Punjab-Haryana High Court
Dr. V.L.N. Thakur vs Union Of India And Others on 19 November, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
Crl. Writ Petition No.245 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Writ Petition No.245 of 2010
Date of decision : November 19, 2012
Dr. V.L.N. Thakur
.....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. Rajeev Anand, Advocate
for the petitioner.
Mr. Gurpreet Singh, Senior Panel counsel
for UOI.
****
RANJIT SINGH, J.
The petitioner, who is a Veterinary Surgeon and was serving as an Assistant Commandant in Indo Tibetan Border Police Force (for short 'ITBPF') has filed this petition to challenge the proceedings of a General Force Court ('GFC' for short) and the consequential punishment. Though initially the petitioner was sentenced to be removed from service by GFC but this sentence was commuted to loss of seniority for two years at the time of confirmation. This order was passed on a petition filed by the petitioner before confirmation of the finding and sentence which is termed as pre-confirmation petition.
In exercise of his rights under the statute, the petitioner had filed a petition after confirmation of the finding and the commuted Crl. Writ Petition No.245 of 2010 2 sentence, which has since been rejected. The petitioner, has, accordingly amended his writ petition to challenge the orders rejecting his petition filed after confirmation, which is known as post- confirmation petition. He has challenged the punishment of forfeiture of two years service imposed on the petitioner which has been confirmed.
The incident, which has led to this trial, took place at Basic Training Centre (BTC) Bhanu. The petitioner claimed that he had helped his colleague a senior officer holding the rank of Deputy Commandant Medical Officer, who was being forcefully taken to Mental Health Care Centre due to a vindictive attitude of respondent No.4 i.e. Inspector General ITBPF, Zonal Headquarter ITBPF, Dehradun (Uttaranchal). The petitioner would further aver that his colleague had pointed out some deficiencies in the health related issues concerning the new recruits, which offended respondent No.4. The petitioner allegedly came to his rescue, who was in the process of being dragged and thrown into ambulance. The petitioner had allegedly spoken to respondent No.2 to release of his colleague officer, but instead he was charge-sheeted. Thereafter, directions were issued for preparing a record of evidence.
The petitioner alleges that the superior authorities had one sidedly prejudged the matter to the prejudice and detriment to the petitioner. The petitioner also alleges that without holding any inquiry or without giving any opportunity of hearing to him, he was transferred to the field location, placed under suspension to order his trial by GFC. The petitioner, accordingly, pleads that he was not given Crl. Writ Petition No.245 of 2010 3 proper opportunity to defend himself and was also denied legal assistance. The petitioner, accordingly, was forced to file a writ petition for change of venue to hold the GFC either at Ramgarh or Delhi. Despite that the trial of the petitioner by GFC was commenced. The petitioner would allege that the GFC was held in utter infringement of the provisions of ITBPF Act and Rules rending the award of punishment to be bad on that count.
The facts as these emerge from the record are that the petitioner was appointed as Assistant Commandant (Veterinary Assistant Surgeon) on 22.6.1998. On 17.7.2007, the petitioner joined duties at BTC, Bhanu. On 1.10.2007, while attending to training classes, the petitioner was informed that one of his colleagues Dr. Amitabh Kumar, a Senior Medical Officer was manhandled. As per information, the officer was being dragged into an ambulance for being wrongfully confined. The petitioner states that he was aware of the fact that Dr. Amitabh Kumar had given some training related suggestions and had highlighted the shortcomings and deficiencies in training techniques adopted at BTC Bhanu. Dr. Amitabh Kumar had pointed out certain issues regarding physical health and mental state of the trainees which was being effected, but the respondent BTC authority had not taken it in a positive manner.
On learning about the plight of Dr. Amitabh Kumar, the petitioner reached the spot near the main gate and noticed that Constables and Head Constables were dragging and manhandling Dr. Amitabh Kumar. The petitioner statedly spoke to respondent Crl. Writ Petition No.245 of 2010 4 No.2 on his mobile and the orders were given to leave Dr. Amitabh Kumar.
Thereafter, disciplinary proceeding was initiated against the petitioner and he was served charge sheet dated 3.10.2007. Directions were issued to prepare a Record of Evidence on 3.10.2007 itself. The petitioner was also ordered to be transferred from under the command of respondent No.4 to Matli in 12th Battalion, ITB Police. The petitioner states that this was done to punish him as he had filed CWP No.1774 of 2007. This writ petition was disposed of as infructuous as he has been moved before the orders in the petition.
The petitioner joined the place of his transfer on 6.12.2007. He then learnt about the order suspending him which was passed on 7.12.2007. The petitioner was then apprised of the date of his trial by GFC on 10.4.2008. The petitioner requested the authorities for the change of venue, but the authorities did not agree. He filed a Civil Writ Petition No.2883 of 2008 before the Delhi High Court and the High Court, Delhi granted stay against the trial at Malti in Uttarakhand. Subsequently, the respondent agreed to shift the venue of the trial to Ramgarh, District Pachkula, Haryana. On 29.9.2008, the venue of GPF was shifted o 37th Battalion ITB Police Ramgarh. The petitioner had also challenged his suspension order by filing a writ petition.
The trial by GFC finally commenced against the petitioner on 17.3.2009 at the location of 37th Battalion, Headquarter at Ramgarh. The petitioner gave application seeking time to engage a Crl. Writ Petition No.245 of 2010 5 defence counsel and for permitting him to avail the services of defending officer. The petitioner has referred to certain pleas, which he gave in this regard. His prayer was, however, rejected.
The trial of the petitioner commenced thereafter. The petitioner was provided service of Dr. Dinesh Sharma CMO (SG), who had given his willingness to defend the petitioner. The petitioner raised the plea of jurisdiction before the GFC, which was rejected by the Court. The prosecution examined witnesses and thereafter the petitioner has raised plea of no case. As per the petitioner, he wanted to produce certain defence witnesses, but he was not given adequate opportunity to procure and to present the defence witnesses. The petitioner was finally found guilty of the charges alleged against him before the GFC which sentenced the petitioner to be removed from service.
This finding and sentence passed by the GFC were subject to confirmation in terms of the provisions contained in
the ITBPF Act. The finding and sentence as recorded by the GFC were, accordingly, placed before the confirming authority i.e. Director General ITBPF. The confirming authority, confirmed the finding of guilty of charges 2nd and 3rd and also confirmed the finding on first charge with some variation in its particulars. The confirming authority remitted the sentence of removal from service awarded by GFC to forfeiture of two years service for the purpose of promotion. This remitted sentence was confirmed by the confirming authority. The petitioner has now filed this petition to challenge the finding and sentence as well as the order of confirming authority in confirming Crl. Writ Petition No.245 of 2010 6 the finding and the final sentence is imposed.
Initially a tentative charge-sheet Annexure P-1 was prepared against the petitioner and direction to prepare record of evidence was passed on 03.10.2007. Copy of this order is annexed with the petition as Annexure P-2. The tentative charge-sheet (Annexure P-1) was signed by the Inspector General (Training) Zone, BTC ITB Police. The direction to prepare record of evidence was also issued by the Inspector General (Training) Zone,BTC ITB Police. Subsequently, as already noticed above, the petitioner was transferred to a different location. He was finally put to trial at Ramgarh on a charge-sheet which was prepared after completion of record of evidence. The charge-sheet on which the petitioner faced trial by GFC initially had not been placed on record. This fact came to the notice of the Court while hearing the petition during the month of January, 2012. On the directions issued by the Court, the charge- sheet on which the petitioner was finally tried was placed on record as Annexure P-23.
In this charge-sheet, two charges were preferred against the petitioner. These were under Section 43 of the Act which punishes violation of good order and discipline. In the particulars of charges, it is averred that the petitioner had approached Media and had instigated Dr. Amitabh Kumar. Third charge preferred against the petitioner was for disobeying lawful command. This charge- sheet was signed by Commanding Officer of 12 Bn. I.T.B.P. The Inspector General (Head Quarter) passed order as convening authority and endorsed the direction on the charge-sheet for the trial Crl. Writ Petition No.245 of 2010 7 of the petitioner by way of GFC. During the course of hearing the GFC amended the charge-sheet Annexure P-23 and the amended charge-sheet is annexed with the additional affidavit as Annexure P-
24. The offences in the amended charge-sheet are the same as contained in the original charge-sheet with some minor correction in the particulars of the petitioner.
The petitioner was found guilty of all the charges leveled against him and was sentenced to be removed from the service as already noticed. Thereafter, the petitioner filed pre-confirmation petition and the sentence of removal was reduced to forfeiture of two years service for promotion as already noticed. Apprehending that the petitioner will not get fair and impartial consideration of his post confirmation petition, he has filed present petition before this Court. In the meantime the post confirmation petition filed by the petitioner which was pending has also been rejected.
Notice of motion was issued and during the pendency of writ petition, the sentence imposed on the petitioner has been reduced/commuted. The petitioner has amended his writ petition on 01.09.2010. Response to the amended writ petition is also filed.
The respondents have denied the averment made in the writ petition. It is pointed out that Dr. Amitabh Kumar was under
treatment for Anxiety Neurosis and de-addiction treatment for the alcohol from the Psychiatrist, Government Medical College Hospital, Sector-32, Chandigarh since 09.07.2007. It is, accordingly, stated that due to abnormal behaviour of the officer, a report was sent to the Director (Medical) by the Commanding Officer i.e. DIG (BTC), ITBP Crl. Writ Petition No.245 of 2010 8 for check up and medical treatment of the officer. In turn, the Director (Medical), ITBP issued direction to the DIG (BTC), ITBP to send Dr. Amitabh Kumar to the Mental Health Care Centre, ITBP, Saboli for his further treatment under proper care. When Ambulance was about to take Dr. Amitabh Kumar, the petitioner allegedly reached the main gate and forcibly opened the door of the Ambulance. The petitioner allegedly brought Dr. Amitabh Kumar out, shouting that nobody would take him anywhere. It is alleged that thereafter both the officers interacted with the media and reported a fabricated and false story in gross violation of Government Rules and Instructions on the subject. The allegation of use of physical force against Dr. Amitabh Kumar is denied. It is alleged that by giving false information to media about the beating of Dr. Amitabh Kumar and by instigating the said doctor, the petitioner not only behaved in a manner unbecoming for a Government servant but has also violated good order and discipline of the force. The justification given to charge-sheet the petitioner, accordingly, is given in the response so filed.
Learned counsel for the petitioner has raised number of pleas in support of his challenge to the trial proceedings and the award of sentence but he has finally concentrated on to one aspect of the case which according to him would affect jurisdiction of the trial and would render the entire proceeding bad on that count. Counsel for the petitioner contends that petitioner at the relevant time was posted at BTC Bhanu and his Commanding Officer was DIG who was Commanding BTC Bhanu. He alone was his proper Commanding Officer. However, charge-sheet served to the Crl. Writ Petition No.245 of 2010 9 petitioner was signed by the Inspector General (Training) Zone, BTC ITB Police. Inspector General (Training) Zone, BTC ITB Police only had issued direction for preparing record of evidence.
On the basis of above position, it is alleged that neither the charge-sheet was signed by the proper Commanding Officer nor was record of evidence directed to be prepared by the competent officer. In this regard the petitioner has made reference to the relevant rules, which empowers various officer to exercise disciplinary powers in respect of an offence committed by a person subject to the Act. As per counsel for the petitioner, even hearing of charges was not done by the proper Commanding Office and ultimately the Court was convened by IG Head Quarter whereas he even was not competent to convene the GFC.
The star argument of learned counsel for the petitioner, however is that the process was initiated by an officer who was not the proper Commanding Officer of the petitioner and he also had issued directions to prepare record of evidence which he could not legally order. Plea accordingly is that all the subsequent proceedings are vitiated on this count.
Counsel appearing for Union of India has joined issues with the counsel for the petitioner in this regard on this aspect. It is pointed out that the charges against the petitioner were serious in nature and since he had made allegation against his Commanding Officer, the next superior authority i.e. Inspector General of Police had issued direction for preparation of record of evidence in view of the provision contained in Rule 45. In regard to the allegation that Crl. Writ Petition No.245 of 2010 10 no preliminary enquiry was held prior to issuance of charge-sheet, it is pointed out that the preliminary enquiry/investigation by Commanding Officer with the view to ascertain prima facie case is only to see if the record of evidence was to be prepared or the charges were to be disposed of otherwise. It is alleged that once the directions were issued for preparing the record of evidence it would imply that the procedure prescribed was complied with. The error and irregularity if any at that stage will not vitiate the trial or affect the guilt of the accused petitioner. Accordingly, it is stated that this will not effect the jurisdiction of the trial of the petitioner held by the GFC.
The admitted position is that the direction to prepare record of evidence was issued by Inspector General (Training) Zone. He only had signed and, thus, charged the petitioner in the tentative charge sheet. Conceded position, thus, is that Inspector General (Training) Zone had exercised the powers of Commanding Officer of the petitioner and, thus, acted as his Commanding Officer. It is not in dispute that BTC Bhanu was commanded by DIG and IG (Training) was superior officer of DIG. Thus, the power and jurisdiction of Commanding Officer has been exercised by the officer, who actually was not the Commanding Officer of the petitioner. The issue for consideration accordingly is to see the affect of the same on the subsequent proceedings. In order to properly appreciate this aspect, a detailed reference to the role, responsibilities, duties and powers of the Commanding Officer would require examination.
Term `Commanding Officer' is defined as per Section 2(e) Crl. Writ Petition No.245 of 2010 11 of the ITBPF Act, which is as under:-
2(e) "Commanding Officer", used in relation to a person subject to this Act, means an officer for the time being in command of the unit or any separate portion of the Force to which such person belongs or is attached;
As per the Scheme of the ITBPF Act and other cognate enactments, like Army Act, Air Force Act, Naval Act, BSF Act and CRPF Act, a Commanding Officer is a unique institution, which is responsible for carrying out investigation of any allegation of commission of an offence made against any person subject to the act and serving under his command. During the course of investigation, the Commanding Officer is bestowed with various powers either to take action or withdraw the charges or dismiss the charge in his discretion, if he is of the view that the same is either not proved or for any other such reasons further proceedings are not be called for. If on an allegation made before the Commanding Officer and upon enquiry or investigation conducted by him, the Commanding Officer is of the view that offence alleged is established, he may direct further action and in that event, he is the person responsible to charge the accused with the offence, serve him a charge sheet and proceed to take action to seek trial of such a person by an appropriate form of a Force Court. In respect of certain class of persons under the Act other than officer or subordinate officers he can even hold a trial by Summary Force Court. There may not be any parallel of this nature where the same person is held responsible for investigation/enquiry and then he is legally entitled to frame a charge Crl. Writ Petition No.245 of 2010 12 against a person after holding such investigation and enquiry and thereafter to hold a trial also in respect of certain persons subject to the act. This institution of a Commanding Officer and the nature of powers and jurisdiction, which he exercises can certainly be termed as unique with no parallel, noticed under the Scheme of another enactment, which regulates the trial and procedure of an offence having criminal contours.
The submissions made on behalf of the counsel for the petitioner are, thus, required to be appreciated in this background and the nature of power and jurisdiction, which the Commanding Officer exercises under the Scheme of the ITBPF Act or other such cognate enactments. The forum, like the GFC is a specialized forum, which derives its power to try a person from an order convening the GFC. It being a specialized forum and constituted for a specified purpose, the plea to jurisdiction is required to be strictly construed. The Court like GFC derives their jurisdiction to try an accused person from the order convening the Court and unless the court is constituted strictly in accordance with the convening order, it would lack in jurisdiction and any trial by such court would be in valid.
At the time of commission of offence, the petitioner was attached with BTC ITBP Bhanu. In fact, three offences against the petitioner were allegedly committed by him while he was posted at BTC Bhanu. The BTC Bhanu is and was commanded by DIG BTC Bhanu and he alone was the proper Commanding Officer of the petitioner. That being the position, DIG BTC Bhanu was the only competent authority under the ITBPF Act to whom this complaint of Crl. Writ Petition No.245 of 2010 13 any allegation could be made against the petitioner. Such complaint when made could only be investigated by or enquired into by DIG BTC Bhanu, who was the Commanding Officer of the petitioner. He alone was competent to exercise various powers available to the Commanding Officer. He was alone competent to direct any further proceedings, including direction to prepare record of evidence. He alone was competent to charge sheet the petitioner even if he was to face trial by GFC. Having prepared tentative charge on the basis of allegations made, DIG BTC Bhanu was competent to hold preliminary investigation as per Rules. In exercise of his power under the Rules, he was even competent to dismiss the charges made against the petitioner. Dismissal of a charge indeed would lead to a effactual disposal of the case and could be passed in exercise of such powers, which would be judicial in nature. That being the position, the proper Commanding Officer alone was competent to invoke his jurisdiction and to pass such order either to prepare a record of evidence or to dismiss the charge or any other direction which he could really pass under the Rules. Concededly, such powers were not exercised by the proper Commanding Officer, i.e. DIG BTC Bhanu. The tentative charge sheet (Annexure P-1) was prepared and signed by Inspector General(Training) Zone, BTC who was not proper Commanding Officer of the petitioner. This fact has not been disputed in any manner in the reply, but it has been justified on the ground that the superior officer could exercise such powers as there were some allegations made against the Commanding Officer.
One would have now to see whether this could be a valid Crl. Writ Petition No.245 of 2010 14 reason or a ground for Inspector General (Training) Zone to exercise such powers by a Commanding Officer or whether such course was legally permissible or not. To appreciate and understanding this aspect, a detailed reference to the legal provisions may be called for.
Conceded position is that DIG BTC, Bhanu has not exercised the power of Commanding Officer and direction to prepare record of evidence was passed by Inspector General (Training) Zone, BTC who only had signed the tentative charge sheet served to the petitioner. This may affect the jurisdiction of the GFC on account of violation of the provisions, which had been termed as mandatory in nature. Rule 44 of ITBPF Rules lays down the procedure for hearing of a charge by an officer not below the rank of Assistant Commandant. Hearing of a charge, as envisaged under Rule 44, has been held to be statutory and mandatory requirement. The identical provisions contained under the Army Act and other cognate enactments have been subject matter of interpretation of various courts. The same procedure as given in Rule 44 of the Rules is required to be followed in respect of an officer when any such allegation is made against him. Whereas Rule 44 provides for hearing by an officer not below the rank of Assistant Commandant. Rule 45 talks of hearing of charge by the Commanding Officer. Rule 45 reads as under:-
45. Hearing by the Commanding Officer. (1) The Commanding Officer of and above the rank of Commandant may hear the charge against the persons under his command in accordance with the provisions of sub-rule (1) of rule 44 and may -Crl. Writ Petition No.245 of 2010 15
(i) award any punishment which he is empowered to award in respect of persons of and below the rank of Head Constable, or
(ii)dismiss the charge; or
(iii)remand the case of preparing a record of evidence or an abstract of evidence against the accused; or
(iv)in the case of an accused of and below the rank of a Head-Constable remand the accused for trial by Summary Force Court;
Provided that -
(a) in the case of an officer, the evidence of witnesses shall be reduced to writing if he so demands;
(b) the Commanding Officer shall dismiss the charge,if in his opinion, the charge is not proved or may dismiss it if he considers that because of the previous character of the accused and the nature of the charge against him, it is not advisable to proceed further with it. In case of an officer, he shall record reasons for dismissing the charge;
(c) where a case in respect of an officer has been
referred to the Commanding Officer by a superior
authority for initiation of disciplinary action, the
Commanding Officer shall not dismiss the charge without reference to such authority;
(d) in case of all offences punishable with death, a record of evidence shall be prepared.
(2) Where the Commanding Officer is of the opinion that the charge against an officer or an subordinate officer is of a serious nature, he may, without hearing the charge in accordance with the provisions of sub-rule (1), straightway order a record of evidence or an abstract of evidence to be prepared in the case.
(3) Where the Commanding Officer is of the opinion that the charge against an officer or a subordinate officer Crl. Writ Petition No.245 of 2010 16 does not deserve to be dismissed, and the charge is also not so serious as may warrant trial by a Force Court, he may, in the case of a subordinate officer, either dispose of the case himself or refer it to the appropriate authority for disposal under the provisions of section 58. In the case of an officer,he may refer the case to the appropriate authority for summary disposal under the provisions of section 58.
(4) Where disciplinary action is intended to be taken against a Commanding Officer of a battalion, or a unit, or a headquarters, such officer shall be removed from the command of the battalion, the unit, or the headquarters, as the case may be, and for the purpose, shall be attached to or posted to a battalion, unit or a headquarters under the command of an officer senior to the officer to be so attached or posted.
A perusal of Rule 45 would show that it makes a provision for dismissal of a charge by the CO and this power is an alternative to power to award punishment, besides other powers that are open to be exercised by the Commanding Officer under the said provision. Since the powers to dismiss a charge or to award punishment are provided in the alternative to each other, it is clear that this provision is judicial in nature and powers exercised under this Rule are in exercise of judicial powers. The identical provisions contained under the Army Act and various other Acts/enactments which were the guiding force for enactment of the ITBPF Act, have been subject matter of interpretation of various courts, including the Hon'ble Supreme Court of India and the view is finally settled that the provisions of preliminary hearing are statutory and mandatory in character and non-compliance of these may go vitiate the entire Crl. Writ Petition No.245 of 2010 17 subsequent proceedings. The provision made in this form where an option is available to the Commanding Officer whereby he can direct that record of evidence be prepared if he is of the opinion that the charge is of a serious nature, would be in exercise of judicial powers and nothing else. Once the Commanding Officer is given power to dismiss a charge, the contrary provision made for non-hearing of the charge would be in total contradiction to the basic requirement of law which is held to be statutory and mandatory in nature. The plea that hearing of the charge is made discretionary under the Rules would not impress me as the Commanding Officer cannot dispense with the exercise of judicial powers, which are available in the alternative. In any event, the Inspector General (Training) Zone, BTC has directed that record of evidence be prepared against the petitioner on the charges which he has framed and the question in this case is whether he had exercised any option not to conduct preliminary hearing or investigation. The question here is that these powers of Commanding Officer were not exercised by a proper Commanding Officer and, hence, all proceedings directing preparation of record of evidence which formed the basis of trial of the petitioner by GFC would be rendered without jurisdiction.
The specialized forum like the GFC is specifically and specially constituted for a particular offence and to try a particular referred accused. The jurisdiction of such a forum to try any person and the offences as such cannot be generalized like jurisdiction of a normal court of law constituted for the purpose of trying various offences. Courts constituted to try criminal offences exercise Crl. Writ Petition No.245 of 2010 18 jurisdiction in regard to territory placed under its control. The GFC, on the other hand, is convened by an authority, who is authorised under the Act to convene it and it would lack in jurisdiction to try a particular offence or offender if it is either not convened by the competent officer or is not strictly convened in terms of the provisions of the Act. In such cases,question of seeing a prejudice is immaterial. The jurisdiction is required to be tested on the touchstone of power to convene the GFC and power of GFC to continue with the trial having regard to the status of the offender and the nature of the offences. To further elaborate, it may be noticed here that if an officer who convenes GFC is not empowered under the Act to do so, then it would be rendered without jurisdiction irrespective of whether it has held the trial of a particular offender. It would be immaterial to see if such an offender had suffered any prejudice or not. Some class of person subject to the act can only be tried by GFC and not by any other forum of trial. Where an officer is put to trial by any other forum of trial, like Petty Force Court or the Summary Force Court, it would be without jurisdiction even if it had been convened by a proper competent officer and has held a trial which is not seen to be prejudicial in any manner. Still, it would lack jurisdiction as officer cannot be put to trial before a Petty Force Court. The plea to jurisdiction when raised on any count is, thus, required to be appreciated in this background. Reference here can be made to the case of Ranjit Thakur Versus Union of India, AIR 1987 Supreme Court 2386, where the Hon'ble Supreme Court has observed as under in regard to the nature of the provisions contained in the Army Crl. Writ Petition No.245 of 2010 19 Act from where these provisions have primarily been borrowed:-
"The Act and Rules constitute a self-contained code specifying offences and the procedure for detention, custody and trial of the offender by the courts martial. The procedural safeguards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the summary jurisdiction of the court martial and the severity of the consequences that visits the person subject to that jurisdiction. The procedural safeguards should be commensurate with the sweep of powers. The wider power, the greater the need for restraint in its exercise and correspondingly more liberal the construction of the procedural safeguards envisaged by the statute. The non-compliance of the mandate of section 130 is an infirmity which goes to the root of the jurisdiction and without more vitiate the proceedings."
This being the importance of the procedural safeguards, which are to be considered commensurate with the sweep of powers, the submissions as made are required to be examined accordingly. In terms of provisions of Rule 50 of the ITBPF Rules, a Commanding Officer alone is competent to direct preparation of record of evidence. Reference to the provisions of the rules from Rule 43 onwards would make it amply clear that the power of preliminary investigations vest with the Commanding Officer alone. Rule 43 lays down the manner of preparing the statement of allegations and thereafter Rule 44 provides for hearing of charge by an officer not below the rank of Crl. Writ Petition No.245 of 2010 20 Assistant Commandant. The witnesses are required to be heard in the presence of the accused who has a right to cross-examine the witnesses. The accused has also been given aright under Rule 44(1) (c ) to call witnesses in his defence and to make statement. Then Rule 45 makes a provision for hearing of a charge by Commanding Officer. The hearing is required to be done in the same manner as is provided in Rule 44(1) which talks of hearing of witnesses, right of cross-examination of witnesses by the accused and the right of the accused to call witnesses and to cross-examine the witnesses. As already noticed, the Commanding Officer under these provisions have a power to dismiss a charge or to award a punishment and these powers are to be exercised in alternative to the directions to prepare record of evidence. In this context, it is observed that the nature of power exercised under these rules would be judicial in nature and violation of any of the provision would certainly violate the entire subsequent proceedings and may render the trial without jurisdiction. Where powers are either not exercised or are exercised by an officer, who is not competent to do so or the procedure prescribed therein is not followed, the subsequent trial would certainly be rendered without jurisdiction.
While exercising powers under Rule 45, one of the options given to the Commanding Officer as can be made out from Rule 45(1)(iii) is to remand the case for preparing a record of evidence. Rule 50 then provides that Commanding Officer may either prepare a record of evidence himself or detail another officer to do so. Thus, it is clear that it is the Commanding Officer alone who is Crl. Writ Petition No.245 of 2010 21 competent to direct preparation of record of evidence. Admittedly, in this case recording of evidence was ordered to be prepared by Inspector General (Training) Zone BTC, Bhanu, who concededly and admittedly was not the Commanding Officer of the petitioner. The GFC of the petitioner has been ordered on the basis of this document which was not prepared under the directions of proper Commanding Officer. In this context, the view expressed by Delhi High Court in the case of Lance Dafedar Laxman Singh Versus Union of India, 1993(1) S.C.T. 405 may be noticed.
In the case of Lance Dafedar Laxman Singh (Supra) somewhat similar issue arose before the Court. There also the allegation was that the power to prepare the charge-sheet and direction to record summary of evidence, which is akin to the record of evidence, was not ordered by the proper Commanding Officer. The Hon'ble Delhi High Court in this regard has observed as under:-
"Not only there is a non compliance of mandatory rule, but there is a violation of this rule also. Rule 22 stipulates that the decision to proceed with the case further has necessarily to be that of the Commanding Officer. It is he who has to form an opinion whether to dismiss the charge or to proceed further. But in this case the Brigade Headquarter ordered for initiation of disciplinary proceedings on 27th February, 1983. It is the Brigade Commander who sent the .said inquiry report to the Commanding Officer for initiating the disciplinary action against the petitioner. This fact find support from the affidavit filed by Col. C.S. Gill in this Court in November, 1989. Army Rule 22 never envisaged that the higher authority should initiate the action and then pass on to the Crl. Writ Petition No.245 of 2010 22 lower authority for taking action. That would amount to mandate which is not what is stipulated in this rule. The power of commanding officer in this case was usurped by the Brigade Headquarter. The Commanding Officer being subordinate to it could not dare to disobey the order of the superior. In fact by this action of the Brigade Commander, it amounted to non application of mind of the Commanding Officer which is violative of Rule 22. The question which will arise in view of these facts. Can a Commanding Officer disobey the order of a superior? Since the superior gave the order of initiate disciplinary action, then where was the question of referring the case to the superior for order as required under sub Rule 3 of Rule 22 of the Army Rules. In fact the Brigade Headquarter by ordering the disciplinary inquiry in February, 1983 itself has prejudged the case of the petitioner. The investigation which was completed in March, 1983 is nothing but a farce because the superior authority had already formed an opinion to indict the petitioner which is in violation of Rule 22 of the Army Rules."
The counsel, accordingly, contends that in this case the entire proceedings would stand vitiated as the record of evidence and the charge-sheet was not directed to be prepared by the proper Commanding Officer.
Mr. Gurpreet Singh, however would stick to his line of submission and would rely upon Major G.S. Sodhi versus Union of India AIR 1991 SC 1617. The counsel would rely upon the observations made by Hon'ble Supreme Court, where it is observed that the Court was concerned with the final charge-sheet dated 5th October, 1985. From that, the Court found that all the details are Crl. Writ Petition No.245 of 2010 23 mentioned elaborately and it was signed by the Commanding Officer as well as Col.(Admn.) for the General Commanding Officer. It is accordingly, stated that even if the tentative charge was not signed, it would not make any difference. The same reasoning, as per the Court, apply to alleged non-compliance of Rule 25 read with Rule 22. It was also observed that even summary of evidence was recorded and we find that there is a substantial compliance. Counsel accordingly, pleads that this infirmity or so-called alleged errors would not have much affect on the proceedings and would not affect the jurisdiction of the GFC.
Counsel for UOI further refers to Major Sodhi's case (supra), where similar issue was again discussed by the Hon'ble Supreme Court. Counsel would rely upon the observation to the effect that there is substantial evidence to support conviction. The Court has observed that it is unnecessary to examine if the investigation was adequate or not. The requirement of proper and adequate investigation is not a jurisdictional and in violation thereof is not a valid to plead that the proceedings are vitiated. The Court referred to Rule 149 of Army Rules in support of these observations.
In the case of Major Sodhi's case (supra), relied upon by the counsel for the respondent-Union of India, the issue was not that the summary of evidence which is akin to record of evidence was not recorded under the directions of the proper Commanding Officer. Emphasis more was on non-compliance of Rule 25 read with Rule 22 of the Army Rules, which, to an extent are parallel to Rule 45. Here the basic grievance is that the powers were not exercised by the Crl. Writ Petition No.245 of 2010 24 proper Commanding Officer, who could have competently done so and not that these powers were not exercised by the Commanding Officer. Non-compliance in itself may not lead to vitiate the proceedings as per the amended provisions in the Army Rules, but where such powers are not exercised by competent officer at all, it would have to be viewed differently. It is not a question to see whether the investigation in a case was done properly or not, but it is a case of jurisdiction and power of the officer,who has conducted such investigation. That is the basic difference which arises in these cases and in this context the whole proceedings being based on record of evidence,which was prepared under the directions of an officer, who was not competent to exercise such powers, then affect thereof on the subsequent proceedings is to be seen. The Hon'ble Supreme Court found the view in Major Sodhi's case (supra) curable under Rule 149 of the Army Rules, but that was a case where a charge sheet had not been signed. The Court was not dealing with a case where powers had been exercised by an officer, who was not authorised or competent to do so. The submissions as made are to be appreciated in the background that exercise of such powers are judicial in nature and it may not be permissible to hold that judicial powers having not been exercised by the competent authority could still be glossed over. I am, thus, not inclined to accept the submissions made and pursued by the counsel appearing for the Union of India and would find that the proceedings in the present case are vitiated on this count and would lack in jurisdiction.
The power to direct investigation and to prepare a charge Crl. Writ Petition No.245 of 2010 25 sheet is only given to the Commanding Officer under the scheme of the Act and the rules framed thereunder. The Commanding Officer alone exercises certain powers as per Act and Rules. Power of investigation and to charge-sheet an officer rests solely with the Commanding Officer.
Chapter VII dealt with investigation and summary disposal of cases. Rule 43 of the ITBP Act ,1992 provides that where it is alleged that a person subject to the Act has committed an offence punishable under the Act, the allegation shall be reduced to writing in the Form set out in Appendix IV in the case of persons below the rank of Head Constable and in the Form set out in Appendix V in the case of officers and subordinate officers. Rule 44 makes a provision for hearing of charge by an officer not below the rank of Assistant Commandant. Rule 45 regulates the hearing of the charge by Commanding Officer.
Rule 45 would clearly reveal the power and the extent through which the Commanding Officer is to exercise under the Act and Rule. So far as plea of hearing is concerned it may be made discretionary in case of person subject to the Act as an officer but it is the Commanding Officer alone who is empowered to award punishment, dismissing the charge, remanding the case for preparing record of evidence or abstract of evidence against the accused and to hold his trial by Summary Force Court in case the accused happens to be below the rank of Head Constable. The Commanding Officer even exercises the power to dismiss the charge if the charge is not made out or may dismiss if he considers that because of the Crl. Writ Petition No.245 of 2010 26 previous character of the accused and the nature of charge against him it is not advisable to proceed further with it. Therefore, where the Commanding Officer is of the opinion that the charge against an officer or subordinate officer is serious in nature, he may, without hearing the charge in accordance with the provisions of sub-rule 1 straight away order a record of evidence or an abstract of evidence to be prepared in the case. The fact remains that the discretion is with the Commanding Officer to dispense with the hearing and direct preparation of record of evidence straightway but the power to direct preparation of record of evidence is with the Commanding Officer. The Commanding Officer in this case concededly has not directed the preparation of record of evidence.
The reasons given in this support are that the allegations were made against the Commanding Officer. Firstly, this fact does not emerge for the record in any manner. The allegations, if any, were that something unfair is being done to Dr. Amitabh Kumar. It was not against any particular person. This apparently is not a valid ground to direct that the powers of Commanding Officer which are given by the statute could be so exercised by any superior officer.
Learned counsel for the petitioner is justified in making reference to the provisions of Rule 48 of the Act. This rule provides that the Commanding Officer can not deal with any case where the offence with which the accused is charged is against the Commanding Officer himself or where the Commanding Officer is himself a witness in the case against the accused or where the Commanding Officer is otherwise personally interested in the case. Crl. Writ Petition No.245 of 2010 27 In such cases the accused is to be attached to another Battalion or unit or a head quarters for disposal of the case under the order of the competent authority. If this was the reason, to change the Commanding Officer of the petitioner obviously he ought to have been attached. The procedure adopted by the respondent in allowing a Superior Officer to exercise the power of Commanding Officer is certainly not an appropriate and legally permissible procedure prescribed in the Rule or under the Act. It can thus be stated that the powers of the Commanding Officer were not exercised by the Competent Officer. This was various rights of the petitioners had been curtailed in this manner once the powers are not exercised by the Commanding Officer and such powers are so exercised by the Superior Officer.
It is not appropriate to equate the present case with the facts as these would appear in Maj. Sodhi's case (supra) where the issue mainly related to the direction to hold preliminary investigation under Rule 22 read with Rule 25. That is not the issue here. The petitioner is not challenging the action to hold the preliminary investigation. To an extent, there is dilusion of requirement of hearing of charges under the provisions of ITBPF Act where holding of preliminary investigation is not legally essential under the rules as is under the provisions of Army Act, when Maj. Sodhi's case (supra) was decided.
The issue in the present case here is to exercise powers by Commanding Officer. As already noticed, an institution of Commanding Officer is unique under the scheme of these Crl. Writ Petition No.245 of 2010 28 enactments. As soon as an offence is committed, it is reported to the Commanding Officer. Obviously, it has to be so, if the Commanding Officer has a power to dismiss the charge after hearing the same. This can only be if he has to exercise some judicial powers. If the exercise of this power is delegated to some officer, who may be a superior officer obviously then the exercise of these judicial powers would by an officer who is incompetent and thus such powers are exercised by an officer not authorised to do under the Act. I have not been able to search any provisions under the Act or the rules, where superior authority gets the authority to dismiss the charge. The superior authority in my view, can exercise powers only once the case referred to said authority. Till the Commanding Officer makes a reference of any case, the superior authority does not get any power to exercise or invoke his jurisdiction which otherwise may be available for directing the trial by the General Security Force Court. In the present case, the initial lack of jurisdiction is clearly seen and visible. Record of Evidence is a very basic document, on which this trial has to take place. That was ordered to be prepared under the directions of the officer, who was not competent to do so. The powers of Commanding Officer was usurped by the superior authority without any authority. In my view, this will effect the jurisdiction of the trial, which is held in respect of the petitioner. The finding returned by such a Court and the sentence imposed thereof cannot be sustained.
The writ petition is, accordingly, allowed. The finding of guilty and the sentence which is confirmed are hereby quashed. The necessary consequences shall follow. The petitioner shall be entitled Crl. Writ Petition No.245 of 2010 29 to all the necessary consequences.
November 19, 2012 ( RANJIT SINGH ) reena JUDGE