Punjab-Haryana High Court
G.N. Pandy vs Union Of India & Others on 21 November, 2011
Author: Ranjit Singh
Bench: Ranjit Singh
Crl. Writ Petition No.904 of 2001(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Writ Petition No.904 of 2001(O&M)
DATE OF DECISION: November 21, 2011
G.N. Pandy, Assistant Commandant .....Petitioner
VERSUS
Union of India & 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. V.K. Sharma, Advocate
for the petitioner.
Mr. Karminder Singh, Advocate,
for Union of India.
****
RANJIT SINGH, J.
The petitioner, who was serving as Assistant Commander in Indo-Tibetan Border Police Force (for short 'ITBPF'), has filed this petition to impugn his trial by General Security Force Court (GSFC) and its findings and so also the sentence imposed by the Court. Besides, the petitioner has also challenged the order of confirmation and the final order of punishment of compulsorily retirement imposed by confirming authority.
The facts noticed in brief are that the petitioner had joined ITBPF as Constable (Operator) and was promoted as Junior Intelligence Officer on 21.12.1971. He was, thereafter, promoted as Inspector on 14.1.1982 and Subedar Major on 4.12.1990. Finally the petitioner was promoted as Assistant Commander on 10.2.1994, Crl. Writ Petition No.904 of 2001(O&M) -2- whereupon he joined 22nd Battalion of ITBPF located at Jalandhar. On 9.4.1999, he was deputed on temporary duty in Kashmir valley and was camping at Jeewan Camp at Srinagar, but was ordered to shift at Chandigarh. The petitioner claims to have performed well and submits that his service record was quite satisfactory.
On 11.9.1999, an incident took place at Jeewan Camp. While the petitioner was taking rest in his room, Head Constable Guard Ram Saroop apprised him that some Sikhs, who were living in the front of the post, are throwing the torch light towards Santry posts. On being told by the Santry not to do so, the Civilians had started abusing the Guard besides saying that they will shoot the Guard. As per the petitioner, he was not feeling well and told the Guard Commander to go to Incharge Inspector/Guard Ranu Ram, who should examine the situation. Guard Commander left the room of the petitioner to report to the Incharge Inspector/Guard Ranu Ram.
Since the personal weapon of the petitioner was not with him and was lying at little distance from the Guard room, he came out of his room and called Pandit Maharaj Kishan, whose house was in front of his room. When he did not come out of the room, the petitioner gave a ring to Control Room, where Head Constable S.U. Siddique was on duty and told him to send QRT to report the petitioner. While the petitioner proceeded towards the Badmintor Court, he met Inspector Ranu Ram who was not in uniform. The petitioner directed him to wear the uniform and bring his weapon as it was dangerous to go to Guard Room in dark keeping in view the possible presence of militants.
The petitioner then started waiting for the QRT and Crl. Writ Petition No.904 of 2001(O&M) -3- Inspector Ranu Ram. After about 20-25 minutes, he saw 15-20 Jawans coming towards the ground with some people. The petitioner then saw that three Sikhs and 3 non-Sikhs were sitting on the ground with their hands tied but the petitioner did not saw Inspector Ranu Ram there. While the petitioner was inquiring, some persons from 5th Battalion reached there in civil dress and one of them shouted loudly for Pandy. The petitioner then inquired from the six civilians about their identity and learnt that two of them were Jawans of J&K Police. The petitioner ordered to untie their hands and all the six persons gave their identity. The petitioner directed the Jawans to record their statements and to release them. After sometime, one Mr. Raina came to the place and asked where those six persons were. On being told that they were released, the petitioner was escorted by 4 to 5 Jawans to the Gate and one of the Jawan even kicked the petitioner with boot on his right knee.
The incident was reported which led to inquiry and ultimately to framing of charges against the petitioner. Charge-sheet containing four charges was, accordingly, issued to the petitioner. The first charge was under Section 23 of the Indo Tibetan Border Police Force Act, 1992 (hereinafter referred to as 'the Act') for disobedience to the Superior Officer. Second charge was under
Section 43 of Act for violation of good order and discipline of the Force alleging that he failed to control the troops and did not exert himself as the situation demanded. The petitioner was also accused of making false accusation under Section 37 of the Act. There is another charge under Section 44(a) of the Act for miscellaneous offences. Inspector Ranu Ram was tried with the petitioner for Crl. Writ Petition No.904 of 2001(O&M) -4- separate offence alleged against him under Section 43 of the Act.
The petitioner pleaded not guilty to the charges. He was, accordingly, tried by GSFC and was found guilty of 1st and 2nd charges, but not guilty of 3rd and 4th charges. Thereafter, the petitioner awarded the following sentences:-
"(a) To forfeit of seniority of rank for two years and forfeit of two years past service for the purpose of promotion.
(b) To forfeit two years of further service for the purpose of increased pay, without cumulative effect."
As per the provisions of the Act, the sentence was announced, subject to confirmation. The confirming authority at the time of confirmation of the proceedings and sentence, however, found that the GSFC had not kept in view certain aspects while imposing penalty and accordingly, issued a revision order for reconsideration of the sentence. Thereafter, the Court reassembled for the purpose of reconsidering the sentence in the light of observation made by the confirming authority. The GSFC thereafter enhanced the sentence and the petitioner was ordered to be dismissed from service. This enhanced sentence was again announced subject to confirmation. When the proceedings came up before the Director General, ITBPF, he commuted the sentence of dismissal to that of compulsory retirement and confirmed the sentence so varied vide order dated 22.9.2000. Order dated 22.9.2000 passed in this case is as under:-
"I have gone through the proceedings, and find no legal default. In matter of quantum of punishment, I Crl. Writ Petition No.904 of 2001(O&M) -5- find the considered punishment of Dismissal from service in the case of Shri G.N. Pandey, AC(GD) (U/s) is excessive, and alternately I change it to Compulsory Retirement from service.
2. The Punishment of Compulsory Retirement awarded to No.650010405 Inspector (GD) Ranu Ram is commensurate with the gravity of offence, and does not require any change.
3. I confirm the findings and sentence of General Force Court, as so varied."
The petitioner, thus, has challenged the proceedings as well as the final sentence of compulsory retirement imposed on him.
In support of his plea, counsel for the petitioner has raised single-fold submission to the effect that the confirming authority had no power to direct the revision of sentence and once the directions were given to revise the sentence, it really left no option with the GSFC but to revise the sentence. Thus, the revised sentence as imposed or the sentence initially imposed by the Court cannot be sustained.
As per Section 51 of the Act, compulsory retirement is one of the sentence. This is besides the dismissal or removal from service, which is separately prescribed as sentence under this Section. Thus, the sentence imposed by the GSFC, which was varied at the time of confirmation is the sentence, which is duly authorized under the Act.
The petitioner primarily has challenged the power of the confirming authority to direct revision of the finding or the sentence. It may need a notice that finding recorded by the GSFC was subject to confirmation as can be seen from the order passed by the Force Crl. Writ Petition No.904 of 2001(O&M) -6- Court in this regard, which is at page No.215 of the writ petition. This is in terms of Section 122 of the Act, which clearly provides that the findings and sentences of General Force Courts may be confirmed by the Central Government or by any officer empowered in this behalf by warrant of the Central Government. The power of the confirming authority to mitigate or commute sentences is provided under Section 125 of the Act, which reads as under:-
"Subject to such restrictions, reservations or conditions, as may be contained in any warrant issued under Section 122 or Section 123, a confirming authority may, when confirming the sentence of a Force Court, mitigate or remit the punishment thereby awarded or commute that punishment thereby awarded or commute that punishment for any punishment or punishments lower in the scale laid down in Section 51."
Power and authority to order revision is given under Section 127 of the Act, which is as under:-
"(1) Any finding or sentence of a Force Court which requires confirmation may be one revised by order of the confirming authority and on such revision, the Court, if so directed by the confirming authority, may take additional evidence.
(2) The Court, on revision, shall consist of the same officers as were present when the original decision was passed unless any of those officers are unavoidably absent.
(3) In case of such unavoidable absence the cause thereof shall be the duly certified in the proceedings, and the Court shall proceed with the revision, provided that, if a General Force Court, it still consists of five officers, or, if a petty Force Crl. Writ Petition No.904 of 2001(O&M) -7- Court, of three officers."
Thus, any finding or sentence awarded by the Force Court, which requires confirmation can be one revised by order of the confirming authority and on such revision, the Court, if so directed by the confirming authority, may take additional evidence. Thus, the power of the confirming authority to order revision of finding or of sentence cannot be disputed and perhaps has not been so contested by the petitioner through the present petition. His objection seems to be that the confirming authority could not have issued direction for the Court to revise the sentence and the order of revision indeed had not left any discretion with the Security Force Court but to revise the sentence. Copy of the revision order is annexed with the petition as Annexure P-4. It would be, thus, appropriate to reproduce the revision order to see if this revision order contained any direction which was binding in nature for the Force Court to revise the sentence.
"The General Force Court which assembled at 5th Bn on 28th day of March 2000 for the trial of AC/GD G.N. Pandey and Inspector/GD Ranu Ram will assemble in open Court at 6th Bn, ITBPF, Srinagar (J&K) on 15.9.200 at 1000 hours for reconsidering the sentence awarded in the case.
2. In thus ordering the court to reassemble to reconsider sentence, and while in no way wishing to interfere with the discretion vested in the court in awarding punishment, the confirming officers wishes to point out that the court appears to leave erred in appreciating the following:-
(i) that the punishment awarded should be always commensurate with the gravity of the Crl. Writ Petition No.904 of 2001(O&M) -8- offence.
(ii)The offences for which the two accused officials have been held guilty are of serious nature and under the ITBPF Act 1992 for the offences under Section 23 and 43 punishment of imprisonment for 14 and 7 years respectively could be awarded.
3. The Court should reconsider the sentence in the light of above and pass sentence afresh.
4. After the Revision Order is read out in open court, the court should afford the accused an opportunity to address the curt, if so desired by them. Thereafter, if if becomes necessary to clarify any points raised by the accused, the Judge Attorney may give a further summing up.
5. After reconsideration/revision, the sentence shall be announced in the open court as being subject to confirmation.
6. The proceedings after revision, shall be forwarded to this HQrs through Judge Attorney." It is, thus, clear that while ordering the Court to reassemble to reconsider the sentence, the confirming authority has only drawn the attention of the Court to the serious nature of the offences proved against the petitioner. It is otherwise clearly mentioned that it did not wish to interfere with the discretion vested in the court in awarding punishment. The confirming authority, however, wanted the Court to consider the aspects mentioned in the revision order while appreciating and imposing the punishment on the petitioner. The purpose of imposing punishment is highlighted to say that it should always be commensurate with the nature and gravity of the offence and accordingly, had observed that the offences for Crl. Writ Petition No.904 of 2001(O&M) -9- which the petitioner was found guilty, were of serious nature entailing imprisonment for 14 and 7 years respectively. The Force Court was, accordingly, asked to reconsider the sentence in the light of these considerations. The revision order, thus, cannot be termed as directory in nature which the Court was bound to follow. It was entirely within the discretion of the Court to either reconsider or revise the sentence or adhere to the sentence as was earlier imposed.
The Security Force Court, thereafter, gave opportunity to the petitioner to address the court and then awarded the revised sentence of dismissal from service to the petitioner. This was again awarded subject to confirmation. The confirming authority still had considered the entire aspects and varied the sentence of dismissal to that of compulsory retirement. This would also show that there was no intention on the part of the confirming authority to direct the Security Force Court to impose any particular punishment. If it had been so, there was no reason or cause for the confirming authority to vary the sentence of dismissal to the lesser punishment of compulsory retirement. This would also show that the confirming authority had only intended to consider the sentence as per the gravity of the offences/charges. The revision order, therefore, cannot be termed as directory in any manner to call for any interference.
Power of confirming authority to order revision cannot be disputed. The issue whether a revision order worded in the manner as in the present case can be termed as directory has also been subject matter of consideration before various Courts including the Apex Court. In Capt. Harish Uppal Vs. Union of India and others, Crl. Writ Petition No.904 of 2001(O&M) -10- AIR 1973 (SC) 258, the contention that Court Martial verdict should be unfettered as the Act does not confer any power on the confirming authority to enhance the sentence was not accepted by the Hon'ble Supreme Court. In fact, identical plea was raised before the Court in Capt. Harish Uppal's case (supra) on the basis of identical provision in the form of Section 160 contained in the Army Act, 1950 where the court held as under:-
"It was contended that in the face of such strong observations by the General Officer Commanding the Division the officers constituting the court martial would have felt compelled to enhance the sentence and the revised sentence passed on the petitioner was not the free act of the court martial but one forced on them by the Officer Commanding and that this militates against the principle of natural justice. But it should be remembered that under the provisions of the Army Act set out earlier the confirming authority could himself mitigate or remit the punishment awarded by the Court martial or commute that punishment for any lower punishment and, therefore, when a sentence is directed to be revised by the confirming authority it necessarily means that the confirming authority considers that the punishment awarded by the court martial is not commensurate with the offence and it should, therefore, be revised upwards. To object to this is to object to the provisions of Section 158 itself. A direction by the confirming authority merely showing that the punishment awarded by the Court marital is not commensurate with the offence, would be certainly unexceptionable and would be in accordance with the provisions of law. Instead of baldly stating so the confirming authority in this Crl. Writ Petition No.904 of 2001(O&M) -11- case has given reasonable as why he considers that the punishment awarded to the petitioner was wholly inadequate. We consider that the reasons given by him cannot be taken exception to."
As a matter of fact somewhat similar observations were made by the confirming authority in case of Capt. Harish Uppal (supra) while issuing revision order for the Court Martial to consider revision of the sentence as is in the instant case. It was inter alia mentioned in the said revision order "It would be appreciated that the charge of which the accused was convicted is of a very serious nature. The punishment of 'Cashiering', therefore, awarded for the offence appears to be palpably lenient. The maximum punishment provided for the offence under IPC, Section 392 is 10 years R.I. Even though the proper amount of punishment to be inflicted is the least amount by which discipline can be effectively maintained, it is nevertheless equally essential that the punishment awarded should be appropriate and commensurate with the nature and gravity of the offence and adequate for the maintenance of the high standard of discipline in the Armed forces". The Hon'ble Supreme Court has clearly held that the confirming authority while directing revision of sentence passed on the petitioner therein was only exercising the powers conferred on him by Section 160. Section 127 of the Act, is identical to Section 160 of the Army Act.
The Supreme Court has also noticed the wording contained in the revision order stating that "whilst in no way intending the quantum of punishment to be awarded" and observed that the confirming authority had made it clear that Court Martial was not Crl. Writ Petition No.904 of 2001(O&M) -12- bound by his opinion. The revision order in the present case has made this aspect amply clear as can be seen from the wording of the revision order reproduced above.
Similar issue again came up for consideration before the Supreme Court in Union of India and others Vs. Capt. A.P. Bajpai, AIR 1998 Supreme Court 1214. In this case the High Court had interfered in the Court Marital on the ground that confirming authority had minutely analysed the evidence leaving no discretion with the Court Martial to act otherwise where earlier the Court Martial had returned the verdict of 'Not guilty'. Noticing the provisions of Section 160 of the Army Act and Rule 68 of the Army Rules, the Hon'ble Supreme Court observed that the High Court did not properly appreciate the scope and intent of Section 160 of the Army Act. While justifying the requirement examining evidence etc. the Apex Court observed as under:-
"9. The finding or sentence of the Court Martial can be revised once by the confirming authority. If after remand the Court Martial returns the same finding or sentence confirming authority would be bound by the same. As to why the confirming authority would like the Court Martial to reconsider the matter, it has per force to give its views which it can do only after examining the evidence on record and the proceedings of the Court Martial."
Reliance was also placed on Capt. Harish Uppal's case (supra) while taking this view in the case of Capt. A.P. Bajpai (supra).
Delhi High Court in Gian Chand Vs. Union of India, Crl. Writ Petition No.904 of 2001(O&M) -13- 1983 Cri. LJ 1059 had earlier held that a direction given by the confirming authority to the General Court Martial to reconsider the finding or sentence could not be said to be a fetter on the exercise of powers of the General Court Martial. Noticing all this, the Hon'ble Supreme Court in Capt. A.P. Bajpai's (supra) observed as under"-
"We are unable to subscribe to the submission now advanced before us that the jurisdiction of the confirming authority is confined only to giving of directions for recording additional evidence by General Court Marital or that from the order of the confirming authority "inference cannot be escaped that this is based not on any independent judgment but influenced by the undisguised opinion expressed by the confirming authority on merits of the case" or that the revisional order contained such unwarranted observations, which were tantamount to recording of finding, which was in no way the function of the confirming authority or that there has been "unabashed excess and misuse of jurisdiction"
by confirming authority. It was asserted that the order in revision was liable to be quashed and rightly done so by the High Court. All this, however, appears to us to be mistaken view entertained by the High Court both in law and from the facts of the case."
Similar issue again came up for consideration before the Hon'ble Supreme Court in Ex. Lieut. Jagdish Pal Singh Vs. Union of India and others, AIR 1999 Supreme Court 1578 and the same view was expressed by the Court in regard to the powers of confirming authority.
In view of the above settled position of law, the line of Crl. Writ Petition No.904 of 2001(O&M) -14- submission pursued by the counsel are clearly misplaced and against the legal position. There is, thus, no merit in the pleas raised by the counsel and the writ petition is, therefore, dismissed.
November 21, 2011 ( RANJIT SINGH )
monika JUDGE
Crl. Writ Petition No.904 of 2001(O&M) -15-
Crl. Misc. No.1146 of 2011 in
Crl. Writ Petition No.904 of 2001
PRESENT: Mr. V.K. Sharma, Advocate
for the petitioner.
Mr. Karminder Singh, Advocate,
for Union of India.
****
For the reasons mentioned in the application, which is supported by an affidavit, the same is allowed and the order dated 13.10.2011 is recalled. The writ petition is restored to its original position.
With the concurrence of the parties, the writ petition is taken up on board for final hearing and disposal.
November 21, 2011 ( RANJIT SINGH ) monika JUDGE