Research › Search › Judgment

J&K High Court · body

2012 DIGILAW 136 (JK)

Bashir Ahmad Bhat v. Union of India & Ors.

2012-03-30

HUSNAIN ATTAR

body2012
1. The petitioner enrolled as Rifle Man in Army -1, JAKLI in 1987 and attached to 9 SIKH Light Infantry was on 23rd August, 1993, sentenced to rigorous imprisonment for seven years and also dismissed from service. The conviction and sentence order dated 23rd August, 1993, is questioned in Writ Petition on hand, on the following grounds:- a. That the Summary General Court Martial (for short, SGCM) ordered by GOC 28 Infantry Division-Respondent No. 3 herein, is legally unsustainable. b. That while arraigning the petitioner, the respondents have not followed the procedure laid down in Army Act and Rules framed thereunder. c. That the Confirming Authority has failed to appreciate the grounds raised by the petitioner in his application dated 24th August, 1993 and the order passed by the Authority is, therefore, not legally justified. d. That the plea of "guilty" recorded by the respondents does not justify the finding recorded on such plea, inasmuch as, the petitioner was subjected to brutal torture before he was produced before the Court Martial. e. That the petitioner was not provided an opportunity to engage a legal expert for defending him before the Court Martial and that the plea of "guilty" having been recorded without assistance of counsel or a Defending Officer could not be made use of to record the finding of guilt and sentence to the petitioner. f. That the allegations levelled against the petitioner are factually incorrect and not substantiated by the material including FIR Nos. 65/1991 and 67/1991 registered at Police Station, Sumbal, Baramulla. 2. The respondents in their reply have refuted all the averments made in the petition. It is pleaded that the petitioner was tried by SGCM in accordance with the provisions of the Army Act and the Rules made thereunder. It is denied that plea of "guilty" was recorded without explaining to the petitioner the consequences of such plea or that any of the provisions of the Army Act and Rules made there under were violated while recording the plea. It is insisted that the Confirming Authority rejected the pre-confirmation petition under Section 164 of Army Act after an objective consideration of all the aspects of the case projected by the petitioner. It is insisted that the Confirming Authority rejected the pre-confirmation petition under Section 164 of Army Act after an objective consideration of all the aspects of the case projected by the petitioner. The respondents maintain that all the proceedings before the SGCM and, thereafter, where in conformity with the Army Act and the Rules made there under and none of the rights of the petitioner was violated. It is pleaded that the petitioner in presence of alternative remedy available under Section 164 (2) Army Act by way of post confirmation petition to the Confirming Authority, has no right to file the petition under Article 226, Constitution of India. 3. The petitioner in his rejoinder has insisted that he was on leave with effect from 12th August, 1991 to 25th August, 1991 and the alleged occurrence in which the petitioner is stated to have participated, admittedly has taken place on 22nd July, 1991 and 31st July, 1991 when the petitioner was on duty and had yet to proceed on leave. It is pointed out that the plea of "guilty" recorded on 11th October, 1991, whereby the petitioner is stated to have participated in the occurrence of 22nd July, 1991 and 31st July, 1991, is of no consequence as the petitioner could not have participated in occurrence while he was on duty and not at his home in Sumbal, Baramulla. The plea of "guilty", it is insisted being factually incorrect points to it is being involuntary and extracted employing means other than permissible under law. 4. I have gone through the pleadings and the record. I have heard counsel for the parties at length. 5. It needs to be pointed out at the outset that the High Court while exercising writ jurisdiction under Article 226 Constitution of India, it not to sit as Court of appeal to minutely scrutinize the evidence before the Court Martial or to re-appreciate such evidence so as to reach a conclusion different from one arrived at by the Court Martial. The jurisdiction is restricted to see whether there has been violation of any mandatory provisions of the Act or the Rules made there under that has caused gross miscarriage of justice or whether there has been violation of the principles of natural justice that vitiates the proceedings or that the authority has exercised such jurisdiction as is not vested in it under law. The High Court in exercise of its writ jurisdiction under Article 226/227 Constitution of India, does not look into sufficiency or insufficiency of the evidence available to the Court Martial or whether the conclusion drawn where sustainable on the evidence available to the Court Martial. With that baseline, let us proceed to examine the case set up by the petitioner and stand taken by respondents in opposition to the petitioner's case. 6. The petitioner admittedly was granted 14 days leave on 9th August, 1991 with effect from 12th August, 1991 to 25th August, 1991. The petitioner had to report his duty on 26th August, 1991. However, the petitioner failed to rejoin on the expiry of leave sanctioned in his favour. The petitioner was arrested and Officiating General Officer commanding the forces-respondent No. 3 on 18th August, 1993 recorded satisfaction that petitioner had committed the offences mentioned in the Schedule to the order dated 18th August, 1993, and decided to convene a SGCM to try the petitioner. The SGCM was to comprise of respondents 4, 5 and 6 and respondent No. 7 was nominated as Judge-Advocate. Major - Mukesh Sharma, IC-34893L, 31 Medium Regiment was appointed as Prosecutor. The SGCM was in terms of order of Officiating GOC to assemble on 23rd August, 1993, at 528 Army Service Corps Battalion. The SGCM, accordingly, assembled on the aforesaid date Captain Davinder Kumar SS-34640W of 19 RAJ RIF was appointed as Defending Officer of the petitioner. The Presiding Officer of SGCM enquired from the petitioner whether he had any objection to his being tried by him and the members of the SGCM. Further proceedings were conducted only after the petitioner did not show any reservation about his being tried by SGCM as constituted. The SGCM, thereafter, read following charges for which the petitioner was arraigned to the petitioner, asking the petitioner to plead "guilty" or "Non-guilty" to the charges:- "a) First charges Army Act Sec 69 Committing a civil offence, that is to say, committing conspiracy to wage war against government of India contrary to section 121-A of the Ranbir Penal Code, In that he, At field, on or around 20 Aug 91, conspired with No. 9083963® Rifleman Gulam Rasool Ganai and other unknown militants, to wage war against the Government of India and thereby committed an offence under Section 121-A of the Ranbir Penal Code. (b) Second Charges Army Act Sec 39 (b) Without Sufficient cause overstaying leave granted to him, in that he, at field, on 26th Aug 1991, having been granted leave of absence from 12 Aug 91 to 25 Aug 91, to proceed to his home, failed without sufficient cause, to rejoin on 26 Aug 91, on expiry of the said leave. " 7. The petitioner pleaded guilty to both the charges. The SGCM, accordingly, on 23rd August, 1993 itself found the petitioner guilty of both the charges after affording him an opportunity to make a statement and call any witness in his defense and sentenced the petitioner to rigorous imprisonment for seven years and ordered his dismissal from service. 8. The petitioner does not deny convening of SGCM on 18th August, 1993, his arraignment before the SGCM on 23rd August, 1993 and the plea of "guilty" recorded by SGCM. However, the petitioner insists that he was forced to plead "guilty" by the respondents on the understanding that he will be awarded lenient punishment and that on his pleading "not guilty", he will be severely dealt with. It would be appropriate to extract following from Para 4 (a) of the petition. "The petitioner had committed none of the offences levelled against him, but he was forced to plead guilty by the respondents on the understanding that he will be awarded lenient punishment and that on his not pleading the guilty, he will be dealt with severely. The petitioner was, therefore, made to enter into a plea bargain on the understanding that he will be leniently dealt with, but on his pleading guilty, he has been sentenced to seven years imprisonment and has been dismissed from service". The petitioner claims to have explained his stand in pre-confirmation petition addressed to the Confirming Officer on 24th August, 1993. 9. The averments made in the writ petition as also pre-confirmation petition, reliance whereupon is placed by the petitioner to reinforce his stand and the record of SGCM belie the petitioner's stand that he was subjected to torture before he appeared before the SGCM and that plea of guilt was outcome of the torture, the petitioner was exposed to and, thus, not voluntary. Only because the plea of "guilty" is made on the understanding that such plea may persuade the Disciplinary Authority to award lesser punishment and that pleading "not guilty" may on conviction prompt such authority to award less lenient punishment does not make the plea of guilt involuntary, or outcome of the coercion, force or undue influence. Anyone, irrespective of the promise made to him is not expected to admit commission of an offence that he has not at all committed. The petitioner, in Para 4 (a) of the petition by his own admission claims to have entered into a "plea bargaining" implying thereby that he decided to admit the guilt at the threshold on the understanding that such admission would earn him a lenient punishment. The petitioner may have been disappointed by the sentence awarded by the SGCM, finding it too harsh than he expected but such disappointment cannot be used by the petitioner to question veracity of the plea recorded at his instance. The petitioner in his pre-confirmation petition dated 24th August, 1993, to the Confirming Officer GOC, 28 Infantry Division, relied upon by the petitioner in Para 4 (b) of the petition, reiterates his stand that he had pleaded "guilty" to both the charges on the understanding that he would be awarded lenient punishment and while admitting that he had pleaded "guilty" to both the charges has not denied his involvement in the alleged occurrence or commission of the offences mentioned in the charges. 10. The next ground urged by the petitioner to question veracity of plea of "guilty" is that alleged occurrence involving the petitioner in a firing incident on 20thAugust, 1991, at Army Convoy was not recorded in local Police Station, his having admitted to have on the said date fired 20 rounds in the direction of the Army Convoy, was devoid of substance and indicative of his plea of "guilty" being outcome of an understanding that such a plea would earn him a lenient punishment. The ground urged is bereft of any merit and does not inspire confidence. The failure on part of the local Police Station to register case regarding the firing incident on the Army Convoy on 20th August, 1991 in which the petitioner admitted to have participated, does not necessarily indicate that no such occurrence had taken place on said date nor does FIR Nos. The failure on part of the local Police Station to register case regarding the firing incident on the Army Convoy on 20th August, 1991 in which the petitioner admitted to have participated, does not necessarily indicate that no such occurrence had taken place on said date nor does FIR Nos. 65/1991 and 67/1991, Police Station, Sumbal-Baramulla, wherein firing incidence at Sheikh Mohalla, Palipora are stated to have taken place on 22nd July, 1991 and 31st July, 1991 lead to the conclusion that the incident on 20th August, 1991 admitted by the petitioner in his plea of "guilty" had not taken place. 11. Let us now deal with the ground urged in the petition as regards non-compliance with the provisions of the Army Act and Rules made thereunder, laying down procedure to be followed while recording the plea of "guilty". Rule 52 (2) Army Rules, 1954 lays down the procedure to be followed by the Court Martial while recording plea of "guilty" by the accused. It would be advantageous to reproduce Rule 52 (2) and 2(A) hereunder:- (2) If an accused person pleads "Guilty" that plea shall be recorded as the finding of the court; but before it is recorded, the presiding officer or judge-advocate, on behalf of the court, shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea, and in particular of the meaning of the charge to which he has pleaded guilty, and of the different in procedure which will be made by the plea of guilty, and shall advise him to withdraw that plea if it appears from the summary of evidence that the accused ought to plead "Not Guilty". 2 (A) Where an accused pleads "Guilty", such plea and the factum of compliance of sub-rule (2) of this rule, shall be recorded by the court in the following manner:- Before recording the plea of "Guilty" of the accused, the court explained to the accused the meaning of the charge(s) to which he had pleaded "Guilty" and ascertained that the accused had understood the nature of the charge(s) to which he had pleaded "Guilty". The court also informed the accused the general effect of the plea and the difference in procedure, which will be followed consequent to the said plea. The court also informed the accused the general effect of the plea and the difference in procedure, which will be followed consequent to the said plea. The court having satisfied itself that the accused understands the charge(s) and the effect of his plea of "Guilty", accepts and records the same. The provisions of rule 52 (2) are thus complied with." To see whether Rule 52(2) was followed by the SGCM while recording plea of "guilty" of the petitioner, we have to fall back upon the record and, in particular, the certificate recorded in terms of Rule 52 Sub-rule 2(A) of the Rules. Once on examination of record, it is found that the SGCM, as a matter of fact, did record the requisite certificate, we have not to go any further inasmuch as the petitioner, as already pointed out, has admitted that he was produced before the SGCM, the charge was read over to him and he pleaded "guilty" though on the understanding that he would be left with a lenient punishment. Had the petitioner denied convening of SGCM, his having been produced before SGCM and his having pleaded "guilty" to the charges, the focus would shift to compliance with the procedure. In such an eventuality, one would feel constrained to see whether the Court Martial was, as a matter of fact, convened, whether the petitioner was produced before the Court Martial and whether the petitioner pleaded "guilty" after he was made to understand the nature of the chargesheet, the implications of pleading "guilty" to the charge and the procedure that would be followed, in case, he pleads "guilty" or "not guilty". But in view of the stand taken by the petitioner in his pre-confirmation petition and the writ petition on hand, attention is to remain confined to the certificate in compliance with Rule 52 Sub-rule 2(A) to see whether the procedure laid down was followed. 12. Perusal of the record reveals that the SGCM did adhere to and follow the procedure laid down in Rule 52 (2) while recording the plea of "guilty" made by the petitioner. The SGCM duly recorded the plea in the manner provided under Rule 52 Sub-rule 2 as evidenced by certificate recorded by SGCM in terms of Rule 52(2A). 12. Perusal of the record reveals that the SGCM did adhere to and follow the procedure laid down in Rule 52 (2) while recording the plea of "guilty" made by the petitioner. The SGCM duly recorded the plea in the manner provided under Rule 52 Sub-rule 2 as evidenced by certificate recorded by SGCM in terms of Rule 52(2A). There is, therefore, no reason to conclude that procedure laid down in Rule 52 sub rule (2) was not followed by SGCM while recording the plea of "guilty" made by the petitioner. 13. In the present case, the SGCM before recording the plea of "guilty" explained to the petitioner the meaning of the charges to which he had pleaded "guilty" and ascertained that the petitioner had understood the nature of the charge(s) to which he had pleaded. The SGCM has certified to have informed the petitioner general effect of the plea and the difference in procedure, which was to be followed consequent upon the said plea. It was only after the SGCM was satisfied that the petitioner understood the charge(s) and the effect of his plea of "guilty" and that the plea was recorded in presence of the Defending Officer of the petitioner that SGCM proceeded to act on the plea and hold the petitioner guilty of the offences alleged in the charges. The petitioner as held in "Bachan Singh v. Union of India" (2008) 9 SCC 161 :2010 (5) JKJ SC-131, cannot turn around and insist that the plea of "guilty" was involuntary and vitiated the SGCM proceedings. 14. For the reasons discussed above, the writ petition is devoid of any merit and is, accordingly, dismissed.