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2017 DIGILAW 409 (JK)

Union of India v. Subash Chander

2017-07-24

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : Alok Aradhe, J. 1. In this intra Court appeal, the appellant has assailed the validity of order dated 30.04.2001 passed by the learned Single Judge by which proceedings of the Summary Court Martial held by the appellant herein against the respondent herein have been quashed and the appellant have been granted liberty to proceed against the respondent afresh in accordance with law. In order to appreciate the appellant’s challenge to the impugned order, few facts need mention, which are stated infra:- 2. At the relevant time, respondent was on duty at RP Gate of the Regiment from 2100 hrs on 10.08.1994 and after completion of the duty he left his rifle at RP gate and went to sleep at office verandah, the place which is not meant for guard to sleep. He was checked by Subedar Kushaal Chand and at that point of time, respondent pushed him and struck him on his face. The medical examination of the respondent revealed that he had consumed liquor while on duty and left his personal weapon unattended and also went to sleep at a place other than meant for guard and when checked by superior officer, used criminal force against him. Keeping in view the gravity of the offence committed by the respondent under Section 40(a)of the Army Act, the respondent was sentenced to suffer 3 months and ten days Rigorous Imprisonment and was dismissed from service. 3. The respondent thereupon filed a petition against the Summary Court Martial on 26.12.1994, which was rejected by the General Officer Commanding-in-Chief East Command after due consideration. Thereafter he filed writ petition before the learned Single Judge, which was disposed of by order dated 30.04.2001. Learned Single Judge, inter alia, held that the plea of admission of the guilt of the respondent has to be read along with his statement and the plea of guilt of the respondent has been recorded in a separate paper, which is undated and is pasted on the file. It was further held that the respondent had clearly stated that he wanted to continue in service. It was further held that the respondent had clearly stated that he wanted to continue in service. It was further held that the respondent was not given an opportunity to explain his position and even if he had taken the plea that he had admitted the guilt is taken as correct, then also the appellant was supposed to consider the circumstances under which he enter into altercation with his superior officer. It was further held that from the statement of the accused, it is not clear that he had admitted his guilt. Accordingly, proceedings of the Summary Court Martial were set aside and the appellant were granted liberty to proceed against the respondent afresh. In the above factual background, the appellant has filed this intra court appeal. 4. Learned Assistant Solicitor General has submitted that the Summary Court Martial had been held against the respondent in accordance with the procedure prescribed in the Army Rules. It is further submitted that the learned Single Judge while deciding the writ petition has re-appreciated the evidence on record, which is not permissible in law. It is further submitted that the respondent has admitted his guilt and out of the five witnesses, who were produced in the Summary Court Martial, he chose to cross-examine only two witnesses and a friend of accused was provided to him. In support of her submissions, learned ASGI has referred to decisions of the Supreme Court in the cases of Union of India and others v. IC-14827, Major A. Hussain; 1998 AIR SC 577, Pradeep Singh v. Union of India and others; (2007) 11 SCC 612 and Division Bench judgement of this Court in the case of Union of India v. Sohan Singh; 2013(4) JKJ 731 . 5. On the other hand, learned senior counsel for the respondent has submitted that the conviction of the respondent is based on the plea of guilt and from the perusal of the evidence on record, it is submitted that the respondent has not pleaded guilty to the charge but his plea of guilty was conditional and he had right to explain the circumstances under which the alleged incident took place. It is further submitted that in the statement respondent had stated that he wants to continue in service and the procedure prescribed under Rule 115(2A) as well as under Rule 116 of the Army Rules, 1954 has not been followed and therefore, enquiry initiated against the respondent suffers from the procedural infirmity and cannot sustain in the eye of law. It is also submitted that the learned Single Judge has rightly passed the order by taking into account the material on record, which does not call for any interference in this intra court appeal. It is also argued by the learned senior counsel that in the facts circumstances of the case instead of resorting to Summary Court Martial, the appellant ought to have convened a District Court Martial or Summary General Court Martial as the fact circumstances of the case do not justify convening of Summary Court Martial. 6. We have considered the submissions made by learned counsel for the parties and have perused the records. Before proceeding further, we deem it appropriate to refer to Rule 116 of the Army Rules, 1954, the relevant extract of which is reproduced as under:- “116. Procedure after plea of “Guilty".—(1) Upon the record of the plea of “Guilty”, if there are other charges in the same charge-sheet to which the plea is “Not Guilty”, the trial shall first proceed with respect to the latter charges, and, after the finding of these charges, shall proceed with the charges on which a plea of “Guilty” has been entered; but if they are alternative charges, the court may either proceed with respect to all the charges as if the accused had not pleaded “Guilty” to any charge, or may, instead of trying him, record a finding upon any one of the alternative charges to which he has pleaded “Guilty” and a finding of “Not Guilty” upon all the other alternative charges. (2) After the record of the plea of “Guilty” on a charge (if the trial does not proceed on any other charges), the court shall read the summary of evidence, and annex it to the proceedings or if there is no such summary, shall take and record sufficient evidence to enable it to determine the sentence, and the reviewing officer to know all the circumstances connected with the offence. The evidence shall be taken in like manner as is directed by these rules in case of a plea of “Not Guilty”. (3) After such evidence has been taken, or the summary of evidence has been read, as the case may be, the accused may address the court in reference to the charge and in mitigation of punishment and may call witnesses as to his character. (4) 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 his plea of “Guilty”, the court shall alter the record and enter a plea of “Not Guilty”, and proceed with the trial accordingly. (5) If a plea of “Guilty” is recorded and the trial proceeds with respect to other charges in the same charge-sheet, the proceedings under sub-rules (2) and (3) shall take place when the findings on the other charges in the same charge-sheet are recorded. (6) When the accused states anything in mitigation of punishment which in the opinion of the court requires to be proved, and would, if proved, effect the amount of punishment, the court may permit the accused to call witnesses to prove the same.” 7. From the perusal of the statement of the respondent, which has been reproduced by the learned Single Judge in the order, it is evident that it does not contain admission of guilt on the other hand, he has tried to explain the conduct. The plea of admission of guilt of the respondent has not been recorded in equivocal terms and is rather conditional, inasmuch as if the statement of the respondent is read in conjunction with plea of guilt, it is evident that he has stated that he wants to continue in service and may be pardoned. Therefore, we agree with the findings recorded by the learned Single Judge that the plea of admission of guilt is not in equivocal terms. Even presuming that the respondent had pleaded guilty to the charges, it was incumbent on the appellant to follow the procedure prescribed under Rule 116 (2) to (6) of the Army Rules. Therefore, we agree with the findings recorded by the learned Single Judge that the plea of admission of guilt is not in equivocal terms. Even presuming that the respondent had pleaded guilty to the charges, it was incumbent on the appellant to follow the procedure prescribed under Rule 116 (2) to (6) of the Army Rules. From the perusal of the record, which has been produced before us, we find that the aforesaid provisions have not been complied with by the appellant therefore, it is not necessary for us to advert to the rival contentions with regard to the alleged admission made by the respondent with regard to his guilt. Therefore, the enquiry which has been held in infraction of the procedure prescribed under Rule 116 of the Army Rules cannot sustain in the eye of law. 8. In view of the preceding analysis, we do not find any merit in this appeal, hence same fails and is hereby dismissed.