Punjab-Haryana High Court
No.143740509K Hav/Clk Surinder Singh vs Union Of India And Others on 19 November, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
CRIMINAL WRIT PETITION NO.752 OF 2002 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: NOVEMBER 19, 2012
No.143740509K Hav/Clk Surinder Singh
.....Petitioner
VERSUS
Union of India and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Balwinder Singh, Advocate,
for the petitioner.
Lt. Col. S.R.Desai,
for Union of India.
*****
RANJIT SINGH, J.
Havildar Clerk Surinder Singh, while serving with 1851 Light Regiment, was tried by Summary Court Martial (`SCM' for short) in the year 1999 for an offence, making a false entry in record by tampering with documents, for which he was found guilty and was sentenced to be reduced to rank and suffer rigorous imprisonment for 21 days in military custody. The petitioner was served a show cause notice on 26.2.2000 as he became due for discharge upon being reduced to ranks and was so retired on 23.10.2000. The petitioner has accordingly not only challenged his trial and the punishment awarded to him but also has challenged consequential discharge (retirement) from the service.
CRIMINAL WRIT PETITION NO.752 OF 2002 :{ 2 }:
Having been enrolled in the Army on 30.8.1983 as a Clerk, the petitioner was serving with 103 Air Defence Regiment in the year 1999. A Part II order was published in the Unit, showing that the petitioner had passed a promotion cadre from Niak to Havildar. It is alleged that the petitioner entered his name showing himself to have passed promotion cadre of Naik to Havildar, which was a false entry made by him to obtain for himself the advantage of promotion to the rank of Havildar. Thereafter, the petitioner statedly served as Havildar.
On the basis of some complaint, that this part II order, showing the petitioner having passed this promotion cadre, was tampered with, a investigation by way of Court of Inquiry was ordered. The Court of Inquiry was ordered on 29.8.1997 and at that time, the petitioner was serving with 1851 Light Regiment. He was ordered to be attached to 103 A.D. Regiment as the tampering was allegedly done by him while serving with 103 A.D. Regiment.
The Court of Inquiry investigated the issue and the allegation made against the petitioner for making a false entry of passing promotion cadre from Niak to Havildar was established in March 1978. The Court of Inquiry had examined two witnesses. i.e. the petitioner and Major A.Bhatnagar, who was the Officer, who had signed the Part II order, which was tempered with. As per the evidence given by Major Bhatnagar, the entry of the name of the petitioner was made after he had endorsed his signature on this Part II order. Indeed, this was the most material evidence besides the document itself which also had indication in this regard. Still, the CRIMINAL WRIT PETITION NO.752 OF 2002 :{ 3 }:
petitioner complains that he was not afforded adequate opportunity to defend himself before the Court of Inquiry. In this regard the petitioner mainly pleads violation of Rule 180 of the Army Rules, which Rule, as per the petitioner, was not complied with during Court of Inquiry.
Rule 180 of Army Rules provides a procedure, when a character or military reputation of a person subject to the Act is involved in the Court of Inquiry. This rule requires that a full opportunity be given to a person whose character or military reputation is at stake to remain present throughout the proceedings of the Court of inquiry and of making any statement and of giving evidence and of cross-examining the witnesses and to produce evidence in his defence.
On completion of the Court of Inquiry, the petitioner was sent back to his Unit, where he was posted i.e. 1851 Light Regiment.
In August 1999, the petitioner was again called to 103 Air Defence Regiment, which, as per the petitioner, was done without any authority. The proceedings were initiated against the petitioner on a tentative charge sheet making allegations of an offence under Section 57 (e) of the Army Act. This charge sheet was framed by Commanding Officer 103 A.D. Regiment. As per the petitioner, this action was without jurisdiction. The petitioner would further alleges that the provisions of Army Rule 22, which is mandatory requirement under the rules, were not complied with. As per the petitioner, no witness was called against him by the Commanding Officer (`CO' for short) and recording of summary of evidence (`S of E', for short) was CRIMINAL WRIT PETITION NO.752 OF 2002 :{ 4 }:
ordered. The petitioner would also allege that the summary of evidence was recorded without following due procedure of law and was concluded without affording any opportunity to the petitioner to producing defence witnesses despite his request made in writing. The petitioner further pleads that the requisite documents, including the proceedings of Court of Inquiry, were not supplied to him. As per the petitioner, even the summary of evidence was tampered with, as he had allegedly signed on his statement on 16.11.1999 but is shown to have been signed on 29.10.1999.
The grievance of the petitioner is that he was put to trial by Summary Court Martial despite these infirmities in the pre-trial proceedings and was ultimately charged and punished for an offence under Section 57 of the Army Act, which was time barred. The petitioner would also allege that during the trial proceedings he was not given proper and adequate opportunities to defend himself and was not allowed to examine defence witnesses. The petitioner further alleges that statement of material defence witnesses were tampered with. The petitioner accordingly has filed this petition to challenge the finding and sentence awarded to him and against the order vide which his petition was rejected on 17.1.2001 by one line cryptic order. The petitioner has not only challenged his trial and the sentence but has prayed for relief of restoring of his rank of Havildar and thereafter to promote him to the rank of Subedar, which was due to him.
Notice of motion was issued. Reply is filed by the respondent-Union of India.
CRIMINAL WRIT PETITION NO.752 OF 2002 :{ 5 }:
As per the respondents, the writ petition is totally misconceived. The respondents would allege that the petitioner has not disclosed the true facts of the case. As per the reply, the petitioner was posted to 103 A.D. Regiment in January 1990 as a Naik (Clerk). He was performing the duties of Clerk of Regimental Head Quarters Troops. In that capacity, the petitioner was responsible for matter concerning the documentation, including preparation of Part II orders, which are issued by all Regiments to notice the events like promotion etc. in the Regiment. The petitioner neither attended the promotion cadre for promotion from the post of Naik to Havildar nor passed any test during his tenure with 103 A.D. Regiment but he made a false entry in Part II order issued on 21.12.1992 signed by his Officer Commanding, adding his name showing that he has passed promotion cadre from Naik to Havildar.
On the basis of this false entry, the petitioner got promotion to the rank of Havildar in routine. In order to hide this fact and this false entry, he himself prepared a covering letter in his own hand. He himself entered the same in the despatch register in his own hands. As per the respondents, even a reference and perusal of the false entry made in Part II order would evidently show that it was added after signatures as the entry has left a different impression of carbon on the office copy. This came to light on 14.4.1997, when old Part II orders for upgradation and promotion in respect of Clerks were scrutinized. The petitioner accordingly was attached for holding investigation by Court of Inquiry, which was conducted in 1998. The petitioner is stated to have accepted his guilt for having forged the CRIMINAL WRIT PETITION NO.752 OF 2002 :{ 6 }:
Part II order even during his statement before Court of Inquiry.
On the basis of finding of the Court of Inquiry, further action was initiated against the petitioner. The petitioner was called by his CO for holding preliminary hearing of the charge as required under Army Rule 22. After following proper procedure, the petitioner was put to trial by Summary Court Martial on a charge under Section 57 (e) of the Army Act. The trial was held from 23.2.2000 to 18.4.2000. The petitioner pleaded not guilty to the charge. He was tried and evidence was recorded. The petitioner was afforded all the opportunities to lead whatever evidence he wished to. The Court found him guilty of the charge. Upon being found guilty, the petitioner was awarded punishment of reduction to the rank and rigorous imprisonment for 21 days in military custody. The petitioner, thus, was not awarded any harsh punishment and was retained in service, though the offence alleged is serious one. During his trial by SCM, the petitioner had engaged a defence counsel, who was a retired Lt.Colonel from the Army and he acted as a friend of the accused, as per the legal provisions contained in the Army Act. The respondents accordingly would plead that the writ petition is without any substance and so be dismissed.
I have heard the counsel for the parties.
The star argument raised by counsel for the petitioner is that the trial would be without jurisdiction as the offence for which the petitioner was tried by Summary Court Martial was barred by limitation. In this regard, the counsel would allege that he was not properly attached to 103 A.D. Regiment and continued to be on the CRIMINAL WRIT PETITION NO.752 OF 2002 :{ 7 }:
strength of 1851 Light Regiment, where he was posted at the time and during his trial. In this context, the counsel would allege that the CO 103 A.D. Regiment was not competent to try him by SCM as his proper Commanding Officer was Commanding Officer of 1851 Light Regiment. The petitioner would also plead violation of Rule 22 of the Army Rules. He has alleged denial of opportunity to him to lead defence evidence. He also pleads that he was not provided documents to defend himself properly.
The respondents would counter the submissions made by the petitioner and point out that the trial was held legally and properly; the offence was not time barred and the petitioner was afforded all opportunities and was tried by an officer who was competent to hold this trial. Respondents would point out to an order of attachment of the petitioner which was issued by the Army Head Quarter and the same has not been challenged in any manner by the petitioner till filing of the petition. The allegation that the Court of Inquiry was held without complying with the provisions of Rule 180 of the Army Rules is contested and it is pointed out that in view of the statement made by the petitioner, accepting his guilt, there was hardly any need for the petitioner to examine and cross-examine the witnesses in this factual background, which could be denied to him.
The petitioner was charge sheeted for an offence under Section 57(e) of the Army Act. This Section punishes a person who obtains for himself or any other person any pension, allowance or other advantage or privilege by a statement, which is false and which he either knows or believes to be false or does not believe to be true, CRIMINAL WRIT PETITION NO.752 OF 2002 :{ 8 }:
or by making or using a false entry in any book or record or by making any document containing a false statement or by omitting to make a true entry or a document containing true statement. As is alleged in the particulars of charge, the petitioner had made this fraudulent entry on 21.12.1992, showing himself to have passed promotion cadre from Naik to Havildar, after the Part II order had been signed by his Officer Commanding. This charge sheet is dated 4.10.1999 and the petitioner faced trial on this charge sheet from February to April 2000.
The petitioner has alleged that his trial was hopelessly time barred as per the provisions contained in Section 122 of the Army Act. As per the petitioner, the authorities can not take advantage of the amended Section 122, which now provides that limitation would run from the date of knowledge of offence or the offender. The petitioner states that the authorities can not plead ignorance about the knowledge of offence.
Section 122 of the Army Act provides for a period of three years for holding a trial by Court martial of any person for any offence and no Court Martial shall be commenced after the expiration of period of three years. Section 122 of the Army Act is as under:-
"1. Except as provided by sub-section (2), no trial by Court-Martial of any person subject to this Act for any offence shall be commenced after the expiration of period of three years and such period shall commence;
a). on the date of offence; or
b). where the commission of offence was not known to CRIMINAL WRIT PETITION NO.752 OF 2002 :{ 9 }:
the person aggrieved by the offence or by the authority competent to initiate action, the first day on which such offence comes to the knowledge of such person or the authority whichever is earlier; or
c). where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or by authority competent to initiate action, whichever is earlier."
Thus, a period of limitation for three years is provided for holding a trial by a Court martial of any offence committed by any person subject to the act. No doubt, this is a statutory provision and a provision which is prohibitory in nature. This is also a mandatory in character but with amendment introduced w.e.f. 6.9.1992, the period of limitation is now to commence as per the three eventualities given in the Section. The period of limitation is to commence from the date of offence in an event where the offence and the offender both are known. Where either the offender is not known or the offence is not to the knowledge of the competent authority, then the limitation has to start from the date of knowledge of the offence or the offender, as the case may be. In this case, the offence indeed was committed on 21.12.1992 but the offence came to notice of the competent authority only on 14.4.1997. This is so noticed even in the charge sheet, which was served to the petitioner. The facts in this case would also show that this false entry, though was made in the year 1992 but came to the notice of the competent authority while scrutinizing the old Part II CRIMINAL WRIT PETITION NO.752 OF 2002 :{ 10 }:
orders on 14.4.1997. The petitioner was put to trial on 23.2.2000, which is well within three years from the date when the offence came to the knowledge of the competent authority. Section 122 of the Army Act clearly provides that where the commission of the offence was not known to either the person aggrieved by the offence or to the authority competent to initiate action, the first day on which such offence comes to the knowledge, would be the date when the limitation would commence.
The petitioner has not been able to show if the offence had come to the knowledge of the authorities prior to this date. Counsel for the petitioner did make an attempt to show that the petitioner has been all through wearing the rank of Havildar to the knowledge of every one and hence, the offence, if any, of false claim was to the knowledge of the competent authority to initiate action. This plea and line of submission is totally misconceived. The offence alleged is of making false entry in a Part II order. On the basis of this false entry, the petitioner had obtained an advantage and continued to enjoy that advantage for a period of nearly five years, when the false entry was detected. The gravamen of the charge is of making a false entry in the document. On the basis of this false entry, which was not to the notice and knowledge of the competent authority, the petitioner had obtained this advantage and enjoyed the same for nearly five years. The knowledge of this false entry dawned on the competent authority only on 14.4.1997 while old Part II orders were being scrutinized and hence, this trial held in February 2000 can not be termed as being time barred on account of period of limitation laid CRIMINAL WRIT PETITION NO.752 OF 2002 :{ 11 }:
in Section 122 of the Army Act.
The plea of the respondents further is that even the limitation would commence from the year 1998, when the Court of Inquiry finally was concluded and the allegations against the petitioner were established but still, the respondents have given benefit of the period from 14.4.1997, though the limitation could really be stretched and indeed would commence w.e.f. the year 1998, when the Court of Inquiry proceedings were finalised. Incidentally, the petitioner has not raised any plea of bar of trial as per his rights under Rule 53 of the Army Rules during his trial. The petitioner could have raised a plea-in-bar of trial at the time of his general plea of `guilty' or `not guilty' to the charge on the ground that the time which has elapsed between the commission of offence and commencement of trial is more than three years and the limit of time for trial is not extended under Section 122. The petitioner did not raise any such plea before his trial by SCM and can not normally be heard to raise this plea now having not raised it before his trial. Still, I have considered his plea rather minutely on the basis of material on record. There is no document on record to support the plea that the false entry was to the notice or knowledge of the competent authority. What was known was that the petitioner was wearing the rank of Havildar and not that he has made a false entry in the Part II order, showing to have passed the Cadre for promotion from Naik to Havildar. The offence alleged was not to the knowledge of the competent authority and surfaced only when the old Part II orders were scrutinized on 14.4.1997. I, therefore, do not find any substance CRIMINAL WRIT PETITION NO.752 OF 2002 :{ 12 }:
in the plea raised by the petitioner that the charge against him was time barred in view of the clear provisions contained in Section 122 of the Army Act and would reject this plea.
The next plea raised by the petitioner to challenge his trial and the punishment is on the ground that the petitioner was not tried by his proper CO. There may be a need to elaborate this plea in the light of challenge. There are four kinds of Court Martial provided for under the Army Act. (Section 108 refers). These are:-
"(a) General Court Martial (GCM for short)
(b) District court Martial (DCM for short)
(c) Summary General Court Martial (SGCM)
(d) Summary Court Martial (SCM for short)"
Whereas GCM, DCM and SGCM are convened by the officers authorised in this regard as given in Sections 109, 110 and 112 of the Army Act but SCM is held by CO as laid down in Section 116 of the Army Act. Section 116 of the Army Act is as under:-
"Summary Court-martial.- (1) a summary court-martial may be held by the of any corps department or detachment of the regular Army, and he shall alone constitute the Court.
(2) The proceedings shall be attended throughout by two other persons who shall be officers or junior commissioned officers or one of either, and who shall not as such, be sworn or affirmed."
Thus, unlike, other forms of Court Martial, SCM is held by a CO, as SCM may be held by a Commanding Officer of any Corps, CRIMINAL WRIT PETITION NO.752 OF 2002 :{ 13 }:
Department or Detachment of a regular Army and he alone shall constitute the Court. The SCM, thus, is held by a Commanding Officer of any Corps or Department of the Regular Army and he alone is competent to hold this trial. The petitioner's challenge is that his Commanding Officer was C.O. 1851 Light Regiment whereas his trial was held by the C.O. 103 A.D. Regiment. The petitioner accordingly would plead that he was not tried by an officer who could competently hold his trial by SCM.
The alleged offence was committed while the petitioner was serving in 103 A.D. Regiment. The tampering or false entry was made in the documents in the year 1992 while the petitioner was serving with 103 A.D. Regiment. This offence came to the knowledge of the competent authority in the year 1997 and at that time, the petitioner was serving with 1851 Light Regiment. As soon as the offence came to the knowledge, action was taken to seek attachment of the petitioner to 103 A.D. Regiment as the offence was committed, while the petitioner was serving with this Regiment and where all the records and documents were available and where the witnesses were present. On 2.5.1997, C.O. 103 A.D. Regiment, wrote to C.O. 1851 Light Regiment in regard to the fact, which revealed during the scrutiny of old Part II Order. On 9.8.1997, Head Quarter 29 Artillery Brigade, under whose jurisdiction 103 A.D. Regiment was stationed had taken up the case for attachment of the petitioner with 103 A.D. Regiment and Army Headquarters issued the attachment of the petitioner on 19.9.1997. This is quite evident from Annexure R-D annexed with the reply, relevant portion of which reads as under:-
CRIMINAL WRIT PETITION NO.752 OF 2002 :{ 14 }:
"Fraudulent Publication of PT II Orders
1. Refer to your letter No.303202/146/A dated 09 Aug 97.
2. Sanction is hereby accorded for attachment of No.14374059K nk (Now Hav.) Surender Singh ex. 1851 Lt. Regt with 103 AD Regt as requested vide your ibid letter.
(Auth: Army Headquarters (Arty 3) letter
No.A/10011/1/Arty 3 (A) (ii) dt. 19 Se.97).
Sd/- IPS Subbu, Major
Senior Record Officer
for Commanding Officer
Copy to:-
1851 Lt. Regt. - For info.
103 AD Regt. - For info."
By virtue of this attachment order, the petitioner was moved to 103 A.D. Regiment on a movement order, which was given to him and is annexed with the petition by the petitioner himself . The petitioner was attached to 103 A.D. Regiment, though he at that time belonged to 1851 Light Regiment. In this background and the fact that the offence was committed while the petitioner was with 103 A.D. Regiment, the petitioner was rightly attached to this regiment and attachment, which was ordered by Army Headquarters, would give valid jurisdiction to the C.O. 103 A.D. Regiment to exercise the power of Commanding Officer to direct further action against the petitioner on the basis of allegations that surfaced against him. The terms `CO' is defined in Section 3 (v) in rather very wide manner. This Section CRIMINAL WRIT PETITION NO.752 OF 2002 :{ 15 }:
says:-
"Commanding Officer", when used in any revision of this Act, with reference to any separate portion of the regular Army or to any department thereof, means the officer whose duty it is under the regulation of the regular Army, or in the absence of any such regulations, by the customs of the service, to discharge with respect to that portion of the regular Army or that department, as the case may be, the functions of a in regard to matters of the description referred to in that provision;"
Upon his attachment to 103 A.D. Regiment, the petitioner became part of this Unit. CO 103 A.D Regiment, thus, became his CO as he would be an officer whose duty it is under the regulation or in the absence thereof, as per the custom of the service to discharge the function of the Commanding Officer. All the proceedings were conducted under the jurisdiction of CO 103 A.D. Regiment. The need to attach the petitioner to 103 A.D. Regiment was imperative as the witnesses were available with this Unit and the documents were in the custody of said Unit. Army Headquarters is very well competent to order attachment of the petitioner to 103 A.D. Regiment. The petitioner has not challenged his attachment as such. It is not the case set up that Army Headquarters could not validly order his attachment. As per the petitioner, there was no attachment ordered and he was only moved on movement order and as such, he did not belong to 103 A.D. Regiment. Attachment order has now been placed on record. This will take the sting out of the submissions made. The CRIMINAL WRIT PETITION NO.752 OF 2002 :{ 16 }:
petitioner was properly attached to 103 A.D. Regiment. CO 103 A.D. Regiment, thus, was the proper CO of the petitioner and rightly held the trial of the petitioner by SCM. A trial by CO of Corps or detachment or department to which a person belongs can competently be held by CO of that Corps, detachment or department as per Section 116 of the Army Act. (See Vidya Prakash Vs. Union of India and others, AIR 1988 Supreme Court 705). In this regard, reference can be made to a circular issued by Army Headquarters in the year 1985, which though was not referred to by any of the parties. This Court being aware of the same, has taken note of the same. Relevant portion of this circular is as under:-
"The law on the subject has to be determined with reference to Army Act Sections 116, 3(v) and 120. Army Act 116(1) provides that a SCM will be held by tide CO of any Corps, department or detachment of the regular Army. By virtue of the wide definition of the term "Commanding Officer" given in Section 3(v), a CO exercises command over all persons including the one properly attached to his unit. Army Act 120 (3) lays down that a person to be tried by a SCM should be under the command of the officer holding the Court, i.e. the CO of the Unit, to which he is posted or attached. Thus, neither Army Act 116 nor Army Act 120 puts any bar to holding of a SCM by the CO of the unit, to which the person is attached, before or after the commission of the offence." The position of law in this regard is based upon the above CRIMINAL WRIT PETITION NO.752 OF 2002 :{ 17 }:
noted circular was considered by Rajasthan High Court in the case of B.K.S.Yadav Vs. Union of India and others, 1999 (2) RLW 1126 and the view expressed is that SCM can be held by the CO of the Unit to which person is attached after commission of offence and the contrary view can not be accepted as a correct view. A person who is attached to a Unit under orders of a competent authority is to be taken as belonging to that Unit. The CO of the Unit to which the person is attached would be legally empowered to proceed against the person so attached to hold the SCM or any other form of court martial.
The High Court of Rajasthan in the case of B.K.S.Yadav (supra) applied the principle of "contemporanea expisitio" as the authorities have understood the provisions of the statute as explained in the said circular. In this regard, reliance is placed on K.P.Varghese Vs. Income Tax Officer, Ernakulam, AIR 1981 Supreme Court 1922. It is well established rule of interpretation of statute by reference to the exposition it has received from contemporary authority. Ofcourse, this rule has to give way where the language of the statute is plain and unambiguous. Otherwise, the words used in the provision are to be understood in ordinary parlance in the area in which the law is enforced or by the people who ordinarily deal with them. (See Collector of Cental Excise, Bombay and another Vs. M/s Parley Export (P) Ltd., 1980 Supreme Court
644). This rule was again applied in Indian Metals and Ferry Alloy Ltd., Kuttack Vs. Collector of Central Excise, AIR 1991 Supreme Court 1028 and State of Madhya Pradesh Vs. G.S.Daal and Flour CRIMINAL WRIT PETITION NO.752 OF 2002 :{ 18 }:
Mills, AIR 1991 Supreme Court 772, Y.R.Chawla and others Vs. M.P.Tiwari and another, AIR 1992 Supreme Court 1360. This maxim is applicable in construing ancient statute but not to interpret Acts which are comparatively modern and an interpretation should be given to the words used in the context of the new facts and situation if the words are capable of comprehending them. (See J.K.Cotton Spinning and Weaving Mills Ltd. Vs. Union of India and others, AIR 1988 Supreme Court 191 and Senior Electric Inspector Vs. Laxmi Narain Chopra, 1962 Supreme Court 159). This circular, thus, being in operation for considerable long period now and having been consistently followed and understood, SCM held by CO of attached Unit can not be said to be suffering from want of jurisdiction in any manner. Even otherwise, no prejudice is caused to the petitioner and this submission of the petitioner would, thus, fail. The petitioner was rightly tried by C.O. 103 A.D. Regiment and the plea that he was only moved on a movement order and has not been properly attached is factually misconceived and, thus, would deserve to be rejected.
Equally untenable is the plea raised by the petitioner that the Court of Inquiry had not complied with the provisions or the procedure given in Rule 180 of the Army Rules. Further plea is that complete proceedings of the Court of Inquiry were not supplied to the petitioner at the time of trial, which would vitiate the entire SCM proceedings.
Rule 180 of the Army Rules, makes a provision for a procedure to be followed when a character or a military reputation of CRIMINAL WRIT PETITION NO.752 OF 2002 :{ 19 }:
a person subject to act is involved. This rule provides that full opportunity must be afforded to such person of being present through out the enquiry and of making any statement and of giving evidence, he may wish to make or give and of cross-examining any witness, whose evidence in his opinion affects his character or military reputation and by producing any witness in defence of his character or military reputation. The responsibility is on the Presiding Officer of Court of Inquiry to take such steps as may be necessary to ensure that any such person so affected and not previously notified receives notice and fully understands his rights under the rules.
In response to this plea, the respondents would point out to the statement made by the petitioner during the Court of Inquiry. The respondents may not be justified in relying on this statement to bring home the guilt of the petitioner but this statement may come in for consideration for collateral purposes to appreciate the connected issue to see if there was a need to afford any opportunity to the petitioner as is prayed by him. No doubt, Rule 182 of the Army Rules would bar the use of any statement containing admission or confession made at Court of Inquiry by a person accused of an offence at the trial but the nature of the statement atleast would indicate the false stand taken by the petitioner to allege that he was not afforded any opportunity at the Court of Inquiry. If the petitioner had himself not contested the charge, then obviously he would not have been in a need of an opportunity to lead evidence in support of his plea. There was nothing which needed to substantiate. Though, this statement is not relevant for any purpose nor it is being CRIMINAL WRIT PETITION NO.752 OF 2002 :{ 20 }:
considered at all as to what was stated therein, but the petitioner can not succeed in showing that he was to prove any assertion about his innocence or he was to establish something at the Court of Inquiry.
His plea that he was not afforded any opportunity during the trial or during the summary of evidence again is belied from the record. The petitioner indeed made a prayer for examining witnesses during the course of trial. Initially, the prosecution evidence was recorded on the plea of `not guilty' offered by the petitioner. The prosecution, in support of its case, examined Major A. Bhatnagar, Major K.N.V. Acharya, Lance Havildar Vijay Thapa and Lance Naik Narinder Singh. The record would show that the petitioner had thoroughly cross-examined all these witnesses and was granted adjournments in between the cross-examination also on his request so as to effectively put questions to the witnesses. During the cross- examination of PW2 Major K.N.V.Acharya, the petitioner made a request for an adjournment to enable him to prepare his defence and the case was adjourned from 23.2.2000 to 15.3.2000. Mind you, this was a SCM, which was required to be held and concluded with urgency being a SCM. Still, such a prolonged adjournment was granted to the petitioner to prepare his defence. When the Court assembled on 15.3.2000, it was noticed that the petitioner had been sent on casual leave for 10 days from 1st to 10th March, 2000 on compassionate ground and so his counsel, who was acting as friend of the accused, had not come present on 15.3.2000. On his request, the proceedings were again adjourned to 22.3.2000. Still, one day adjournment was further granted to the petitioner to enable him to CRIMINAL WRIT PETITION NO.752 OF 2002 :{ 21 }:
procure the presence of his counsel.
Not only that, on conclusion of the prosecution evidence, the petitioner entered into his defence on 31.3.2000. The petitioner examined 4 defence witnesses on 31.3.2000. One of the witnesses was only produced but the petitioner declined to examine him and it is so reflected in the proceedings. On his request, the proceedings were recorded in questions answers form while recording the evidence of his defence witness. Even during the examination of defence witnesses, the Court granted adjournments to the petitioner from 31.3.2000 to 18.4.2000 to procure or to produce additional defence witnesses. Thereafter, the petitioner had produced one more witness. This witness was duly affirmed but the petitioner declined to examine him. Still he was given opportunity to address the Court, which he did. In this background, his plea that he was not afforded any proper opportunity at the trial or at the stage of recording summary of evidence is totally misconceived and misplaced. It is a false assertion made by the petitioner, which is not substantiated in any manner from the record.
The plea of the petitioner that Army Rule 22 was not complied with again untenable. This rule regulates the manner of holding preliminary investigation, which is to be conducted by a CO. The fact that this Rule was complied with and preliminary investigation in the matter was held on 4.10.1999 is clearly made out from Form filled by the CO in this regard, showing the compliance of this Rule, as is enjoined upon the Commanding Officer in terms of Army Order 24 of 1994. Major A.Bhatnagar was examined as a CRIMINAL WRIT PETITION NO.752 OF 2002 :{ 22 }:
witness and the petitioner had declined to question this witness in any manner before the CO. These proceedings were conducted in the presence of one officer and one Junior Commissioned Officer, whose names are reflected in the record of proceedings so prepared in this regard. Except for stating that the petitioner was not given opportunity to call his defence witnesses, there is no valid plea raised by the petitioner to substantiate the same. It is otherwise also revealed that the petitioner had reserved his right to call the defence witnesses during the trial, for which due and adequate opportunities were given to him but he even declined to examine some of the witnesses, who had been made available and were produced before the Court for the purpose of examination. The petitioner has not specified which witness he wanted to examine in his defence. He had not contested the charge at Court of Inquiry. It is not a case where any non-compliance of any provision is revealed or is made out. The petitioner was given due and adequate opportunities to present his case and his defence. The petitioner apparently has been let off lightly for a serious allegation proved against him and now he wants to catch on some straw or the other. He has no escape and has not pleaded any valid defence.
I do not find any merit in any of the pleas raised by the petitioner and would dismiss the writ petition as it lack substance on merits.
November 19, 2012 (RANJIT SINGH ) khurmi JUDGE