Gujarat High Court
Naresh Punjabhai Taral vs Union Of India & 3 on 25 July, 2017
Author: Akil Kureshi
Bench: Akil Kureshi, Biren Vaishnav
C/SCA/959/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 959 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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NARESH PUNJABHAI TARAL....Petitioner(s)
Versus
UNION OF INDIA & 3....Respondent(s)
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Appearance:
MR G RAMAKRISHNAN, ADVOCATE for the Petitioner(s) No. 1
MR NIRAL R MEHTA, ADVOCATE for the Respondent(s) No. 1 - 4
MR NIRZAR S DESAI, ADVOCATE for the Respondent(s) No. 2 - 4
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 25/07/2017
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C/SCA/959/2016 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Petitioner has challenged an order dated 20.08.2014 passed by Commanding Officer pursuant to the courtmartial proceedings instituted against the petitioner and also an order dated 18.11.2015, by which, in the revision petition filed by the petitioner, the order of dismissal dated 20.08.2014 was modified to that of order of discharge.
2. Brief facts are as under.
3. Petitioner applied for the post of Sepoy under the Indian Army by filing an application dated 09.06.2012. The form that the petitioner filled up contained general instructions. The very first instruction contained following caution:
"You are cautioned that if after enrolment it is found that you have given a willfully false answer to any of the following first thirteen questions you will be liable to be punished as provided in the Army Act."
4. Question 5(a) contained in the same form was whether the candidate was married. The petitioner answered in the negative. Question 5(b) that if the candidate was married, did he have more than one wife Page 2 of 18 HC-NIC Page 2 of 18 Created On Sat Aug 12 15:01:31 IST 2017 C/SCA/959/2016 JUDGMENT living. To this the petitioner answered NA i.e. not applicable.
5. On the basis of the declarations made by the petitioner in the said form, he was tested, interviewed and ultimately selected and recruited on the post of driver on 09.06.2012.
6. The army administration received a letter dated 22.03.2014 from Vadali police station, District:Sabarkantha, informing that a case has been registered against the petitioner by the parents of his wife since she had committed suicide. Since according to the petitioner's declaration, he was unmarried, the army administration inquired further into this aspect of the matter, upon which, the petitioner in his letter dated 31.03.2014 addressed to the Commanding Officer admitted that he had got married to one Kiranben on 06.05.2011. His wife had given birth to a child. A summary courtmartial was therefore set up to inquire into the conduct of the petitioner of having provided false information of his marital status at the time of his enrollment. A chargesheet dated 12.08.2014 was issued in which it Page 3 of 18 HC-NIC Page 3 of 18 Created On Sat Aug 12 15:01:31 IST 2017 C/SCA/959/2016 JUDGMENT was stated as under:
"MAKING AT THE TIME OF ENROLMENT, A WILFULLY FALSE ANSWER TO A QUESTION SET FORTH IN THE PRESCRIBED FORM OF ENROLMENT, WHICH WAS PUT TO HIM BY THE ENROLLING OFFICER BEFORE WHOM HE APPEARED FOR THE PURPOSE OF BEING ENROLLED.
In that he, at Army Recruiting Office, Ahmedabad, on 09 Jun 2012, when appeared before Subedar Major Bhim Singh, an enrolling officer, for the purpose of being enrolled for service in the Corps of Signals, to the question put to him, "Are you married" answered "No", whereas he had been already married to Mrs Kiran Ben daughter of Mr Thakor Amrutbhai Sakrabhai on 06 May 2011, as he well knew of it. The said offence committed on 09 June 2012, came to the knowledge of the unit on 28 Mar 2014, when a complaint dt 22 Mar 2014 was received from Police Station Vadali, Sabarkantha (Gujarat) regarding involvement of the individual in civil police case."
7. During the courtmartial proceedings, the statement of the petitioner was recorded. In such statement also, he admitted that the parents of his wife had made allegations against him in a police complaint. He denied the allegations contained in such a complaint, but agreed that he was married to Kiranben and the marriage took place on 06.05.2011 which was before his enrollment into the army and that at the time of enrollment, he had not disclosed about Page 4 of 18 HC-NIC Page 4 of 18 Created On Sat Aug 12 15:01:31 IST 2017 C/SCA/959/2016 JUDGMENT such marriage. To a question why did he furnished false information, he stated that since he was under
the age of 21 years at the time of his marriage, he had not disclosed his marriage to the army administration. A few formal witnesses were also examined and offered for questioning by the petitioner. Eventually the summary courtmartial submitted its finding, in which, it was concluded that the petitioner had furnished incorrect/false details during the enrollment process in the enrollment form as well as while preparation of verification roll and record of service. On the basis of such conclusions, the summary courtmartial imposed the punishment of dismissal on the petitioner on 20.08.2014. The petitioner presented a petition under sections 164 and 165 of the Army Act, 1950 to the CommanderinChief of the Western Command. In such petition, he took a stand that he was never married to Kiranben but was merely engaged. In the alternative, his contention was that he and his wife Kiranben were below the age of 21 years and 18 years respectively which is minimum prescribed for a valid marriage and that such invalid marriage can have no effect on his service. He also Page 5 of 18 HC-NIC Page 5 of 18 Created On Sat Aug 12 15:01:31 IST 2017 C/SCA/959/2016 JUDGMENT pointed out that such marriage was never registered and in absence of such registration of marriage, his declaration of his marital status cannot be stated to be incorrect.
8. The revisional authority passed the order dated 18.11.2015. In such order while confirming the conclusions of the courtmartial, the said authority reduced the punishment from that of dismissal of service to discharge making following observations:
"5. AND WHEREAS, the perusal of the Summary Court Martial proceedings and other connected documents reveal the following:
(a) The contention of the petitioner does not hold merit as punishment prescribed by the penal provision is not required to be mentioned in the charge.
The charge against the petitioner, in the instant case has been correctly framed as per Army Rule 28, 29 and 30 read with Appendix II (form of charges) provided at Army Rules.
(b) The contention of the petitioner is ill founded. Summary Court Martial by which petitioner was tried does not require any confirmation as provided under Army Act Section 161(1). As regards application of Army Act Section 161 (2), it will be applicable only when the officer holding the trial (The Court) has less than five years of service, which was not the case.
(c) As per Army Act Section 44 read with Army Act Section 71, dismissal is one of the punishment lesser than Rigorous Page 6 of 18 HC-NIC Page 6 of 18 Created On Sat Aug 12 15:01:31 IST 2017 C/SCA/959/2016 JUDGMENT Imprisonment and could have been awarded for offence committed under Army Act Section 44. Thus, the contention of petitioner holds no merit.
(d) At the Summary Court Martial, the petitioner had pleaded 'Guilty', thus no witnesses were required to be examined, as per law. As regards the Summary of Evidence, the prosecution witnesses were heard and the documentary evidence was taken on record in respect of the charge. Further, as per the provisions of Section 141 of the Army Act, the enrollment paper purporting to be signed by the enrolling officer shall be an evidence of the answers to the questions given by a person at the time of his enrolment and therefore, the original enrolment form was produced at the Summary of Evidence. The petitioner did not cross examine or contested the contents of IAFK1162 (Enrollment form). Thus, there was no requirement of leading the evidence of Enrolling Officer. Also, the provisions of Army Rule 23 were complied with in letter and spirit and petitioner was provided with the opportunity to cross examine the prosecution witnesses, make statement and produce his witnesses in defence or any evidence in his support, which he declined. Furthermore, before holding Summary Court Martial the petitioner was asked to intimate the name of the person whom he desired to be detailed as 'Friend of the accused'. The petitioner had requested that Captain MS Chirath Bopana be detailed, who was accordingly detailed and was present at trial for his assistance. Thus, the contentions of the petitioner are misconceived.
(e) The perusal of the documents placed on file reveals that a letter was received at 2 FTR, ISTC from Udali Police Page 7 of 18 HC-NIC Page 7 of 18 Created On Sat Aug 12 15:01:31 IST 2017 C/SCA/959/2016 JUDGMENT Station, Sabarkantha, Gujarat about an First Information Report that was filed against the petitioner for his involvement in suicide committed by his wife. The petitioner till then had not disclosed the information regarding his marriage. The letter of police was handed over to the individual. The individual in his reply dated 31 March 2015, not only admitted being married to Kiren Ben, but also that they had a son out of the wedlock, who was born on 10 October 2012. He also admitted that he had not disclosed these facts at the time of enrolment or later at any unit.
Thereafter, a Court of Inquiry was ordered, wherein also the individual admitted the above facts. Further, as per Hindu marriage Act, the child marriage is only voidable and not void, as contended by the petitioner. Thus, the contention of the petitioner holds no merit.
(f) The petitioner was tried for offence under Army Act Section 44. He pleaded 'Guilty' and was accordingly punished with 'dismissal from service'.
Considering the circumstances of the case visavis the offence committed, the sentence of dismissal awarded by the Court was commensurate with the gravity of offence.
6. AND WHEREAS, keeping in view the nature and gravity of offence of which the petitioner stands convicted, the sentence awarded by the Court is just and legal and the Summary Court Martial proceedings do not suffer from any legal infirmity. However, purely on humanitarian grounds to enable the petitioner to earn his livelihodd in Civil Sector, I direct that sentence of dismissal awarded to the petitioner be remitted to be deemed to have been discharged from service with effect from the date of his dismissal Page 8 of 18 HC-NIC Page 8 of 18 Created On Sat Aug 12 15:01:31 IST 2017 C/SCA/959/2016 JUDGMENT took effect. If the conditional remission is not accepted by the petitioner, the punishment of 'dismissal' shall stand and will remain operative."
9. These orders the petitioner has challenged in the present petition.
10. Learned counsel for the petitioner raised following contentions:
I. That the petitioner was never married to Kiranben as alleged on 06.05.2011 or at any time thereafter. There was no proof of such marriage on record.
II. The petitioner was forced to make a confession during the courtmartial. However, he retracted such confessional statements. III. In any case, the petitioner was aged about 19 years and Kiranben was below 18 years on the date of the said so called marriage. Such marriage is void and the petitioner's answer that he was unmarried was therefore correct. IV. The summary courtmartial could not have imposed a punishment of dismissal from service Page 9 of 18 HC-NIC Page 9 of 18 Created On Sat Aug 12 15:01:31 IST 2017 C/SCA/959/2016 JUDGMENT which can be done only as provided in section 20 of the Army Act, 1950.
V. Counsel lastly contended that on sympathetic grounds also the punishment awarded by the army administration is required to be reduced. The petitioner was barely about 21 years when he applied for army recruitment. He had no intention to mislead the authorities while answering the relevant questions.
11. On the other hand, learned advocate Shri Desai for the respondents opposed the petition contending that the petitioner had provided false information in the enrollment form. The background of a candidate applying for an army post is of great importance. Several questions contained in the form are therefore aimed at gathering full information about the personal and past conduct of the candidate. The petitioner knowingly provided false information to avoid detection of a child marriage. If the petitioner had provided correct information, he would not have been recruited in the first place.
12. The date of birth of the petitioner is Page 10 of 18 HC-NIC Page 10 of 18 Created On Sat Aug 12 15:01:31 IST 2017 C/SCA/959/2016 JUDGMENT 04.03.1992. The date of birth of Kiranben is stated to be 21.05.1995. According to the army administration and the petitioner's admission, he got married to Kiranben on 06.05.2011. On the date of the marriage therefore, the petitioner was aged about 19 years and Kiranben was aged about 16 years. In the form that the petitioner filled up for army enrollment, he had declared that he was unmarried. To the question if married, whether the candidate has more than one wife living, he had answered 'not applicable'. Thus, the petitioner gave a very conscious answer to the two questions about his marital status. His assertion was that he was unmarried and therefore the question of more than one wife living was irrelevant. This was thus, not a case of unconscious omission or an inadvertent wrong answer to an irrelevant question.
13. The fact that the petitioner was married contrary to his declaration came to the light of the army administration when the police authorities conveyed that the parents of the petitioner's wife had filed a complaint upon her suicidal death. When confronted with such details the petitioner in his written Page 11 of 18 HC-NIC Page 11 of 18 Created On Sat Aug 12 15:01:31 IST 2017 C/SCA/959/2016 JUDGMENT statement dated 31.08.2014 made several admissions. He admitted that he was married on 06.05.2011. That his wife had also given birth to a male child. During the summary courtmartial, the petitioner in his recorded statement once again accepted that he was married and that he had given wrong information to the administration at the time of his enrollment. He clarified that he suppressed the factum of his marriage since it was a child marriage.
14. The petitioner's later defense therefore that he was never married to Kiranben on 06.05.2011 but was merely engaged, must be seen in light of such admissions. Merely because the certificate of registration of marriage was not produced on record or even if the marriage was not registered at all would not mean that no marriage took place. The fact that the petitioner admitted that Kiranben had given birth to a male child would be one more factor to discard his later version that he was never married.
15. Therefore, we proceed on the basis that petitioner was married on 06.05.2011 and that at the time of enrollment, he had given false declarations Page 12 of 18 HC-NIC Page 12 of 18 Created On Sat Aug 12 15:01:31 IST 2017 C/SCA/959/2016 JUDGMENT about his marital status. According to the army administration, not only at the time of filling up of form for enrollment, even at the time of appointment, he was required to make a declaration which he made falsely. The enrolled form itself contained a caution that any willful wrong answer may lead to punishment as provided in the Army Act.
16. The Prohibition of Child Marriage Act, 2006, defines 'child marriage' as to mean a marriage to which either of the contracting parties is a child. The term 'child' has been defined for a male who has not completed twentyone years of age and a female who has not completed eighteen years of age. Section 3 of the Prohibition of Child Marriage Act, does not make a child marriage void but voidable at the option of contracting party who was a child at the time of the marriage. The said Act provides for punishment for persons solemnizing child marriages. Section 10 provides that whoever performs, conducts or directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine. Under the provisions of the Prohibition of Child Marriage Act, 2006, the Page 13 of 18 HC-NIC Page 13 of 18 Created On Sat Aug 12 15:01:31 IST 2017 C/SCA/959/2016 JUDGMENT petitioner would have therefore exposed himself to prosecution.
17. Section 44 of the Army Act, 1950, reads as under:
44. False answers on enrolment.-- Any person having become subject to this Act who is discovered to have made at the time of enrolment a wilfully false answer to any question set forth in the prescribed form of enrolment which has been put to him by the enrolling officer before whom he appears for the purpose of being enrolled shall, on conviction by courtmartial, be liable to suffer imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned.
As per this provision thus, any person who is discovered to have made any willfully false answer at the time of enrollment on conviction of a court martial, be liable to suffer imprisonment for a term which may extend to five years or such less punishment as is mentioned in the Act.
18. Section 71 of the Army Act, 1950, prescribes punishments awardable by courtmartial which includes range of punishments from death, transportation for life, dismissal from the service, reduction in rank, forfeiture of seniority etc.
19. Section 72 of the Army Act, 1950, reads as under: Page 14 of 18
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72. Alternative punishments awardable by court martial.--Subject to the provisions of this Act, a courtmartial may, on convicting a person subject to this Act of any of the offences specified in sections 34 to 68 inclusive, award either the particular punishment with which the offence is stated in the said sections to be punishable, or, in lieu thereof, any one of the punishments lower in the scale set out in section 71, regard being had to the nature and degree of the offence.
20. Summary courtmartial is constituted under section 116 of the Army Act, 1950. Section 120 of the Act pertains to powers of summary courtmartial and reads as under:
120. Powers of summary courtsmartial.--
(1)Subject to the provisions of subsection (2), a summary courtmartial may try any 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 courtmartial or on active service a summary general courtmartial for the trial of the alleged offender, an officer holding a summary courtmartial 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 courtmartial 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 courtmartial may pass any sentence which may be passed under this Act, except a sentence of death or transportation, or of imprisonment for a term exceeding the limit specified in subsection (5).Page 15 of 18
HC-NIC Page 15 of 18 Created On Sat Aug 12 15:01:31 IST 2017 C/SCA/959/2016 JUDGMENT (5) The limit referred to in subsection (4) shall be one year if the officer holding the summary courtmartial is of the rank of lieutenantcolonel and upwards, and three months if such officer is below that rank.
21. Under section 164, any person who is aggrieved by any order passed by any courtmartial could present a petition to the revisional authority.
22. It can thus be seen that in terms of section 44 of the Army Act, 1950, the petitioner exposed himself to the punishment for imprisonment upto five years or for lessor imprisonment as prescribed under the Act on being proved that he had given a willfully false declaration for the purpose of enrollment. In turn, section 71 prescribes range of punishments that can be imposed by a courtmartial. Section 72 provides that in lieu of punishments prescribed in specific provisions, lesser punishment set out in section 71 could also be imposed. Section 120 of the Act which refers to powers of summary courtmartial restricts the range of punishments.
23. In terms of these provisions therefore the summary courtmartial was empowered to impose the restricted sentence as envisaged under section 120 or Page 16 of 18 HC-NIC Page 16 of 18 Created On Sat Aug 12 15:01:31 IST 2017 C/SCA/959/2016 JUDGMENT any lesser punishment as prescribed under section 71 which included the dismissal, or reduction in rank or loss of seniority etc. The provisions of section 20 which pertains to dismissal, removal or reduction of an officer would not clash with such powers of the courtmartial. The decision of courtmartial was also reviewed by the revisional authority.
24. We also do not find any ground for sympathy. The petitioner made a false declaration at the time of enrollment. He was prewarned that any willful false statement to any of the questions 1 to 13 could expose him to be punished under the Army Act. He consciously made a false declaration about his marital status to avoid detection of a child marriage that he had entered into. His discharge of service therefore calls for no interference. The question of quantum of punishment can be looked from a slightly different angle. If the petitioner had made a truthful declaration about his marital status, having been involved in child marriage, it is doubtful whether the army administration would have found him even qualified for being appointed.
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C/SCA/959/2016 JUDGMENT
25. Under such circumstances, we see no reason to interfere. Petition is dismissed.
(AKIL KURESHI, J.) (BIREN VAISHNAV, J.) ANKIT Page 18 of 18 HC-NIC Page 18 of 18 Created On Sat Aug 12 15:01:31 IST 2017