Sadhan Kumar Gupta, Member (Judicial)
1. The original writ petition, which was filed before the Honble High Court at Calcutta has been transferred to this Bench and renumbered as T A 98 of 2010.
2. The case, as made out in the writ petition is that the petitioner joined the IndianArmy on June 16, 1984 and performed his duties diligently and sincerely. After ten years of exemplary service, the petitioner was posted at 24 Mountain Brigade. On December 8, 1995 the Commanding Officer of the said Brigade issued charge sheet against the petitioner alleging therein that he was absent without leave from the unit lines on August 10, 1995 from 17.00 Hr. to 20.30 Hrs. On the basis of such allegation, a Summary Court Martial Proceeding was held and Col B K Gandhi acted as the Presiding Officer of the said proceeding. On 13.12.1995 the Court Martial passed sentence against the petitioner recommending dismissal from service. The petitioner submitted a petition with the GOC-IN-C, Eastern Command, against the sentence awarded by the Court Martial. In t he said representation the petitioner contended that the presiding officer of the Court Martial passed sentence of dismissal from service, on false and frivolous ground and consequently the said decision should be set aside. However, GOC, Eastern Command, rejected such representation.
3. On 29.8.2000 the petitioner filed an application under Section 164 and 165 of the Army Act 1950 before the Chief of the Army Staff, New Delhi. In the said application the petitioner categorically mentioned that the presiding officer of the Summary Court Martial proceeding did not take oath or affirmation which was mandatory under Rule 109 of the Army Rule. There was nom-compliance of Rule 107 of the Army Rules also. He has further contended therein that mandatory provision as laid down in the Army Act and Rules were not followed by the presiding officer while holding Summary Court Martial Proceeding. It has further been contended that it was not proper on the part of the competent authority to initiate action against the petitioner for his alleged absence of 3 hrs. 30 minutes. In this respect the petitioner has pointed out to the provision of Section 80 of the Army Act.
4. Regarding the factual aspects, the petitioner has claimed that in fact he was not absent as alleged. He went to the shopping centre to purchase âBidiâ by way of informing L.NK H B Tewari. He has claimed that the summary court martial proceeding against him was the result of a well planned conspiracy of some persons. He has prayed for setting aside the decision of the summary court martial proceeding and to reinstate him in his service with consequential benefits.
5. The application has been contested by the respondents by way of filing counter affidavit wherein allegations on material points were denied. It is contended that the petitioner was tried by the summary court martial when he pleaded guilty to the charge and the Court passed the sentence on 13.12.1995. However, when t he decision of the court martial was transmitted to the higher authority, then by the order dated 13.2.1996 the sentence of dismissal was remitted and it was directed that the petitioner shall be deemed to have been discharged from service with effect from the date of the dismissal order. It has further been contended that the petitioner was tried summarily on three occasions within a span of one year and was awarded punishment. As such, the respondents have claimed that the petitioner was a habitual offender and guilty of misconduct.
DECISION
6. Admittedly the accused / applicant faced summary court martial on the charge under Section 39 (a) of t he Army Act on the allegations that he absented himself without leave from unit line from 17.00 hrs to 20.30 hrs. It appears that summary of evidence was recorded in presence of the accused and he participated in the said proceeding. Learned Advocate for the applicant vehemently argued that the accused was not given opportunity to cross examine the witnesses and as such since there is palpable violation of the principle of natural justice, so it should be held that the entire trial is vitiated and the punishment, as imposed upon him on the basis of such faulty proceeding, should be set aside. We have looked into the documents as filed in connection with this hearing on behalf of the applicant. It appears from those documents that during the recording of summary of evidence altogether eight witnesses were examined. Excepting for P W 7 and P W 3, the accused declined to cross examine others. However in respect of P W 3 and P W 7 the document shows that they were cross examined by the accused. As such it can not be said that the accused was denied the opportunity of cross examining the witnesses and thereby he was deprived of the natural justice. This contention of the learned Advocate for the accused / applicant is thus not accepted.
7. The accused has claimed that the provision of Section 131 of the Army Act regarding the taking of oath or affirmation in the prescribed manner was not followed. According to the learned Advocate for the applicant this provision of taking oath as provided in that section has not at all been followed in the Court Martial Proceeding and as such since it strikes at the very root of such proceeding, the same should be quashed and its decision should be set aside. In Chapter XI the procedure of Court Martial have been laid down. The provision of taking oath by the members and others are laid down. However, in the said chapter we do find that summary court martial was included therein. As such question of following the provision of Section 131 of the Army Act of that Chapter does not arise at all. On the contrary if we look into Section 116 of the Army Act then it will appear that it has been laid down therein to the effect:-
â1. A summary court martial may be held by the commanding officer of any corps, department or detachment of the regular Army, and he shall alone constitute the court.
2. The proceedings shall be attended throughout by two other persons who shall be officers or junior commissioned officers or one of either, and who shall not as such, be sworn or affirmed.â
It appears from the said provision t hat summary court martial may be held by the Commanding Officer and he shall alone constitute the Court. Here the Commanding Officer of the Unit actually presided over the said Court martial proceeding. In view of such provision we find no illegality in the Commanding Officers presiding over such summary court martial proceeding. Sub-section (2) of Section 116 has also been complied with as it appears that the said Court Martial Proceeding was all through attended by two other persons. In view of such position we are unable to accept the contention of the ld. Advocate for the applicant in this respect and as such the same is rejected.
8. Learned Advocate for the applicant further argued that the sentence of dismissal from service as has been passed by the Presiding Officer is bad in law as it is beyond his competency. However, it appears from Section 120(4) of the Army Act that the Presiding Officer in a summary court martial may pass any sentence which may be passed under this Act, except a sentence of death or transportation or of imprisonment for a term exceeding the limit specified in sub-section (5). There is no mention in that section that presiding officer of the summary court p=martial proceeding cannot pass a sentence or dismissal. Section 71 of the Army Act has clearly provided that a presiding officer of a court martial proceeding can pass sentence of dismissal from the service. As such there is nothing wrong on the part of the presiding officer of the summary court martial proceeding to pass t he order of dismissal so far as the accused /applicant is concerned. So, this contention is also rejected.
9. It further appears that the accused pleaded guilty voluntarily in the summary court martial proceeding. In the Affidavit in opposition there is a claim to that effect vide paragraph 4(b) of such opposition. This paragraph has been replied in paragraph six of the Affidavit-in-reply. However, no claim has been put forward therein to the effect that the applicant did not plead guilty before such proceeding. That apart if we look into the papers which have been annexed along with the application then it will appear that the accused/applicant pleaded guilty before the presiding officer. Learned Advocate for the applicant argued that even if the applicant pleaded guilty, it was the duty of the presiding officer to satisfy himself t hat the accused/applicant pleaded as such after understanding the implication of the charge as was explained to him. The learned Advocate for the respondent in reply argued by pointing out to the certificate which is annexure at page 41 of the application that the provision of Army Rule 115(2) were duly complied with. We have perused the said certificate where from it appears that all precautions were taken by the presiding officer before accepting such plea of guilt. Under such circumstances we find no merit in this contention of the learned Advocate for the applicant and the same stands rejected.
10. Learned Advocate for the applicant also argued to the effect that before passing the sentence of dismissal from service, the presiding officer did not consider the past record of the applicant. However, if we look into the documents as annexed by the applicant at page 51 of the application then it will appear that entire past service history of the applicant was taken into consideration wherefrom it was disclosed the accused/applicant was punished for several laches on several earlier occasions and he was considered to be a habitual offender. It means that the court while passing such sentence considered the entire aspects and thereafter passed the verdict. We find nothing illegal in it.
11. It is further contended in the application that for the same offence the accused was sentenced to suffer imprisonment and as such he cannot be tried for the second time in respect of self same offence and on this ground the decision of the summary court martial proceeding should be set aside. However, it appears that in the A/O it has clearly been stated that the accused was not punished with imprisonment for this offence, as claimed by him. It is stated therein that he was confined for ten days while court martial proceeding was going on. So detention of ten days or more must be considered to be a detention during the pendency of the court martial proceeding and cannot under any circumstances be considered to be a conviction order passed by the regular court martial proceeding in respect of the offence in question. As such, the claim that the accused was tried for the second time in respect of the self same offence, does not arise at all. So this contention of the applicant stands rejected.
12. It is contended on behalf of the applicant that since he was absent for only three hours, then it was not proper on the part of the presiding officer to dismiss t he accused/applicant from service. According to the applicant, the decision is apparently harsh and should be set aside. We have considered such submission carefully. It appears from the record that the accused was previously punished on several occasion for indiscipline. It is the admitted position that at the relevant time he was posted in a sensitive area. As such, being a member of the Armed Force, it cannot be accepted that the accused/applicant will remain absent even for three hours at his whims without taking permission from the authority. If this situation is tolerated, it will create a very bad precedent so far as the disciplined force is concerned. Such a person, in our opinion does not deserve any place in the army. To our mind, the presiding officer did not commit any illegality whatsoever in passing sentence of dismissal from service.
13. It is submitted on behalf of the applicant that the evidence, as adduced during the recording summary of evidence does not justify the decision, as arrived in the Court Martial. In this respect, it may be pointed out at the very out set that the accused/applicant pleaded guilty to the charge as framed against him. As such, question of consideration of the evidence on record in detail by the presiding officer while holding the accused guilty, does not arise at all. In our earlier discussion we have pointed out that the accused pleaded guilty and such plea was not accepted mechanically by the presiding officer. He has given a certificate to the effect that he satisfied himself that the accused/applicant understood the contents of the charge framed against him and consequence of pleading guilty by him, in so far as that charge is concerned. As such when the accused pleaded guilty voluntarily, then on the basis of such plea the presiding officer is within his competency to hold the accused guilty for the charge as framed against him.
14. Br that as it may if we look into the evidence on record then it will appear that P W 1 Kailash Naithani and P W 2 Subedar Major M R Gogoi clearly stated that the accused was unauthorizedly absent from duty for certain period. The record shows that the accused preferred not to cross examine those witnesses for reasons best known to him. Under such circumstances there cannot be any doubt that from the evidence of the P W 1 and P W 2 it has been clearly established that the accused remained absent unauthorizedly for the period in question.
15 That apart, if we look into the evidence of the private persons, then also it will appear that in fact the accused admitted that he was off the unit for that period without obtaining permission from the competent authority. These private witnesses in their evidence have stated that at the relevant time the accused/applicant was found in the house of one lady. The accused did not deny the same by way of cross examining those witnesses. However, whether the accused was found in the house of that lady is not the subject matter of the charge framed against him. Our main concern is that, as to whether the accused remained absent from the unit unauthorizedly or not. From the evidence on record, as discussed earlier, it is clear that for some reason or other the accused remained absent from the unit without obtaining the permission from the competent authority. Even if we look into the statement as made by the accused in connection with the Court Martial Proceeding, then it will appear that the accused admitted that he was away from the unit at the relevant time. Of course, the accused has claimed that he informed one Y.LNK/Clk HB Tiwary before leaving the unit for purchase of âbidi. However, no corroborating evidence to that effect has been given by the accused and as such we are unable to attach any importance to this claim as made by the accused. So, from the evidence on record it also appears that the prosecution has been able to establish that the accused/applicant was away from the unit at the material time without obtaining permission from the competent authority. Such evidence has been totally corroborated by the fact that the accused himself pleaded guilty so far as the charge framed against him. As such, we are of opinion that the prosecution has been able to establish beyond any reasonable doubt that the accused was guilty for the charge framed against him and so the presiding officer was justified in holding the accused guilty of the charge framed against him. We find no illegality in this respect.
16. Therefore, from the discussion made above, we are of opinion that there is no merit in this application and this court finds no justification whatsoever to interfere into the finding, as passed by the court martial authority.
17. In the result, the application is dismissed on contest but without cost. The finding of the Summary Court Martial Proceeding in respect of the accused/applicant is confirmed.
18. Let a copy of this judgment be handed over to the ld. Advocates for both the sides.