(Order of the Tribunal made by Justice ACA Adityan)
1. This is an appeal under Section 15 of the Armed Forces Tribunal Act 2007 against the impugned order of conviction and sentence of dismissal for an offence under Section 38(1) of the Army Act rendered by SCM, which was confirmed by the 1st respondent, under order No.CF/14438641A/05/A3, dated 03.12.2009.
2. Before the Court Martial, P.W.1 to P.W.5 were examined and Exhibits 1 to 7 were exhibited.
3. The charge levelled against the accused/appellant is under Section 38(1) of the Army Act, which reads as follows:-
âat field on 26th February 2007 absented himself from the place of his duty as he failed to rejoin his unit 13 Rashtriya Rifles (KUMAON), on expiry of the part of annual leave granted to him from 5th January 2007 to 25th February 2007 until voluntarily surrendered at Arty Centre, Nasik Road Camp on 17th April 2008 at 10.30 hours.
4. P.W.1 Maj SK Mukherjee, speaks about the surrender of the appellant/accused on 17.04.2008 and surrender certificate under Army Act 142(5) was also produced and marked through P.W.1 as Exhibit-1. After surrender, according to P.W.1, the individual/accused was despatched to 155 Med Regt and was reverted back on the ground that he was a deserter to be tried at Artillery Centre, Nasik Road Camp under instructions in Para 518. The individual/appellant reported at Artillery Centre on 28th July 2008 as per the Movement Order issued by 155 Med Regt. The individual/appellant reported to security staff at Road Gate of Artillery Centre, Nasik Road Camp and was taken on strength as an individual, pending disciplinary inquiry. P.W.1 would further add that since action as per Army Act Section 142(5) had already been carried out earlier, the documents as initiated on 28th July 2008 were duly cancelled vide Artillery Centre, Nasik Road letter No.307801/420/A5, dated 17th April 2008, which is Exhibit-2. According to P.W.1, the individual/appellant has been attached to Arty Depot Regt vide HQ Arty Centre letter No.307801/323/A5 dated 29th July 2008. To show that the individual/appellant has been attached to Artillery Depot Regiment, P.W.1 has produced Exhibit 4. Since both 13 RR and 155 Med Regt declined to publish the individuals/appellants rejoining Part-II order, a clarification was sought for from the Artillery Records, for which Exhibit-5 is the clarification issued by the Artillery Records. According to P.W.1, the period of illegal absence of 416 days was seriously taken note of and therefore, a termination order was passed in accordance with the surrender certificate on 17.04.2008.
5. P.W.2 Sub Maj Om Prakash Mishra would state that the individual/appellant was absent illegally and voluntarily surrendered to Artillery Centre, Nasik Road on 17th April 2008 and the total period of illegal absence from 26th February 2007 to 17th April 2008 at 10.30 hours is 416 days.
6. P.W.3 Nk (Clk) Ravi Prakash Dwivedi in his evidence would state that Exhibit-6 IAFD-918 singed by CO 13 RR Bn was received from 155 Med Regt vide letter No.CF/14438641A/24/A dated 8th August 2008 and the appellant was declared as a deserter with effect from 26.02.2007 and that the individual/appellant was granted part of annual leave from 5th January 2007 to 25th February 2007, but failed to rejoin and illegally absented himself with effect from 26.02.2007 and he surrendered at 10.30 hours on 17.04.2008 at Artillery Centre, Nasik Road Camp.
7. The 4th witness for the prosecution is Lt Col M.Anand of Artillery Depot Regiment. According to P.W.4, the individual/appellant was granted leave from 05.01.2007 to 25.02.2007, but had failed to rejoin duty after the expiry of the leave and accordingly, he has been declared as deserter with effect from 26.02.2007 consequent to the Court of Inquiry held by 13 Rashtriya Rifles (KUMAON) to enquire into his illegal absence. According to the P.W.4, nothing adverse against the individual/appellant has come to light in 3 Det SCLU questioning report and the individual/appellant has revealed that he has attempted to report at the Artillery Centre, Nasik Road Camp on previous occasions prior to 17th April 2008.
8. P.W.5 is Hav (GD) JK Pradhan, the last witness for the prosecution, through whom Artillery Centre Deserter in/out Register of the Road Gate covering period from 12th February 2007 to 18th June 2008 was exhibited as Exhibit-7. P.W.5 would add that the accused/appellant had reported at Nasik Road Gate on 17.04.2008 at 12.25 hours as per the entries in the said Register (Exhibit-7).
9. Even though sufficient opportunity was given to the accused/appellant to cross-examine those prosecution witnesses, the accused/appellant had declined to cross-examine them.
10. On the basis of the evidences both oral and documentary and admission of the charge by the accused, the Court Martial has convicted and sentenced by imposing the punishment of dismissal. Aggrieved by the conviction and sentence of the Court Martial, the accused/appellant has approached this Tribunal challenging the same.
11. We heard the learned counsel Mr.B.Dhineshkumar appearing for the applicant/appellant and the learned Government Advocate Mr.V.Balasubramanian, CGC and the learned JAG Officer Captain Jitender Singh appearing for the respondents and considered their respective submissions.
12. Now the point for determination in this appeal is whether the appellant/accused has been properly dealt with in accordance with the procedures contemplated under the Army Act for the alleged offence or whether an interference is required from this Tribunal against the impugned order of the Court Marital under challenge?
13. The Point:- The admitted case of the prosecution is that the appellant/accused, after availing the annual leave granted to him from 05.01.2007 to 25.02.2007, had voluntarily surrendered at Artillery Centre, Nasik Road Camp on 17.04.2008 at 10.30 hours, as per Exhibit-1 (surrender certificate). But, once the appellant/accused had voluntarily surrendered before the respondents, they ought to have proceeded against him as per Section 39 of the Army Act 1950, which specifically deals with absence without leave of personnel. There is no material placed before this Tribunal to show that after the appellant/accused had failed to return to duty after availing the annual leave, apprehension order was issued against the appellant/accused and the local police were informed to arrest him. More than one year, the respondents have not taken any steps to apprehend the appellant/accused. Be that as it may, the appellant/accused had voluntarily surrendered on 17.04.2008 as admitted by P.W.1 supported by Exhibit-1 document. There is no acceptable reasoning forthcoming from the side of the respondents why the respondents have chosen to resort to Court Martial proceedings after framing a charge against the appellant/accused under Section 38(1) of the Army Act instead of proceeding against him under Section 39(b) of the Army Act even after he voluntarily surrendered under Exhibit-1. P.W.4 in his evidence has also spoken to the fact that nothing adverse against the appellant/accused has come to light in 3 Det SCLU questioning report. For a similar offence, previously the appellant/accused was charged under Section 39(a) of the Army Act and was awarded 28 days of Rigorous Imprisonment and 7 days pay fine only. We do not know, why the same yardstick was not followed against the accused/appellant that too after his voluntary surrender. Under such circumstances, We are of the view that the charge framed under Section 38(1) of the Army Act against the appellant/accused and the consequential trial before the Court Marital are to be interfered with since the same are not proper in accordance with law, in our view. Point is answered accordingly.
14. In fine, the appeal is disposed of under the following terms:-
The impugned order is set aside and the appellant/accused is deemed to have been reinstated on the date of his surrender ie., 17.04.2008 and proper charge under Section 39(b) of Army Act is to be framed and the appellant/accused is to be dealt with in accordance with law, thereafter, by the competent authority. The entire proceedings are to be completed within three months from today. No costs.