Andhra HC (Pre-Telangana)
V.C. Rajan And Anr. vs The Presiding Officer Of General Court ... on 30 August, 1995
Equivalent citations: 1996(1)ALT745
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER B. Sudershan Reddy, J.
1. The petitioners pray for an appropriate writ, order or direction to call for the records leading to and inclusive of the order passed by the General Court Martial, the 1st respondent herein dated 20-10-1986 as confirmed by the 3rd respondent herein on 16-3-1987. The petitoners in a nutshell pray for a writ of certiorari to quash the impugned Court martial proceedings.
2. The 1st petitioner joined the Indian Army on 11th February, 1971 and the 2nd petitioner joined the Indian Army on 17th August, 1971. The 1st petitioner, at the relevant time when the alleged incident of theft had taken place, was designated as Mechanical Transport Junior Commissioned Officer(MT JCO) and the 2nd petitioner was designated as Hawaldar. It is alleged that both the petitioners herein have committed theft of gas of 70 Mt., 400 litres of Rs. 2,904-00 value on 26-6-1985 and 2400 litres of DHPP 'N' valued at Rs. 8352-00 on 11-7-1985. Two charges were framed against the petitioners herein for committing theft of the property belonging to the Government. The chargesheet is dated 22-7-1986. The charges were framed under Section 52 (a) of the Army Act, 1950 (hereinafter referred to as the Act) against the two petitioners herein and also against one Naik Sh. Shajahan as Accused No. 3. For the present, this Court is not concerned with the allegations made against the said Naik Sh. Shajahan who had figured as Accused No. 3 in the said case. Subsequently, the petitioners were tried by the General Court Martial. The order convening the General Court Martial was issued 23rd July, 1986. The General Court Martial consisting of five officers, one Judge Advocate assembled from 28th July, 1986 to 20th October, 1986. In all 26 witnesses were examined on behalf of the prosecution and one defence witness was examined. The petitioners were provided with the assistance of two Advocates and one defending officer. 56 documents were exhibited. Basing on the evidence on record and the documents, the Court recorded the findings of guilty to the charges. Both the petitioners were convicted by imposing the punishment of dismissal from service and also rigorous imprisonment for one year. The findings and sentence of the General Court Marital were confirmed by the 3rd respondent here in on 16th March, 1987 as required under Section 154 of the Act.
3. The petitioners herein earlier filed W.P.Nos. 6018of 1987and 10316 of 1987 questioning the proceedings of the General Court Martial and the order of confirmation dated 16-3-1987. A Division Bench of this Court, without going into the merits of the case, disposed of the writ petitions by order dated 18-3-1991 directing the petitioners therein to avail the statutory remedy of appeal as provided under Section 164 (2) of the Act. It was further directed that the General Officer, Commanding-in-chief, Southern Command, Army Headquarters, Pune to supply to the petitioners the entire record of proceedings held at the Court Martial conducted against the petitioners including the depositions of the witnesses recorded at the Court Martial and the findings recorded and the sentence awarded by the Court Martial. All these material was directed to be furnished to the petitioners within four weeks from the date of disposal of the said writ petitions and thereafter, the petitioners were directed to prefer their appeals which were to be disposed of according to law within three months thereafter.
4. It is stated in the affidavit filed in support of the writ petition that the petitioners got issued a registered notice dated 27-3-1991 requesting the authorities to supply the entire record of proceedings held at the Court Martial from 28-7-1986 to 20-10-1986 as earlier directed by this Court for enabling the petitioners to pursue the statutory appeal under the Act. Having received the notice on 30-3-1991, the respondents failed to furnish the relevant material is the allegation. Therefore, the petitioners once again filed the writ petition questioning the Court Martial proceedings on various grounds.
5. The main ground on which the petitioners question the General Court Martial proceedings is that the General Court Martial was conducted without complying with the mandatory requirements of Rule 147 of the Army Rules, 1950 (hereinafter referred to as the Rules) and the whole trial conducted was only an eye-wash. It is further alleged that no reasonable opportunity whatsoever was given to the petitioners herein to effectively participate in the General Court Martial proceedings. It is their specific case that the petitioners were convicted and sentenced to suffer rigorous imprisonment for one year and dismissed from service on trumped up charges. It is their case that they are not guilty of any charge whatsoever. Their repeated request for supply of the documents, copy of the charge sheet and other records pertaining to the Court of enquiry were not complied with by the respondents. It is also stated that the list of witnesses was not at all supplied to the petitioners herein. It is their case that the General Court Martial proceedings were not conducted in accordance with the provisions of the Army Act and the rules framed thereunder. It is also their specific case that the impugned order passed against the petitioners here in is in violation of the principles of natural justice.
6. A detailed counter-affidavit is filed on behalf of the respondents denying all the material averments and allegations made by the petitioners in the writ petition, it is specifically stated that every reasonable opportunity including engaging two counsel and defending officer was duly provided to the petitioners. It is also stated that the General Court Martial proceedings were conducted in accordance with the mandatory requirements of the Army Act and the rules. It is further stated that the Division Bench of this Court was pleased to pass an order on 21-7-1992 by extending time by further two weeks to supply the material to the petitioners and pursuant to the said directions, the proceedings were sent to the 2nd petitioner on 27-8-1992 and the same was acknowledged 3-9-1992 whereas the proceedings were sent to the 1st petitioner on 3-12-1991 even before the time was extended by this Court.
7. Heard the learned counsel for the petitioners as well as the learned Standing Counsel for the Central Government.
8. A preliminary objection is raised by the learned standing counsel as to the maintainability of the writ petition. The learned Standing counsel submits that the petitioners ought to have availed the remedy of appeal as earlier directed by this Court by its order dated 18-3-1991. It is the case of the respondents that since the petitioners failed to avail the appeal as directed by this Court, this writ petition should be dismissed summarily. I express my inability to agree with the submission made by the learned Standing Counsel. The respondents herein never complied with the directions of this Court and supplied material to the petitioners as directed by this Court. I have perused the records made available to me and the records would disclose that the material was actually despatched to the petitioners on 29-8-1992 whereas this Court by its order dated 27-7-1992 extended time for making available the records by two more weeks with effect from 21-7-1992. In my opinion, the petitioners could not prefer the appeal for the reason that the necessary material was not made available to the petitioners by the respondents as directed by this Court. It is to be seen that the writ petition filed on 4-9-1991. Admittedly, the writ petition is filed even before the respondents have taken steps seeking extension of time from this Court for making the records available to the petitioners. It is therefore, not possible to accede to the contention of the learned standing counsel for the respondents and dismiss the writ petition on the ground that the petitioners failed to avail the remedy of appeal as directed by this Court. The appeal could not be preferred by the petitioners due to the situation created by the respondents themselves. This plea advanced on behalf of the respondents is rejected.
9. It is submitted by the learned counsel for the petitioners that the petitioners were allowed the assistance of the defence counsel only during the examination of P.Ws.1 to 6 only. Thereafter, P.W.7 to 26 were examined, but there was no opportunity to cross-examine the said witness. It is submitted by the learned counsel for tine petitioners that for this reason, the whole trial is vitiated. This aspect is specifically dealt with by the Court Martial in its proceedings. It is revealed that it is the petitioners who refused to have their advocates and therefore, they were provided with the assistance of the Defending Officer and Court proceeded with the trial in the presence of the accused as well as the defending officer. Admittedly, the advocates defending the accused had voluntarily withdrawn from the proceedings after examination of P.Ws. 1 to 6. It is not possible to agree with the contention of the learned counsel for the petitioners that the accused were not provided with the opportunity of defending their case. The defence counsel cannot be thrust upon the accused who were not willing to utilise the services of their advocates.
10. Except stating that the Court Martial proceedings are vitiated on account of non-compliance with the mandatory provisions of the Army Act and the rules framed thereunder, the learned counsel for the petitioner was not in a position to substantiate his case as to how and in what manner the proceedings are vitiated. The learned counsel however made an attempt to read some portions of the evidence to satisfy this Court that the petitioners could not have been convicted and dismissed from service even on the basis of the evidence on record. I am afraid, I cannot go into this question. This Court, in exercise of its jurisdiction under Article 226 of the Constitution of India cannot review or reappreciate the evidence on record. Sufficiency or otherwise of the evidence cannot be gone into by this Court in a judicial review proceedings. It is not the case of petitioners that there is no evidence whatsoever on record. It would have been entirely a different case if the petitioners are convicted and dismissed from service by way of court martial proceedings without there being any evidence whatsoever. Such is not the case here.
11. Another submission made by the learned counsel for tine petitioner is that even the learned Prosecutor filed an application on 22-8-1986 objecting to the behaviour of the Judge-Advocate in the matter of recording the evidence of witnesses. On 23-8-1986, the prosecutor is said to have filed an application to recall the prosecution witness No. 4, but the Judge-Advocate stood in the way and did not allow the Court Martial to consider that application. Similarly, the prosecutor filed another application objecting to the recording of proceedings on 23rd and 25th August, 1986. The learned counsel submits that without considering the said applications, they were dismissed. It is the submission of the learned counsel for the petitioners that even the Prosecutor conducting the case got vexed up with the arbitrary attitude of the Judge-Advocate and undoubtedly, the Judge-Advocate played vital role in the proceedings. Such being the case, the proceedings are to be treated as vitiated.
12. I have meticulously gone through the proceedings of the Court Martial including its verdict. This aspect is considered by the General Court Martial in the following manner:
"The Court has dispassionately considered the submission of the learned Prosecutor, answer by the Defence Counsel, and reply by Judge-Advocate. The Court is of the opinion that the learned Prosecutor and Judge Advocate both have acted immaturely and there appears to be personality clash and hence they are levelling unfounded and baseless allegations against each other. The Court, therefore warns both of them to conduct themselves as Officers of Justice and help the Court in performing their sacred and onerous task of dispensing justice."
It is evident that the Court was never impressed or influenced by the judge-Advocate or the Prosecutor or the conduct of the Judge-Advocate. The role of the Judge Advocate is only to advise the Court and the verdict is always given by the Court. I see no merit in the submission of the learned counsel for the petitioners.
13. The learned counsel for the petitioners vehemently contends that the petitioners are entitled to notice and hearing before the findings and sentence of the General Court Martial are confirmed by the competent authority. It is the submission of the learned counsel for the petitioners that though the statute does not prescribe such notice and hearing must be given, but the same is the requirement of the principles of natural justice. The learned counsel for the petitioner further elaborates his submission stating that the finding and sentence of the Court Martial shall not be valid unless the same is confirmed as provided by the provisions of the Act. Even though a person is convicted and punished as a measure of disciplinary action by a General Court Martial, the same would not be of any consequence unless the same is confirmed by the Competent authority viz., the Central Government or by any officer empowered in that behalf by warrant of the Central Government. The learned counsel submits that the power to confirmation includes the power to refuse to confirm. The confirming authority is bound to take whole evidence and the proceedings of the Court Martial into consideration and the authority has to satisfy it self that the proceedings of the General Court Martial were regular and appropriate and in accordance with the statute and the rules framed thereunder. The learned counsel submits that even at the stage after termination of the proceedings before the General Court Martial, the accused are entitled to raise objections with regard to the propriety, legality and validity of the Court martial proceedings. It is submitted that the principles of natural justice require that a notice in this regard before confirmation of the findings and sentence should be given to the affected parties. It is submitted that requirement of the principles of the natural justice have to be read into Section 154 of the Act. It would be appropriate to extract Sections 153 and 154 of the Act which run as follows:-
"153. Finding and sentence not valid unless confirmed:- No finding or sentence of a general, district or summary general, Court-martial shall be valid except so far as it may b confirmed as provided by this Act".
XX XX XX "154. Power to confirm finding and sentence of general Court-martial:-The findings of general Courts-martial may be confirmed by the Central Government, or by any officer empowered in this be half by warrant of the Central Government."
A bare reading of Section 154 of the Act would no doubt show that the proviso as such does not prescribe any notice and hearing. This question came up before the Supreme Court in Som Datt. v. Union of India, , wherein the Supreme Court held:
"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.
Apart from any requirement imposed by the Statute or statory rule either 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 given reasons in support of its decision."
14. The scope of Section 157 of the Army Act which deals with confirmation of findings of Summary General Court Martial was considered by the Supreme Court in Harish Uppal v. Union of India, and held as under:
"8. The contention that Brig. Bhilla should either have given a hearing to the petitioner or the Chief of Army Staff should have given a hearing to the petitioner before confirming the subsequent sentence by the court martial is not a requirement under the Act. While it can be at least said that there semblance of reasonableness in the contention that before he ordered what in effect was an upward revision of the sentence passed on the petitioner, he should have been given a hearing, to insist that the confirming authority should give a hearing to the petitioner before it confirmed the sentence passed by the Court martial, is a contention which cannot be accepted. To accept this contention would mean that all the procedure laid down by the Code of Criminal procedure should be adopted in respect of the Court martial, a contention which cannot be accepted in the face of the very clear indications in the Constitution that the provision which are applicable to all the civil cases are not applicable to cases of Armed Personnel. It is not a requirement of the principles of natural justice. Indeed when he was informed that the subsequent-sentence passed on him had been sent to the Chief of the Army Staff for confirmation it was open to the petitioner to have availed himself of the remedy provided under Section 164 of presenting a petition to the confirming officer i.e. the Chief of the Army Staff in this case. He does not appeal to have done so."
However, the Supreme Court in Ranjit Thakur v. Union of India, took the view that the procedural safeguards should be commensurate with the sweep of the powers. The Acts and the Rules constitute a self-contained Code. The wider the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of tine procedural safeguards envisaged by the Statute.
15. The scope of Section 164 of the Army Act came up for consideration in S.N. Mukherjee v. Union of India, and the apex Court held:
"Though a person aggrieved by the finding or sentence of a Court-martial has no right to make a representation before the confirmation of the same by the confirming authority but in case such representation is made by a person aggrieved by the finding or sentence of a Court-martial it is expected that the confirming authority shall give due consideration to the same while confirming the finding and sentence of the Court Martial."
It is evident that in all these decisions, the Supreme Court took the uniform opinion that there is no requirement of notice and hearing as such before the confirmation of sentence by the appropriate authority under Section 154 of the Act. It is, therefore, not possible to accept the contention of the learned counsel for the petitioners that the petitioners are entitled for further notice and hearing before the confirmation of the findings and sentence of the General Court Martial.
16. The learned counsel for the petitioners further submits that the charges framed against the petitioners are either fabricated or fictitious. There is no proper investigation before the charges are framed. It is to be appreciated that the investigation is only a preliminary step and meant for gathering of evidence and if there is sufficient material, the charge sheet has to be filed. This Court at this state is not concerned with as to in what manner the case was investigated before filing of the report before the General Court Martial. This Court, in this judicial review proceedings is concerned with the decision making process of the Court Martial which is important and the learned counsel for the petitioners was not in a position to pin-point any major procedural irregularities committed by the General Court Martial in conducting the proceedings. The proceedings of the General Court Martial cannot be set aside for the reason of any minor or trivial mistakes or irregularities.
17. The learned counsel for the petitioners further submitted that the sentence awarded is wholly disproportionate. I am not willing to agree with the submission made by the learned counsel for the petitioners. It is for the General Court Martial to decide as to what sentence should be awarded in the given circumstances of the case. It is not as if the sentence awarded is totally disproportionate shocking the judicial consciousness of the Court. It is true that penalty imposed must be commensurate with the gravity of the charge and that any penalty disproportionate to the gravity of the charge would be violative of Article 14 of the Constitution and liable to be declared as such by this Court. But such is not the case here.
18. For the aforementioned reasons, I do not find any merit in the writ petition and the same is dismissed but in the circumstances without costs.'