Rajasthan High Court - Jodhpur
Manohar Singh vs Union Of India & Ors on 7 January, 2014
Author: P.K. Lohra
Bench: P.K. Lohra
[1]
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
ORDER
S.B. CIVIL WRIT PETITION NO. 1184/1994
Manohar Singh Vs. Union of India & Others
Petition under Article 226 of the Constitution of India
*****
DATE OF ORDER: January 7, 2014
PRESENT
HON'BLE MR. JUSTICE P.K. LOHRA
Mr. K.K. Shah, for the petitioner.
Mr. V.K. Mathur, Assistant Solicitor General of India
with Mr. Anirudh Purohit, for the respondents.
Reportable
BY THE COURT:
Challenge laid in this writ petition, by a Constable/Driver employed in Border Security Force (BSF), is against the impugned order dated 20th of May 1993 (Ex.2) denoting confirmation of findings and sentence, passed by the Inspector General Kashmir FTR BSF, Commanding Officer, Srinagar, whereby the petitioner was handed down a sentence of five years' rigorous imprisonment and penalty of dismissal from service, and [2] the appellate order dated 27th July 1994 (Ex.4) passed by Director General, BSF, New Delhi upholding order Ex.2.
Succinctly stated, the facts of the case are that the petitioner, while discharging his duties as a Driver of BSF, was charged for the offence under Section 376 of the Ranbir Penal Code (for short, 'RPC') with other active members of ambush party with a specific allegation that he ravished two ladies. The other members of the ambush party were also castigated for committing offence of murder and grievous hurts under different Sections of RPC. The alleged incident relates to curfew bound area, Achhabal - Diagam - Kukamag Road Tri-junction, in the night intervening 17/18 May, 1990. The incident was reported to the local police and after conducting investigation, charge sheet was submitted before the competent Magistrate, wherein the petitioner was not arrayed as an accused. The Magistrate took cognizance against 18 accused persons. Subsequently, the Magistrate handed over the persons named as accused in the FIR to the force custody and a decision was taken to try the accused persons by General Security Force Court (for short, hereinafter called 'GSFC').
Before the GSFC, a charge sheet was submitted against eight incumbents including the petitioner, and [3] against him offence under Section 376 RPC for committing rape of Mrs. 'M' and Mrs. 'A' was attributed. The GSFC conducted the trial and examined 24 prosecution witnesses including both the prosecutrix. The petitioner has categorically averred that neither his name finds place in the FIR, nor his name figured in the statements recorded under Section 161 Cr.P.C. According to the version of the petitioner, the charge sheet by the civil police was submitted against 18 BSF personnel. That apart, the petitioner has very specifically pleaded that he was never identified by anyone including both the prosecutrix in two identification parades. During trial before the GSFC, as many as six witnesses were examined as prosecution witnesses, who were named as accused persons in the charge sheet submitted before the Magistrate. The crux of the matter is that while assailing the entire proceedings conducted by GSFC, the petitioner has specifically pleaded that the GSFC ought to have proceeded from the stage it was taken over by the BSF from the criminal Court and GSFC ought not to have resorted to any other procedure of the trial.
Pointing out serious loopholes in the trial conducted by the GSFC, the petitioner has submitted that he has been made scapegoat and while indicting him for [4] offence under Section 376 of the RPC, reliance has also been placed on the six prosecution witnesses, who were accused in the original FIR. While referring to the proceedings undertaken by the GSFC, the petitioner has laid stress on the testimony of P.W.20, who according to him has categorically stated that he has filed challan against 18 personnel and not against the petitioner. Categorizing the impugned order as infirm and perverse, the petitioner has alleged in the writ petition that both the prosecutrix have neither deposed against the petitioner to prove the charge of molestation, nor was there any cogent and convincing medical evidence to prove said offence against him.
Taking a dig at the proceedings undertaken by GSFC, the petitioner has averred in the writ petition that both the prosecutrix have charged four persons for commission of rape, but GSFC has tried the petitioner and other individual K.H. Brojendro. The other accused Brojendro was also tried for offence under Section 302 IPC. In sum and substance, the pleadings of the petitioner are that the requisite procedure during trial for indictment of the petitioner for the alleged offence was thrown to winds and without any rhyme or reason he has been convicted for the offence by visiting him with the order of dismissal and [5] five years' rigorous imprisonment.
The writ petition is contested by the respondents and a detailed reply is submitted. In the reply, precisely, the respondents raised the objection about the maintainability of the writ petition on the anvil of lack of territorial jurisdiction of this Court. The preliminary objection to this effect, voiced on behalf of the respondents, found favour of the Court and a coordinate Bench of this Court non-suited the petitioner and thrown away the petition by its order dated 15th of October 2009. The order dated 15th of October 2009 was assailed by the petitioner before the Division Bench of this Court and the Division Bench vide its judgment dated 14th of September 2011 allowed the appeal and remanded the matter back for its decision on merits with a specific finding that this Court has territorial jurisdiction to entertain and decide the writ petition on merits.
Joining the issue on the merits of the case, the respondents in their return have specifically pleaded that the averments contained in the writ petition are absolutely false and hypothetical. According to respondents, GSFC has tried the petitioner along with other accused persons in [6] accordance with law and on his indictment for the offence under Section 376 RPC, the order impugned has been issued.
Taking a specific plea that scope of judicial review in such matters is very much limited, the respondents have pleaded in the reply that this Court in exercise of power under Article 226 of the Constitution of India is not obliged to re-apprise, re-assess or re-evaluate the evidence, nor it would sit as an appellate authority over the judgment passed by the GSFC constituted under the BSF law. While referring to Article 227(4) of the Constitution, the respondents have pleaded in the return that this Court cannot exercise power of superintendence over any Court or Tribunal constituted by or under any law related to the Armed Forces. As per the version of the respondents, the GSFC has considered the entire record and has given its finding specifically in order to prove the charge that petitioner is guilty of ravishing two ladies. In sum and substance, the respondents have defended their action and have also submitted that the sentence awarded to the petitioner has also been affirmed by the appellate authority and mercy petition has also been dismissed, therefore, no interference with the impugned order is warranted. [7]
During the course of hearing, the original record of the proceedings of GSFC was produced for perusal of the Court.
The learned counsel for the petitioner Mr. K.K. Shah has vehemently argued that after taking cognizance against the accused persons by a criminal Court when the matter was taken up by the BSF authorities for proceeding with the trial of the BSF sleuths it ought to have proceeded against 18 accused persons for holding Court of Enquiry followed by hearing of charge and recording of evidence in adherence of the Criminal Courts and Border Security Force Courts (Adjustment of Jurisdiction) Rules 1969 (for short, 'Adjustment Rules of 1969') and by not doing so the BSF authorities have acted at their whims and fancy to proceed against eight persons only including the petitioner while bailing out the other eleven accused persons, itself is sufficient to vitiate the entire Court of Enquiry/trial. Mr. Shah, learned counsel for the petitioner, would contend that there is no quarrel in the factual position that neither the petitioner was named in the original FIR, nor there was any semblance of evidence in the statements under Section 161 Cr.P.C. to array him as an accused in the matter, yet he has [8] been named as accused with seven other persons by the GSFC Court and subjected to trial in an absolutely arbitrary and illegal manner in gross violation of the Border Security Force Rules, 1969 (for short, 'Rules of 1969 hereinafter).
Taking a dig at the procedure for trial adopted by the BSF authorities during trial, learned counsel Mr. Shah has urged that the entire proceedings were in contravention of law laid down by Hon'ble Apex Court. In support of this contention, the learned counsel for the petitioner has placed reliance on a verdict of Hon'ble Apex Court in case of Union of India Vs. Major S.K. Sharma [AIR 1987 SC 1878]. In the said verdict, the Hon'ble Apex Court while examining the true purport of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1978 which are almost para-materia to the Adjustment Rules of 1969, has made following observations in Para 12 to 14 of the judgment:
12. Our attention has been drawn by learned counsel for the appellants to S.125 of the Army Act. Section 125 provides that when a Criminal Court and a court-martial have each jurisdiction in respect of an offence it will be in the discretion of the Commanding Officer of the accused to decide before which Court the proceedings shall be instituted. This provision is of no assistance in deciding whether it is open to the Army authority to take proceedings for determining prima facie whether there is substance in the allegations made against the accused and decline to try [9] him by a court-martial or take other effectual proceedings against him even where a Magistrate has taken cognizance of the offence and finds that there is a case for trying the accused.
13. On the aforesaid analysis we are of opinion that the Army authority is not entitled to ignore the proceeding taken by the Additional Chief Judicial Magistrate and to invoke the provisions of R.22 and related rules of the Army Rules. The Additional Chief Judicial Magistrate having held that there is a case for trying the two accused officers and having directed their appearance, the Army authority must proceed to hold a court-martial for their trial or take other effectual proceedings against them as contemplated by the law. The contention advanced by learned counsel for the appellants to the contrary must be rejected.
14. We have also been referred to the provisions of the Army Rules relating to Courts of Inquiry, and learned counsel for the appellants urges that notwithstanding the proceeding taken by the Additional Chief Judicial Magistrate it is open to the Army authority to hold a Court of Inquiry and determine whether there is any case for trying the accused by a court-martial. We have been taken through R.177 of the connected Rules which deal with the institution and conduct of Courts of Inquiry, but we see nothing in those provisions which can support the contention now raised before us. If, on the analysis detailed earlier it is not open to the Army authority to have recourse to R.22 and investigate the charge directed against the accused officer in this case, for the same reason it is not open to it to hold a Court of Inquiry and supersede the proceedings already taken by the Additional Chief Judicial Magistrate.[10]
Learned counsel for the petitioner, while assailing the proceedings undertaken by the GSFC, has urged that when cognizance was taken against 18 accused persons by the Magistrate how and in what manner before the GSFC only eight accused persons were tried including the petitioner while exonerating the rest of the 11 accused persons, is a matter of grave and serious concern casting grave and serious doubts on the legality of the entire proceedings. Authenticating his submission in this behalf, learned counsel for the petitioner would urge that the BSF authorities have in fact devised a novel procedure to extend undue favour to their blue eyed persons who were the accused in the original FIR and have made the petitioner scapegoat for subjecting him to trial for the offence under Section 376 RPC. Reiterating his submissions in this behalf, the learned counsel further submits that during identification parade which was carried out twice, when both the prosecutrix have not identified the petitioner, how and in what manner he has been tried for the offence of rape. Laying emphasis on the testimony of PW1 Inspector Sanmukh Singh, learned counsel for the petitioner has contended that when the petitioner was not armed how a prudent man can draw this inference that he was involved in [11] commission of an offence including the offence of rape. Categorizing the trial conducted by GSFC as an eye wash, the learned counsel would urge that when both the prosecutrix have charged four persons of BSF for offence of molestation how and in what manner only two individuals including the petitioner were singled out to face the trial for the offence of rape. Mr. Shah has argued that on the face of it the entire proceedings undertaken by the GSFC is an attempt to shield the real culprits at the cost of penalizing an innocent individual like the petitioner without any rhyme and reason. Laying stress on the testimony of both the prosecutrix, the learned counsel for the petitioner has argued that none of them have deposed against the petitioner during trial and the entire edifice of the indictment of the petitioner for the offence of ravishing these two ladies is essentially founded on the evidence of six witnesses who were unworthy of any credit as they were arrayed as accused in the FIR. Placing reliance on Illustration (b) of Section 114 of the Indian Evidence Act 1872, learned counsel for the petitioner would urge that an accomplice cannot be a competent witness even against the accused persons then how he can be a competent witness against an innocent individual like the petitioner. Mr. Shah has further argued that in want of there being any [12] corroboration by both the prosecutrix, the finding of GSFC for indictment of the petitioner for the offence of rape cannot be sustained. Questioning the legality of the proceedings undertaken by GSFC, learned counsel for the petitioner has argued that at no point of time the petitioner was subjected to medical examination which was pre- requisite when a person is charged for the offence of rape. Referring to Section 53 of the Cr.P.C., learned counsel has argued that the police has also not subjected the petitioner to medical examination because he was not charged for the offence of rape, further fortifies his contention that the entire trial conducted by GSFC was nothing but a farce, which has resulted in his dismissal and punishment of five years rigorous imprisonment in clear negation of Article 21 of the Constitution of India.
Attacking the order passed by the appellate authority, learned counsel for the petitioner has submitted that the appellate authority has not assigned any reason much less sufficient reasons for dismissal of the appeal preferred by the petitioner against the punishment order and therefore the same cannot be sustained. In support of this contention, the learned counsel for the petitioner has placed reliance on a Division Bench judgment of Delhi High [13] Court in Hansraj Vs. Union of India & Ors. (2006 2 SCT page 1), wherein while examining Section 117 of the Border Security Force Act, Rule 99 of the Border Security Force Rules 1969, and Army Rules on the touch stone of Article 14 & 16 as well as principles of natural justice, the Division Bench of Delhi High Court has held in Para 20 to 22 as under:
20. We are of the view that S.N. Mukherjee's case (supra) was postulated on the premise discernible from paragraph 46 of the judgment which was to the effect that the reasons were not required to be given to the post confirmation petition under Section 164 (2) as there was no statutory requirement of giving reasons in support of the findings of confirmation based upon an analysis inter alia of existing Rule 62. Since the amendment of the Rule 62 in the year 1993 has already put in the requirement of giving reasons in support of the findings of court martial, the position of law laid down in S.N. Mukherjee's case in so far as it held that reasons in support of orders under Section 164(2) of the Army Act were not required to be given no longer holds the field.
The other position of law laid down in S.N. Mukherjee's case (supra) was discernible from the paragraph 39 which clearly held that except to the extent where the requirement to record reasons was dispensed with expressly or by necessary implication, the administrative authority exercising quasi or non-quasi judicial function was required to record reasons. In our view even S.N. Mukherjee's case (supra) required the recording of reasons by administrative authority exercising quasi or non-quasi judicial function except when the requirement to record reasons was dispensed with expressly or by necessary implication. In the aforesaid Mukherjee's case (supra) the Constitution Bench of the Hon'ble Supreme [14] Court held that the said requirement was necessarily excluded by implication by virtue inter alia of the then existing Rule 62 of the Army Rules. Since Rule 62 has been since amended and recording of reasons have been expressly included therein, the reasoning contained in paragraph 39 of the S.N. Mukherjee's case (supra) to the following effect comes into play:-
'39. For the reasons aforesaid, it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision.
Since in the amended Army Rule 62 the requirement of recording reasons in support of a Court Martial verdict has now been statutorily incorporated, the principles laid down in S.N. Mukherjee's judgment far from supporting the plea of the learned Addl. Solicitor General Shri P.P. Malhotra, in fact supports the plea of the petitioners; about the requirement of recording reasons in support of a decision under Section 117(2) of the BSF Act.'
21. The Hon'ble Supreme Court noted while observing about the general Court Martial that the findings and sentence of a Court Martial under the then existing Army Act did not require the recording of reasons as evident from the Act and the Rules. Keeping the above position of law which permitted the Court Martial Finding to be without recording of reasons in view of the pre-amendment Rule 62, the Hon'ble Supreme Court observed that the consideration of reasons which applied while awarding the sentence of Court Martial are equally applicable in the case of proceedings of confirmation under Section 164 (2) of the Army Act. It was thus observed that since reasons were not required to be recorded at the stage of recording of findings and the [15] confirmation of the finding, they were not required to be recorded at the state (stage?)of post confirmation petition under Section 164 (2) of the Act. In our view since Rule 62 has since been amended in 1992 after the judgment in S.N. Mukherjee's case (supra) the entire foundation of the aforesaid judgment in S.N. Mukherjee's case based on unamended Rule 62 in our view cannot now be held applicable in Court Martial proceedings which arose from the amended Rule 62 which requires the recording of reasons. Since Court Martials after the amendment of Army Rule 62 are required to record reasons, the rationale or the reasons of S.N. Mukherjee's case can no longer be said to apply to the situation emerging pursuant to the amended Rule 62 requiring recording of reasons. Accordingly, in our view in confirmation petitions pursuant to court martials which subsequent to the amendment in Rule 62 are required to record reasons for their decision, the post confirmation petition disposal is required to be with reasons. Indeed we find that the observations in paragraph 39 of S.N. Mukherjee's case clearly indicate that except where the requirement of recording the reasons has been dispensed with by necessary implications, an administrative authority exercising judicial or quasi-judicial evidence is required to record the reasons for its decision.
We are also respectfully bound by the view taken by the Division Bench of this Court in Nirmal Lakra's case (supra) in paragraph 29 of the judgment wherein it was clearly stated that unless reasons are assigned, the High Court under Article 226 or the Supreme Court under Article 32 would not be able to find out as to whether any illegality, irrationality or procedural impropriety has been committed. In Lakra's case (supra) it was thus held that this Court would thus be required to undergo a stressful exercise of going through the entire records and arriving at a decision that there were sufficient evidence to uphold the decision of conviction and sentence and in such a situation, the very purpose of having a limited [16] power of judicial review may in a large number of cases be lost. We are not only in respectful agreement with the aforesaid view of the Division Bench but we are indeed bound by it. Even De smith, Woolf and Jowell in Judicial Review of Administrative Action, Fifth Edition, Sweet and Maxwell, Landon 1995, has clearly held that giving of reasons is widely regarded as the principle of good administration and leads to consistence in decision making as well as exclusion of extraneous considerations. It has also been observed that giving of reasons may protect the body from unjustified challenges because those adversely affected are more likely to accept the decision if the reasons for the decision were known. De Smith has also noted that requirement of recording the reasons is particularly important where decisions are subject to right of appeal on a question of law.
22. We follow the position of law as stated in Nirmal Lakra's case (supra) that while examining the challenge to conviction recorded in the Court Martial and its conformation, the reasons recorded therein would furnish valuable aid and save time of the High Court in its exercise of writ jurisdiction under Article 226 of the Constitution of India.
Per contra, learned counsel for the respondents, at the very outset has urged that scope of judicial review in the matter of findings of GSFC is very much limited and such power is to be exercised sparingly. Mr. Anirudh Purohit for Mr. V.K. Mathur, learned counsel for the respondents, would urge that although power of judicial review under Article 226 is available but that power cannot be exercised for re-appraisal of evidence available on record [17] or to sit over the judgment or the finding of guilt recorded by the Military Tribunal. In support of this contention, learned counsel for the respondents has placed reliance on a decision of Hon'ble Apex Court in case of Union of India & Ors Vs. Bdupalli Gopalaswami [(2011) 13 SCC 553]. In this verdict, while examining the scope of judicial review under Article 226 vis-à-vis court-martial proceedings, the Hon'ble Apex Court made following observations in Para 24:
24. The principles relating to judicial review in regard to court-martial proceedings are well settled. Unless the Court Martial has acted without jurisdiction, or exceeded its jurisdiction or had acted perversely or arbitrarily, the proceedings and decision of the Court Martial will not be interfered in exercise of the power of judicial review.
The learned counsel has also placed reliance on a decision of Hon'ble Apex Court in B.C. Chaturvedi Vs. Union of India [(1995) 6 SCC 749], wherein the Hon'ble Apex Court has held that in departmental enquiry power of judicial review under Article 226 of the Constitution of India is not akin to appellate jurisdiction and such power is to be exercised with care and circumspection.
Mr. Anirudh Purohit, learned counsel for the [18] respondents, has also placed reliance on a decision of Hon'ble Apex Court in case of Union of India Vs. Himmat Singh Chahar [(1999) 4 SCC 521]. It was a case of a Naval Officer who was tried by the competent authority in court-martial proceedings. While examining the scope of review, the Apex Court has held that judicial review under Article 226 is permissible only when there has been infraction of any mandatory provisions of the Act prescribing the procedure which has caused gross miscarriage of justice or where violation of principles of justice is apparent. The Hon'ble Apex Court laid down following parameters in this behalf in Para 4 of the verdict:
4. Since the entire procedure is provided in the Act itself and the Act also provides for a further consideration by the Chief of the Naval Staff and then by the Union Government then ordinarily there should be a finality to the find-
ings arrived at by the competent authority in the court-martial proceedings. It is of course true that notwithstanding the finality attached to the orders of the competent authority in the court-martial proceedings the High Court is en- titled to exercise its power of judicial review by invoking jurisdiction under Article 226 but that would be for a limited purpose of finding out whether there has been infraction of any mandatory provisions of the Act prescribing the procedure which has caused gross miscarriage of justice or for finding out that whether there has been violation of the principles of natural justice which vitiates the entire proceedings or that the authority exercising the jurisdiction had not been vested with jurisdiction under the Act. The said power of judicial review cannot be a power of an appellate authority permitting [19] the High Court to reappreciate the evidence and in coming to a conclusion that the evi-
dence is insufficient for the conclusion arrived at by the competent authorities in court-mar- tial proceedings. At any rate it cannot be high- er than the jurisdiction of the High Court exer- cised under Article 227 against an order of an inferior tribunal. This being the parameter for exercise of power of judicial review against the findings of a competent authority in court-mar- tial proceedings, and applying the same to the impugned judgment of the High Court we have no hesitation to come to the conclusion that the High Court overstepped its jurisdiction in trying to reappreciate the evidence of Mrs Nir- mala Sharma and in coming to the conclusion that her evidence is not credible enough to give a finding of guilt against the respondent of a charge under Section 354. We have also pe- rused the statement of Mrs Nirmala Sharma and the conclusion becomes inescapable on the basis of the said statement of Mrs Nirmala Sharma that the respondent has been rightly found to have committed offence under Section 354 by the authorities in the court-martial pro- ceedings.
In support of his contention, the learned counsel has also placed reliance on two decisions of Hon'ble Apex Court in case of Union of India Vs. Major A.Hussain [(1998) 1 SCC 537] and the Constitution Bench judgment of the Hon'ble Apex Court in case of S.N. Mukherjee Vs. Union of India [(1990) 4 SCC 594].
The Hon'ble Apex Court, in S.N. Mukherjee's case (supra), while dilating on the power of judicial review in [20] respect of court-martial, has held that appropriate relief can be granted to an aggrieved individual if the proceedings have resulted in denial of fundamental rights guaranteed under Part III of the Constitution. The Hon'ble Supreme Court made following observations in Para 42:
42. Before referring to the relevant provisions of the Act and the Rules it may be mentioned that the Constitution contains certain special provisions in regard to members of the Armed Forces. Article 33 empowers Parliament to make law determining the extent to which any of the rights conferred by Part III shall, in their application to the members of the Armed Forces be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline amongst them. By clause (2) of Article 136 the appellate jurisdiction of this Court under Article 136 of the Constitution has been excluded in relation to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.
Similarly clause (4) of Article 227 denies to the High Courts the power of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces. This Court under Article 32 and the High Courts under Article 226 have, however, the power of judicial review in respect of proceedings of courts martial and the proceedings subsequent thereto and can grant appropriate relief if the said proceedings have resulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said proceedings suffer from a jurisdictional error or any error of law apparent on the face of the record.
In Major A. Hussain's case (supra), laying down [21] the parameters and yardsticks for power of judicial review, the Hon'ble Apex Court has held in Para 23 as under:
23. Though court-martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the court-martial is not subject to the superintendence of the High Court under Article 227 of the Constitution. If a court-martial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter any court must stay its hands. Proceedings of a court-martial are not to be compared with the proceedings in a criminal court under the Code of Criminal Procedure where adjournments have be-
come a matter of routine though that is also against the provisions of law. It has been rightly said that court-martial remains to a significant degree, a specialised part of overall mechanism by which the military discipline is preserved. It is for the special need for the armed forces that a person subject to Army Act is tried by court-mar- tial for an act which is an offence under the Act. Court-martial discharges judicial function and to a great extent is a court where provisions of Evi- dence Act are applicable. A court-martial has also the same responsibility as any court to protect the rights of the accused charged before it and to follow the procedural safeguards. If one looks at the provisions of law relating to court-martial in the Army Act, the Army Rules, Defence Service Regulations and other Administrative Instructions of the Army, it is manifestly clear that the proce- dure prescribed is perhaps equally fair if not more than a criminal trial provides to the ac- cused. When there is sufficient evidence to sus- tain conviction, it is unnecessary to examine if pre-trial investigation was adequate or not. Re- quirement of proper and adequate investigation is not jurisdictional and any violation thereof does not invalidate the court-martial unless it is shown that the accused has been prejudiced or a mandatory provision has been violated. One may usefully refer to Rule 149 quoted above. The High Court should not allow the challenge to the [22] validity of conviction and sentence of the accused when evidence is sufficient, court-martial has ju- risdiction over the subject-matter and has fol- lowed the prescribed procedure and is within its powers to award punishment.
Lastly, the learned counsel has also placed reliance on a Division Bench decision of this Court in case of Roop Singh Vs. State of Rajasthan [2006 (5) WLC (Raj.) 1]. The Court, while examining the scope of judicial review vis-a-vis Summary Court Martial under Article 226 observed in Para 39 as infra:
39. The scope of judicial review under Article 226 of the Constitution is well known by catena of decisions of the Apex Court. Briefly stated, the High Court while exercising power of judicial review does not sit as a court of appeal;
it can go into the correctness or otherwise of the decision-making process, but it cannot consider the correctness of decision itself. Further, where there is some material to sustain the finding, the High Court would not go into the question of adequacy. In Union of India Vs. Major A. Hussain (supra) the Supreme Court disapproved "a minute examination" of the record of the general court-martial by the High Court - "as if it was sitting in appeal - and held that when there is evidence to sustain conviction, it was unnecessary to examine if pre-trial investigation was adequate or not.
I have heard learned counsel for the rival parties, perused materials available on record and thoroughly scanned the original record of the proceedings undertaken [23] by GSFC which was placed before me by the learned counsel for the respondents.
The first and the foremost question, which has cropped up in the instant case for adjudication, is the culpability of the petitioner for the offence of ravishing two ladies as a member of ambush party. Indisputably, the petitioner was member of the ambush party as Constable/Driver of the vehicle and when the vehicle reached at the spot, which was a curfew bound area, the entire incident has occurred. The occurrence of such an incident in a curfew bound area, which was obviously a gory tragedy, is a cause of grave and serious concern. The members of the ambush party were castigated for committing serious offences like murder, grievous hurt and molestation of two hapless ladies. Commission of such serious offences by the members of an ambush party, was obviously a shocking incident, more particularly, when the offenders involved in the entire episode were belonging to a uniformed force like BSF responsible for security of the borders of the Nation. The seriousness of the incident obviously warranted immediate stern action against the erring BSF Sleuths. When the incident was reported to the police by way of lodging First Information Report, in all 18 persons were named as accused barring the petitioner and [24] the Magistrate took cognizance against all of them. Subsequently, at the behest of BSF authorities the trial was taken over by the BSF and the same was handed over to GSFC for undertaking trial against the accused persons.
It is really strange that although the Magistrate has taken cognizance against 18 individuals wherein name of the petitioner did not figure but the BSF authorities while proceeding with the trial have changed the position topsy- turvy by exonerating eleven persons at their discretion for the reasons best known to them and subjected rest of the seven persons who were named in the FIR along with the petitioner for trial and while arraying the petitioner as an accused in the trial, he was charged for commission of offence of rape against two prosecutrix, namely, Mrs. 'M' and Mrs. 'A'. The facts, as emerge out from the proceedings of GSFC, reveal that the members of the ambush party bifurcated at the site in two groups and some of them took away one lady towards one direction and rest of the members took away the other lady towards opposite direction. The ambush party has also shown violence and aggression by using fire arms and committing the offence of murder at the site. After taking both the ladies in two different directions, the BSF sleuths have molested them. It [25] is in these circumstances, applying the normal rule of prudency; it is per-se unbelievable that anyone from the ambush party was simultaneously involved in commission of rape of both the ladies. Thus, on the face of it, the charges which were framed against the petitioner for subjecting him to the GSFC proceedings do not inspire confidence and the procedure evolved and adopted by the authorities for conducting the trial is per-se infirm, which smacks a partisan attitude of the competent authorities to cover up and camouflage serious omissions of some of the BSF officials. There is nothing on record to show that while proceeding with the trial, the GSFC has resorted to Section 319 Cr.P.C., or Rule 57 & 58 of the Rules of 1969 for making amendment of the charges including the decision for arraying petitioner as an accused. It is trite that any decision prejudicial to interest of an individual in such proceeding cannot be taken without a notice or opportunity of being heard to him as contemplated under Rule 57 & 58 of the Rules of 1969.
Moreover, there is no whisper in the pleadings of the respondents to deal with this aspect of the matter. This sort of a situation strengthens apprehension of this Court that procedure adopted for trial is under serious clouds to [26] make entire proceedings shoddy and all the more vulnerable. True it is that witness Mohanlal has deposed against the petitioner but he is one out of six individuals who were arrayed as accused in the original FIR. In common parlance, his testimony cannot be construed as of any credibility, more particularly when there is no iota of evidence to connect the petitioner with the commission of rape of both the prosecutrix. Even if his testimony is objectively examined, the same cannot be construed as evidence of substance to establish culpability of the petitioner for the offence.
This Court is quite conscious that ravishing a hapless lady is a very grave and serious offence, which is unpardonable but then there has to be some cogent and convincing evidence to connect the accused with the commission of the offence. A serious charge of rape cannot be presumed to have been established against an individual on hearsay evidence, or on evidence which is unauthenticated and full of doubts and suspicion. If the statements of both the prosecutrix are examined then it will ipso facto reveal that they have given a very hazy picture and there is no attempt made at their behest in their statements to indict the petitioner for the offence of rape. [27] In want of there being any medical evidence to substantiate the allegation of rape, it is rather impossible to record a finding of guilt against the petitioner. For establishing charge of rape, it is desirable that the evidence which is tendered for bringing home guilt against an individual has to be authentic and reliable so as to prove the charge in terms of law of evidence by a Security Force Court because according to Section 87 of the Border Security Force Act of 1968 general rule as to evidence are applicable in these proceedings.
True it is that the petitioner was subjected to court-martial proceedings but when the outcome of such proceedings is likely to visit the petitioner with evil and civil consequences including his confinement, it has to be in consonance and conformity with the principles of natural justice and in adherence of law of evidence. Strong suspicion, strange or co-incidences and grave doubts cannot take the place of a legal proof to indict a man and crucify him for the alleged offence. Law of evidence cannot be thrown to winds to bring home guilt against an individual on hazy, unauthentic and unreliable evidence. This sort of situation obviously may result in travesty of justice. [28]
The argument canvassed by the learned counsel for the respondents that scope of judicial review is very much limited, cannot be doubted but while examining the matter wherein a man has been punished for a serious offence of molestation, this Court cannot shut its door to exercise its power of judicial review at the cost of sacrosanct fundamental right of a citizen enshrined under Article 21 of the Constitution of India i.e. freedom of life and liberty. The concept of right to life and liberty as enshrined under Article 21 of the Constitution of India being a guaranteed fundamental right, undoubtedly is very wide in its scope and applicability and with the advent of modern strides in jurisprudence with the revolutionary pronouncement of the Apex Court, in judgment after judgment over the past two decades or so, has assumed wider connotations and amplifications. Thus, deprivation of someone from his fundamental right of liberty in an absolutely arbitrary and unreasonable manner in the guise of conducting a trial, which is nothing but a sham, cannot be lost sight of by this Court on a jejune plea of the respondents about the limited scope of judicial scrutiny in such matters. Even the judgment of the Constitution Bench in S.N. Mukherjee's case (supra) on which the learned counsel for the respondents has placed heavy [29] reliance, the ratio decidendi is clear and unambiguous that this Court can certainly exercise its power of judicial review if it is noticed by the Court that fundamental right of an individual is seriously invaded.
While concurring with the dictum of Hon'ble Apex Court in various authoritative pronouncements that while exercising power of judicial review in court-martial proceedings under Article 226, this Court cannot sit as an appellate authority so as to re-appraise the evidence available on record, however, it cannot be said that the Court should remain a silent spectator even at the cost of putting a citizen's fundamental right to jeopardy. Therefore, in the backdrop of peculiar facts and circumstances wherein this Court is reminded at the behest of the petitioner about his sacrosanct fundamental right of life and liberty, it has become imperative for this Court to examine the record of the proceedings for ascertaining and unearthing the truth. On examining the record, the glaring infirmities which are revealed, speak volumes about the fact that the evidence which was tendered against the petitioner for proving the charge of ravishing two ladies, i.e. committing offence under Section 376 RPC, is not even satisfying the test of standard of proof insisted for disciplinary enquiries, namely, [30] preponderance of probabilities much less the required standard of proof for a criminal trial i.e. proof beyond all reasonable doubts. Moreover, if the evidence available on record is construed properly and tested on the touchstone of the law of evidence, then it is rather impossible to indict the petitioner for the offence. One more mitigating factor of great significance is that the petitioner was not subjected to medical examination which can weigh heavily in his favour to absolve him from the accusation of rape.
There is yet another facet of the case which requires judicial scrutiny in the backdrop of the facts and circumstances of the instant case. On thorough examination of the proceedings undertaken by the GSFC it is amply clear that while subjecting the petitioner for the proceedings/trial by arraying him as an accused for the offence of molestation and subsequently without there being any cogent and convincing evidence recording a finding of guilt and sentencing him, the competent authority has taken into account certain facts and circumstances, which were totally non-existent, or extraneous and not germane to the matter while conveniently ignoring the facts and circumstances which were relevant and germane to the matter. Therefore, the irresistible conclusion of this Court [31] is that the impugned punishment ex-facie suffers from the vice of malice in law and malice in fact warranting interference. Reliance in this behalf can be profitably made to a decision of Hon'ble Apex Court in case of Smt. S.R. Venkataraman Vs. Union of India [(1979) 2 SCC 491].
Upon thrashing out the matter threadbare, there remains no shadow of doubt that the petitioner has been subjected to the GSFC proceedings in gross violation of the prescribed procedure for such proceedings, which has seriously prejudiced his cause. That apart, on scanning materials on record, it can be inferred by any prudent man that it is not a case of inadequacy of evidence, rather a case of no evidence to prove charge of rape against the petitioner. As observed supra, the entire proceedings undertaken against the petitioner, which has culminated into the impugned order, suffers from the vice of malice in law and malice in fact, while exercising limited power of judicial review on all these counts, the order impugned cannot be sustained. In these circumstances, the appellate order, whereby the appellate authority has fully concurred with the verdict of GSFC, also cannot be sustained for the simple reason that the original order is infirm and nonest in the eye of law. Thus, the orders Ex.2 and Ex.4 are liable to be [32] annulled.
Before parting, the Court is constrained to observe that an incumbent like the petitioner, who was a poor Constable/Driver, has in fact been made a scapegoat and as a consequence of the impugned order he has suffered the sentence of five years rigorous imprisonment which deserves to be deprecated in the given circumstance. The Court is quite conscious that in view of passage of time, it is not possible to roll back the clock but then to salvage the sufferings of the petitioner for remaining in confinement for five years, some monetary relief is required to be given to him to meet the ends of justice.
The net result of the above discussion is that the present writ petition is allowed, impugned order dated 20th of May 1993 (Ex.2) i.e. confirmation of findings and sentence passed by the Inspector General Kashmir FTR BSF, Commanding Officer, Srinagar, and the appellate order dated 27th July 1994(Ex.4) passed by Director General, BSF, New Delhi, are quashed and set aside, and the petitioner is ordered to be reinstated in services of the respondents with all consequential benefits excluding the back wages. The petitioner is also declared entitled for a lumpsum amount of [33] compensation for his confinement for five long years, as a consequence of an illegal and nonest order and the amount for the same is quantified to the tune of Rupees two lacs only. The petitioner is also declared entitled for cost of litigation, which is assessed at Rs.10,000/- only.
(P.K. LOHRA), J.
arora/