Ex-swr Girdhari Lal Vs. Union of India and Others - Court Judgment

BY CHAIRPERSON:

1. Petitioner by this petition has prayed to set aside the proceedings of Summary Court Martial held at Babina in March, 1983. He has also stated that he may be reinstated in service with all consequential benefits.

2. Petitioner joined the Army through open selection. He was posted to 47 Armoured Regiment as a Swr.

3. It is stated that the petitioner was on guard duty at 2 Armd. Brigade Combined Officers Mess at Babina Cantt on the night of 26/27 July, 1983. The duty as per duty roster was from 2230 hrs to 0030 hrs and 0530 hrs to 0730 hrs. It is alleged that as per the chargesheet, during the course of duty the petitioner broke open the room of Maj. P.J.S. Sandhu of petitioners regiment in search of plunder at 2220 hrs and another charge was that he quitted the guard without leave and for this petitioner was tried by Summary Court Martial.

4. Prosecution examined about five witnesses and after recording their evidence and also the evidence of the petitioner, he was found guilty of the charges u/s 36B and 36D of the Army Act and was punished to suffer rigorous imprisonment for four months in civil custody and to be dismissed from service. Thereafter, he was transferred to Distt. Jail, Jhansi on 3.8.1983 and his wife was informed of his trial and punishment.

5. Aggrieved against this order of punishment, petitioner filed an appeal u/s 164 which was rejected and thereafter petitioner filed this present petition challenging the punishment and conduct of Summary Court Martial before the Delhi High Court in 1996 which was dismissed for want of prosecution on 16.11.2005 and thereafter restored on 12.3.2007 and on formation of the AFT, the same was transferred to this bench for its adjudication.

6. Reply has been filed by the respondents who contested the matter and submitted that the appeal had been filed 13 years after the SCM, during which period the records had been destroyed and whatever records which were available was given to the petitioner as well as placed on record. The original proceedings have been destroyed because as per Army Rule 146 they only maintain the record of Summary Court Martial for the period of three years. A preliminary objection was raised that the petition has been filed by the petitioner extremely belated as the punishment was awarded to the petitioner way back in 1983 and the petitioner challenged that punishment in 1996 before Delhi High Court and, therefore, the petition should be dismissed on that count. Meanwhile, petitioner filed an application for the record and whatever was available was handed over to the petitioner way back in 1996. Therefore, we were also handicapped in the absence of the original record and have had to decide the matter from perusal of the available record placed before the bench.

7. Before we proceed to deal with the matter in detail, suffice it to say that petitioner was informed on 30.7.1983 that he will be tried on 03.8.1983 for offences u/s 36D of the Army Act and 36B of the Army Act and a copy of the Summary of evidence together with the copy of the chargesheet were enclosed. This was given to the petitioner as per the record by Col. T.S.Sirohi, CO 47 Armoured Regiment. The charges read as under:

CHARGESHEET

The accused No.14319084H Sowar Ghirdhari Lal Yadav, 47 Armoured Regiment, is charged with:-

ARMY ACT SECTION 36(D)

WITHOUT ORDERS FROM HIS SUPERIOR OFFICER LEAVING HIS GUARD

in that he,

At C/o 56 APO on Night 26/27 July 83 between 2220 hrs and 0030 hrs, when on sentry at the 2 Armed Bde Combined Offrs Mess guard, quitted the said guard without leave.

ARMY ACT SECTION 36(B)

BREAKING INTO A HOUSE IN SEARCH OF PLUNDER

in that he,

atC/o 56 APO on 26 Jul 83 between 2220 h and 2230 h, while performing duty at 2 ARmd Bde Combined Offrs Mess guard, broke into the house of IC-16786F Maj PJS Sandhu of the same Regt in the search of plunder.

The relevant section 36 D and 36B of the Army Act reads as under:

“36. Offences punishable more severely on active service than at other times – Any person subject to this Act who commits any of the following offences, that is to say-

(a) x x x x x x x

(b) breaks into the house or other place in search of plunder

(c) x x x x x x x

(d) without orders from his superior officer leaves his guard, piquet, patrol or post..”

8. In this case prosecution examined the statement of following five witnesses:

PW-1 Mrs. Sandhu w/o Major PJS Sandhu. She deposed that “I was sitting in the room No.6 of the 2 Armd Bde Combined Officers Mess on 26.7.1983 when my husband left for night training at approx. 2015 hrs and he was scheduled to return around 2300 hrs. After putting the children to sleep, I went to sleep and left the lights of the sitting room and the kitchen on and I suddenly woke up because of some movements in the room. I opened my eyes and saw a man in the bedroom. I shouted and the man tried to run away and bumped into the mosquito net and I shouted but somehow the man got up and ran away and I kept on screaming. While running the man passed through the sitting area and kitchen where lights were on and I could clearly see him. I screamed but nobody came to the rescue. It was 2225 hrs and I could not leave the children alone and kept sitting on the bed and at approx. 2315 hrs my husband returned from the night training and I narrated the incident to him. Next day when I was giving clothes for washing, I found a knife and the same was handed over to the authorities.” No question was put by the accused though Court put some questions to her. This statement of the Mrs. Sandhu was recorded and bears her signature as well as the signatures of Maj. VKS Bedekar, Officer Recording Summary of Evidence and Capt. DP Singh as Independent Witness.

PW-2 Major PJS Sandhu deposed that “I am second in command 47 Armd Regt. and stay with my family in Room No.6 in 2 Armd Bde Combined Offrs mess. On 26.7.1983, on conclusion of night training, I reached my room at about 2315 hrs and saw mosquito net along with its broken frame was lying on the floor and my wife Mrs. Sandhu rushed to me in a disabled stated. She narrated to me the incident which had occurred during my absence. She described the man and gave me the knife dropped by the intruder. Then I came out of the house and met Lt. AR Hiremath of 47 Armd Regt and ordered him to muster all the night guards and the entire mess staff of 2 Armd Bde Combined Officers Mess and at that time Lt. DRN Soni, Adjutant 47 Armed Regt arrived and I gave him the available description to him and proceeded to inform the Commandant 47 Armd Regt. On my return, I learnt that suspected intruder was identified and he was Swr Girdhari Lal Yadav and he was taken into custody”. This statement of the Maj. PJS Sandhu was recorded and bears his signature and as well as the signatures of Maj. VKS Bedekar, Officer Recording Summary of Evidence and Capt. DP Singh as Independent Witness.

PW-3 Lt. DRN Soni, 47 Armd Regt has deposed that “on deposed that on 26.7.1983 at about 2325 hrs when I was getting back from night training, I met Major PJS Sandhu outside his room and he narrated to me how the intruder break into his house while he was on night training and he gave me the description as given by his wife. He had already instructed Lt. AR Hiremath to fallin entire 2 Armd Bde combined officers‟mess staff and the night guard and identification was held as Gwr Ghirdhari Lal Yadav was identified as the person fitting the description given by Mrs. Sandhu. He was nervous and visibly agitated. Thereafter Mrs. Sandhu was called to identify the intruder and she identified the accused Gwr Girdhari Lal who intruded her room on the night.” The statement bears the signatures of the Witness i.e.Lt. DRN Soni, Maj. VKS Badekar, Officer Recording the Summary of Evidence and Capt. DP Singh who was the independent witness.

PW-4 LD Sucha Singh, 47 Armd Regt stated that “I recognise Gwr Ghirdhari Lal and deposed that I make the duty roster of all sentries which was produced by him and in that Gwr Ghirdhari Lal Yadav was the third sentry and he was put on sentry duty on 26/27 July, 1983 (night) from 2230 h to 0030 hrs and next man was Swr Narbir Singh”. He also deposed that “Swr Girdhari Lal woke me up and reported that he saw a man running out of the Officers Mess, whom he chased till the gate and he said that he could not identify that man. On being questioned by me that, Did you shout for help, he answered “No”. He also deposed that “Lt. AR Hiremath came and made all mess guard and mess staff to fallin and he also spoke to Ghirdhari Lal who was nervous and upset and later on he was identified by Mrs. Sandhu in identification parade.” This statement also bears the signatures of LD Sucha Singh and Major VKS Bedekar, Officer Recording Summary of Evidence and idependent witness Capt DP Singh.

PW-5 SWR Narbir Singh, 47 Armd Regt deposed that “I recognise Swr Ghirdhari Lal Yadav who was on the Sentry duty and he went away to Major SS Saharans house when he took over the duty and he returned by 2200 hrs or so. He approached me and told to hand over the duty on 2220 hrs. He told me that he is not feeling sleepy and on his insistence, I allowed him to relieve him at 2220 hrs i.e. 10 mins. earlier. Thereafter, at 2325 h identification parade was held and Swr Ghirdhari Lal Yadav was identified and put under arrest.” This statement also bears the signature of Swr Narbir Singh, Major VKS Bedekar, Officer Recordings Summary of Evidence and Independent Witness Capt DP Singh.

Thereafter, the statement of the accused himself was recorded and he deposed that “on 26.7.1983 I was detailed on guard duty at the Officers Mess” guard and Ld Sucha Singh was detailed as Guard Commander. He further deposed that Swr Narbir Singh was second guard sentry and I was third and there was time of about 2 hrs available. He said for conveying a message to Major SS Saharan 47 Armd Regt. with permission of guard commander, left officers mess guard. I went to wet canteen near cavalry cinema and had a cup of tea and purchased a bundle of „BIDIES‟. I returned to Officers‟Mess guard tent by about 2155 hrs. I was lying down on charpai and was not feeling sleepy, therefore, relieved the second guard 10 mnts earlier. At about 2225 hrs or so, I went around my beat along rooms occupied by the married officers. I saw the door of room occupied by Major PJS Sandhu was half open. I knew that Major Sahib had gone away on night parade. I quietly entered into the room and was looking around. Then as i approached the cupboard where memsahib was sleeping; she suddenly woke up. I panicked and tried to run and i bumped into mosquito net pole and fell down along with the frame and mosquito net. Memsahib tried to chase me and in panic, i ran through the rear door. I came around the building and started my duty beat once again. Then I went upto the guard commander Lt. Sucha Singh and told him “I saw somebody running outside the officers mess gate”. Subsequently, entire mess staff and the officers mess guard were made to fallin for identification parade and I was identified by Memsahib and I was put in close arrest.” On the basis of this evidence, Summary Court Martial found him guilty and convicted the petitioner as aforesaid.

9. Learned Counsel for the petitioner first of all seriously disputed the signatures of the petitioner on his own statement and to persuade us that the petitioner signs in Hindi. In order to satisfy ourselves we called for the original service record of the petitioner to find out whether petitioner signs in Hindi and after perusing his record pertaining to his service career, we are satisfied that signatures of the petitioner are in English at various places and those signatures are identical to the signature appended by the petitioner while recording his statement, which has also been verified by an independent officer. Therefore, we are satisfied that the statement of admission of guilty in the Summary of Evidence, bears the signatures of the petitioner and he himself has signed it. Therefore, the contention of the counsel of the petitioner that he has never signed the admission of guilty is falsified after perusal of the service record of the petitioner that he has signed at number of places in English and it is only in the writ petition that he has signed in Hindi. Accordingly, this contention of the Learned Counsel of the petitioner cannot be sustained. Learned Counsel next submitted that after sometime one of petitioners colleagues supplied a statement of Mrs. Sandhu (PW-1) which appears to have been a photocopy, bearing some cuttings which he produced and placed on record. This submission of learned counsel has no relevance. We dont know who supplied this statement, but it does bear the signature of Mrs. Sandhu. However, we have seen the typed photocopy of the statement of Mrs. Sandhu which has been duly recorded in the presence of independent witness. Therefore, nothing turns on the so called photocopy of the statement of Mrs. Sandhu(PW-1).

10. Learned Counsel for the petitioner next submitted that a charge which has been levelled against the petitioner is untenable and petitioner has not been given a fair trial. In order to appreciate the contention of the Counsel of petitioner, allegations of the charges as well as original provisions u/s Section 36(d) was reproduced above. Section 36(d) has two parts i.e. (breaking into house or other place)(in search of plunder). Learned Counsel for the petitioner emphasised that expression “plunder” relates to place of active area / service and not in peace area and Babina Cantt is a peace area where applicant was posted. But Learned Counsel appears to have lost sight of other part of section 36(d) i.e. breaking into house and tried to make a mountain out of a mole hill with regard to the expression “plunder”. From the facts that have been disclosed, the petitioner tried to break into the room of Major Sandhu at night, therefore, this part is fully covered by the first part of 36(b) i.e. break into any house. Major Sandhu was staying in a Mess room and went out for night training and that time the petitioner intruded into the house /room and tried to create some mischief but he was not successful. Moreover, he has been indentified by Mrs. Sandhu as well as admitted by him. His identification has been established, therefore, in these circumstances we are satisfied that the petitioner has been rightly convicted by Summary Court Martial. In this connection, Learned Counsel has also tried to submit that each of the statement of the prosecution witnesses does not bear the signature of the accused. We regret to say that this is not a requirement under law that the statement of each witness should also bear signatures of the accused. No rule has been brought to our notice to show that in the case of Summary of Evidence statements of the witnesses should also bear the signatures of the accused. Learned counsel also relied on various decisions of the High Courts and Supreme Court. Suffice it to say that each case cited by the Learned counsel of the petitioner was decided on its own peculiar facts. In the present case, after going through the record, we are satisfied that there is sufficient evidence to connect the accused with the commission of the crime. Thereafter no useful purpose will served by referring to all the cases cited by the learned counsel.

11. So far as second charge is concerned, that also stands established from the testimony of the witnesses 4 and 5 that he was supposed to be on guard duty at the relevant time. From the facts which have been discussed above, it is apparent that at the relevant time he left his place of duty and tried to break into the room of Mrs. Sandhu, therefore, the second charge of absence from guard duty stands fully substantiated.

12. As far as preliminary objection by the Learned Counsel for the Respondent that writ petition is extremely belated, while it is true that the summary court martial was over on 3.8.1983 and petitioner filed writ petition in the High Court in 1996 i.e. after 13 yrs. This too was dismissed for default on 16.11.2005 but was restored on 12.3.2007. Though the petition is belated, however, we have examined the matter on merit, therefore, we do not propose to dismiss the petition on the ground of delay.

13. We are satisfied that there is no substance in the petition and dismiss the same on merit, for the reasons aforesaid. No order as to costs.