1. The petitioner is a cashiered lieutenant colonel (Acting Colonel) from the army. The sentence of cashiering was given to the petitioner on 9.12.1995 by a General Court Martial in a proceeding in course of which all the charges levelled against him were found fully established. The sentence awarded by the Court was confirmed by the Army Commander, Southern Command on May 27, 1996 after dismissing the preconfirmation petitions dated 9.1.1996 and 23.2.1996 filed by the petitioner against his sentence.
2. Although it was still open to the petitioner to make a petition against his sentence in terms of Section 164(2) of the Army Act, 1950, he chose to come to this Court in this writ petition filed under Article 226 of the Constitution seeking to challenge the proceedings of the Court Martial and the sentence given to him. learned Counsel appearing on behalf of the petitioner stated that the petitioner considered the filing of a petition under Section 164(2) of the Army Act, an exercise in futility as he did not except any justice from the authorities mentioned in that section. learned Counsel, therefore, persisted that this writ petition should be considered and disposed of by this Court on merits. As the respondents have already appeared and filed counter-affidavits, we are disposing of this writ petition, at the stage of admission, after hearing the counsel for the parties at length.
3. Initially there were five charges against the petitioner. Before the Staff Court of Inquiry convened to look into those charges, the petitioner was examined as a witness and before the Court of Inquiry, he made certain statements in respect of which it was found that those statements were made by the petitioner with full knowledge that these were false. This gave rise to the sixth charge which was as follows:
An Act prejudicial to good order and military discipline.
In that he, at Ranchi, between 18 September, 1993 and 7 October, 1993 when examined as a witness by a Court of Inquiry assembled on orders of the General Officer Commanding 23 Infantry Division, stated that on 31 March 1993 Sepoy Shivaji Ganpati Yadav of 523 ASC Battalion never admitted his involvement in the reported bank robbery, or words to that effect, which statement, as he well knew, was false.
4. learned Counsel for the petitioner submitted that the sixth charge against the petitioner was not heard by the Commanding Officer in the presence of the petitioner and, thus, there was a breach of Rule 22 (as it stood following its amendment at the material time), of the Army Rules, insofar as the sixth charge was concerned. This, according to the counsel, vitiated the entire proceedings of the Court Martial and the sentence awarded by it. 5. Rule 22 in its relevant portion is as follows:
22. Hearing of charge:-(1) Every charge against a person subject to the Act shall be heard by the Commanding Officer in the presence of the accused. The accused, shall have full opportunity to cross-examine any witness against him, and to call such witness and make such statement as may be necessary for his defence:
Provided that where the charge against the accused arises as a result of investigation by a Court of Inquiry, wherein the provisions of Rule 180 have been complied with in respect of that accused, the Commanding Officer may dispense with the procedure in Sub-rule (1).
6. It has been noted above that the sixth charge against the petitioner has arisen in course of investigation by a Court of Inquiry where the petitioner had been given full opportunity to cross-examine as provided under Rule 180 and it is therefore, apparent that charge No. 6 was covered by the proviso to Rule 22 (1) and as such the provision contained in the main rule could be legally dispensed with. Counsel for the petitioner, however, submitted that by virtue of the proviso what could be dispensed with was simply the right of the accused to cross examine any witness against him and the hearing of the charge by the Commanding Officer in the presence of the accused could not be dispensed with. We are unable to accept the submission.
7. learned Counsel next submitted that it was the Commanding Officer of the petitioner who alone was competent to issue the charge sheet under his signature (vide Rule 31), to make the petitioner's remand (vide Rule 24) and to convene a General Court Martial (vide Rule 37). It was further stated that the petitioner's Commanding Officer was the Deputy Commander of 23 Artillery Brigade (one Col. B.S. Gill). Learned counsed stated that neither the charge sheet was issued under the signature of Col. B.S. Gill nor did he pass the remand order (s) against the petitioner nor was the General Court Martial convened at his instance. These breach of the rules, according to him, went to the root of the proceeding and vitiated the sentence awarded to him.
8. It is not denied that the charge sheet bore the signatures of (i) the Brigade Commander, and (ii) the Divisional Commander. Admittedly, the officers who signed the charge sheet, passed the remand orders against the petitioner and convened the General Court Martial were much superior to the petitioner's Commanding Officer. learned Counsel, however, placed great reliance on the Defence Services Regulations, Para 20 which defines the powers and functions of the Deputy Brigade Commander. Clause (g) of para 20 lays down that the Deputy Brigade Commander will act as Officer Commanding for all officers forming part of Brigade Headquarters and exercise disciplinary powers over them. According to the learned Counsel in view of clause (g) of Para 20 of the Regulations, it was the Deputy Brigade Commander alone was competent to issue the charge sheet and to convene a General Court Martial and the Divisional Commander or the Brigade Commander, though much superior in rank, had no such competence or authority. Regulation 13 deals with the powers and functions of the Divisional Commander and provides that he would be responsible for the command, discipline, administration, training and efficiency of the troops of his division. Similarly Para 19 relating to the duties of the Brigade Commander provides that his duties would be analogous to those of a Divisional Commander. It, thus, appears to us that the Divisional Commander and the Brigade Commander were fully clothed with the authority to issue the charge sheet to the petitioner under their signatures and to take all such steps which the petitioner's Commanding Officer, an officer subordinate in rank to them, could do under the Regulations. No provision or authority was brought to our notice to suggest that the Divisional Commander or Brigade Commander, though higher in rank, were not competent to issue the charge sheet or to take further steps in that regard.
9. learned Counsel finally submitted that before the Court Martial when it was pointed out on behalf of the petitioner that the non-reading of the sixth charge before the Commanding Officer in presence of the accused amounted to a breach of rule 22 of the Army Rules, the Advocate Prosecutor had relied upon the unamended Rule 22 which was then no longer in existence. This, according to the learned Counsel, was a manifestation of the malice harboured by the respondents against the petitioner. We see no reason to suspect any mala fide in the facts and circumstances of this case.
10. We thus find no substance or merit in the writ petition and see no reason to interfere in this matter. This writ petition is accordingly dismissed.