A.K.Mathur, Chairperson:
1. This Writ Petition has been transferred from Delhi High Court.
2. The petitioner was commissioned in the Army Ordnance Corps on 5.3.1988 and on 16.1.1988 petitioner was posted to 23 Infantry Division Ordnance Unit then commanded by Col. H.C. Chawla. Petitioner was appointed as Administrative Officer and also Officer-in-Charge Ammunition Technical Services. It is alleged that petitioner took charge of his duties from Maj.R.K. Gosain of the same unit.
3. It is alleged that in March, 1998 Sep Rajan Babu of the same unit was apprehended by Civil Police carrying service Hand Grenade. The matter was reported by Civil Police to the unit and in preliminary inquiry the petitioner found huge quantity of unaccounted Ammunition and explosives of dangerous nature, which petitioner was not informed by his predecessor Maj.RK Gosain. Petitioner verbally brought this to the notice of his Commanding Officer, Col. HC Chawla. The ammunition was seized and was taken in charge and was brought to the notice of CO whose instructions were sought. The petitioner reported the matter in writing to GOC 23 Inf Div. (Resp. No.3) through Resp No.4. Respondent No.4 did not like it and removed the Petitioner from the appointment of Administrative Officer and starting harassing the petitioner. The petitioner also reported the matter to the Local Audit Officer and a special Audit was carried out by a team of CDA Patna. The petitioner applied for 28 days leave to attend his ailing father at Delhi and he was allowed to proceed to Delhi. Though petitioner proceeded without waiting for the leave certificate, however, he was assured that it will be sent to his Delhi address, but when he came back after availing the leave, he was served with a notice for absenting himself without leave and GCM was convened for trial of the petitioner. The petitioner filed a Writ Petition before the Honble Patna High Court which was disposed of with direction that petitioner shall raise preliminary objection by filing appropriate representation to the convening authority. A GCM was convened and petitioner was punished by forfeiting two years past service for the purpose of promotion and to be severally reprimanded. The petitioner filed a pre-confirmation petition before GOC-in-C which was rejected. Thereafter, he filed a Writ Petition in Jharkhand High Court and it is alleged that petition was not disposed of, however, petitioner requested that his petition be transferred to the AFT, Principal Bench at Delhi and it has been registered at TA No.544 of 2010. It is alleged that on 7.8.2000 when petitioner was called in office of Resp No.4 in the presence of major Anil Vishnoi and Major KS Gunasekaran, he was abused and beaten up for sending a complaint to Respondent-3, resulting in an inquiry by Controller of Defence Accounts (CDA) Patna, for misuse of govt. Explosives and Ordnance Stores and for which the Local Audit Officer (LAO) had complimented the petitioner. It is alleged that R-4 used criminal force against the petitioner by hitting him with a cane stick, causing injury on petitioners body. The petitioner became sick and he was sent to MH Namkum. However, petitioner was not permitted to visit Military Hospital Nankum for investigation and treatment but petitioner was placed under arrest by Col HC Chawla, without informing the Petitioner of any charge against him.
4. He alleged that wife of petitioner filed a Writ Petition in Honble Patna High Court. The Honble Patna High Court directed that this aspect of bias, harassment and torture be examined by higher authorities and quashed the order being illegal.
Thereafter, respondent filed a review petition which was dismissed on 26.10.2000 by the Honble Court. On 7.11.2000, the petitioner was released from close arrest. The petitioner rejoined 23 Inf. Div Ord Unit and thereafter the Respondents filed SLP No.4585 and 4586 of 2000 in the Honble Supreme Court against judgement dt.6.9.2000 of Honble Patna High Court. The petitioners wife also filed an SLP against the illegal arrest of the Petitioner. However, the SLP filed by the petitioner was disposed by the Honble Supreme Court and left question of law raised by the parties open for decision in an appropriate case. And thereafter the SLPs were dismissed as infructuous.
5. It is alleged that petitioner filed another petition before Honble Jharkhand High Court (writ petition No.2455 of 2001) in which an interim order was passed that in case no final order has been passed in the departmental proceedings, the operation of the order of transfer dated 13.3.2001 shall remain stayed till next date, if the petitioner has not yet been relieved. However, since the petitioner was already relieved, the Honble Court on 18.07.2001 directed the respondents to allow the Petitioner to attend the proceedings at Ranch at Govt. expense. Petitioner was admitted thereafter to the Command hospital, Western Command at Chandi Mandir for psychiatric treatment.
6. It is alleged that petitioner was not reposted to 23 DOU to perform his normal military duty and impugned attachment order dated 27.11.2001 under Army Instruction 30/86 was issued until finalisation of disciplinary case against him. It is further alleged that petitioner was a whistle blower and performed his duty honestly by bringing to the notice of the superiors that Resp No.4 was holding dangerous, surplus ammunition, without taking it on charge, obviously with dishonest intention. The petitioner reported on attachment to 23 Inf. DOU, however, disciplinary proceedings against the petitioner for using criminal force to his superior officer namely Resp No.4 were not initiated till a judicial magistrate Ranchi took cognizance of following offences against Respondent No.4.:
(a) Punishment for Voluntarily causing hurt
(b) Punishment for Wrongful restraint and
(c) Punishment for Assault or criminal force otherwise on grave provocation
(on a complaint filed by the wife of the petitioner to the said Judicial Magistrate)
7. However, on 24.10.2002, six charges were framed against the petitioner by Col.B.M.Sharma. It is alleged that when these charges which were framed were time barred vide Army Act Section 122. The summary of evidence was completed and same was forwarded to the Army HQ and Resp. No.3 wrote a DO letter to the officiating ADG DV for attachment of the petitioner to 5/9 Gorkha Unit, in a remote area, where there was no psychiatric treatment facilities available. This order of attachment to 5/9 GR was sought to be served on petitioner and this gave rise to this court martial because the petitioner did not comply with the order and resisted the service of this order. He behaved in a manner unbecoming of an officer and attacked the serving party physically which resulted in initiating present court martial proceedings. The following three charges were framed against the petitioner which reads as under:
(1) Committing a civil offence that is to say, attempt to murder, contrary to Section 307 of the Indian Penal Code
(2) Resisting an escort whose duty it was to apprehend him
(3) Disobeying a lawful command given by his superior officer
8. The Court Martial was convened and petitioner was not found guilty for charge No.1 and a benefit of doubt was given that he has no intention to cause voluntary hurt to Col. Ashok Prabhakar and Major Prashant Pachouri. So far as Charge No.2 is concerned, the petitioner was found guilty that he resisted Col. Prabhakar and Major Prashant Pachouri on 13/14 Nov. 2003 to apprehend him by firing 2 shots from pistol 9 mm and he is also found guilty in disobeying a lawful command given by superior officer. The accused was found guilty for charge No.2 and 3 reads as under:
âThe Court being re-opened, the accused is again brought before it. The findings together with the brief reasons in support thereof as read in open Court and announced, the findings as being subject to confirmationâ
9. He was sentenced to fine and to suffer imprisonment for three years. This punishment was given by Court Martial on 11.8.2004. The petitioner filed a pre-confirmation petition and same was rejected. Hence petitioner filed a present petition before a Delhi High Court challenging his sentence and confirmation and same has been transferred to this tribunal from Delhi High Court.
10. A detailed reply was filed by the respondent and submitted before us the original proceedings of the court martial proceedings. Learned Counsel for the petitioner submitted that finding given by the court martial proceedings is without jurisdiction and charges for which petitioner was attached was barred by time that they were beyond the period of limitation and the movement order issued by the respondent was without jurisdiction. He also submitted that the evidence which had been produced before the court martial proceedings the copies there of were not been given by the authorities and the order of attachment was not served on the petitioner, therefore, there was no question of resisting the arrest.
11. The learned counsel for the respondent submitted that on the basis of the evidence lead by prosecution the conviction of petitioner is fully justified. We have heard learned counsel for both the parties and perused the record. Prosecution in order to substantiate their case has examined as many as seven witnesses.
12. The case has been unfolded by the testimony of PW-4 Nk/CST LP Tiwari who perform duties of a clerk in the Headquarter Section. He alleged that on 31.10.2003, he was called by Col. Pramod Singh (PW-3) and the Officer-in-charge HQ Lt. (now Capt) Nitin Palli (PW-1) to his office and ordered him to prepare a movement order of the petitioner to 5/9 Gorkha Rifles, Last Ration Certificate and a single journey railway warrant from Ranch to Banbasa and directed him to handover those documents to the accused at his residence. It is alleged that he prepared all documents including attachment of the accused to 5/9 Gorkha Rifles and they are exhibited 36 and 27 and same were given to him. The Officer-in-Charge HQ signed all documents with a covering letter, movement order and gave it to him to serve the same on the petitioner. He along with the Sipahi Sep/Dvr Akash Kamble (PW-5)went to the residence of the accused on foot along with the Local Dak Receipt Register at around 1445 hrs where he met the accused and told him that he has got a Dak for him and asked him to sign in the Dak Receipt Register. The accused told him that he is going on leave and he will not take any Dak and also told him that he will receive the Dak after returning from leave. The petitioner accused asked him to get his family railway warrant which he has forgotten in his office. He requested the accused to sign the counterfoil of the family railway warrants and promised him to bring the family railway warrants kept in the office. It is exhibited 29 and 30. He returned back with the covering letter and envelope which was to be delivered to the accused along with movement order and reported the matter to Lt. Nitin Palli (PW-1) and thereafter collected the family railway warrants and left to deliver the same to the accused. On reaching at the residence at about 1515 hrs he again offered the envelope for the movement order, the accused took the family warrants and the envelope containing movement order for 5/9 Gorkha Rifles, last ration certificate, the free railway warrant along with the covering letter. He again requested the accused to sign the local Dak Receipt Register but the accused refused to sign. The accused opened the envelope before him and after reading few lines of the covering letter, he said âOh this is related to leaveâ and he went back to his unit carrying the local dak receipt register and the single railway warrant book. He again informed the officer in-charge HQ. Then Officer-in-Charge HQ spoke to the Commanding Officer on phone and thereafter asked him to endorse in the local dak receipt register that the accused has refused to accept orders and sign the local dak receipt register.
13. He made an endorsement in the local dak register. He also depose that he was accompanied by Sep/Dr Akash Kumble (PW-5) and he also came in the witness box and supported the version of the PW-4 that accused declined to accept the warrant and did not signed the dak receipt register. Thereafter, it is alleged that accused proceeded on leave. PW-6 Col. Ashok Prabhakar deposed that he was asked by the HQ 23 Infantry Division on 13 November, 2003 at about 1930 hrs on telephone that he had to apprehend Maj Anand Kumar of 23 Infantry Divn. Who was instructed to move out on re-attachment to 5/9 Gorkha Rifles at Banbasa, which he had not complied. In pursuance of this order which was verbally given and thereafter it was followed in writing, that he should be escorted to Banbasa, he proceeded to the residence of the accused. After receiving this instruction on telephone, he contacted Col. SM Baduri, the Colonel Administration who told him that instruction given by GOC has to be complied and after apprehending the accused, he has to sent him alongwith an escort party to Banbasa. He gave a telephonic call to Col. Pramod Singh, Commanding Officer, 23 Infantry Divn. Ordnance Unit (PW-3) and he discussed the matter with him and later about 2030 hrs he gave a call to Col. B. Prasad, Deputy Commander, 23 Artillery Brigade and discussed with him about the apprehending the accused and Col. B. Prasad told him to execute the task. He then gave a telephone call to Officiating Second-in-Command, Maj Prashant Pachauri (PW-7) who had gone out of the Unit and subsequently when Maj. Prashant Pachauri returned at 2100 hrs he discussed the matter with him on telephone and asked him to come to his place. On his arrival, he told him that we have to apprehend Major Anand for being absent from place of duty which is 5/9 Gorkha Rifles located at Banbasa and he has to be escorted to Banbasa and discussed the task with him and also directed Major Prashant Pachauri that they would take a party of one JCO, one NCO and four other ranks apart from us and that we will proceed in two light vehicles. Thereafter, Maj Prashant Pachauri proceeded to his residence and PW-6 changed into combat uniform and reached unit quarter guard at about 2210 hrs. PW- 6 also drew his personal weapon from unit Kote, in the meanwhile Maj. Prashant Pachauri also came there and he also drew his personal weapon. The balance of the party had collected near the quarter guard and PW-6 briefed the whole team and proceeded to arrest the accused. On 13.11.2003 at about 2315 hrs he along with the complete party proceeded to the residence of the accused and call bell was sounded but there was no response. Thereafter, three to four times the accused was called by loud voice but there was no response. He then directed Hawaldar Avtar Singh to come along with him and Sub Resham Singh and rest of the party stayed outside. Thereafter two vehicles were directed to take a side road, away from the main road. On entering the house premises, just outside the verandah then called for him three/ four times but there was no response. After ringing and knocking the door, he saw one of the window next to the door was opened from inside and saw a figure behind the grill window. PW-6 intimated that he is Col. Ashok Prabhakar, Commanding Officer, 39 Medium Regiment and that he had been instructed to apprehend Maj Anand Kumar for being absent from the place of duty. He got a reply in a male voice from inside that they should leave the premises immediately. He requested the accused that he should come along with them, however, he immediately left the place and came back within a minute. He told me (Col Ashok Prabhakar) again that he should leave the premises immediately and the witness could see that he was holding something in his hand and he could infer that it was a firearm. He requested him to let me come inside and courtesy demands that an officer who had come to his place be permitted to come inside. But in an irritating voice he shouted on him that he should leave the premises within a count of three. He tried to reason but he failed and he realised that he should move away from the place. He walked up to the side of the house and rest of the party joined him there. He informed that the accused was carrying a firearm and accordingly they have to he careful while apprehending the accused. He divided the party in two parts, he, Maj Prashant Pachauri and Hav. Avtar Singh were to guard the front of the house while Sub Resham Singh and the rest of the party were to guard the rear. After the party moved away to the rear of the house, he, Major Prashant Pachauri and Hav. Avtar Singh came to the front part of the house. He heard a round being fired and accused rushing out shouting âTum log aise nahin manoge, Phir aagayeâ (You people will not understand like that. You have come again). At this he rushed forward and at this stage one round was fired by the accused in his direction. Major Prashant Pachauri who was on the side of the accused rushed forward and held him up. He further deposed that when he heard rounds of fire, his heart beat rose and his left hand went to the pistol which he was carrying in right hand and he cocked the weapon. Hav. Avtar Singh also came forward and took the weapon away from the accused. The defence cross-examined this witness at length but they failed to discredit this witness. The weapon was seized and thereafter a bullet was also recovered and were seized and produced in the GCM proceedings. The statement of PW-6 was corroborated by PW-7 Major Prashant Pachauri and he fully supported his version of event. Similarly, same has been supported by PW-8 Hav Avtar Singh. We need not to multiply the statement of witnesses. Suffice it to say that warrants of arrest was prepared by PW-4 (Tiwari) as per direction given by the Command and same was sought to be served on the accused which he resisted.
14. Petitioner has produced defence witnesses to prove that no such incidence took place by statement of DW-1, 2, 3, 4, 5, 6 and 7. DW-1 Major Anand appeared himself as a defence witness and he tried to narrate about the earlier incidence which was objected by the prosecution and thereafter the Court recorded the findings that incident of 1998 being intended to led by defence doesnt pertain to evidence showing the occasion, cause and effect of the commission or otherwise offence made subject matter of the charges. They upheld the objection of the prosecution and directed the DW-1, the accused Major Anand to state facts relating to present incidence. The accused withdrew from his defence and declined to make any statement and permitted the cross-examination by the prosecution. He was confronted with the fact that he was issued ME pistol and denied that he has identified the ME-4 live rounds and ME-5 cartridges and he also suggested that in the summary of evidence he has stated that he had drawn my pistol in self defence on the night of 13/14 Nov. 2003. He also admitted that he made a statement in the summary of evidence that he has drawn a weapon before the General Court Martial that he was holding a .22 mm pistol belonging to his younger brother. He also admitted that on the night of 13/14 Nov. 2003, pistol was in his custody and it was his property. He was confronted with the fact that he has not been subjected to any unnatural offence against him in writing but he said verbally told to all the officers including the Regimental medical Officer of 5/9 Gorkha Rifles, whose name he did not remember. He admitted that his medical examination was carried out in arbitrary manner. He also admitted that he was holding .22 pistol on the night of 13/14 Nov. 2003 but it was not used. He alleged that whole summary of evidence was tempered, though he admitted that submissions were read over to him in his own language and signed as correct. He admitted that I am a psychic case. He denied that there was any disobeyance of an order given by Commanding Officer 23 Infantry Division Ordnance Unit dated 10.11.2003 to move on attachment to 5/9 Gorkha Rifles . He also admitted that previously he was involved in number of cases of absent without leave. He deposed that he asked for the movement documents and another document on 10.11.2003 which the Commanding Officer refused and it was Col. Pramod Singh who told him that he will be speaking to the General Officer Commanding in 2-3 days about extension of my leave and other movement details and that is why on 13.11.2003 he was told to move as his leave has not been extended and told me in the presence of Miss Geeta that I have joining period, journey period and can report to 5/9 Gorkha Rifles by 19th or 20th November, 2003.
15. Similarly, he examined DW-2 Naik Sasi Kumar KB from 23 Infantry Division Ordnance Unit. He was the person who was helper to Major Anand and he deposed that on 10.11.2003 he went to the house of the accused around 0800 hrs and prepared the uniform of the accused and he went to the office in uniform. On 13.11.2003, at around 1900 hrs, while he was returning to his quarter, he saw the accused vehicle at the gate and accused called for him. In the vehicle, one civilian by name Mr. Subhash was also sitting and he spoke to the accused and thereafter left and another person in combat uniform was standing there. Thereafter he had gone to 5/9 Gorkha Rifles at Banbasa on 19.11.2003 and told the whole thing to Major A.K. Chatterjee. He denied having any conversation with the NK/CST LP Tiwari on 1.10.2003.
16. DW-3 Lt. Col. RK Goger, Classified Specialist, Psychiatry, Command Hospital, Central Command, Lucknow was also examined and deposed that he examined Major Anand from 5/9 Gorkha Rifles in January, 2004 for psychiatric examination and further deposed that he has given the opinion about the condition of the officer on 29.1.2004 in exhibit No.98. The accused complained of disturbed sleep, headache, forgetfulness and fearfulness. He was not cooperative, not much communicative, dull and depressed and subsequently when he became cooperative he told him that he is in low medical category and has pain in his anus and decreased vision and told that apprehending party tortured him and inserted stick in his anus. DW-3 further deposed that as far as he remember, after examination of the accused by the surgical specialist for pain in the anus, it was diagnosed as fissure in the anus. He denied that as a psychiatric specialist he is incapable of giving any evidence that fissure is caused in the anus by insertion of a stick or otherwise. He admitted that in his own opinion on the 29.1.2004 (Exhibit 98) he has recorded firing incidence based on the information provided to him by the accused and he also deposed that the basic reason told to him by the accused for firing was that person in civil dress came at the main gate of the accused and he wanted to scare them and did not intend to kill the persons.
17. DW-4 Capt. Narendra KP of Military Hospital, Namkum was the immediate neighbour of the accused. He said that during the night of 13/14 Nov. 2003 he was in his house and while sleeping between 1145 hrs to 1150 hrs he heard someone calling him from front portion of his house and got up and came to drawing room and from window he asked person âwho is callingâ and he got the reply that âNarendra, Major Anandâ and he opened the door and came out. The he saw Maj. Anand was standing next to his garage adjacent to his house and he asked Maj. Anand what happened, he said nothing and told him that he is not finding his lock and key so please give me one lock and key and same DW-4 gave to him and said that on 13/14 Nov. 2003 he did not hear any sound of use of fire arm. DW-4 said that he is not aware whether two shots were fired on the night of 13/14 Nov. 2003 in the accused house. He also deposed that the accused did not tell him that somebody has come to arrest him. He also said that he does not share much relation of such conversation with Maj. Anand. He further deposed that on the morning of 14.11.2003 when he took the key from me, he did not mention to him of any incident of the intervening night. He persisted in his denial about the incident of 13/14 Nov. 2003. He admitted that he came to know that accused has been apprehended on 14.11.2003 at about 1830 hrs.
18. DW-5 Major Surjit Singh of 23 Infantry Division Ordnance Unit deposed that he knew Major Anand and both of them served in OP PAWAN in Srilanka. On 13.11.2003 at about 1230 hrs, he was detailed by Commanding Officer, Col. Pramod Singh to visit the residence of the accused and advised him to proceed to 5/9 Gorkah Rifles on re-attachment.
In pursuance of such instructions, he went to the accused residence and met him and told him that I have been sent by the Commanding Officer, Col. Pramod Singh to advice him to proceed to 5/9 Gorkha Rifles on re-attachment. The accused told him that he has not received any movement order therefore he will not go and he accordingly informed the Commanding Officer.
19. DW-6 Shri Sambhu Nath Mishra working as a labourer in 23 Infantry Division Ordnance and was staying in a civil quarters at Namkum, Ranchi was also examined. He knew Major Anand since 1998 when he came on posting to 23 Infantry Division Ordnance Unit. He deposed that in midnight of 13/14 Nov.2003 accused called him from the kitchen and asked him to see whether someone has come inside the compound and he opened the rear door of the house. When he came out of the room, he saw 5 to 6 persons in civil dress having rifles with them. One of them asked him his identity and he told them that he is a civilian Gardner and he also deposed that he saw the accused followed by 8 to 12 persons in civil dress. He further deposed that accused tried twice or thrice to jump over the gate but he could not succeed. He denied to have seen the incident on the night of 13/14 Nov. 2003.
20. DW-7 Geeta Kumari is civilian who is residing in that area was also examined. She deposed that on the night of 13/14 Nov.2003 she went to accused house in the morning around 0700 hrs and in the afternoon one officer came to the house of the accused. The accused himself opened the door and the officer came inside and sat in the room. Thereafter she retired for her work and she does not know what time the officer left. On 14.11.2003, when she went to the accused office in the morning, the gate was lying open but house was locked and she pleaded total ignorance of any firing incident on the intervening night of 13/14 Nov. 2003.
21. The resume of the defence evidence does not belie the fact that the incident did not happen. All the witnesses directly or indirectly accepted that incident did take place and they tried to deny being witness of such incidence. But from the statement of the accused DW-1 and other witnesses one thing is established that incident did took place but the version given by the defence is different to what was given by the prosecution.
22. So far as the physical examination of the accused is concerned CW-1 Dr. Major Manoj Kumar who immediately attended the accused when he reached to 5/9 Gorkha Rifles and was examined by him on 16.11.2003 and after examination he found that there was no injury and he gave a certificate to this effect. He also deposed that accused did not complain to him any physically injury sustained by him. He also deposed that he examined his complete body and there was no deformity or any trauma involved in the body. He admitted that he did not examine his anus as accused did not complain. That shows that physical condition of the accused was not having any abnormality.
23. CW-2 Col. SN Bhaduri deposed that on 13.11.2003 at around 1900 hrs to 1930 hrs, Col. Ashok Prabhakar rang him up and told him that the General Officer Commanding has directed him to apprehend Maj. Anand Kumar at Ranchi. Thereafter, he spoke to the General Officer Commanding on telephone and confirmed to him that Col. Ashok Prabhakar has informed him about his instructions to apprehend the accused. Col. Ashok Prabhakar, at around 2330 to 0001 hours in the later part of the midnight 13/14 Nov. 2003, informed that they had apprehended Major Anand Kumar.
24. CW-3 Colonel SCW Ghatpande, Commanding Officer, 5/9 Gorkha Rifles deposed that accused was granted 12 days casual leave with prefix and suffix till 09 Nov. 2003 by his previous unit 23 Infantry Division ordnance Unit and the accused was thus to report to his unit by 10 November, 2003 forenoon but the accused did not report to his unit on attachment on 10, 11, 12 or 13 November, 2003 and he spoke to the Commanding Officer, 23 Infantry Division Ordnance Unit on telephone regarding the whereabouts of the accused and he was informed by Col. Pramod Singh, Commanding Officer, 23 Infantry Division Ordnance Unit that the accused was still at Ranchi. On 13.11.2003 he instructed Major Hitesh Duggal, SM to inform him by 1200 hrs whether the accused has reported or not and he was informed that he has not joined unit then he instructed Maj. Hitesh Duggal to speak to DAAandQMG, 167 Infantry Brigade on telephone followed by a telephonic log message informing the non-reporting of the accused and to apprehend the accused, if he is at Ranchi. Thereafter, he personally spoke to the Commander, 167 Infantry Brigade and DAAandQMG on telephone and informed them of the action taken on non reporting of the accused. Since he was proceeding for recce of the Indo-Nepal Border, he left the office early at around 1315 hrs and returned to the unit at around 2030 hrs. The action of apprehending the accused was initiated by my Adjutant Hitesh Duggal, SM on my instruction and at around 0001 to 0030 hrs in the midnight of 13/14 Nov. 2003, Major Hitesh Duggal, SM informed me regarding the apprehending of the accused at Ranchi and he came to know about the details of the arrest from DAAandQMG, 167 Infantry Brigade when he spoke to him in the morning of 14 Nov. 2003. On 16.11.2003, he was informed that the accused was brought to the unit under escort. The medical examination of the accused was done in private by the Major Manoj Kumar as directed by him, as accused informed him that apprehending party has beaten him. He also deposed that on 14.11.2003 when he returned from the recce, the Adjutant. reported to him that he signed apprehension role on my behalf and he further deposed that he saw the log message for the apprehension of the accused, which he had directed to the Adjutant. He admitted that adjutant has issued this apprehension order on directions issued by him and same was seen by him when it was dispatched, therefore, he has owned that dispatch orders were issued as per his directions.
25. A perusal of the statement of the witnesses, by and large corroborate the version of the prosecution. The petitioner took the defence that he was assaulted by prosecution witnesses. A summary of this evidence would show that the petitioner was directed to be arrested and taken to 5/9 Gorkha Rifles, Banbasa, but he resisted violently and attacked the party.
26. Learned Counsel for the petitioner has tried to argue that there was no subsisting order for arrest, therefore the arrest was illegal. The submission of the Learned Counsel is without any basis, the fact remains that PW-6 along with the party did not go to the house of petitioner voluntarily he was directed by the HQ on phone which was confirmed subsequently by a written message. In the Army, sometimes the command has to be given orally and it is to be confirmed subsequently, had the command not been confirmed subsequently perhaps the submission of learned counsel could be considered but the fact remains the warrant of arrest of the accused was prepared as per the orders of the HQ, as petitioner was avoiding facing the charges which were framed against him long time and inquiry could not proceed. Therefore, the contention of the learned counsel has no legs to stand and same is rejected. A perusal of evidence of prosecution and defence leave no manner of doubt that petitioner acted in most irresponsible manner in attacking the party who had gone to arrest and escort him to Banbasa to face the court martial. The Learned Counsel submitted that since the petitioner was a psychiatric patient his mental condition was not normal and to knock the door of an officer at late night for being apprehended was bound to cause a irritation to him, therefore, this act of the petitioner was fully justified. We appreciate that petitioner has right to privacy but we cannot appreciate when an Officer in uniform had gone to the house of the accused and disclosed their identity and he knew them and saw them from his window, he could have talked to them or discuss with them rather than restoring to violent resistance, it is lucky that none of the shots hit anyone, but this act is unpardonable that when the officers had gone to his house to arrest him, he cannot resort to this mode of action to resist the arrest. We cannot countenance to such submission of the learned counsel of the petitioner. Hence we are satisfied that as per the evidence of the PW-4 and 5 that petitioner was served the warrant but he did not accept and after perusing the same returned back to PW-4 and did not sign in diary. Learned Counsel submitted that charges framed against him were barred by limitation, therefore, issue of warrant was without jurisdiction. The question that whether the charges pertaining to court martial were barred by time or not that issue cannot be decided in these proceedings, if the petitioner really was serious about raising this issue that those charges were beyond the period of limitation, then the proper course for the petitioner was to appear before the authorities and raise such objection. This question cannot be examined in these court martial proceedings. Here simple question is conduct of petitioner where warrant of attachment was sought to be served on him. Infact these officers were directed to arrest the petitioner and send him to Banbasa for facing the court martial, they were acting lawfully in compliance of execution of warrant of attachment against the petitioner. There was no necessity for the petitioner to resist it and that too knowing it well that the officers were in uniform and known to him, still petitioner has taken law in his own hand, therefore both these charges in our opinion are rightly proved against the petitioner. Consequently, in this view of the matter, we are satisfied that the finding of charge no.2 and 3 has been rightly recorded in court martial proceedings and same have been confirmed by the competent authority, we dont find any ground to interfere in the matter. The petition is accordingly dismissed.
27. After conclusion of the arguments petitioned filed the Miscellaneous application(MA-229/11) and counsel was heard on this application also. The counsel tried to repeat all the arguments which have already been made earlier. He filed written arguments also and they were also perused. There is no merit in MA-229/11 and same is dismissed.
28. No order as to costs.