Punjab-Haryana High Court
Depinder Singh vs Union Of India And Others on 3 October, 2013
Author: S.S. Saron
Bench: S.S. Saron
CWP No. 9175 of 2013 - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 9175 of 2013
Date of decision :03.10.2013
Depinder Singh
.....Petitioner
Vs.
Union of India and others
.....Respondents
CORAM:HON'BLE MR. JUSTICE S.S. SARON.
HON'BLE MR. JUSTICE S.P. BANGARH.
Present :Mr. Pardeep Sharma, Advocate
for the petitioner.
Mr. Rahul Garg, Central Govt. Standing Counsel
for respondents No.1 and 2.
None for respondents No.3 and 4.
***
S.S. SARON, J.
Respondent No.3 remains unserved. However, service on him would not be necessary as during the course of the proceedings learned counsel for the petitioner submitted that in consequence of the order dated 19.09.2012 passed by the learned Armed Forces Tribunal Chandigarh Bench at Chandimandir ('Tribunal' for short), the re-trial of the Summary Court Martial of the petitioner has been conducted and he has again been held guilty of the charges attributed to him. It is, however, submitted by the learned counsel for the petitioner that re-trial of the petitioner could not have been Sunder Sham 2013.10.05 11:48 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CWP No. 9175 of 2013 - 2- ordered by the learned Tribunal in view of provisions of Section 16 of the Armed Forces Tribunal Act, 2007. The order of the learned Tribunal has been assailed to the limited extent that re-trial of the petitioner had been ordered.
Heard learned counsel for the parties.
The petitioner was working in the army in the rank of 'Sowar' (Acting Lance Dafadar) in the 46 Armoured Regiment. He was tried by the Summary Court Martial on 07.10.2008 under Section 69 of the Army Act, 1950 for committing a civil offence, that is to say, using criminal force to a woman with intent to outrage her modesty in contravention of Section 354 of the Indian Penal Code. It was alleged that the petitioner at Hisar Military Station on 22.03.2008, used criminal force to a lady, who was wife of Acting Lance Dafadar of his regiment by catching her and kissing her on the cheeks, lips and neck, intending thereby to outrage her modesty. In consequence of the Summary Court Martial proceedings, the petitioner was awarded the sentence "to be dismissed from service". The petitioner based his defence on the ground that there was on complete lack of evidence against him and that he happened to be a victim of circumstances. It was submitted that in fact the lady who appeared as PW-1 and LD Anil Kumar (PW-6) were seen by him embracing each other. To suppress the said fact, the said lady (PW-1) concocted a story that the petitioner had molested her.
According to the petitioner, he had merely gone to the family quarters on receiving a call from Mrs. Sharda Sharma (PW-2) wife of Sunder Sham 2013.10.05 11:48 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CWP No. 9175 of 2013 - 3- Dr. Sanjeev Kumar, who was known to him and his wife. She had complained to the petitioner that LD BB Samal (PW-7) was knocking on her door in a state of drunkardness. The petitioner alleged that the prosecution case was based only on the statement of the lady (PW-1), who was seen in a compromising position with LD Anil Kumar (PW-6) by the petitioner.
The learned Tribunal in its impugned order dated 19.09.2011 held that there had been an infraction of Rule 115(2) of the Army Rules, 1954. The said Rule 115 relates to general plea of "Guilty" or "Not Guilty". Rule 115 (1) and (2) of the Army Rules, 1954 reads as under:-
"115. General plea of "Guilty" or "Not Guilty:- (1) The accused person's plea -- "Guilty" or "Not Guilty" (or if he refuses to plead, or does not plead intelligible either one or the other, a plea of "Not Guilty") -- shall be recorded on each charge.
(2) If an accused person pleads -- "Guilty", that plea shall be recorded as the finding of the court; but before it is recorded, the court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea, and in particular of the meaning of the charge to which he has pleaded guilty and of the difference in procedure which will be made by the plea of guilty, and shall advise him to withdraw that plea if it Sunder Sham 2013.10.05 11:48 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CWP No. 9175 of 2013 - 4- appears from the summary of evidence (if any) or otherwise that the accused ought to plead not guilty".
The learned Tribunal in its order dated 19.09.2012 held that in the present case the plea of guilt had not been recorded and thus the mandatory provisions of Rule 115 (2) of the Army Rules, 1954 had not been followed. Accordingly, it was held that the proceedings of the Summary Court Martial had not been held in accordance with law. Besides, the learned Tribunal did not examine the case on merit, however, from the evidence on record, it was clear that there was prima facie case to proceed against the petitioner on the charge of using criminal force to a woman with intent to outrage her modesty.
Accordingly, it was held that the interests of justice requires that the petitioner be retried as per laid down procedure. Accordingly, the conviction and sentence of the petitioner was set aside and Summary Court Martial proceedings were quashed. The Army Authorities were directed to hold re-trial from the stage of arraignments of charges. The petitioner was ordered be to reinstated in service from the date of his dismissal with all consequential benefits. However, he was not held entitled to any pay and allowances for the period from the date of his dismissal till the date of passing the order by the learned Tribunal on 19.09.2012.
The limited grievance of the petitioner, as already noticed, is that the learned Tribunal could not have ordered his re-trial in view of Section 16 of the Armed Forces Tribunal Act, 2007 which reads as under:
Sunder Sham 2013.10.05 11:48 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CWP No. 9175 of 2013 - 5- "16. Re-trial - (1) Except as provided by this Act, where the conviction of a person by court-martial for an offence has been quashed, he shall not be liable to be tried again for that offence by a court-martial or by any other Court.
(2) The Tribunal shall have the power of quashing a conviction, to make an order authorizing the appellant to be re-tried by court-martial, but shall only exercise this power when the appeal against conviction is allowed by reasons only of evidence received or available to be received by the Tribunal under this Act and it appears to the Tribunal that the interests of justice require that an order under this section should be made".
A perusal sub section (2) of Section 16 of the Armed Forces Tribunal Act shows that the learned Tribunal has the power of quashing a conviction, to make an order authorizing the appellant to be re-tried by court-martial, but shall only exercise this power when the appeal against conviction is allowed by reasons only of evidence received or available to be received by the Tribunal under this Act and it appears to the Tribunal that the interests of justice require that an order under this section should be made.
As already noticed the learned Tribunal has held that it was of the view that the interest of justice requires that the petitioner is retried as per laid down procedure. The matter is not res integra and when an enquiry or trial is found to be defective and in contravention Sunder Sham 2013.10.05 11:48 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CWP No. 9175 of 2013 - 6- of statutory provisions, it has been held to be proper to remit the matter to the authorities to follow the procedure from the stage at which the defect is pointed out and take action in accordance with law from the said stage.
In the case of Managing Director, ECIL, Hyderabad etc. v. B. Karunakar; AIR 1994 SC 1074; the question that was considered was whether the report of the inquiry officer was required to be furnished to the delinquent employee even when the punishment imposed is other than the major punishment of dismissal, removal or reduction in rank. It was held that whenever the service rules contemplate an enquiry before a punishment is awarded and when the inquiry officer is not the disciplinary authority, the delinquent employee will have the right to receive the inquiry officer's report notwithstanding the nature of punishment. However, the effect of non-furnishing of the report it was held that the Court/Tribunal is not to mechanically set aside the order of punishment on the ground that the report was not furnished.
It was further held that it is only, if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the procedure the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the Sunder Sham 2013.10.05 11:48 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CWP No. 9175 of 2013 - 7- stage of furnishing him with the report. Therefore, the Supreme Court did provide for conduct of enquiry or trial from the stage there is a defect.
This principle was reiterated in State of Punjab & Ors. v. Dr. Harbhajan Singh Greasy; JT 1996 (5) SC 403; wherein, in a disciplinary enquiry the procedure was found faulty as the admission of the delinquent was not taken in writing. It was held that it was now well settled that when the enquiry was found to be faulty, it would not be proper to direct reinstatement with consequential benefits. The matter is to be remitted to the disciplinary authority to follow the procedure from the stage at which the fault was pointed out and to take action according to law. Pending enquiry, the delinquent must be deemed to be under suspension.
In the present case, the learned Tribunal has ordered re-trial from the stage of arraignment of charges, as there had been infraction of Rule 115 (2) of the Army Rules, 1954. The said procedure adopted by the learned Tribunal is in consonance with the law laid down by the Hon'ble Supreme Court in Managing Director, ECIL, Hyderabad v. B. Karunakaran (supra) and State of Punjab and others v. Dr. Harbhajan Singh Greasy (supra) inasmuch as the procedure has been followed from the stage the default was detected. Besides, Rule 16 (2) of the Armed Forces Tribunal Act, 2007 provides for re-trial where it appears to the Tribunal that the interests of justice requires. This has specifically been recorded in the order of the learned Tribunal, which is subject matter of the Sunder Sham 2013.10.05 11:48 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CWP No. 9175 of 2013 - 8- present writ petition. Moreover, in the present case the re-trial has already concluded and the petitioner has again been convicted in the Summary Court Martial. It is, therefore, now open to the petitioner to assail the conclusions and findings reached at by the Summary Court Martial on the basis of re-trial that has been conducted, in accordance with law.
Keeping in view the fact that re-trial has already been conducted and concluded this petition, therefore, has been rendered infructuous and is, accordingly dismissed as having been rendered infructuous. It would, however, be open to the petitioner to assail the Summary Court Martial proceedings on the basis of re-trial, in accordance with law.
(S.S. SARON)
JUDGE
(S.P. BANGARH)
October 03, 2013 JUDGE
sham
Sunder Sham
2013.10.05 11:48
I attest to the accuracy and integrity
of this document
Punjab and Haryana High Court,
Chandigarh