Patna High Court
Guru Villi Bhima Rao vs Union Of India (Uoi) And Ors. on 3 May, 1985
Equivalent citations: 1987CRILJ504
ORDER
1. The petitioner, a Havildar clerk of army was tried by General Court Martial for culpable homicide amounting to murder. He was found guilty. He was sentenced to imprisonment for life, reduced in rank and cashiered. The order of the General Court Martial is contained in annexure-7. The order of the General Court Martial was confirmed by the General Officer Commanding the 23 Mountain Division, the officer authorised to confirm the finding and examine the General Court Martial under S. 67, Army Act, as contained in Annexure-8.
The petitioner in this writ application under Arts. 226 and 227 of the Constitution, has prayed for a writ in the nature of certiorari for quashing those two annexures.
2. On 26-7-81 at 6.30 Hrs. Jayanti Devi Widow of Havildar clerk Sohanlal lodged an information with the police that on the previous night at 12.30 somebody came to their quarter and knocked the door. Her husband, Sohanlal came out and told that the petitioner had come. On enquiry the petitioner stated that he had come to have his dinner at their house and both Sohanlal and the petitioner sat in the dining room. Both of them started drinking rum. When the informant came with snack, the petitioner addressed her as 'Madam' and requested her to sit and have some drink. The informant left the room. Sohanlal protested to the petitioner for calling his wife 'Madam' instead of sister. However, about after one hour both of them came down the Varandah and the petitioner requested Sohanlal to reach him to the gate because the sentry would not allow him to go out. Sohanlal accompanied the petitioner and went out of the house. The informant sent her nephew Rajesh to call back Sohanlal After about five minutes, Rajesh returned and said that the petitioner was assaulting Sohanlal and Sohanlal had fallen down on the ground. The informant along with the others went there and saw that the petitioner was sitting on the chest of Sohanla) and was hitting him on the head by brick. When she asked him why he was assaulting her husband the petitioner stood up and ran away. Sohanlal was removed to Officers Headquarters where doctor declared him dead.
3. The Officer-in-charge of Lalpur Police Station took up investigation. The petitioner was arrested on 26-3-81 and was handed over to the police. A court of enquiry was convened by the General Officer Commanding, 23 Mountain Division. The court of enquiry was of the opinion that prima facie it appeared that the petitioner had murdered Sohanlal. It recommended for taking action against the petitioner under S. 69(a) Army Act read with S. 302, Penal Code. A General Court Martial under the Army Act was ordered for trial of the petitioner.
A number of witnesses was examined in the General Court Martial and the petitioner was found guilty by the order as contained in Annexure-7 and the same was confirmed by Annexure-8.
4. The orders were challenged on the following grounds : (a) violation of Rule 60, Army Rules, 1954, inasmuch as the Judge-Advocate in summing up gave his opinion with regard to the evidence; (b) violation of Rule 61 as each member of the Court did not give his finding; (c) the General Officer Commanding, respondent 3, had no warrant of the Central Government to confirm the order as contained in Annexure 7; (d) the finding of the General Court Martial was perverse, and (e) as there is no provision of appeal or review by Judicial authority of the punishment inflicted under Army Act, it is violative of Arts. 14 and 21 of the Constitution.
Counter affidavit has been filed on behalf of the respondent in which all the rounds on which the validity of Annexures 7 and 8 was challenged were denied.
5. Before proceeding further, it may be noticed that the writ application was lavelled under Arts. 226 and 227 of the Constitution. In view of Art. 227(4) of the Constitution, no power can be exercised by this Court under that Article. It must, therefore, be held that so far Art. 227 of the Constitution was concerned, the writ application was not maintainable.
So far Art. 226 of the Constitution was concerned, High Court may issue writ of certiorari on well recognised grounds, namely, (a) where the Court or Tribunal has acted without or in excess of the jurisdiction or failed to exercise it; (b) where the order of the inferior Court or Tribunal is erroneous on the face of the record; (c) where there has been violation of principles of natural justice. It is also settled that the High Court shall not interfere with finding of fact even if erroneous as it does not act as an appellate court.
6. During the course of hearing, the petitioner did not make any grievance that there has been violation of any of his fundamental rights. The validity of the Constitution of the General Court Martial and its jurisdiction were also not challenged. The sole thrust of the submission of Mr. Dayal, learned counsel for the petitioner, was with regard to the violation of the procedure laid down in the Army Rules.
With regard to the violation of Rule 60, Mr. Dayal placed portions of Annexure 6, the summing up by the Judge-Advocate and submitted that he advised the General Court Martial about the conclusions which follow from the evidence. From the perusal of Annexure 6, particularly with reference to the portions relied upon by Mr. Dayal we do not find anything by which it can be held that the Judge-Advocate gave his opinion or advice with regard to the findings that could be arrived at on the basis of the evidence led during the trial. There had been no violation of Rule 60 as alleged. Mr. Dayal could not show that any mandatory provision of law was violated which went to the root of the jurisdiction.
So far as Rule 61 was concerned, Mr. Dayal contended, that each member of the General Court Martial was required to record h' finding, but there was nothing to show that opinion of each member was so given. From perusal of Rule 61, it is clear that the court is to deliberate on the finding in closed court in presence of the Judge-Advocate and opinion of each member of the court as to the finding shall be given .by word of mouth on each charge separately. In the writ petition, no grievance was made that each member of the court did not give his finding. We have only the submissions made by Mr. Dayal on this point. We, therefore, reject his submissions.
7. It was contended that respondent 3 had no jurisdiction to confirm the proceeding of the General Court Martial. In the counter affidavit it was specifically stated by respondents 2to 4 that respondent 3, General Officer commanding, was holding warrant A-3 issued by the Central Government and, therefore, competent to confirm the proceeding. This point of Mr. Dayal also fails.
8. With regard to the ground that the finding of the General Court Martial was perverse, he did not contend that there was no evidence, but he urged that the finding recorded by General Court Martial was erroneous. Even assuming that to be correct, as we are not exercising appellate jurisdiction, wecannot correct it.
9. So far the last ground is concerned, the matter has been settled by the Supreme Court in Prithvi Pal Singh v. Union of India .
10. Nothing was brought to our notice that there was any error of law on the face of the record or there had been violation of principles of natural justice. We have already noticed, that the constitution and the jurisdiction of the General Court Martial was not challenged. In our opinion, no case has been made out before us for issuance of a writ of certiorari.
11. In the result, we find no merit in this application and the same is dismissed.