Jammu & Kashmir High Court
Balwant Singh vs Union Of India (Uoi) And Anr. on 21 February, 1991
Equivalent citations: 1992CRILJ1712
ORDER B.A. Khan, J.
1. The petitioner seeks quashment of order dated April 29, 1985 passed by respondent No. 2 under Section 40(a) of the Army Act whereby he was convicted and sentenced to undergo three months Rigorous Imprisonment, besides having dismissed from service.
2. Briefly put the facts of the case are as follows:--
The petitioner's case is that he was enlisted in the Army on January 17, 192.2. A false and frivolous report was lodged against him and it was alleged that he had struck No. 1050008Y LD Rattan Lal, the Guard Commandar on his head with a stick on April 17, 1985 at Ambala Cantt. Consequent upon the charge having been framed against him, a summary of evidence was recorded in terms of Rule 23 of the Army Rules. Thereafter, a Summary Court-Martial was convened on April 29, 1985 and on the same day, the petitioner was convicted and sentenced to undergo 3 months Rigorous Imprisonment, besides dismissal from service, based on the plea of "guilty" allegedly made by him.
3. The petitioner has challenged the order impugned on a number of grounds. The main thrust of the attack against the plea of guilt allegedly recorded in violation of the relevant provisions of the Army Rules. The other grounds includes the petitioner's having been not granted the facility of interpreting and of a counsel/friend, besides the non-furnishing of the summary of evidence, disabling him from arranging his defence properly.
4. In the counter-affidavit filed and sworn in by Lt. Col. Dinesh Chiber, it is submitted that the petitioner was tried by the Summary Court Martial in accordance with the provisions of the Army Act and the Rules made thereunder and no violation of the principles of natural justice had been committed during the trial. Refuting the pleas raised in the writ petition, it is averred that the petitioner was tried for using criminal force against a superior officer and that when he was summoned before the Summary Court Martial and apprised of the Commission of Offence by him, he pleaded guilty to the charge. As such, the petitioner had unambiguously confirmed the fact that he had understood the nature of the charge. The Summary Court Martial had also informed the petitioner about the general effect of his plea and procedure which would follow consequent thereupon. It is further submitted that the petitioner had pleaded guilty to the charge of his own free volition and there was no occasion for the Summary Court Martial to record further evidence in the matter. It is also claimed that after recording the plea of guilty, the summary of evidence was read over to the petitioner. Regarding the presence of other two persons in the Summary Court Martial, it is stated that the required two persons were present and also that 2nd Lt. H. S. Chehal was appointed as friend of the petitioner-accused according to his choice. The summary of evidence and charge-sheet were provided to the petitioner in advance and prior to his trial on April 24, 1985 to enable him to arrange his defence and before recording the plea of guilty the Summary Court Martial had satisfied itself with respect to the petitioner having understood the meaning and nature of charge to which he had pleaded guilty and that the petitioner had been warned with respect of the general effect of the plea and the procedure to be followed thereupon.
5. The matter was heard in part on December 7, 1990 when the learned counsel for the petitioner came up with some new legal pleas alleging infraction of the provisions of Sections 130 and 116 of the Army Act by the respondents. The contention in this regard was buttressed by the assertion that the petitioner had not been asked as to whether he would like to be tried by the Officer sitting on the Court. A challenge was also thrown to the constitution of the Summary Court Martial and in this regard it was submitted that since the Court had not been attended to throughout by two other persons the proceedings conducted stood vitiated. In support thereof, he placed reliance on .
6. Regarding the plea of guilty recorded, doubts were raised regarding the manner and method of recording it and it was contended that the same could not be sustained in law nor could any conviction be based on it. The learned counsel also laid great emphasis on the punishment imposed on the petitioner, which, according to him, was disproportionate and shocking to the conscience. Since the arguments could not be concluded on Dec. 7, 1990, the learned counsel for the parties were directed to submit written submissions, if any, which they did and which on examination throw no new light on the merits of the controversy.
7. The learned counsel for the respondents Mr. D. P. Gupta sought to repel the contentions raised and pointed out that judgment stood reviewed by the Hon'ble Supreme Court, holding that the provisions of the Section 130 of the Army Act were not applicable to the Summary Court Martial. He also relied upon the judgment of the Hon'ble Supreme Court to contend that respondent No. 2 being Commanding Officer was competent to convene and preside over the Summary Court Martial and that two other persons, namely, Major S. S. Khobra and Major Bashesher Singh throughout attended the Court. He also submitted that there was not question of falling back upon the provisions of Section 24 of the Evidence Act for scrutinising the requirements of plea of guilty as an elaborate procedure in this regard stands laid down in Rules 115 and 116 of the Army Rules.
8. The submission regarding breach of provisions of terms of Sections 130 and 116 is misplaced and invites rejection on the very thresh-hold. Even a cursory look at Section 130 would show that it brings within its ambit only trials by General, District or Summary General Court Martial. The fourth category of Court Martial i.e. Summary Court Martial is per se excluded. Therefore, there was no question or occasion to ask the petitioner-accused as to whether he wanted to object to be tried by an officer sitting on the Court. It is true that in the Hon'ble Supreme Court held this section to be applicable even to Summary Court Martial. But on a review, the error stands rectified. Therefore, this issue is no more res integra.
9. Regarding challenge to the Constitution of the Summary Court Martial in terms of Section 116 of the Army Act, the record does not bear out the submission. As held in Commanding Officer (respondent No. 2) was surely competent to convene and constitute the Court. The very letter of the provision-- Section 116(1) manifestly makes it clear that a Summary Court Martial may be held by the Commanding Officer of any Corps, Department or detachment and he shall alone constitute the Court. Sub-clause (2) of Section 116 does provide that the proceedings shall be attended throughout by two other persons, which requirement also stands satisfied as per the record.
10. Viewed thus, I have no hesitation in holding that the respondents have not violated any of the terms of Sections 116 and 130 of the Army Act.
11. Now the sole question that falls for determination is whether the requirements laid down in Rules 115 and 116 of the Army Rules have been satisfied while recording the plea of guilty of the petitioner? Before coming to the brass tacks, it would be beneficial to make reference to the set of Rules laying down procedure for trial by the Summary Court Martial. These Rules figure in Section 3 of the Army Rules, 1954. Rule 106 provides that the Court shall record or cause to be recorded the transaction of every Court Martial. Rule 108 talks about the accused being brought before the Court. Rule 109 provides that Court shall make oath or affirmation in the terms given therein. Rule 111 provides for the arraignment of accused on charges against him. Rule 115 sets out the procedure for recording the plea of guilty by an accused person and requires to be extracted which is done as under :--
Rule 115(1)-- The accused person's plea-guilty or not guilty... shall be recorded on each charge.
(2) If an accused person pleads 'guilty' of that plea shall be recorded as finding of the Court, but before it is recorded, the Court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea and in particular of the meaning of the charge to which he has pleaded guilty and what difference in procedure which will be made by the plea of guilty and shall advise him to withdraw that plea, if it appears from the summary of evidence (if any) or otherwise that the accused ought to plead not guilty....
Sub-clause (2) of Rule 116 reads as follows:--
"After the recording of plea of guilty on a charge (if the trial does not proceed on any charge), the Court shall read the summary of evidence and annex it to proceedings or if there is no such summary, it shall take and record sufficient evidence to enable it to determine the sentence and the Reviewing Officer to know all the circumstances connected with the offence....
Rules thereafter up to Rule 133 deal with other procedural aspects. Out of these, Rule 129 says that an accused person may have a person to assist him during the trial who may advise him on all points and suggest the questions to be put to the witnesses. He is called the friend of the accused.
Besides these Rules, there is another set of General Rules, which relate to investigation of charges and trial by all types of Court Martial. Out of these, Rules 22 to 24 are of relevance in the matter. Rule 22 provides for the hearing of a charge against a person subject to the Army Act other than an officer. Sub-clause (3) of this Rule provides a number of options to the Commanding Officer. Rule 23 provides procedure for taking down the summary of evidence. Rule 24 provides for the remand of the accused or for reference of the case to the superior authority and even for dismissal of charge, upon consideration of the summary of evidence.
The rules aforesaid have been referred to only to highlight the procedural safeguards provided therein to an accused person. While surveying these rules, it becomes evident that sufficient regard has been given to the principles of natural justice at every stage whether pre-trial or during the trial. That is why many of these Rules have been held to be mandatory by the courts and above all by the Hon'ble Supreme Court.
Whether or not the requirements of a particular set of rules are satisfied in a particular case can only be found by examining the record of the proceedings of particular Court Martial. In the instant case, the respondents have submitted the record of the proceedings of the Summary Court Martial before this Court. I have examined this record minutely and have considered it in right earnest. From the record it appears to be an appealing case where all procedural safeguards provided by the Rules have been thrown to the winds. The trial has been conducted and completed in one hour and forty five minutes on the same day (29th April). It commenced at 11.1 hours on the fateful day culminating in warrant of commitment at 1 p.m. Record does not provide any clue about any hearing of the charge held in terms of Rule 22. Under this Rule, the hearing of a charge against an accused has some purpose and it requires a satisfaction to be recorded by the Commanding Officer for the subsequent options he may resort to in terms of Sub-clause (3) of this Rule.
Similarly, there is no record of any order directing recording of summary evidence. The record relating to summary of evidence does not bear any date. Nor is anything borne by the record to show that the summary of evidence was considered by the Commanding Officer before remanding the petitioner for trial by the Summary Court Martial. If anything, these rules appear to have been more observed in breach.
The same is the case with regard to "plea of guilty". On page B all that is recorded in reply to the questions to the accused is word--GUILTY. Thereafter a piece of paper appears to have been affixed on page B which contains the requirements laid down in Rule 115. It nowhere transpires that whatever is contained in this piece of paper has been put to the petitioner-accused. Nor does this transaction recording plea of guilty bear any signatures of the officer constituted the Court or for that matter the petitioner.
On page C, in reply to the question whether the petitioner-accused want to make any statement in reference to the charge or any mitigation to the punishment the answer recorded is "I want to continue serving in the Army". Pages D to H are blank signed by the Officer constituting the Court. On page I, the general character of the petitioner accused is recorded as "exemplary".
In this scenario as would be evident, the plea of guilty recorded is in flagrant violation of the terms of Rule 115 of the Army Rules. It is not known who recorded the plea and whether the same was recorded in presence of the accused. It is also not known whether before recording the plea, the Court had ascertained that the accused understands the nature of charge to which he was pleading guilty. Nor is there any thing to show that the petitioner-accused had been informed of the general effect of plea and of the difference in procedure which would be made by the plea. It is also not known whether the petitioner-accused was advised to withdraw the plea and so on.
In the counter-affidavit, sworn in by Col. Dinesh Chiber, it is stated that the averments made in the affidavit were to the best of the deponent's knowledge and information received. There is no mention whether the knowledge and information by the deponent was derived from the record. If it was so, then the record reveals a different story altogether and negates all averments made by the deponent in his counter-affidavit regarding the requirements provided in Rule 115 of the Army Rules having been satisfied by the Summary Court Martial. Therefore, no credence can be given to the case set up by the respondents in their counter-affidavit. Nor can deponents any personal knowledge be relied as he admittedly did not constitute the Summary Court Martial.
The conclusion is, therefore, inevitable that there has been no compliance with Rule 115 of the Army Rules, not to speak of Rules 22 to 24.
This obviates the necessity of going into the other side lights of the matter, which I do not deem proper to examine on merits.
In the result, I allow this writ petition and quash the order impugned to the extent, the petitioner-accused has been dismissed from service. I direct that the petitioner shall be re-instated in service with all consequential benefits. Even as the whole order was liable to be quashed, the relief given to the petitioner require to be modified in the light of his having already undergone the sentence of three months Rigorous Imprisonment.