1. This appeal has been preferred by the appellant against the Summary Court Martial (SCM) proceedings of 3.1.2007, wherein the respondents illegally sentenced him to be dismissed from service against the well settled principles and provisions of law. The appellant seeks to be reinstated from service with all consequential benefits.
2. The appellant was enrolled in 1988 as a Nursing Assistant in the Army Medical Corps and had served almost 19 years before his dismissal, thereby denying him the fruits of his dedicated and diligent service of almost two decades. The trade of Nursing Assistant is a most sought-after trade and entails good education, nursing and intelligence and a person has to be specially selected for this trade. All along, the appellant has been performing his duties to the best of his abilities and to the satisfaction of his superior officers in all areas, even in difficult border areas. He has done this despite being a Low Medical Category (LMC) P II since 1999 for Primary Hyper Tension. His problems arose when he was posted to 2/5 Gorkha Rifles (2/5 GR), wherein the Commanding Officer was annoyed with him because the appellant was unable to do physical training exercise because of his LMC status. Consequently, the CO of 2/5 GR implicated the appellant in a false and fabricated case under Section 64(e) of the Army Act, i.e. allegedly obtaining for himself a gratification as a reward for procuring an advantage for a person in the service. The conspiracy was executed on 9.12.2006, wherein two charges were framed against him, in that he accepted Rs.2000/- from Hav. Dut Prasad Gurung for getting the individual medically fit to attend the Junior Leader Course and accepting Rs.1000/- from Hav. Bisho Raj Thakuri for certifying him medically fit to attend the Pilot Course.
3. The learned counsel for the appellant argued that Army Rule 180 was not applied against the appellant. According to Army Rule 180, all allegations and charges levelled against the appellant, which are of a serious nature and affecting his military reputation and character, should be heard in the presence of the appellant, which was not done in the instant case. The appellant is also aggrieved by the fact that while the convening order for the summary of evidence was personally signed by the CO in his official capacity, the order convening the SCM, which is a far more important action on the part of the respondents, has not been signed by the CO. This order has been signed by Maj. Sanjay Rawat detailing his own CO for the SCM, which is a gross impropriety. In accordance with the Army Rules, the convening order also should have been signed by the CO. The appellant has also argued that the convening order for the summary of evidence signed by the CO on 15.12.2006, has detailed Nb. Sub. Tarsem Singh as an âindependent witness for the recording of summary of evidenceâ. This order has been signed personally by the CO and implies that Nb. Sub. Tarsem Singh should have validated the entire proceedings of the summary of evidence. However, the statements of the prosecution witnesses, i.e. PWs 1 to 5, have been recorded in his absence as Nb. Tarsem Singh has not signed their testimony. Nb. Sub. Tarsem Singh, has only signed on the statement of the appellant which has been recorded at the end of the summary of evidence. It is, therefore, apparent that the independent witness has not been present during the recording of the summary of evidence as directed by his CO. Further irregularities were also indicated in the summary of evidence, in that Maj. Kandpal, the officer who recorded the summary of evidence, was also detailed to attend the SCM and Lt. P. Mishra, who was PW 5 in the summary of evidence, was also detailed to attend the trial. These two officers, who have been part of the summary of evidence, cannot be made to attend the trial and this constitutes gross illegality on the part of the respondents. It was also argued that while recording the summary of evidence, the first witness has reported the matter of the alleged demand of bribe to his CO, therefore, in all fairness, this CO should not have tried the appellant. The CO would have taken part in the investigations and is accordingly barred by Army Rule 39(c) from sitting as the Presiding Officer of a Court to try the appellant. In all fairness, and in accordance with the rules of natural justice, the CO should have withdrawn from this case since he himself has investigated the incident. It was also argued that the so called recovery of money from the appellant was in gross violation of the laid down Rules. No seizure memo was made and nor were his signatures obtained to the effect that recovery was done in his presence.
4. The appellant is also aggrieved by the fact that the friend of the accused, who was detailed to defend him, i.e. Capt. D.K Raut, was thrust upon him and that he was not given any opportunity to select a person of his choice. Capt. Raut was not legally qualified and neither was he able to defend the appellant. The appellant also states that no such demand for money was made by him and this misunderstanding is primarily because of the language problem which the appellant was facing in the unit since he belongs to the State of Bihar and he was serving in a Gorkha unit where the commonly used language was Nepali. The appellant is also aggrieved at the fact that he did not plead guilty during SCM, in fact, he was threatened by the CO to sign the proceedings on a plea of guilt and was also assured of a light sentence should he do so. In any case, the appellant argued that the entire trial finished in five minutes which is barely sufficient to even complete the initial formalities in constituting the Court let alone to try him for the offence. The appellant also states that the respondents have not complied with the mandatory requirements of supplying the pre-trial documents 96 hours in advance, which was a statutory right as enshrined in the Army Act and the Rules made thereunder. This has prejudiced his defence and accordingly, the entire trial should be set aside. It was also argued that the punishment of reduction to the ranks, six months imprisonment and dismissal was harsh considering the otherwise good conduct of the appellant.
5. The charges against the appellant are as given below:-
First Charge Under Army Act Section 64(e) OBTAINING FOR HIMSELF A GRATIFICATION AS A REWARD FOR PROCURING AN ADVANTAGE FOR A PERSON IN THE SERVICE in that he, At Ghingarikhal (Uttranchal), on 09 December 2006, while performing the duties of Battalion Nursing Assistant, obtained for himself Rupees 2000/- (Rupees two thousand only) in Medical Inspection Room from Number 5449671W Havildar Dut Prasad Gurung of his unit a gratification as a reward for getting him medically fit to attend Junior Leader Course serial Number 45.
Second Charge Under Army Act Section 64(e) OBTAINING FOR HIMSELF A GRATIFICATION AS A REWARD FOR PROCURING AN ADVANTAGE FOR A PERSON IN THE SERVICE in that he, At Ghingarikhal (Uttranchal), on 09 December 2006, while performing the duties of Battalion Nursing Assistant, obtained for himself Rupees 1000/- (Rupees one thousand only) at Military Hospital Ranikhet from Number 5450632K Havildar Bisho Raj Thakuri of his unit a gratification as a reward for getting him medically fit to attend Fourth Pilot (LDCT-04/2006) course.â After the initial hearing of charge on 15.12.2006, the CO ordered recording of summary of evidence (S of E). Four witnesses were examined viz. PWs 1 to 4. PW 1, Hav. Dut Prasad Gurung, stated that he was medically examined by the appellant on 9.12.2006 and informed that his BP was high and that he would require hospitalisation. When he informed the appellant that his course was to commence after two days, i.e. on 11.12.2006, the appellant informed him that if he paid Rs.2000/-, he would give him the required medical certificate. Accordingly a trap was laid and four âmarkedâ Rs.500/- currency notes were handed over to the appellant, which were subsequently recovered by Military police personnel from the appellant during search. PW 2, Hav. Bisho Raj Thakuri, also stated a similar yet different instance, wherein the appellant demanded Rs.1000/- to get him a good medical certificate to enable him to attend the Pilot Course. The witness paid Rs.1000/- and thereafter reported the matter to the authorities. PW 3, Lieutenant (Lt) Prashant Mishra, was in charge of the trap laying party and was present when Military police personnel recovered the âmarkedâ four Rs.500/- currency notes from the appellant. He was also present when the appellant requested for mercy from the Company Commander. PW 4, L.Nk. B.P Nair of the Military police, testified as to how he got the marked currency notes which were given to Hav. Gurung (PW 1) and how the trap was laid.
6. It was urged by the respondents that holding of the Court of Inquiry in this case was not mandatory. Authorities are at full liberty to hear the case under Army Rule 22 and thereafter proceed with recording of the summary of evidence should it be so ordered. In this instance, no Court of Inquiry was ever conducted. Therefore, the necessity of applying Army Rule 180 did not arise. Furthermore, the appellant has nowhere been able to indicate the provisions of law wherein it was mandatory to constitute a Court of Inquiry before recording the summary of evidence. During the hearing of charge under AR 22 on 15.12.2006, witnesses were produced and the accused was given an opportunity to cross examine them, which he declined. With regard to the role and the responsibility of the independent witness detailed for recording of summary of evidence, the respondents argued that Army Rule 23 lays down the procedure for recording the summary of evidence. The Rule per se does not mention the necessity or role of the independent witness. However, Note (6) of Army Rule 23 clarifies that the presence of an independent witness is only required when the accused is given the mandatory caution as given at AR 23(3) i.e. âDo you wish to make any statement? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidenceâ is given to the accused person. This fact, that the accused is duly cautioned, has to be recorded in the summary of evidence and it is only for this purpose that it is âadvised to have an independent witness present when the accused is cautioned and when he makes the statement. Also, there is no legal provision under which the independent witness is required to append his signature below the statement of each witness in the summary of evidence. Note (6) to Army Rule 23 is appended below:
â6. The formal caution provided for in sub-rule (3) must be given as soon as the evidence for the prosecution is closed. If it is necessary to take additional summary, the accused must again be formally cautioned before he makes any further statement. The fact that he was duly cautioned should be recorded in the summary. It is advisable to have an independent witness present when the accused is cautioned and when he makes the statement. Such independent witness apart from the officer recording the summary would also be competent to prove the statement of the accused at the trial subsequently, if necessary.â
7. Learned counsel for the respondents urged that adequate notice had been given to the appellant for his trial i.e. tentative charge sheet was given to him on 10.12.2006, hearing under Army Rule 22 was conducted on 15.12.2006 and instructions given for recording summary of evidence on the same day, summary of evidence was completed on 17.12.2006, a copy of the summary of evidence and charge sheet was given to the appellant on 26.12.2006 along with written intimation that the SCM was scheduled for 3.1.2007 and his signatures obtained thereon. Notice of convening of the SCM was published in the Battalion Routine Order Part II on 30.12.2006. Furthermore, the appellant was asked vide letter dated 28.12.2006 to give his choice of a friend of accused from a panel of three officers mentioned in that letter. The appellant selected Capt. Raut from amongst that list to be detailed as the friend of the accused and the same was accordingly done. Contrary to the plea taken by the appellant that the trial finished in five minutes, the original record of the SCM was shown wherein it is evident that the trial lasted from 1130 to 1300 hours, i.e. for a period of 90 minutes. This was more than adequate to complete the trial. The signatures of the appellant appear below the plea of guilt, which he has signed, and also on the certificate, which has been appended in accordance with Army Rule 115(2). It was also indicated that in accordance with the customs and traditions of the Army, the CO does not sign Battalion Routine Orders and this is done by his Staff Officer on his behalf. There is no irregularity and neither has it caused any prejudice to the appellant.
8. The respondents argued that there has been no irregularity in the pre-trial actions or at the trial stage. The summary of evidence recorded the statements of four witnesses, including the two complainants, and the charge was proved to the hitless. The appellant is trying to make an unnecessary issue with regard to Maj. Kandpal and Lt. Mishra being detailed to attend the trial. There is no bar on these two officers attending the trial, since they do not constitute part of the Court, which is composed solely and only of the CO. In any case, no prejudice has been caused to the appellant by these two officers attending the Court, since they have no role to play, whatsoever, in the conduct of the SCM proceedings. Furthermore, all irregularities in a unit have to be reported to the CO since he is directly and solely responsible for the efficient and smooth functioning of the unit. Therefore the allegation that since the matter was reported to the CO, he should withdraw from conducting any further action in these proceedings is grossly misplaced. The complaint may have reached the CO, but the investigation has not been done by him, in fact, the summary of evidence has been recorded by Maj. Kandpal and nowhere in the proceedings is there any reference to the fact that the CO took part in the investigation. AR 39 quoted by counsel for the appellant is applicable only to GCM/DCM and not SCM, therefore, there is no necessity of its compliance in this case.
9. The respondents urged that keeping in view the gravity of the offence and the fact that his illegal demand for money from his own uniformed colleagues in such shameful manner and also since he has two earlier red ink entries for two offences and keeping in view the need for discipline in the Armed Forces, the sentence awarded to the appellant was judicious.
10. Keeping in view the above facts, we do not find any merit in the appeal or any need to intervene. Accordingly the appeal is dismissed.