Delhi High Court
Sandeep Malik vs Union Of India And Anr. on 6 April, 1995
Equivalent citations: 1995IIAD(DELHI)209, 1995(34)DRJ9
JUDGMENT Vijender Jain, J.
(1) Petitioner was posted on, Indo-Bangladesh Border. He was charged that he raped a Bangladeshi minor girl named Ms.Razia Khatoon. Thereafter, he was court- maratialled, found guilty and sentenced to undergo R.I. for 4 years and dismissal from service.
(2) The petitioner was tried by General Security Force Court under Sec.47 of the Border Security Force Act read with Sec.376 IPC. The statutory petition before respondent no.2 / Director General of Bsf was also rejected.
(3) MR.R.P.SHARMA learned counsel for the petitioner has argued that no investigation and hearing of the charge as contemplated by Bsf Rule 45 was done. In support of his contention Mr.Sharma has cited Lt.Col.Prithi Pal Singh Bedi v. Union of India wherein it was held that Rule 45 was mandatory. The petitioner has challenged the procedure adopted by the Tribunal and assailed its findings about the identity, antecedents, credentials of minor girl, her mother and the doctor as all of them were foreign nationals not amenable to the jurisdiction of the Court Martial Court. On that score Mr.Sharma has argued that the evidence of such foreign nationals which was not recorded in conformity with the Bsf Act and Rules and under the provisions of Sec.285 of the Code of Criminal Procedure (hereinafter referred to as the Code) cannot be taken into consideration for sustaining the conviction of the petitioner.
(4) MR.SHARMA has further contended that once the Bsf authorities had received the complaint from the Commandant, Bangladesh Rifles for alleged rape of a minor girl by B.S.F. men, the only legal and proper course for the Commandant of the petitioner was to hold an immediate Court of Inquiry to establish the truth of the allegations and thereafter investigation ought to have been conducted under Bsf Rule (5) MR.SHARMA has also assailed the constitution of the Court Martial court. He has argued that the Commandant without holding the mandatory hearing ordered the preparation of records of evidence and, therefore, the said record of evidence had no legal validity. Another contention of Mr.Sharma was that Shri S.S.Dogra, who was appointed as Law Officer at the trial by the Inspector General, North Bengal (Convening Officer) was the Legal Adviser of the Convening Officer himself as he was then working in the office as the Joint Assistant Director (Law) and in that capacity he had applied his mind to the proceedings and therefore he stood disqualified to act as Law Officer at the impugned trial and his association has rendered the trial illegal and cofam non judice. In his support he has cited Lance Dafedar Laxman v. Union of India & Ors. .
(6) MR.SHARMA has also contended that there was inherent contradictions in the statements of the prosecutrix and her mother who have deposed before the court martial proceedings that they went to the doctor after 3 days of the incident and the testimony of Bangladeshi doctor who deposed that he examined the prosecutrix on the next date of occurrence. Mr.Sharma has laid great, emphasis on non-compliance of Ss. 89 of the Bsf Act. Sec.89 of the Act deals with summoning of witnesses which reads:- "SUMMONINGwitnesses: (1) The convening officer, the presiding officer of a Security Force Court, the Law Officer or, as the case may be, the officer approved under section 83 or the Commandant of the accused person may, by summons under his hand, require the attendance, at a time and place to be mentioned in the summons, of any person either to give evidence or to produce any document or other thing. (2) In the case of a witness who is subject to the Act, the summons shall be sent to his Commandant and such officer shall serve it upon him accordingly. (3) In the case of any other-witness, the summons shall be sent to the magistrate within whose jurisdiction he may be, or resides, and such magistrage shall give effect to the summons as if the witness were required in the court of such a magistrate. (4) When a witness is required to produce any particular document or other thing in his possession or power, the summons shall describe it with reasonable precision."
(7) Section 91(4) deals with cases when the witness resides in a tribal area or in any place outside India, it reads:- "When the witness resides in a tribal area or in any place outside India, the commission may be issued in the manner specified in Chapter Xl of the Code of Criminal Procedure, 1898."
(8) SEC.91(4) of the Bsf Act makes it manifestly clear that if a witness is in a country or place outside India, then the commission has to be issued in terms of the provisions of the Code of Criminal Procedure. What Mr.Sharma has contended is that in the present case there is complete non-compliance of provisions of Sec.89 of the Act as the witnesses on the basis of their testimony, the petitioner has been convicted and sentenced has been brought on the signal message of the Commandant BSF' to his counter-part Commandant of Bangladesh Rifle who has sent these witnesses without complying the procedure laid down in the Code of Criminal Procedure as mandated by Secs. 89 and 91 of the Bsf Act and on this short ground alone this Court while exercising its writ jurisdiction may quash finding of the court martial court.
(9) On the other hand, Mr.K.C.Mittal has argued that it was obligation of the respondent to secure the presence of the witnesses and it was not necessary as to how the witnesses were brought before the general court martial court. What Mr.Mittal argued is that Sec.89 is applicable only in relation to witnesses who are resident in India and in the present case as the witnesses were from Bangladesh Sec.89 will have no applicability. The alternate argument advanced by Mr.Mittal is that even if Sec.89 was applicable to the present case that will not vitiate the trial as it would only be an irregularity in procedure. In his support he has cited Major G.S.Sodhi v. The Union of India Jt 1991 (5) Sc 55. He has contended that no prejudice was caused to the petitioner, petitioner cannot take recourse to a procedural irregularity to escape the conviction of the court martial. Mr.Mittal has also argued that in view of a decision in writ petition under Article 226 of the Constitution of India by this Court in Cw 205/93 (Ex.Major R.S.Budhwar Vs. Union of India & Ors.) decided on 24.2.95, the jurisdiction of this Court while exercising jurisdiction under Article 226 of the Constitution of India is limited as this Court would set aside any finding of the tribunal while exercising jurisdiction under Art. 226 of the Constitution of India when the court come to a conclusion that there was an error of jurisdiction or the finding of the tribunal was lacking on account of total lack of evidence. He has also cited Air 1983 Sc 991 and Air 1981 Sc 559 in support of his submissions. On merit Mr.Mittal has contended that there was total compliance of Sec.45 of the Act and the Law Officer was-fully competent to be a member of the court.
(10) I have given my careful consideration to the arguments advanced by learned counsel for both the parties.
(11) It is true that this court while exercising its jurisdiction under Art.226 of the Constitution of India is not sitting in appeal against the judgment of the court of court martial. This court will also not go into the sufficiency or insufficiency of the evidence which was led before the court martial court hut keeping in view the mandate of legislature as reflected in Secs. 89 and 91 of the Bsf Act the court has to see whether the court martial proceedings were in accordance with law or not and if court comes to a conclusion that the proceedings were not in accordance with law laid down the court will not hesitate to quash the judgment and order. In Prithi Pal Singh's case (supra) it was held:- "In a larger interest of the national security and military discipline Parliament in its wisdom may restrict or abrogate such rights in their application to the Armed Forces but this process should not be carried so far as to create a class of citizens not entitled to the benefits of the liberal spirit of the Constitution. Persons subject to Army Act are citizens of this ancient land having a feeling of belonging to the civilised community governed by the liberty oriented constitution. Personal liberty makes for the worth of human being and is a chershed and prized right. Deprivation thereof must be preceded by an inquiry ensuring fair, just and reasonable procedure and trial by a judge of unquestioned integrity and wholly unbiased.............
(12) Supreme Court quoting Justice Black observed:- "Court-martial are typically ad hoc bodies appointed by a military officer from among his subordinate. They have always been subject to varying degrees of 'command influence'. In essence, these tribunals are simply executive tribunals whose personnel are in the executive chain of command. Frequently, the members of the court-martial must look to the appointing officer for promotion's, advantageous assignments and efficiency ratings - in short, for their future progress in the service. Conceding to military personnel that high degree of honestly and sense of justice which nearly all of them undoubtedly have, the members of a court-matrial, in the nature of things, do not and cannot have the independence of jurors drawn from the general public or of civilian judges."
(13) In case Ranjit Thakar v. Union of India and Others is HELD:-"The Act and the Rules constitute a self contained Code, specifying offences and the procedure for detention, custody and trial of the offenders by the Courts-Martial. The procedural safeguards contemplated in the Act must be considered in the context of and corresponding to the plentitude of the summary jurisdiction of the Court- Martial and the severity of the consequences that visit the person subject to that jurisdition. The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the 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 Sec-130 (Army Act) is an infirmity which goes to the root of the jurisdiction and without more, vitiates the proceedings."
(14) In R.S.Bhagat's case (supra) it is held:- "Although the Court-Martial is not a part of judicial system and is not a court in strict sense, it is a Court of its own kind, sui generis. It is a combination of jury trial and a trial by a Judge. The proceedings before the Court- Martial are judicial proceedings of the species of criminal proceedings. The Cr.P.C. does not apply But the Evidence Act applies like civil courts. The duty to act judicially is writ large in the provisions of the Army Act and Army Rules. The Court-Martial proceedings are amenable to writ jurisdiction of the Supreme Court and the High Court. In particular, writ of certiorari can be issued by the Supreme Court under Art. 32 and by High Court under Art- 226 of the Constitution. The need for the writ jurisdiction of the Supreme Court and High Courts was explained by Dr.B.R-Ambedkar, in the Constituent Assembly in the following words: I should, however, like to say this that cl.(2) does not altogether take away the powers of the Supreme Court or the High Courts. The law does not leave a member of the Armed Forces entirely to the mercy of the tribunal constituted under the particular law. For, notwithstanding cl.(2) of Art.112, it would still be open to the Supreme Court or to the High Court to exercise jurisdiction, if the Court-Martial haS exceeded the jurisdiction given to it or the power conferred upon it by the law relating to the Armed Forces. It will be open to the Supreme Court as well as the High Courts to examine the question whether the exercise of jurisdiction is within the ambit of law which creates or constitutes this court or tribunal. Secondly, if the courtmartial were to give a finding without any evidence, then again, it will be open to the Supreme Court as well as the High Courts to entertain an appeal in order to find out whether there is evidence ...... Similarly, if I may say so, it would be open for a member of the Armed Forces to appeal to the court for the purpose of issuing prerogative writs in order to examine whether the proceedings of the Court-Martial against him are carried on under any law made by the Parliament or whether they Were arbitrary in character. This article is a necessary article. It really does not do anything more but gives a statutory recognition-to a rule that is prevalent and which is recognised by all superior courts."
(15) From the catena of case law on this subject it is clear that this Court will not like to sit in appeal over the judgment of the Court-Martial. This Court will also not exercise its jurisdiction and will not go into the sufficiency or insufficiency of evidence but once the legislative intentions are manifestly clear that in case of witnesses who are not lying in India but living in foreign territory Sec.91(4) of the B.S.F. Act provides that the provisions of Code of Criminal Procedure would be applicable to summon such witnesses, then how the respondents can justify their action in not summoning the witnesses in accordance with mandate of Sec.285 of the Cods. This was not a procedural lapse. It amounts to non-compliance of the provisions of Sec.91(4) of the Act. The non-compliance of Sec.91(4) itself was a material irregularity which affected the right of the petitioner. The learned counsel for the petitioner is right in agitating before me as to how without knowing the identity of the witnesses who were sent on the command of a Commandant of Bsf by his counter-part the Commandant of Bangladesh Rifle any credibility or credence can be given to the evidence led by these witnesses. I do not see any force in the contention urged before me by the respondent that Sec.89 of the Bsf Act is not applicable and, therefore, it was open to the Bsf authorities to get the witnesses before the Court of Court-Martial in any manner as they liked. That will be making a mockery of rule of law which is neither warranted nor intended by the legislature and cannot be permitted by this Court. I may not go to other grounds agitated before me by the petitioner as I hold that the proceedings of the court-martial are vitiated on account of non-compliance of the provisions of the Act and on this ground alone I set aside the impugned order of conviction and sentence passed by the Court-Martial Court dated 27.6.92. The petition is allowed. I quash the proceedings of the impugned court-martial. The petitioner shall be entitled to a consequential benefits. The rule is made absolute.