Andhra HC (Pre-Telangana)
T. Syam Sunder vs General Court Martial And Ors. on 4 July, 1997
Equivalent citations: 1997(4)ALD637, 1997(2)ALD(CRI)401, 1998CRILJ1454
Author: T. Ranga Rao
Bench: Syed Shah Mohammed Quadri, T. Ranga Rao
JUDGMENT T. Ranga Rao, J.
1. This writ petition has been filed by the petitioner praying to issue order or direction more particularly one in the nature of certiorari quashing the order of the third respondent vide Order No. 6(3)/96/D(AG) dt. 1-2-1996 and to set aside the conviction and sentence of imprisonment for life imposed upon by the first respondent.
2. The petitioner was enrolled in the Indian Army in the Corps of Electrical and Mechanical Engineering Battalion on 10-3-1983 and was serving at Pathankot at the time of the incident. He was detailed as Guard Commander along with Cfn. Rambilas (hereinafter called as deceased) and Cfn. A. K. Rai (P.W. 12) as guards with Second Lieutanent T. K. Thapper (P.W. 14) and Sipoy Driver S. K. Rai (P.W. 11) for collecting salary of the Unit Personnel from the State Bank of India, Nalwa Bridge, Pathankot on 31-7-1989. The petitioner and two guards were armed with 7.62 mm S.L.R. and the petitioner being Guard Commander was issued ten live rounds of 7.62 mm as per the standing instructions and he gave three rounds of ammunition to Rambilas, the deceased, and kept with him seven rounds. Accordingly, they went to the State Bank of India in a 1 tonne vehicle bearing No. 84C38331-P and P.W. 14 and petitioner collected cash Rs. 1,08,000/- from the said Bank.
3. It is alleged that while returning back to the unit location, the said vehicle was driven by the Second Lieutanent T. K. Thapper, P.W. 14, and when it reached near Mamum Chowk, the petitioner pointed the rifle and fired at the other guard Cfn. Rambilas, the deceased, who was sitting in the body of the vehicle and he fell down. He also fired another round at PW-12 and he ducked down and feigned to have been killed and thereafter, he directed PW-14 the Second Lieutenant, T. K. Thapper, pointing the rifle at him to drive the vehicle fast and when the vehicle reached near the main gate of Field Work Shop, the driver Sipoy PW. 11 who was sitting in the co-driver seat jumped from out of the moving vehicle and rushed to the unit and informed the incident to Subedar Major R. D. Mourya (P.W. 2). Then he detailed Naik R. K. Mishra and Lance Naik C. C. Roy (P.W. 5) on a motor cycle to chase the vehicle and also collected the available personnel and proceeded in three tonne vehicle. Meanwhile, when the accused was focussing his attention at P.W. 14, P.W. 12 A. K. Rai leapt on the accused and caught hold of his rifle and then asked P.W. 14 to stop the vehicle and there was a scuffle in between P.W. 12 and the petitioner-accused. P.W. 14 stopped the vehicle and helped P.W. 12 to dis-arm the petitioner-accused. Meanwhile P.W. 5 and another reached the spot and they returned back to the unit. The deceased was taken to the military hospital. P.W. 17 Capt. Anil Vishnu, Akulwar examined Cfn. Rambilas, declared him dead and issued certificate Ex.U. P.W. 15, Dr. Rajesh Kumar Khanna, conducted post mortem on the dead body of the deceased, Cfn. Rambilas and found four punctured penetrating lacerated wounds and another lacerated wound and he opined that the deceased died due to injuries on the vital organs namely lungs and heart by fire arm and the said injuries are sufficient to cause death in the ordinary course of nature and they are ante-mortem in nature. P.W. 21 recorded summary evidence.
4. Brigadier Choudhary Barcharan Singh, officiating General Officer Commanding, 29 Infantry Division convened on 1-11-1989 General Court-martial with Presiding Officer Colonel Shergill Bhopinder Singh and four other members. The proceeding was commenced on 1-11-1989 and concluded on 17-12-1989. The Judge Advocate attended General Court-Martial proceedings. Prosecutor and Defending Officer to defend the accused were also appointed. Apart from it, at the request of the accused, Sri Mahiraj Singh Thakur, Advocate in Punjab and Haryana Bar was appointed as defence counsel to defend him.
5. On behalf of the prosecution, 22 witnesses were examined and one witness was examined as Court witness and 15 exhibits were marked.
6. The evidence of PWs-15 and 17 shows that the deceased died on account of receipt of injuries caused by fire-arm and they are ante-mortem injuries. The prosecution also examined PW-12 A. K. Rai, as an eye-witness to the incident and he deposed fully supporting the case of the prosecution by stating that the accused pointed out the rifle at the deceased and fired and he also fired pointing the rifle towards him and fired second round and he ducked down and feigned to have been killed. PW-11, the driver of the vehicle and PW-12 T. K. Thapper also deposed supporting the case of the prosecution and corroborated the testimony of PW-12, PW-2 Major R. D. Mourya and PW-5 C. C. Roy deposed corrborating the testimony of PW-11 besides examining other witnesses. Thus the prosecution let in not only direct evidence but also circumstantial evidence to prove the guilt of the accused.
7. The defence of the accused was that while they were returning to the unit along with cash in the vehicle, an auto rickshaw followed the said vehicle and sensing danger he cocked his rifle and put the safety catch on 'R' position and kept the cocked rifle on his knees with muzzle towards Cfn. Rambilas who was sitting on his left side and secured and chain of his rifle with his belt and as he felt uncomfortable he lifted his rifle slightly not realising that the chain was entangled under his boot and suddenly fire took place and Rambilas fell down and then he tried to keep the rifle down not realising that his foot is still on the chain and so the second round also got fired and Cfn. A. K. Rai fell down and as the craftsman was injured he directed PW-14 to drive the vehicle fast. Thus the rifle which was in his possession-accused was fired accidentally and he has not committed any offence. But he has not examined any defence witnesses.
8. The Court-martial on considering the material on record and the submissions of the Prosecutor, Defence counsel and after summing up the evidence and legal position by the Judge Advocate, found the petitioner guilty for an offence under Sections 302 and 307, IPC and sentenced him to undergo imprisonment for life and dismissed him from service, subject to confirmation, on 17-12-1989.
9. Thus the finding of the General Court-martial indicates that it accepted the evidence of the prosecution witnesses and rejected the plea of the petitioner-accused that his rifle accidentally fired twice.
10. The said conviction and sentence was confirmed by the Competent Authority on 12-1-1990.
11. Aggrieved by the said conviction and sentence, the petitioner-accused filed a petition before the Army Chief and the said petition was dismissed on 3-12-1990 confirming the conviction and sentence awarded by the Court-Martial.
12. The petitioner filed a writ petition No. 8457/1991 before this Court, questioning the conviction and sentence imposed on him by General Court-Martial which was confirmed by the Army Chief and the said petition was disposed of on 1-8-1995 directing the petitioner to prefer a representation under Section 179 of the Army Act before the Central Government within fifteen days from the date of receipt of copy of the order. Accordingly, he filed a mercy petition before the Central Government and the Central Government rejected the said petition on 1-2-96.
13. Now again the petitioner filed this writ petition seeking the reliefs stated supra mainly contending that the impugned orders are non-speaking and vague and also pointed out certain discrepancies in the evidence of prosecution witnesses. He further contended that the two rounds went off from his rifle accidentally and he has not fired intentionally with a view to cause the death of the deceased or PW-12.
14. The Chief Record Officer, EME Records, filed counter-affidavit on behalf of the respondents 1 to 4 disputing the contentions of the petitioner.
15. Mr. Sanuku, Advocate was appearing for the petitioner and at the request of the petitioner-accused, he sought permission of the Court to withdraw vakalath and the Court permitted him to withdrew the vakalath. Subsequently, the accused addressed a letter requesting to argue the case by himself and accordingly he argued and submitted lengthy written arguments.
16. Now adverting to the facts of the case and submissions of both parties and considering the material on record, the only question that arises for consideration is whether the impugned orders are liable to be quashed for not giving reason for finding the petitioner guilty of the offence charged and awarding punishment of life imprisonment.
17. It is useful to refer to the relevant provisions of the Army Act (hereinafter referred to as the Act) and the Rule framed thereunder to appreciate the contentions of both the parties.
18. Section 108 of the Act provides constitution of four kinds of Court-martial (a) General Court-martial, (b) District Court-martial, (c) Summary General Court-martial and (d) Summary Court-martial. Section 109 empowers Central Government or the Army Chief or any Officer empowered in that behalf to convene the General Court-martial by warrant. Section 113 of the Act provides the Constitution of General Court-martial. Section 122 of the Act provides period of limitation for trial of the offences under the Act. Sections 128 to 152 of the Act and Rules 37 to 105 prescribe the procedure to be followed by the Court-martial in conducting the proceedings. Section 129 provides that every Court-martial shall and every District or Summary General Court-martial may be attended by a Judge Advocate, who shall be either an Officer belonging to the Department of the Judge Advocate-General or if no such officer is available, an Officer approved by the Judge Advocate-General or any of his deputes. Section 130 provides that the accused can raise objection with regard to the participation of the Presiding Officer or the members of the Court-martial and the same has to be considered by the said Court-martial, if raised by the accused. Section 131 of the Act provides oath or affirmation in the prescribed manner shall be administered to every member of the Court-martial, Judge Advocate, before the commencement of the trial and also to the witnesses examined except child witness below 12 years. Section 132(1) of the Act prescribes that subject to the provisions of sub-sections (2) and (3) every decision of the Court-martial shall be passed by an absolute majority votes and when there is an equality of votes on either the finding or the sentence, the decision shall be in favour of the accused. Section 133 of the Act provides that the provisions of Indian Evidence Act shall apply subject to the provisions of the Army Act to the proceedings before the Court-martial. Section 153 of the Act provides that no finding or sentence of a General Court-martial, District or Summary Court-martial shall be valid except so far as it may be confirmed as provided under the Act.
19. Rule 37 of the Rules framed under the Army Act mandates the Officer convening a General or District Court-martial shall first satisfy himself that the charges to be tried by the Court are for offences within the meaning of the Act, and the evidence justifies the trial on those charges, if not so satisfied shall order release of the accused or refer the case to Superior Authority. Rule 39 prescribes ineligibility and disqualifications to act as Presiding Officer or members of the General Court-martial. Rule 49 gives authority to the accused to raise objection with regard to the charges framed against him and also he can question the jurisdiction of the Court under Rule 51. The accused is also entitled to call the witnesses and he is also a competent witness to give evidence to disprove the charges framed against him under Rules 39 and 59-A respectively. The Judge Advocate shall sum up in open Court the evidence and advice the Court upon law relating to the case. Thus the Judge Advocate plays an important role in the proceedings before the General Court-martial and he should carefully maintain impartiality and he has to take care that the accused does not suffer any disadvantage in consequence of his position as such or his ignorance or incapacity to examine or cross-examine the witnesses or otherwise and may for that purpose, with permission of the Court, call witnesses and put questions to the witnesses which appear to him necessary and desirable to elicit the truth.
20. As already observed, the General Court-martial accepted the version of the prosecution and rejected the plea of the accused of accidental firing and found him guilty and convicted and sentenced as stated supra and the same was confirmed by the Competent Authority. The Army Chief as well as the Central Government rejected the petitions filed by the petitioner-accused and confirmed the said conviction and sentence.
21. It is significant and relevant to mention that the petitioner-accused has not pointed out that the General Court-martial has not followed the procedure prescribed under the Army Act or the Rules framed thereunder while conducting the proceedings and any prejudice was caused to him. At the cost of repetition we would like to state that the defence counsel was appointed at the request of the petitioner-accused and he was allowed to cross-examine the witness at length. We have carefully gone through the material on record. We found that the General Court-martial with the assistance of Judge Advocate and the concerned Public Prosecutor and defence counsel, conducted the proceedings in compliance of the provisions of the Army Act and the Rules framed thereunder. Thus there is no failure of natural justice or procedural irregularity resulting in violation of the provisions of the Act or the Rules.
22. It is, however, contended that the General Court-martial has not given reasons for finding him guilty, convicting and sentencing the petitioner and also the Army Chief while confirming the same and the Central Government while rejecting the mercy petition have not given the reasons and hence, the said orders are unsustainable in law.
23. The learned Standing Counsel appearing for the Central Government submitted that there is no provision in the Army Act or the Rules framed thereunder to show that the Court-martial shall give reasons in support of his findings and in the absence of any such provision or Rule, it is not obligatory on the part of the Court-martial to give reasons in support of his findings.
24. At this juncture, it is relevant to refer to Rules 61 and 62 of the Army Rules, 1954. They prescribe the mode of consideration of findings and recording of findings. Rule 61 provides that the Court shall deliberate on its findings in closed Court in the presence of Judge-Advocate and the opinion of each member of the Court as to the finding shall be given by word of mouth on each charge separately. Rule 62 provides that the finding of every charge upon which the accused is arranged shall be recorded and except as provided in these Rules, shall be recorded simply as a finding of "Guilty" or "Not Guilty". Sub-rule (10) of Rule 62 provides that the finding on each charge shall be announced forthwith in open Court as subject to confirmation.
25. Rule 65 shows that the Court shall award a single sentence in respect of all the offences of which the accused is found guilty, while Rule 66 provides if the Court makes recommendation for mercy, it shall give reasons for its recommendation.
26. The petitioner has not pointed out any provision either in the Army Act or Rules framed thereunder, to show that the General Court-martial has to give reasons in support of its findings. From a combined reading of Rules 61, 62, 65 and 66, it is clear that it is specifically provided to give reasons only in case the Court makes recommendations for mercy. But the same is not mentioned in Rule 61 or 62. Thus it is manifest that there is no obligation on the part of the General Court-martial to give reasons in support of its finding and it has to 'simply' record "Guilty" or "Not Guilty". The employing of the word "Simply" clearly denotes recording of "Guilty" or "Not Guilty" and reasons need not be given in support of the findings. The Supreme Court has also consistently taken the same view in Som Datt v. Union of India, and S. N. Mukherjee v. Union of India, . Their Lordships in para 44 of the judgment in S. N. Mukherjee's case observed as under :-
".......... The Court-martial records its findings after the Judge-Advocate has summed up the evidence and has given his opinion upon the legal bearing of the case. The members of the Court have to express their opinion as to the finding by word of mouth on each charge separately and the finding of each charge is to be recorded simply as finding of "guilty" or of "not guilty". It is also required that the sentence should be announced forthwith in open Court. Moreover Rule 66(1) requires reasons to be recorded for its recommendation in cases where the Court makes a recommendation to mercy. There is no such requirement in other provisions relating to recording of findings and sentence. Rule 66(1) proceeds on the basis that there is no such requirement because if such a requirement was there it would not have been necessary to make a specific provision for recording of reasons for the recommendation to mercy. The said provisions thus negative a requirement to give reasons for its finding and sentence by the Court-martial and reasons are required to be recorded only in cases where the Court-martial makes a recommendation to mercy. In our opinion, therefore, at the stage of recording of findings and sentence the Court-martial is not required to record its reasons and at that stage reasons are only required for the recommendation to mercy if the Court-martial makes such a recommendation ....."
27. Section 164 of the Army Act provides if any person is aggrieved by the order of the General Court-martial he may file a petition to the Army Chief and so also the person aggrieved by the finding and sentence of the Court-martial which has been confirmed by the Army Chief, can file a petition to the Central Government, seeking pardon or remission to the Central Government under Section 179 of the Army Act. The Central Government, the Chief of the Army Staff or the Competent Officer may annul the proceedings of the Court-martial on the ground that they are illegal and unjust.
28. Thus it is manifest from the perusal of the above provisions that there is no obligation imposed by the Sections 164 and 165 of the Army Act to give reasons in support of its decision in confirming the finding and sentence of the Court-martial. The Supreme Court has taken the same view in Som Datta's case and S. N. Mukherjee's case, referred to above. In para 10 of the judgment in Som Datta's Case, their Lordships observed as under :-
"..... In the present case it is manifest that there is no express obligation imposed by Section 164 or by Section 165 of the Army Act on the confirming authority or upon the Central Government to give reasons in support of its decision to confirm the proceedings of the Court-martial. Mr. Dutta has been unable to point out any other section of the Act or any of the Rule made therein from which necessary implication can be drawn that a duty is cast upon the Central Government or upon the confirming authority. Apart from any requirement imposed by the statute or statutory rule expressly or by necessary implication, we are unable to accept the contention of Mr. Dutta that there is any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision ......"
28-A. Their Lordships in S. N. Mukherjee's case, in para No. 48 of the judgment, observed as under :-
".... For the reasons aforesaid it must be held that reasons are not required to be recorded for an order passed by the confirming authority confirming the finding and sentence recorded by the court-martial as well as for the order passed by the Central Government dismissing the post-confirmation petition. Since we have arrived at the same conclusion as in Som Datta case, the submission of Shri Ganguli that the said decision needs reconsideration cannot be accepted and is, therefore, rejected ......"
Therefore, in the light of the foregoing discussion, we are unable to accede to the contention of the petitioner that the orders of the court-martial which has been confirmed by the Army Chief and the Central Government are bad in law, as no reasons are assigned for its findings.
29. The petitioner also pointed out in his lengthy written arguments some discrepancies in the evidence of the prosecution witness with a view expecting this Court to reassess and reapprise the evidence on record to find out whether the finding given by the court-martial is correct or not. But the learned Standing Counsel appearing for the Central Government Sri T. Ramulu, submitted that the discrepancies pointed out by the petitioner are minor in nature and some relate to the events occurred after the incident and they do not affect the substratum of the prosecution case that the accused has intentionally fired at the deceased as well as against PW-12 and the General court-martial has rightly accepted the prosecution evidence. He further submitted that the finding of the court-martial was confirmed by the Army Chief as well as the Central Government after considering the material on record and in such circumstances this Court is not expected to reassess and reapprise the evidence on record in exercise of the extraordinary jurisdiction under Art. 226 of the Constitution of India.
30. We find that there is considerable force in the contention of the learned Counsel appearing for the Central Government. It is not the case of the petitioner that there is no evidence on record and on the other hand, it is the contention of the petitioner that the case is cooked up and fabricated evidence was adduced against him to show that he intentionally caused the death of the deceased and attempted to kill PW-12. We have already observed that the prosecution not only adduced direct evidence but also circumstantial evidence to prove the guilt of the accused and the court-martial accepted the said evidence rejecting the plea of the petitioner-accused. The finding of the court-martial was confirmed by the Army Chief as well as the Central Government. This Court in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India, cannot reassess or reapprise the evidence on record to find out whether there is sufficient evidence on record or not in a judicial review proceedings, particularly when it is not the case of the petitioner that there is no evidence on record and as found by us above, when the General Court-martial has conducted the proceedings in compliance with the provisions of the Army Act and Rules framed thereunder.
31. The Supreme Court also observed when the finding of the court-martial was confirmed by the Army Chief and the Central Government, the High Court was not justified in interfering with the said finding and sentence, in a decision Union of India v. J. S. Brar, :
"..... In the present case, the General Officer, U.P. Area had been empowered by the Central Government by warrant as the Confirming Authority. Under Rule 70, he may either "confirm or refuse confirmation or reverse confirmation for superior authority". The General Officer Commanding, U.P., being so empowered to reserve confirmation for the superior authority, did reserve by his order dated 31-7-1985 the findings and sentence for such confirmation. That authority, being the Chief of the Army Staff, confirmed the findings and sentence of the GCM vide his order dated 29-8-86. The revised findings and sentence of the GCM thus stand confirmed by the competent authority. These orders were made in compliance with the relevant provisions of the Act and the Rules and are reasonably based on evidence.
In the circumstances, the High Court was not justified in interfering with the findings and sentences rendered by the GCM and confirmed by the Chief of the Army Staff. Accordingly, we allow the appeal and set aside the judgment of the High Court. However, in the circumstances of the case, we do not make any order as to costs ......"
32. Therefore, on a careful consideration of the material on record, we do not find any illegality in the impugned order. There is no merit in the writ petition.
33. In the result, the writ petition fails and is dismissed.
34. But in the circumstances of the matter, without costs.
35. Petition dismissed.