Smt. Saranya G.S. vs Union Of India on 6 April, 2021

[Cites 9, Cited by 1]

Madhya Pradesh High Court

Smt. Saranya G.S. vs Union Of India on 6 April, 2021

By this petition, the petitioner has prayed for a writ of habeas corpus alleging that the respondents have illegally detained the petitioner's husband. The petitioner has also challenged the order dated 23rd of February, 2021 in respect of open arrest of the petitioner's husband Hawaldar Sumesh B. with effect from 23.02.2021 till further orders.

2. The case of the petitioner is that a Court of Inquiry under Army Rules, 1977 has been ordered in respect of irregularities pertaining to clothing stores of 1TTR and that the petitioner's husband Hawaldar Sumesh B. is one of the witness in the said Court of Inquiry and was moved on temporary duty to 2TTR to appear as a witness but the respondent No.4 without any justifiable reason has placed the petitioner's husband in custody. The allegation of the petitioner is that her husband is in illegal detention as her husband has been kept in open arrest in violation of the provisions of the Army Act, 1950 (for short 'the Act') and the Army Rules, 1954 (for short 'the Rules').

3. The respondents have filed their reply and have raised the plea that there was reasonable suspicion against the petitioner's husband and to secure speedy and fair investigation and to W.P. No.7309/2021 (2) remove the possibility of tampering of evidence, the petitioner's husband has been placed in military custody. The further plea has been raised that the custody of the petitioner's husband in accordance with the provisions of the Army Act and the Rules as also the Regulations.

4. Learned counsel for the petitioner submits that the petitioner has been placed in custody by making bald allegation of tampering of evidence and affecting the proceedings without there being any supporting material in this regard. He has further submitted that the petitioner is only a witness in the Court of Inquiry and is not an accused, therefore, he cannot be placed in custody invoking Section 101 of the Act. He has also submitted that the entire action of the respondent No.4 and 5 suffers from malafide, therefore, the petitioner's husband had filed a complaint Annexure P/3 against them before the Commandant but no action has been taken on that complaint till now and that the action against the respondent No.4 and 5 is required to be taken under Section 50 of the Act. She also submitted that the sanction of the Commanding Officer has not been taken in respect of the arrest.

5. Learned counsel for the respondents has opposed the petition by submitting that the action against the petitioner's husband has been taken in terms of Section 101 and 102 of the Act and Regulation 391 and 392 of the Regulation. She has further submitted that since the conduct of the petitioner's husband during the COI was suspicious, therefore, he has been taken in custody and that Annexure R/9 reflects that there is sanction of the Commanding Officer.

W.P. No.7309/2021 (3)

6. We have heard the learned counsel for the parties and perused the record.

7. Annexure R/3 reflects that the Court of Inquiry has been instituted to investigate and collect the evidence related to the circumstances under which various discrepancies and irregularities were found in the issue of clothing item to the TPS/ST of 1TTR. The said Court of Inquiry has been instituted in terms of Chapter VI of the Rules. In terms of Rule 182 of the Rules, the proceedings of Court of Inquiry are not admissible in evidence.

8. The Calcutta High Court in the matter of Gurman Singh vs. Union of India and others reported in 1984 Cr. LJ 718 has held that the court of inquiry is merely helps the Officer Commanding to satisfy himself whether there is any prima facie material for proceeding with the investigation of charges and trial by Court Martial. The Delhi High Court in the matter of Harbhajan Singh vs. Ministry of Defence, Govt. of India and others reported in (1982) 2 SLJ LLJ 387 has held that the object of Court of Inquiry is usually of fact finding.

9. The reply of the respondents clearly reflects that the petitioner's husband is only a witness before the Court and not an accused/delinquent. The respondents in paragraph 16 of their reply have clearly stated that only to secure speedy and fair investigation and to remove the possibility of tampering of evidence, petitioner's husband has been placed in military custody, therefore, this Court is required to see if for such a purpose a witness in the Court of Inquiry can be placed under the military custody.

W.P. No.7309/2021 (4)

10. Though in the reply, the respondents have made an allegation that some information about objectionable act of the petitioner's husband was received from the Presiding Officer and Members of Inquiry which raised reasonable suspicion against him but no details of such information have been disclosed.

11. The respondents have placed reliance upon Section 101 and 102 of the Act in support of their source of power to take the petitioner's husband in military custody. Section 101 and 102 of the Act which reads as under:

"101. Custody of offenders.

(1) Any person subject to this Act who is charged with an offence may be taken into military custody.

(2) Any such person may be ordered into military custody by any superior officer.

(3) An officer may order into military custody any officer, though he may be of a higher rank, engaged in a quarrel, affray or disorder.

102. Duty of commanding officer in regard to detention.

(1) It shall be the duty of every commanding officer to take care that a person under his command when charged with an offence is not detained in custody for more than forty-

eight hours after the committal of such person into custody is reported to him, without the charge being investigated, unless investigation within that period seems to him to be impracticable having regard to the public service.

(2) The case of every person being detained in custody beyond a period of forty- eight hours, and the reason thereof, shall be reported by the commanding officer to the general or other officer to whom application would be made to convene a general or district court- martial for the trial of the person charged.

(3) In reckoning the period of forty- eight hours specified in sub-section (1), Sundays and other public holidays shall W.P. No.7309/2021 (5) be excluded.

(4) Subject to the provisions of this Act, the Central Government may make rules providing for the manner in which and the period for which any person subject to this Act may be taken into and detained in military custody, pending the trial by any competent authority for any offence committed by him."

A bare reading of Section 101 reveals that a person who is charged with an offence can be taken into military custody. This Court in the matter of Major Gopinathan vs. State of M.P. and another reported in AIR 1963 MP 249 has held that the expression 'charged with an offence' has been used in the sense of 'accused of an offence'. The petitioner's husband is not an accused in an offence but he is merely a witness. The High Court of Judicature at Patna by order dated 22nd of October, 2014 passed in Criminal Writ Jurisdiction Case No.535/2013 in the matter of Ram Padarath Singh vs. State of Bihar has also taken the view that the expression 'charged' means an accusation which may be under inquiry or investigation. There is no accusation against the petitioner's husband which is under inquiry or investigation before the COI. Section 102 of the Act casts certain duty on the Commanding Officer but no substantial material has been pointed out to show that requirement of Section 102 have been complied with by the Commanding Officer.

12. The respondents have also placed reliance upon the Regulation 391 and 392 of the Regulations for the Army Volume-I which reads as under:

"391. Military Custody.- (a) Under Section 101 of the Army Act any person subject to military law, when charged with an offence punishable under the Army Act, may be taken into military custody which means that the offence is placed W.P. No.7309/2021 (6) under arrest.

(b) Arrest is either close arrest or open arrest.

When arrest is not described by the authority ordering it as open arrest, it means close arrest.

392. Arrest.- (a) The power of an officer, JCO, WO or NCO to place an offender in military custody is defined in Section 101 of the Army Act.

(b) An officer, JCO or WO may be placed under arrest by a competent authority when charged with an offence, but he will not ordinarily be placed under arrest by an authority other than his CO unless the needs of discipline so require, nor will he be kept under arrest unless his CO is satisfied, on investigation, that it will be necessary to proceed with the case and to report it to superior authority."

The above Regulations also reveal that a person "when charged with an offence punishable under the Army Act" can be taken in custody. Nothing has been pointed out by the respondents to show that the alleged conduct of the petitioner's husband as witness is punishable under any provision of the Army Act. That apart, counsel for the respondents have also failed to point out any statutory provision under which these Regulations have been framed.

13. The Supreme Court also in the matter of Joginder Kumar vs. State of U.P. and others, 1994 (4) SCC 260 in paragraph 13 has held that in the case of arrest of a member of Armed Force, Army, Navy or Air Force, intimation should be sent to the Officer Commanding the unit to which the member belongs immediately after the arrest is affected. It has further been held that denying a person of his liberty is a serious matter. A person is not liable to be arrested merely on suspicion of complicity in an offence. There must be reasonable justification W.P. No.7309/2021 (7) in the opinion of the officer affecting the arrest that such arrest is necessary and justifiable and except in heinous offences, an arrest must be avoided.

14. The record further reflects that the petitioner's husband is in military custody/open arrest with effect from 23 rd of February, 2021. About one and half months have passed. No time limit has been mentioned in the impugned order. He cannot be kept in the military custody for indefinite period denying him personal liberty without any justifiable reason.

15. Hence, we are of the opinion that the impugned order dated 23.02.2021 in respect of MIL custody of the petitioner's husband cannot be sustained and is hereby set aside. The respondents are directed to release the petitioner's husband, however, they will be at liberty to impose appropriate condition at the time of release to ensure smooth completion of the COI. The petitioner will be at liberty to take up separate proceedings in respect of her plea for initiating action against respondents No.4 and 5 in accordance with law. At this stage, the said plea need not be gone into as the respondent No.4 and 5 have been impleaded in personal capacity and there is no Vakalatnama of the said respondents on record.

16. The petition is accordingly allowed.

                             (PRAKASH SHRIVASTAVA)                    (VIRENDER SINGH)
                                  JUDGE                                    JUDGE
YS

Digitally signed by YOGESH
KUMAR SHRIVASTAVA
Date: 2021.04.09 18:17:36 +05'30'

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Madhya Pradesh High Court