Delhi High Court
Ex. Havildar K.P. Pandey vs Union Of India (Uoi) And Ors. on 30 September, 2002
Equivalent citations: 2003(3)SLJ463(DELHI)
Author: S.B. Sinha
Bench: S.B. Sinha, A.K. Sikri
JUDGMENT S.B. Sinha, C.J.
1. The petitioner herein joined the Army Service as a Sepoy in the Regiment of Artillery. At the relevant point of time, he was promoted to the post of Havildar in Non-Commissioned Officer's rank in the Army. He was selected for promotion to the post of Battery Quarter Master Havildar out of 10 Havildars similarly situated. He, during the afore-mentioned period, also acquired necessary qualification for promotion to the post of Naib Subedar which is in the rank of Junior Commissioned Officer. The petitioner as BQMH was responsible for receipt, issue and ledger accounting of all the stores belonging to the Brigade Headquarter as also their care, maintenance and security. Small arms and ammunitions belonging to the said Brigade are kept under lock and key in the Station Ammunition Dump under the charge of Station Ammunition Guard. The Ammunition Dump is backed up by security arrangements. On or about 25th October 1995, he had gone to the Ammunition Dump to draw 50 rounds of SAA required for an urgent ground duty but found the lock of the barrack, which housed the said commodity belonging to the said Brigade Headquarter, changed. He informed the mater to his superior officers. The lock of the said barrack was broken on 27th October 1995 and a number of empty grenade bags lying there were found wherefrom it appeared that theft of some small arms and ammunitions had taken place. A sniffer dog was put in service which led the tracker team to Sentry Post No. 3 and then to perimeter barbed wire fencing merely at a distance of 3-4 yards from Sentry Post No. 3 there from, which was found to have been cut and a large hole was created through which a person or even ammunition boxes could easily pass. The hole led to a hut situated on the outskirts of a neighbouring village which had been abandoned.
2. It was found that the following quantities of SAA had been stolen:
"(a) Rifle ammunition 7.62 mm 600 rounds (One sealed box)
(b) Stengun ammunition 9 mm 742 rounds (One sealed box)
(c) Hand grenades type 36 24 numbers.
(d) Detonators 48 numbers."
3. According to the petitioner, in terms of Regulation No. 523 of the defense Services Regulations for the Army as also the relevant Army Orders, the respondent No. 3 was required to take assistance of the State CID or to have the matter enquired by a Court of Enquiry consisting of the officers from outside Brigade. However, none of the above two actions was taken. Only a Court of Enquiry as set up to enquire into the matter. Even in the FIR lodged on 29th October, 1995 which was lodged after five days of the incidence, no mention had been made of the afore-mentioned clues and leads provided by the CISF trekker dog. Allegedly, the said Court of Enquiry did not find fault with their own men and needle of suspicion was directed on petitioner and his assistant namely Naik Swinder Singh. The petitioner's finger-prints were obtained and he was put under arrest and taken to Meerut under an armed guard of six persons where he was kept in illegal custody for 40 days i.e. till 15th December 1995.
4. The petitioner alleges that he was subjected to most inhuman physical beating and other forms of torture by respondents No. 5 and 6 who allegedly pressurized him to make a written confession that he had committed theft of the said ammunition. However, the petitioner declined to make such a confession. According to the petitioner, the said Naik Swinder Singh was also subjected to similar physical torture as a result whereof he had begun suffering from neuroplexia. It has been contended that the respondent No. 5 and 6 visited Raiwala from time to time apparently for making some enquiry but they were busy in collecting a large quantity of whisky from defense canteens. The petitioner had annexed various chits to show that they had drawn at least 418 bottles of rum and whisky from defense canteens.
5. The petitioner submitted an application on 25th June 1996 with the Chief of Army Staff through the third respondent, requesting him to hold an impartial court of enquiry. The petitioner requested the third respondent to supply him a copy of the court of enquiry proceedings so that he could know the basis of his detention and torture for 40 days. According to the petitioner, on receipt of the said two applications, the third respondent being annoyed with him, on 14th July 1996, arbitrarily demoted him from the rank of BQMH to the rank of Havildar with retrospective effect from 5th November, 1995. He was again put under arrest and attached to 237 Field Regimen for his trial by Summary Court Martial.
6. The petitioner alleges:
i) That, the petitioner under these circumstances, have been left with no other option, approached this Hon'ble Court on 20-8-1995, with a writ petition, registered as C.W.P. No. 3214 of 1996 praying for issue of the writs of 'Habeas Corpus' and 'Prohibition', against his illegal detention and apprehended trial by court martial.
(xviii) That, the respondents in their brief reply submitted on 26-8-1995 stated that the petitioner was not under detention and also there were no court martial proceedings launched against him and only the process of recording of the summary of evidence was on. The counsel for the respondents also gave a verbal commitment to the Hon'ble court that the petitioner would not be tried by a court martial without informing the Hon'ble court first. The Hon'ble Court, relying on the above averments, fixed 12-3-1997, as the date for final disposal of the case."
7. The petitioner was put under pre-trial arrest on 11th February, 1997 and at 18.50 hours he was handed over a copy each of a charge-sheet and convening order informing him that he would be tried by a Summary Court Martial at 1000 hours on 15th February 1997. Despite the assurance given to this court, the respondents tried the petitioner by a Summary Court Martial which was held on 15th February 1997 (Saturday) and 16th February 1997 (Sunday) on the charges of having committed various acts alleged to be prejudicial to good order and military discipline purported to be under Section 63 of the Army Act which have no relevance or connection with the main issue of theft.
8. The petitioner intended to amend his earlier writ petition but as preliminary objections were taken, he withdrew the said writ petition and filed this petition.
9. Shri Lalit Kumar, the learned counsel appearing on behalf of the petitioner would in support of the writ petition raise the following contention:
(i) The petitioner having been reverted to the post of Havildar, he could not have been inflicted with the impugned punishment.
(ii) The charges levelled against the petitioner purported to be under Section 63 of the Army Act, were mala fide having regard to the backdrop of the case.
(iii) The Commandant had no jurisdiction to convene the District Court Martial.
10. Reliance in this connection has been placed on Ex.-Hav. Mahipal Singh v. Union of India and Ors., and M. Hav. (AEC) S.K. Sharma and Ors. v. Union of India and Ors., 2002 (1) FLJ 308.
(iv) The Summary Court Martial proceeded with a pre-judged mind as would be evident from the fact that the charges and all other documents had been typed as far back as on 11th February 1994 although in law the Court Martial proceedings started from 15th February 1997 and he could act as a Court only after he took his oath of doing justice.
(v) In any event, there had been a gross violation of the provisions of Rule 34 in so far as the petitioner had not been given clear 96 hours time to prepare his defense. There had been also a gross violation of Rule 81 of the Army Rules in so far as although the Court Martial proceedings could be held only from 6.00 AM to 6.00 PM and ordinarily only on working days, the same was held on 15th February 1997 (Saturday) and 16th February 1997 (Sunday) wherefor no reason has been assigned.
(vi) Although in terms of Section 133 of the Army Act, the provisions of the Evidence Act are applicable, it would appear that the cross-examination was done by court and the petitioner was not permitted to call his own defense witness in relation to charge No. 1.
11. Ms. Pinky Anand, learned counsel appearing on behalf of the respondents would submit that the question of applicability of the principles of double jeopardy does not arise inasmuch as the order of posting of the petitioner as Havildar was mainly relating to administrative reasons.
12. According to the learned counsel, the petitioner remained a Havildar till the punishment was imposed upon him.
13. As regards the alleged violation of the Army Rule 34, it was submitted that the same is directory in nature and thereby no prejudice has been caused to the petitioner. The learned counsel would contend that no such objection was taken by the petitioner at any point of time although he was having the assistance of a defense assistance.
14. As regards alleged violation of Rule 81 of the Army Rules, the learned counsel would contend that there does not exist absolute bar for hearing court martial proceedings on a Saturday and Sunday. Such provisions, according to the learned counsel, are directory in nature.
15. As regards the contention that the cross-examination has been made by a Summary Court Martial, it was submitted that the same might have been written by way of mistake.
16. As regards the petitioner's contention that he had not been permitted to cross-examination his witness, it is submitted that the petitioner in his written statement did not raise any such contention.
17. The relevant provisions of the Army Act and the Rules read thus:
"63. Violation of good order and discipline.--Any person subject to this Act who is guilty of any act or omission which though not specified in this 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 this Act mentioned."
133. General rule as to evidence.--The Indian Evidence Act, 1872 (1 of 1872), shall subject to the provisions of this Act, apply to all proceedings before a court-martial."
Army Rule 34.
"34. Warning of accused for trial.--(1) The accused before he is arraigned shall be informed by an officer of every charge for which he is to be tried and also that, on his giving the names of witnesses or whom he desires to call in his defense, reasonable steps will be taken for procuring their attendance, an those step shall be taken accordingly.
The interval between his being so informed and his arraignment shall not be less than ninety-six hours or where the accused person is on active service less than twenty-four hours.
(2) The officer at the time of so informing the accused shall give him a copy of the charge-sheet and shall if necessary, read and explain to him the charges brought against him. If the accused desires to have it in a language which he understands, a translation thereof shall also be given to him.
(3) The officer shall also deliver to the accused a list of the names, rank and corps (if any), of the officers who are to form the court, and where offices in waiting are named, also of those officers in courts-martial other than summary courts-martial.
(4) If it appears to the court that the accused is liable to be prejudiced at his trial by any non-compliance with this rule, the court shall take steps and, if necessary, adjourn to avoid the accused being so prejudiced."
18. From the facts of the matter as noticed hereinbefore, it appears that the petitioner herein has raised various questions leading to unfair trial on the part of the respondents. The petitioner was performing his duties as a Battery Quarter Master Havildar. According to him, such post belongs to separate rank. The same is, however, denied or disputed by the respondents. The petitioner was subjected to proceedings under the Army Act. He was tried by a Summary Court Martial. The contention of the petitioner as regards commission of theft of the arms and ammunition had been accepted. Further contention of the petitioner that in relation to the afore-mentioned incident wherefor a First Information Report was lodged had not been enquired into by CID or by a Court of enquiry, has not been denied or disputed. As noticed hereinbefore, the petitioner has alleged torture in the hands of the intelligence corps. The counter-affidavit filed on behalf of the respondents had been affirmed by one Capt. Amulya Sharma who was a Working Assistant. He had no personal knowledge about the fact of the matter nor in his affidavit did he say that he at the relevant point of time was in any way involved in the enquiry. The question as to whether the petitioner or his co-accused was subjected to torture or not could be denied or disputed by an officer who had personal knowledge as regards thereto. Such allegations on the part of the petitioner would not be a subject matter of records and in that view of the matter, the deponent of the counter-affidavit cannot be said to be a competent person to affirm the same. The record as regards the detention of the petitioner and why he had been taken to Meerut for investigation by Central Command Liaison Unit, has not been produced.
19. It may be that the Central Command Liaison Unit had carried out investigation directly under the Headquarters at Lucknow but there was absolutely no reason as to why the allegations of the petitioner could not be traversed by a responsible officer. The deponent of the said counter-affidavit has verified the same in the following terms:
"Verified at Delhi on 25th day of Feb. that the contents of above-mentioned affidavit are true and correct to my knowledge and no part of it is false and incorrect to my knowledge and nothing material has been concealed there from."
20. He, however, in para 1 of the affidavit categorically stated that his knowledge is based on records of the case which he did not say in the verification portion.
21. The material allegations made in the writ petition had also not been traversed.
22. In the afore-mentioned backdrop, the contentions raised in the writ petition are required to be considered.
23. The first question which arises for consideration would be as to whether depriving the petitioner from the post of BQMH was itself an act of mala fide on the part of the third respondent herein. It is not in dispute that the petitioner was getting a higher remuneration for holding the post of BQMH. However, according to the respondents, he remained a Havaldar. Although ordinarily such a course of action might not have been considered by courts but the said question has to be considered having regard to Section 80 of the Army Act which reads thus:
"80. Punishment of person other than officers, junior commissioned officers and warrant officers.-- Subject to the provisions of Section 81, a commanding officer or such other officer as is, with the consent of the Central Government, specified by the Chief of Army Staff, may, in the prescribed manner, proceed against a person subject to this Act otherwise than as an officer, junior commissioned officer or warrant officer who is charged with an offence under this Act and award such person, to the extent prescribed, one or more of the following punishments, that is to say,--
... ... ... ... ...
(e) deprivation of a position of the nature of an appointment or of corps or working pay, and in the case of non-commissioned officers, also deprivation of acting rank or reduction to a lower grade of pay;"
... ... ... ... ...
24. In terms of the said provisions, therefore, deprivation of a position of the nature of appointment is itself a punishment. Such punishment had been given to the petitioner, having regard to the factual backdrop, as noticed hereinbefore.
25. This court in Ayub Ali, Ex. Naik v. COAS, CWP 4694/1993 dated 13th July 1993 held that such an action cannot be held to be merely an administrative action. This court held that as he had already been dealt with under Section 80, he could not have been tried again by court martial and suffer a punishment.
26. Furthermore, the petitioner after his arrest on 27th July 1996 was attached to a different field regiment for his trial by a summary court martial.
27. Sections 116 and 120 of the Army Act read thus:
"116. Summary of court-martial.--(1) A summary court-martial may be held by the commanding officer of nay corps. department or detachment of the regular Army, and he shall alone constitute the court.
(2) The proceedings shall be attended throughout by two other persons who shall be officers or junior commissioned officers or one of either, and who shall not as such, be sworn or affirmed."
120. Powers of summary courts-martial.-- (1) Subject to the provisions of Sub-section (2), in summary court-martial may try and offence punishable under this Act.
(2) When there is no grave reason for immediate action and reference can without detriment to discipline be made to the officer empowered to convene a district court-martial or on active service a summary general court-martial for the trial of the alleged offender, an officer holding a summary court-martial shall not try without such reference any offence punishable under any of the Sections 34, 37 and 69, or any offence against the officer holding the court.
(3) A summary court-martial may try any person subject to this Act and under the command of the officer holding the court, except an officer, junior commissioned officer or warrant officer.
(4) A summary court-martial may pass any sentence which may be passed under this Act, except a sentence of death of transportation, or of imprisonment for a term exceeding the limit specified in Sub-section (5).
(5) The limit referred to in Sub-section (4) shall be one year if the officer holding the summary court-martial is of the rank of lieutenant-colonel and upwards, and three months, if such officer is below that rank."
28. In terms of the afore-mentioned provisions, particularly Note 5 appended to Section 120, a non-commissioned officer cannot be attached to another unit for the purpose of trial by a summary court martial except as provided in Army regulations. The trial of the petitioner by a summary court martial must be viewed with seriousness having regard to the backgrounds facts. In the instant case, no reason has been assigned as to why the petitioner was tried by a summary court martial. It is well known that right of defense is wider in a general court martial proceedings. In M. Hav. (AEC) S.K. Sharma and Ors. v. Union of India and Ors. 2002(1) FLJ 308, Kaul, J. following an earlier decision of this court in Ex-Havildar Mahipal Singh v. Union of India and Ors. , it was held:
"9. There is no doubt that in view of the allegations having been made by the petitioner against his own commanding officer, the decision of the respondents to attach the petitioner to a different unit cannot be faulted. The proceeding before the summary court martial also shows that the petitioner was granted opportunity to cross-examine the witness. In view of the offence charged, there would also be no question of application of Section 120(2) of the Act. The question however, remains whether the petitioner having been once attached to a different unit other than his own, summary court martial proceedings could or could not take place after such attachment. The question is not to doubt the bonafides of the attachment to the other unit since the same was rightly done. In Ex. Havildar Mahipal Singh's case (supra), the learned Single Judge has considered the scope and ambit of a summary court martial under Section 116 of the Act and his categorically held that the summary court martial cannot take place by transfer of the petitioner to another unit for purposes of trial. The only exception made out vide Note 5. of the Manual of Military Law would not apply to the case of the petitioner since the petitioner was admittedly not a deserter. It has also to be kept in mind that in fact the CO had recommended a District court martial but the Superior Military authority, in their wisdom, directed holding of a summary court martial. It cannot be doubted that the superior authority does have a right to direct summary court martial as stated in judgment in Ex-Sepoy Vijay Kumar's case (supra). The controversy has arisen in the present case by reason of the fact that as a consequence of the direction to hold a summary court martial the same had to be held by a commanding officer other than the commanding officer of Regiment to which the petitioner was attached where he is alleged to have committed the offence for which he was allegedly charged. The letter dated 8.2.1997 (Annexure R) further makes it clear that the petitioner was attached to 1842 Light Regiment only for discipline purposes. In view of the aforesaid I am of the considered view that the ratio of Ex. Havildar Mahipal Singh's case (supra) would squarely apply to the facts of the present case and in view of the fact that summary court martial has been held by a commanding officer of another unit, the same cannot be sustained in law."
29. The irregularities as alleged by the petitioner committed by the respondents, if considered in isolation by itself may not lead to the conclusion that the petitioner was subjected to an unfair trial, but that question must be answered having regard to the facts and circumstances obtaining in the present case. What is needed to be considered is the cumulative effect of the irregularities as well as the manner in which the proceedings was carried out by the authorities.
30. Thereby not be any direct proof of malice. It may have to be considered having regard to the materials brought on records (See Bal Kalyana v. State of Maharashtra, AIR 1995 Bom 10 and Akhileshwar Mishra v. State of Bihar, .
31. A Summary Court Martial proceedings is conducted by an officer of law rank. He is not trained in procedure or technicalities of law. He has no training in performing judicial functions. He is not ordinarily expected to know that Army Officer are also entitled to protection of Human Rights.
32. As their fundamental right has been taken away in terms of Article 33 of the Constitution, it is obligatory on the part of the authorities to scrupulously follow the procedural safeguards.
33. Keeping in view of the background facts, we are satisfied that the petitioner in this case having regard to the admitted facts has been deprived of a fair trial.
34. In Ltd. Col. Prithi Pal Singh Bedi v. Union of India and Ors., , it was observed that:
"Ours is still an antiquated system. The wind of change blowing over the country has not permeated the close and sacrosanct precincts of the Army. If in civil courts the universally accepted dictum is that justice must not only be done but it must seem to be done, the same holds good with all the greater vigour in case of court martial where the judge and the accused don the same dress, have the same mental discipline, have a strong hierarchical subjugation and a feeling of bias in such circumstances is irremovable. We, therefore, hope and believe that the changes all over the English-speaking democracies will awaken our Parliament to the changed value system. In this behalf, we would like to draw pointed attention of the Government to the glaring anomaly that courts martial do no even write a brief reasoned order in support of their conclusion, even in cases in which they impose the death sentence. This must be remedied in order to ensure that a disciplined and dedicated Indian Army may not nurse a grievance that the substance of justice and fair play is denied to it."
35. The sentiment expressed above has been reiterated in Union of India v. Charanjit Singh Gill in the following terms:-
"10. Despite the lapse of about two decades neither Parliament nor the Central Government appears to have realized their constitutional obligations, as were expected by this Court, except amending Rule 62 providing that after recording the finding in each charge the court shall give brief reasons in support thereof. The Judge Advocate has been obliged to record or caused to be recorded brief reasons in the proceedings. Even today the law relating to the Armed Forces remains static which requires to be changed keeping in view the observations made by this Court in Lt. Col. Prithi Pal Singh Bedi v. Union of India, , the constitutional mandate and the changes effected by other democratic countries. The time has come to ally the apprehension of all concerned that the system of trial by Court Martial was not the archetype of summary and arbitrary proceedings.
"11. In the absence of effective steps taken by Parliament and the Central Government, it is the constitutional obligation of the courts in the country to protect and safeguard the constitutional rights of all citizens including the persons enrolled in the Armed Forces to the extent permissible under law by not forgetting the paramount need of maintaining the discipline in the Armed Forces of the country."
36. Why, in a case of this nature which emanated from a grave incident, the petitioner was tried by the summary court-martial, appears to be a mystery.
37. The charges against the petitioner refers to remote past namely in relation to the incidents, which happened on 16th October, 1995 and 24th September, 1995. The said charges are as under:
"FIRST CHARGE Army Act An Act prejudicial to good Section 63 order and military discipline In that he, At Raiwala, on 24 Sep. 95, while performing the duties of Battary Quarter Master Havildar and in charge of Small Arms Ammunition Store of 6, Mountain Antillary Brigade Camp, 400 rounds of 7.62mm BDR and 1120 rounds of 9mm Ball, which had been previously issued on 21 Sep. 95 for the exercise of Headquarters 6 Mountain Artillery Brigade, did not deposit it on the same day on termination of exercise on 23 Sep in Small Arms Ammunition Store of Brigade Camp himself, retained in wrongly in his possession in unit lines till on 24th Sep 95, proceeded on leave on 24 Sep 95 without properly depositing the said ammunition in the store, as per existing orders but handed it over to No. 15105306H Lance Havildar (Surveyor) Sainder Singh for depositing the said ammunition in Small Arms Ammunition Store of Brigade Camp, knowing fully well that No. 15102306H Lance Havildar (Surveyor) Sainder Singh had no proper authority to do so thereby violating laid down orders and instructions of Ammunition Dump, Raimala.
SECOND CHARGE Army Act An Act prejudicial to good Section 63 order and military discipline.
In that he At Raiwala, on 16 Oct 95, while performing the duties of Battary Quarter master havildar and in charge, draw 50 rounds of 7.62mm BDR ammunition did not deposit the said ammunition before returned of the same day, wrongly retained Small Arms Ammunition in the lines till it was deposited by him back in the Small Arms Ammunition Store at approximately 1200 hrs on 19 Oct 99, thereby violating laid down orders and instruction for safe custody of arms and ammunition and norms of service.
THIRD CHARGE Army Act An act prejudicial to god Section 63 order and military discipline.
In that he, At Raiwala on 14 Oct 95, when performing the duties of Battary Quarter Master Havildar and the Non Commissioned Officer in charge of Small Arms Ammunition in the store of 6 Mountain Artillery Brigade Camp, opened the Small Arms Ammunition store of Brigade Camp for MRS inspection and left it open for approximately three hours (i.e. 0700 - 1000hrs) with only the working party present there while he himself, being the store holder of Small Arms Ammunition, was not present having gone out of Ammunition Dump to fetch and accompany MRS team, thereby violating the laid down orders and instructions of Ammunition Dump, Raiwala and norms of service."
38. Why in relation to said charges for which, the petitioner had to be tried therefore charge-sheet was issue don 11th February, 1997 i.e. after the delay of about one year four months had not been explained by the respondents. It is pertinent to note the said charges had nothing to do with the loss or theft of the arms and ammunition.
39. Furthermore, the summary court martial took sittings on the night of 15th February, 1997 as also on 16th February, 1997 which were Saturday and Sunday. It appears form the court martial proceedings that the trial itself began at 1600 hours although normally the court martial proceedings which is admittedly irregular and the same continued beyond a period of six hours in gross violation of Rule 81 of the Army Rules. Yet again, on the next day which was a Sunday, the trial was held and completed at 1500 hours and he was sentenced to six months rigorous imprisonment and dismissal from service. Even for the aforementioned purpose, no reason has been recorded.
40. Rule 81 reads thus:
"81. Hours of sitting.-- (1) A court-martial may sit at such times and for such period between the hours of six in the morning and six in the afternoon as may be directed by the proper superior military authority, and so far as no such direction extends,as the court from time to time determines but no court shall sit for more than six hours in any one day.
(2) If the court consider it necessary to continue the trial after six in the afternoon or to sit for more than six hours in any one day, it may do so but if it does so, should record in the proceedings the reason for so doing.
(3) In cases requiring an immediate example or when the convening officer certifies under his hand that it is expedient for the public service, trials may be held at any hours.
(4) If the court or the convening officer or other superior military authority thinks that military exigencies or the interest of discipline require the court to sit on Sunday or on any other day declared as a holiday in Army or Command Orders, the court may sit accordingly, but otherwise the curt shall not sit accordingly, but otherwise the court shall not sit on any of those days."
41. The said provisions may be directly in nature but why the respondents were in a hurry to complete the trial even by holding trial beyond a period of six hours and that too, in the night as also on a Saturday and Sunday, is stranded in mystery. We are of the opinion that provisions of Army Rules have been violated. It is not correct to say that as it does not appear from the records that such proceedings were conducted with consent of the petitioner In any even it will be repetition to state it has been explained as to why such indecent haste was shown.
42. In a situation of this nature, even when the petitioner did not cross-examine the witnesses would also go to show that the petitioner was not given a fair trial. Even cross-examination of the witness has been done by court. The respondents have tried to cover this up by saying that the same was a mistake but the very fact that such mistake occurred, is also a pointer to the fact as to how a fair trial has not been conducted.
43. It is now a well-settled principle of law that justice is not only to be done but manifestly seen to be done.
44. In 'Natural Justice' by Paul Jackson, the law is stated to be in the following terms:
"It is the recognition of the importance of the requirement that justice is seen to be done that justifies the giving of a remedy to a litigant even when it may be claimed that a decision alleged to be vitiated by a breach of natural justice would still have been reached had a fair hearing been given by an impartial tribunal. The maxim is applicable precisely when the court is concerned not with a case of actual injustice but with the appearance of injustice, or possible injustice. In Altco Ltd. v. Sutherland (1971) 2 Lloyd's Rep. 515 Donaldson J. said that the court, in deciding whether to interfere where an arbitrator had not given a party a full hearing, was not concerned with whether a further hearing would produce a different or the same result. It was important that the parties should not only be given justice, but, as reasonable men, know that they had had justice or "to use the time hallowed phrase" that justice should not only be done but be seen to be done. In R. v. Thames Magistrates' Court, ex p. Polemis (1974) 1 W.L.R. 1371 the applicant, obtained an order of certiorari to quash his conviction by a stipendiary magistrate on the ground that he had not had sufficient time to prepare his defense. The Divisional Court rejected the argument that, in its discretion, it ought to refuse relief because the applicant had no defense to the charge.
"It is again absolutely basic to our system that justice must not only be done but must manifestly be seen to be done. If justice was so clearly not seen to be done, as on the afternoon in question here, it seems to me that it is no answer to the applicant to say: 'Well, even if the case had been properly conducted, the result would have been the same.' That is mixing up doing justice with seeing that justice is done" (per Lord Widgery C.J. at p. 1375) : Stringer v. Minister of Housing [1970] 1 W.L.R. 1281, 1297.
In Maxwell v. Department of Trade [1974] 1 Q.B. 523, 540 Lawton L.J. expressed a similar idea when he said, "Doing what is right may still result in unfairness if it is done in the wrong way." Barrs v. British Wool Marketing Board, [1957] S.C. 72, 82, per Lord President (Clyde). It is because the assurance that justice has been seen to be done is, in itself, an important element in the public confidence in the settlement of disputes, whether in the courts or by other bodies, that, for example, the rules of natural justice may apply even to what might be regarded as "open and shut cases". Megarry J. explained why, when warning of the danger of regarding any case as "open and shut";
"'When something is obvious' (it may be said), 'why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.' Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been mae without their being afforded any opportunity to influence the course of events" ( John v. Rees [1970] Ch. 345, 402)."
45. Article 10 of the International Covenant on Civil and Political Rights states:
"Article 10. "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of human person."
46. Of course, while these larger considerations may colour our mental process, our task cannot overflow the actual facts of the case or the norms of a fair trial. All that means is that where personal freedom is at stake or torture is in store, the court must see to it that fundamental right of a fair trial is not taken away. Liberty of a person is never safe in the hands of a person who acts so arbitrarily. The words of Justice Eelix Frankfurter:
"The history of liberty has largely been the history of observance of procedural safeguards."; came back to our mind in a case of this nature."
47. For the reason afore-mentioned, we have no other option but to allow this petition. In this view of the matter, the impugned order dated 16th February 1996 is quashed. In the facts and circumstances of the case, the petitioner is also entitled to costs of this writ petition which is quantified at Rs. 10,000/-.