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2019 DIGILAW 429 (JK)

Indra Kumar Rai v. Union of India

2019-09-26

TASHI RABSTAN

body2019
JUDGMENT : Tashi Rabstan, J. Petitioner is aggrieved of proceedings of the Summary General Court Martial and findings recorded by the said Court on 10.05.2004 whereby the petitioner has been sentenced for life imprisonment and dismissal from service and the same has been confirmed by the confirming authority. 2. During pendency of the matter, the respondents have filed the application being MP No. 01/2015, seeking transfer of the petitions to the Armed Forces Tribunal, Chandigarh Circuit Bench, at Jammu, to which the objections have been filed by the petitioner/non-applicant herein. 3. Learned counsel for the applicants/respondents insists that the writ petitions in hand, in view of the enactment of the Armed Forces Tribunal Act, 2007, is required to be transferred to Armed Forces Tribunal, Chandigarh Circuit Bench, at Jammu for its disposal in accordance with law. It is stated that the petitions could not be earlier so transferred as Tribunal constituted vide Notification SRO 9(E) dated 07.08.2009, did not have a Bench to deal with the cases arising within the territorial limits of Jammu and Kashmir State, and that the Bench at Chandigarh having been constituted vide Notification SRO 17(E) dated 10.11.2009 at Chandigarh with jurisdiction, amongst other States, to the territorial limits of Jammu and Kashmir State, there is no impediment in its transfer, so that purpose of the Act is served and parties allowed its benefit. Subsequently, the Circuit Bench at Jammu has also been established and the same is functioning in Jammu. 4. Learned counsel for the petitioner/non-applicant opposes the prayer for transfer of the cases to Armed Forces Tribunal Circuit Bench at Jammu on the ground that Act does not exclude jurisdiction of the High Court under Article 226, Constitution of India and therefore, High Court has jurisdiction to deal with and dispose of the petitions. 5. Learned senior counsel for the petitioner/non-applicant has opposed the prayer for transfer of the petitions and argued that even otherwise the petitioner has questioned the jurisdiction of the Court Martial, also the judgment and sentence has been passed without adopting the principal of natural justice. 6. Heard and considered the application MP No. 1/2015. 7. Armed Forces Tribunal Act, 2007, came into force on 28.12.2007. 6. Heard and considered the application MP No. 1/2015. 7. Armed Forces Tribunal Act, 2007, came into force on 28.12.2007. Object of the Act as spelled out in “Object Clause” is to provide for adjudication or trial by Armed Forces Tribunal of disputes and complaints with respect to commission, appointments, enrolment and conditions of services in respect of persons subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950 and also to provide for appeals arising out of orders, findings or sentences of court marital held under the said Acts and for matters connected therewith or incidental thereto. The Act is apply to all persons subject to the Army Act 1950, the Navy Act 1957 and the Air Force Act 1950 as also to retired personnel subject to the aforesaid Act(s) including their dependents, heirs and successors, insofar as the matter relates to their service matters. 8. Section 4 of the Armed Forces Tribunal Act, 2007 empowers Central Government to establish by notification a Tribunal known as the Armed Forces Tribunal to exercise jurisdiction, powers and authority conferred on it by or under the Act. Tribunal is to ordinarily sit at Delhi. However, Central Government is empowered under Section 5 sub-section (4) to constitute Benches at other places and in the event Benches are so created, Bench at Delhi is to be known as Principal Bench. Chapter III of the Act deals with jurisdiction, powers and authority of the Tribunal. Having regard to controversy involved, Sections 14, 15 and 17 need to be noticed: “14. Jurisdiction, powers and authority in service matters— (1) Save as otherwise expressly provided in this Act, the Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority, exercisable immediately before that day by all courts (except the Supreme Court or a High Court exercising jurisdiction under articles 226 and 227 of the Constitution) in relation to all service matters. (2) Subject to the other provisions of this Act, a person aggrieved by an order pertaining to any service matter may make an application to the Tribunal in such form and accompanied by such documents or other evidence and on payment of such fee as may be prescribed. (2) Subject to the other provisions of this Act, a person aggrieved by an order pertaining to any service matter may make an application to the Tribunal in such form and accompanied by such documents or other evidence and on payment of such fee as may be prescribed. (3) On receipt of an application relating to service matters, the Tribunal shall, if satisfied after due inquiry, as it may deem necessary, that it is fit for adjudication by it, admit such application; but where the Tribunal is not so satisfied, it may dismiss the application after recording its reasons in writing. (4) For the purpose of adjudicating an application, the Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of the following matters, namely:— (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) subject to the provisions of section 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office; (e) issuing commissions for the examination of witnesses or documents; (f) reviewing its decisions; (g) dismissing an application for default or deciding it ex parte; (h) setting aside any order of dismissal of any application for default or any order passed by it ex parte; and (i) any other matter which may be prescribed by the Central Government. (5) The Tribunal shall decide both questions of law and facts that may be raised before it. 15. Jurisdiction, powers and authority in matters of appeal against court martial.— (1) Save as otherwise expressly provided in this Act, the Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable under this Act in relation to appeal against any order, decision, finding or sentence passed by a court-martial or any matter connected therewith or incidental thereto. (2) Any person aggrieved by an order, decision, finding or sentence passed by a court-martial may prefer an appeal in such form, manner and within such time as may be prescribed. (2) Any person aggrieved by an order, decision, finding or sentence passed by a court-martial may prefer an appeal in such form, manner and within such time as may be prescribed. (3) The Tribunal shall have power to grant bail to any person accused of an offence and in military custody, with or without any conditions which it considers necessary: Provided that no accused person shall be so released if there appears reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life. (4) The Tribunal shall allow an appeal against conviction by a court-martial where— (a) the finding of the court-martial is legally not sustainable due to any reason whatsoever; or (b) the finding involves wrong decision on a question of law; or (c) there was a material irregularity in the course of the trial resulting in miscarriage of justice, but, in any other case, may dismiss the appeal where the Tribunal considers that no miscarriage of justice is likely to be caused or has actually resulted to the appellant: Provided that no order dismissing the appeal by the Tribunal shall be passed unless such order is made after recording reasons therefor in writing. (5) The Tribunal may allow an appeal against conviction, and pass appropriate order thereon. (5) The Tribunal may allow an appeal against conviction, and pass appropriate order thereon. (6) Notwithstanding anything contained in the foregoing provisions of this section, the Tribunal shall have the power to— (a) substitute for the findings of the court martial, a finding of guilty for any other offence for which the offender could have been lawfully found guilty by the court-martial and pass a sentence afresh for the offence specified or involved in such findings under the provisions of the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957) or the Air Force Act, 1950 (45 of 1950), as the case may be; or (b) if sentence is found to be excessive, illegal or unjust, the Tribunal may— (i) remit the whole or any part of the sentence, with or without conditions; (ii) mitigate the punishment awarded; (iii) commute such punishment to any lesser punishment or punishments mentioned in the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950), as the case may be; (c) enhance the sentence awarded by a court-martial: Provided that no such sentence shall be enhanced unless the appellant has been given an opportunity of being heard; (d) release the appellant, if sentenced to imprisonment, on parole with or without conditions; (e) suspend a sentence of imprisonment; (f) pass any other order as it may think appropriate. (7) Notwithstanding any other provisions in this Act, for the purposes of this section, the Tribunal shall be deemed to be a criminal court for the purposes of sections 175, 178, 179, 180, 193, 195, 196 or 228 of the Indian Penal Code (45 of 1860) and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). 17. Powers of the Tribunal on appeal under section 15.— The Tribunal, while hearing and deciding an appeal under section 15, shall have the power— (a) to order production of documents or exhibits connected with the proceedings before the court-martial; (b) to order the attendance of the witnesses; (c) to receive evidence; (d) to obtain reports from court-martial; (e) order reference of any question for enquiry; (f) appoint a person with special expert knowledge to act as an assessor; and (g) to determine any question which is necessary to be determined in order to do justice in the case.” 9. There is no scope for disagreement that the Act is intended to extend the benefit of a hassle free, inexpensive, efficient adjudicating mechanism of justice delivery system for serving and retired armed forces personnel. Tribunal has been conferred wide powers as compared to the powers available to the writ while exercising writ jurisdiction. 10. Power of Tribunal while hearing and deciding Appeal under Section 15 is much wider than power exercised by High Court under Article 226, Constitution of India, when it exercises power of judicial review of Court Martial Proceedings or orders passed on conclusion of such proceedings. Power of Tribunal is not limited by Wednesbury principle or restricted to arbitrariness and irrationality. Tribunal, as a closer look at Section 17 would reveal, is empowered to receive evidence, order for reference of any enquiry, appoint a person as an assessor, and to determine any question which is necessary to be determined in order to do justice. Tribunal, therefore, has its aim to do justice in the case and to achieve object it can pass any order that it may find necessary towards said direction. High Court, unlike Tribunal, has not to sit in an appeal over Court Martial decisions, cannot re-appreciate evidence or arrive at its own conclusions on perusal of Court Martial record. High Court in exercise of judicial review is to examine the decision making process to see whether it suffers from arbitrariness, unfairness or irrationality or a penalty imposed is so disproportionate that it shocks conscience. 11. Armed Forces Tribunal, therefore, is to have power to get Court Martial record or for that matter any other record relating to any other order or direction, examine evidence and re-appreciate it. Tribunal, because of spread and sweep of powers as an Appellate authority, is to be first choice of Armed Forces Personnel aggrieved with Court Martial proceedings, order passed by Court Martial Summary or General, and other order, falling within jurisdiction of Tribunal. In the circumstances, it is in the interest of armed forces personnel to transfer pending matters to Tribunal, so that decisions called in question is/are subjected to closer scouting-a remedy not available under Article 226, Constitution of India. 12. It is appropriate to reproduce Section 34 of the Act. It reads as under:- “34. In the circumstances, it is in the interest of armed forces personnel to transfer pending matters to Tribunal, so that decisions called in question is/are subjected to closer scouting-a remedy not available under Article 226, Constitution of India. 12. It is appropriate to reproduce Section 34 of the Act. It reads as under:- “34. Transfer of pending cases.— (1) Every suit, or other proceeding pending before any court including a High Court or other authority immediately before the date of establishment of the Tribunal under this Act, being a suit or proceeding the cause of action whereon it is based, is such that it would have been within the jurisdiction of the Tribunal, if it had arisen after such establishment within the jurisdiction of such Tribunal, stand transferred on that date to such Tribunal. (2) Where any suit or other proceeding stands transferred from any court including a High court or other authority to the Tribunal under sub-section (1),— (a) the court or other authority shall, as soon as may be, after such transfer forward the records of such suit, or other proceeding to the Tribunal; (b) the Tribunal may, on receipt of such records, proceed to deal with such suit, or other proceeding, so far as may be, in the same manner as in the case of an application made under sub-section (2) of section 14 from the stage which was reached before such transfer or from any earlier stage or de novo as the Tribunal may deem fit.” 13. It needs to be appreciated that while Section 14 has been made subject to other provisions of the Act, Section 34 has not been made subject to any other provision of the Act including Section 14. Section 34 mandates transfers of proceedings pending before any court including High Court to Tribunal. When Sections 14 to 17 and 34 are read together, the only conclusion one can draw is that all pending matters including writ petitions are to be transferred to Tribunal for disposal in accordance with law. 14. Viewed thus, I am in agreement with argument advanced by learned counsel for respondents/applicants that writ petitions in terms of Armed Forces Tribunal Act, 2007, is required to be transferred to Armed Forces Tribunal. 14. Viewed thus, I am in agreement with argument advanced by learned counsel for respondents/applicants that writ petitions in terms of Armed Forces Tribunal Act, 2007, is required to be transferred to Armed Forces Tribunal. My view has been fortified by the judgment passed by this Court earlier in “Mushtaq Ahmad Sheikh v. Union of India and others” reported in 2012(4) JKJ 448 [HC] and also judgment passed by a Division Bench of this Court in “Tilak Raj v. Union of India” reported in 2018(4) SLR 732. 15. In view of the facts and circumstances herein above, the writ petitions in hand are accordingly transferred to Armed Forces Tribunal, Chandigarh Circuit Bench, at Jammu. Registry is directed to transmit the complete paper book of the writ petitions to the Registrar, Armed Forces Tribunal, Chandigarh Circuit Bench, at Jammu. On receipt of the same, the Tribunal shall issue notice to the parties. 16. MP No. 1/2015 stands disposed of, accordingly.