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2014 DIGILAW 168 (TRI)

Nimai Mukherjee v. Union of India

2014-05-06

DEEPAK GUPTA, S.TALAPATRA

body2014
JUDGMENT S. Talapatra, J.:- By the First Information Report dated 16.04.2003, Annexure-III to the writ petition it had been alleged that the petitioner had opened fire by snatching the INSAS rifle which was allotted to Kamlesh Kumar, a Constable (Guard Party) of the 34 Bn. Border Security Force and grievously injured Satya Vir Kumar, the Constable/Driver of the Ambulance which took the petitioner to the Sub-Divisional hospital, Dharmanagar alongwith another patient. At the relevant time the Ambulance was parked outside the laboratory for collection of investigation report of the petitioner. Another constable, namely Gurmeet Singh had also received injury on his right forearm. Immediately after that occurrence another constable, namely Raghu Devnath had snatched the said rifle from the petitioner by applying force. The petitioner was immediately arrested and the two injured constables were initially taken to the Sub-Divisional hospital, Dharmanagar and thereafter to the GBP hospital, Agartala. Satya Vir Kumar succumbed to the injury in the GBP hospital. 2. Based on the said FIR, Dharmanagar P.S. Case No. 64/2003 was registered. After the chargesheet was filed, the General Security Force Court (GSFC) has been constituted and the chargesheet was read in the open court to the petitioner in the language understandable to him by the Law Officer. The petitioner was charged under Section 302 of the IPC for commission of murder and for attempting murder under Section307 of the IPC. The charges were read over to the petitioner, to which the petitioner pleaded guilty. But, the GSFC, on contemplating the nature of punishment that would entail if the charges are sustained, did not accept the plea of guilt and decided to proceed with the trial. In the course of trial, 22 witnesses and one Court Witness were examined to substantiate the charge. 3. By the order dated 23.06.2005, Annexure-V to the writ petition, the petitioner was found guilty of both the charges and, as consequence thereof, the petitioner was sentenced to suffer imprisonment for life and dismissal from the service. The said punishment was referred for confirmation to the Inspector General of BSF. By the order dated 25.08.2003 the punishment of the petitioner was confirmed. Thereafter, the petitioner had filed an appeal against the order dated 23.06.2003 to the Director General of BSF. But by the order dated 10.07.2006, Annexure-VII to the writ petition, the appeal filed by the petitioner was dismissed. By the order dated 25.08.2003 the punishment of the petitioner was confirmed. Thereafter, the petitioner had filed an appeal against the order dated 23.06.2003 to the Director General of BSF. But by the order dated 10.07.2006, Annexure-VII to the writ petition, the appeal filed by the petitioner was dismissed. After dismissal of the said appeal the petitioner had approached the High Court by filing a writ petition, being W.P. (C) No. 323/2007 assailing the order dated 23.06.2005, the order of confirmation dated 28.08.2005, the order of the Director General of BSF dated 10.07.2006 on dismissing the appeal. The said writ petition was disposed of by the learned Single Judge by the judgment and order dated 24.07.2012 on the basis of the observation that- If an appeal is preferred to the Director General, he should hear the appeal and dispose it on merit and the judgment and order must be signed by him. Copy of the signed order may be communicated to the appellant by any other subordinate officer. In the present case, as I find, order dated 10.07.2006, in the appeal filed before the Director General, BSF, was signed by one D.S. Ahluwalia, DIG/Chief Law Officer (D & L) for Director General of BSF. The concluding paragraph of the order runs thus: 6. The petitioner had about 19 years and 8 months service and he had five rewards to his credit. He remained in confinement for two years and two months before commencement of the trial. He was punished earlier also at four occasions for offences under Sections 40,19(a) and 19(b) of the BSF Act. The offences committed by the petitioner are quite heinous and unpardonable. Therefore, the Director General has rejected the petition being devoid of merit. 4. It has been further observed in the judgment and order dated 24.07.2012 passed in W.P. (C) No. 323/2007 that since the order passed by the appellate court was not signed by the Director General of BSF, the said order was passed in violation of provisions of Section 117 of the BSF Act, which provides that if an appeal is filed to a particular authority that authority must hear the appeal himself and pass the order, applying the mind to the evidence and materials. As corollary thereto, it has been observed that: Since Director General, BSF himself did not pass the order on appeal, the case is liable to be remanded back to the Director General of BSF for hearing the appeal of the petitioner afresh and to dispose it on merit as per provisions of law. The Director General of BSF is further directed to dispose of the appeal within sixty days from the date of passing of this order. Pending disposal of appeal, the petitioner shall remain as before. It is pertinent to mention that in para 11.8 of the judgment and order dated 24.07.2012, the learned Single Judge has recorded that: The confirmation order, in the case at hand, was recorded at the bottom of the findings of sentence recorded by the Court Martial, and there is nothing to interfere with the order of Court Martial on that ground. 5. In terms of the judgment and order dated 24.07.2012 passed by the learned Single Judge in W.P. (C) No. 323/2007, the petitioner was heard afresh by the Director General of BSF, the appellate authority. By an elaborate order dated 09.10.2012, Annexure-II to the writ petition, the appellate authority had dismissed the appeal of the petitioner, holding that the punishment awarded by the court is commensurate with the gravity of the offence committed by the petitioner. It has been further observed in the said order dated 09.10.2012 that there is no infirmity in the proceeding and the charges have been proved with adequate evidence and beyond any doubt. Moreover, the petitioner himself has pleaded guilty. 6. By filing this petition, the petitioner has again challenged the order dated 23.06.2005, the order of confirmation dated 25.08.2005 and the order of the appellate authority dated 09.10.2012. 7. Mr. P.K. Biswas, learned Asstt. Solicitor General of India has raised a jurisprudential objection, whether there is any scope for this court to re-appraise the legality of the order dated 23.06.2005 and the confirmation order dated 25.08.2005, in view of the finding as returned by the judgment and order dated 24.07.2012 passed by the learned Single Judge in W.P. (C) No. 323/2007, where it has been held that those two orders do not suffer from any infirmity, requiring any interference from the court. Mr. Mr. A. Roy Barman, learned counsel appearing for the petitioner, while responding to such objection, has contended that the petitioner even though filed a writ appeal against the judgment and order dated 24.07.2012 passed in W.P. (C) No. 323/2007, but when the petitioner had received the copy of the order dated 09.10.2012 passed by the appellate authority, he decided to withdraw the appeal. However, no liberty was granted to challenge the orders dated 23.06.2005 and 25.08.2005. 8. In the circumstances of the case, we have decided to reject the question of maintainability in view of the factual position as narrated by Mr. Roy Barman, learned counsel for the petitioner and we grant the petitioner leave to raise his objection against those orders as well. 9. Mr. Roy Barman, learned counsel appearing for the petitioner has submitted that at the time of the occurrence the petitioner was in unsound state of mind and he had been treated for the said unsoundness of mind by the Chief Medical Officer of the 34 Bn. BSF, where the petitioner was posted. The said Chief Medical Officer, namely Dr. M.P. Singh had appeared before the court and deposed as PW. 8. According to Mr. Roy Barman, the petitioner was referred to the Sub-Divisional Hospital, Dharmanagar and on 16.04.2003 he was allowed to go to the said hospital for further treatment. When the said Ambulance which took the petitioner to the hospital was parked outside the laboratory so that the petitioner could collect the investigation report from the said laboratory, the petitioner suddenly snatched one INSAS rifle and started indiscriminate firing causing grievous injuries to Satya Vir Kumar and Gurmeet Singh. Satya Vir Kumar died in the said incident. According to Mr. Roy Barman, the act of the petitioner was in the state of unsoundness of mind. Therefore, the petitioner cannot be held guilty either for committing culpable homicide amounting to murder or for attempt to murder. He has further submitted that the petitioner had not been given opportunity of defending himself in the required manner and as such the impugned order of conviction and sentence dated 23.06.2005 cannot be sustained. 10. Mr. P.K. Biswas, learned Asstt. Solicitor General of India has vehemently disputed such submission of Mr. Roy Barman, learned counsel appearing for the petitioner and stated that when the charges were read over to the petitioner he had pleaded guilty. 10. Mr. P.K. Biswas, learned Asstt. Solicitor General of India has vehemently disputed such submission of Mr. Roy Barman, learned counsel appearing for the petitioner and stated that when the charges were read over to the petitioner he had pleaded guilty. Despite that, the General Security Force Court had proceeded to hold the comprehensive trial ignoring the plea of guilty considering the nature of sentence that would entail if the petitioner were found guilty of the charge. The petitioner was asked repeatedly to engage a defence counsel, but he denied to engage any one for his defence. Not only that, on several occasion the petitioner had been asked to cross-examine the witnesses as adduced in the GSFC proceeding. But, on all occasion the petitioner had refused to cross-examine the witnesses. On every occasion whenever the proceeding commenced for trial the petitioner was examined medically by the competent medical officer so as to find the soundness of his mind. On all the occasions the petitioner was found sound in mind and he was not suffering from any unsoundness of mind or illness. Apart that, Mr. Biswas, learned Asstt. Solicitor General of India, referring to Section 99 of the Border Security Force Act, 1968, has submitted that, whenever, in the course of a trial by a General Security Force Court, it appears to the court that the person charged is by reason of unsoundness of mind incapable of making his defence, or that he committed the act by reason of unsoundness of mind being incapable of knowing the nature of the act that it was wrong or contrary to law, the court shall record a finding accordingly. No such finding has been recorded as no such plea was ever raised or established by the petitioner in the trial or before commencement of the trial. Mr. Biswas, learned Asstt. Solicitor General of India, therefore, submits that such plea cannot be acceptable by this court. Apart that, by producing the entire General Security Force Court proceeding, he has submitted that if the records are scrutinised it would be apparent how meticulously and efficiently and also conforming to the principles of natural justice as well as the procedure as prescribed by the statute the proceeding had been taken to its logical conclusion. Apart that, by producing the entire General Security Force Court proceeding, he has submitted that if the records are scrutinised it would be apparent how meticulously and efficiently and also conforming to the principles of natural justice as well as the procedure as prescribed by the statute the proceeding had been taken to its logical conclusion. Even to dispel any amount of doubt as regards the soundness of mind of the petitioner on every day of the trial, the petitioner was examined by the competent Medical Officer so that the petitioner’s right to defend him is not jeopardised for unsoundness of mind. Apart that, Mr. Biswas, learned Asstt. Solicitor General of India has submitted that this petition is virtually confined to the aspect that in the state of unsoundness of mind the petitioner had committed the said offence. 11. The Chief Medical Officer of the Battalion, namely Dr. M.P. Singh (PW. 8), who used to examine the petitioner had also appeared in the trial and stated that on 09.04.2003 the petitioner came to the MI room at about 1800 hours and complained of low back ache. On persistent request of the petitioner, he referred the petitioner to the Sub-Divisional hospital, Dharmanagar. On 10.04.2003 the petitioner again came to his house and misbehaved with him on the pretext that he had not been sent to the Sub-Divisional hospital, Dharmanagar by that time. He had asked the petitioner to go to the MI room and take rest there for some time as the Ambulance would likely to go to the Sub-Divisional hospital, Dharmanagar around 0900 hours. But, the petitioner all on a sudden got angry and torn the reference slip and other documents. The petitioner was thereafter sent for review of the low back ache as he was consistently complained of no relief, but in the in the referral register, as a matter of routine, it was recorded that the accused was sent for review of anxiety, depression and short temper. On 16.04.2003 when the petitioner was sent for review of his ailment at 1030 hours he came to know that the BSF ambulance have been fired up. He rushed to the hospital and found that the Constable/Driver Satya Vir Kumar was critically injured and another Constable Gurmeet Singh had also sustained injuries. On 16.04.2003 when the petitioner was sent for review of his ailment at 1030 hours he came to know that the BSF ambulance have been fired up. He rushed to the hospital and found that the Constable/Driver Satya Vir Kumar was critically injured and another Constable Gurmeet Singh had also sustained injuries. The attending doctor present at the hospital had advised to shift Satya Vir Kumar either to the GBP hospital, Agartala or to Silchar. The injured Constable Satya Vir Kumar had been shifted to the GBP hospital, Agartala. But, on the next day i.e. 17.04.2003 he has received the information from one ASI/Ph. Saleem that Satya Vir Kumar had succumbed to the injuries. PW. 8 has further stated in the trial that the doctor who had examined the petitioner in the Sub-Divisional hospital, Dharmanagar had told that the petitioner was suffering from short temporal anxiety which is a very common behavioural pattern and not mental illness. 12. The doctor who had examined the petitioner in the Sub-Divisional hospital, Dharmanagar, namely Dr. Manindra Kumar Malakar has been examined as CW. 1. He has stated in the trial that the petitioner was referred to him on 10.04.2003 for short temporal anxiety. He has categorically stated that the petitioner was normal and his blood pressure was 120/80. The petitioner had been prescribed anti anxiety medicine and, thereafter, he had not come for review. 13. Mr. Biswas, learned Asstt. Solicitor General of India, therefore, submits that from examination of all other witnesses it would be apparent that the petitioner had opened fire from the INSAS rifle. Both the rife and the bullet, which were recovered were placed in the trial and admitted in the evidence. The eye witnesses had identified the petitioner and have categorically stated that the petitioner had killed the constable Satya Vir Kumar and had made an attempt to murder others by opening fire from the INSAS rifle. No material has been placed in the trial, even to prima facie show that the petitioner had been suffering from unsoundness of mind at the time of the occurrence or thereafter or before that. 14. We are in total agreement with the submission of Mr. P.K. Biswas, learned Asstt. Solicitor General of India that the charges as framed against the petitioner, have been proved beyond reasonable doubt. 15. The extent of judicial review is not wide to act as the appellate court. 14. We are in total agreement with the submission of Mr. P.K. Biswas, learned Asstt. Solicitor General of India that the charges as framed against the petitioner, have been proved beyond reasonable doubt. 15. The extent of judicial review is not wide to act as the appellate court. In Union of India & Ors. Vs. Himmat Singh Chahar, reported in (1999) 4 SCC 521 it has been held that: ...notwithstanding the finality attached to the orders of the Competent Authority in the Court-Martial Proceedings the High Court is entitled to exercise its power of judicial review by invoking jurisdiction under Article 226 but that would be for a limited purpose of finding out whether there has been infraction of any mandatory provisions of the Act prescribing the procedure which has caused gross miscarriage of justice or for finding out that whether there has been violation of the principles of natural justice which vitiates the entire proceedings or that the authority exercising the jurisdiction had not been vested with jurisdiction under the Act. The said power of judicial review cannot be a power of an Appellate Authority permitting the High Court to re-appreciate the evidence and in coming to a conclusion that the evidence is insufficient for the conclusion arrived at by the Competent Authorities in Court Martial Proceedings. At any rate it cannot be higher than the jurisdiction of the High Court exercised under Article 227 against an order of an inferior Tribunal.... As such, infraction of mandatory provisions of law or violation of the principles of natural justice must be manifest on the face of the records. We have noticed no such infraction or violation leading to miscarriage of justice. 16. We have scrutinised the records of the General Security Force Court proceeding for further assurance. 17. Even though the Court Martial is not subject to the superintendence of the High Court under Article227 of the Constitution, but the judicial review under Article 226 of the Constitution is permissible for purpose of interfering with any illegality or irregularity that might arise in the proceeding. The petitioner did not approach this court when the General Security Force Court proceeding was pending. He has only approached this court after the Director General of the BSF, as the appellate authority, has dismissed the appeal by his order dated 09.10.2012, Annexure-II to the writ petition. 18. The petitioner did not approach this court when the General Security Force Court proceeding was pending. He has only approached this court after the Director General of the BSF, as the appellate authority, has dismissed the appeal by his order dated 09.10.2012, Annexure-II to the writ petition. 18. As stated, there is no infirmity in the General Security Force Court proceeding. The petitioner had been afforded all reasonable opportunities, satisfying the requirement of the principles of natural justice and the statute, but the petitioner has not availed any of those opportunities. He had pleaded guilty and thereafter preferred not to cross-examine the witnesses or to advance any argument in his defence. The plea that has been substantively raised in this petition is that of the act of commission had been done in the state of unsoundness of mind, has been appreciated by us critically. We are constrained to hold that in view of the evidence of PW. 8 and CW. 1, it has been established that the petitioner was neither suffering from any unsoundness of mind before the commission of occurrence nor at the time of occurrence, even not after the occurrence. 19. In view of this, this writ petition appears to us to be devoid of merit. Hence the same is dismissed. There shall be no order as to costs. The General Security Force Court proceeding records as produced by the learned Asstt. Solicitor General of India be returned forthwith.