grounds on which the writ petition has been structured, are not to be found in the petition/appeal, which the Petitioner had preferred to the Ministry of Home Affairs. It is in this context, Mr. Shyam, learned Central Govt. Counsel submitted that coming to the writ Court the Petitioner has developed his case by raising all the aforesaid grounds, which were not the grounds in the departmental petition/appeal. That apart and as discussed above, no where in the writ petition, the Petitioner has even obliquely shown that due to alleged procedural irregularity in conducting the Summary Court Martial there was any prejudice caused to him in his defence. 17. Learned Counsel for the Petitioner, referring to the statements made by the witnesses and findings recorded in the Summary Court Martial, strenuously argued that based on the said statements and the findings, the Petitioner could not have been imposed with the penalty of Rigorous Imprisonment for 6 (six) months in civil prison coupled with dismissal from service. It is not for the writ Court to sit on appeal over the findings recorded by the competent authority in the Summary Court Martial and/or reappreciate the evidence, a task which is vested with the competent authority conducting the Summary Court Martial. The witnesses in their depositions categorically stated about the offence committed by the Petitioner. There may be some variation here and there, but in the totality of the circumstances, the Commandant passed the impugned order dated 3.4.2000 upon a discussion of entire evidence on record and the facts and circumstances involved in the case. The finding recorded by the Commandant in the Summary Court Martial cannot be said to be a perverse finding and/or a finding based on no evidence at all. The Petitioner was charged with outraging the modesty of a four-year old girl and thereby, caused disturbance in the Army discipline. The first charge was under Section 46(a) of the Army Act relating to disgraceful conduct of a cruel, indecent and/or unnatural kind. The second charge was under Section 63 of the Army Act, which deals with violation of good order and discipline. The Petitioner being a member of the disciplined force ought not to have indulged himself in the kind of activities which was prejudicial to the good order and discipline. 18. The second charge was under Section 63 of the Army Act, which deals with violation of good order and discipline. The Petitioner being a member of the disciplined force ought not to have indulged himself in the kind of activities which was prejudicial to the good order and discipline. 18. In Major A. Hussasin (supra), the Apex Court dealing with the kind of pleas as have been raised in the instant proceeding, held that unless the non-compliance of the provisions of the particular procedure is vital and substantial, same would not affect the trial. As in the said case, in the instant case also, the Petitioner had duly participated in the proceeding and there was no flagrant violation of any procedure or provision causing prejudice to the Petitioner. In paragraph 20 of the judgment, the Court referring to Rule 149 of the Army Rules, held that even if there was an irregular procedure, the Summary Court Martial would not be held to be invalid, where no injustice was done. It has also been held that the High Court should not allow the challenge to the validity of conviction and sentence of the accused, when the evidence is sufficient, the Court Martial has the jurisdiction over the subject matter and has followed the prescribed procedure and is within its power to award punishment. 19. As regards the jurisdiction over the subject matter, the particular stand of the Petitioner that the Army Act was not applicable to him, has been adequately dealt with by the Respondents in their counter affidavit and the learned Counsel for the Petitioner also did not argue on that point. In Pradeep Singh (supra), the Apex Court reminding the writ Court exercising its power under Article 226/227 of the Constitution of India, observed that the proceedings of a Court Martial are not to be compared with the proceedings in a criminal Court under the Code of Criminal Procedure, 1973. 20. For all the aforesaid reasons, I do not find any merit in the writ petition so as to interfere with the impugned order dated 3.4.2000 and the orders on the petition/appeal indicated above. Consequently, the writ petition is dismissed. There shall be no order as to costs. Petition dismissed.