Amitava Roy, J.
1. This application under Article 226 of the Constitution of India records a challenge to the decision taken by the respondents in a Geneal Court Martial, holding the petitioner guilty of committing of civil offence, i.e., murder, punishable under the Army Act, 1950 (hereinafter referred to as the Act) imposing on him the sentence of dismissal from service and imprisonment for life.
2. We have heard Ms. Rita Das, Mazumdar, advocate for the petitioner as well as Mr. P.N. Choudhury, Addl. Central Govt. Standing Counsel for the respondents.
3. The fascicule of facts necessary for the disposal of the instant application can be presented, thus :
The petitioner who at the relevant time was a permanent Jawan of 28 Assam Rifles, being No. 2851019 Rifleman (General Duty), a person subject to Army Act as Sepoy under Section 4(1) of the Act, read with SRO 117 datred 28.3.1960, SRO 318 dated 6.12.1962 as amended by SRO 325 dated 31.8.1977 was charged as follows to be tried by the General Court Martial.
Army Act Section 69
Committing a civil offence, that is to say, murder, Contrary to Section 302 of the Indial Penal Code,in that he, at Vijaynagar, while on active service, on 31 May 1998 by intentionally causing the death of Shri Siyosa Yobin S/o Shri Siliye Yobin, committed murder.
4. The proceedings of the Court Martial commenced on 16.9.1999 and in the said proceedings, the petitioner was represented by a Defending Officer as well as by a Defence Counsel Shri Sidheswar Kanoo, advocate, District Court, Dibrugarh, Assam. The charge was read over and explained to the petitioner to which he pleaded 'not guilty'.
5. The case of the respondents, in short, in support of the charge is that on the night intervening 31st May, 1998/1st June, 1998, the petitioner along with 4 others were detailed for sentry duty at Vijay
Nagar District Changlang, Aurnachal Pradesh, E Coy 28 AR R P Gate, The petitioner was issued for the said purpose, Rifle AK-47, bearing Regd. No. XM 1872, Butt No. 39 and ammunition of 60 rounds for his weapon At about 2030 hrs.. on 31st May, 1998, the petitioner left the Coy Video Hall (the place earmarked for the Guard not on duty, to rest) and went to the Civil Video Hall in Vijaynagar Bazar area where a movie was on. The petitioner went inside the hall without purchasing a ticket. Inside the hall, the petitioner misbehaved with a lady Youmanu Yobin. Being annoyed with the conduct of the petitioner, the lady changed her seat. At the time one Shri Siyosa Yobin who was also watching the movie intervened and the lady informed him that the petitioner was misbehaving with her Siyosa Yobin then asked the petitioner to show his ticket. As he could not produce the ticket, Siyosa Yobin held the petitioner by his hand and sent him out of the hall. The petitioner then rushed to his place of duty, picked up his Rifle AK-47 and returned to the civil Video Hall and violently kicked the door of the hall. Hearing the sound, Siyosa Yobin proceeded towards the door of the hall to fund out what had happened. As soon as he stepped out the hall, the petitioner fired 3(three) bullets from his Rifle AK-47 at Siyosa Yobin as a result of which, he fell down and died on the spot instantaneously. He was hit by 2(two) bullets - one on his jaw area and the other in the upper portion of his left thigh.
6. In the Court Martial, proceedings, 22 witnesses were examined in support, of the charge. The petitioner did not examine any witness in defence. The petitioner, however, was examined with reference to the incriminating circumstances brought on record by the different witnesses and he denied the allegations. Thereafter, upon hearing both the sides in accordance with the provisions of the Act and the Army Rules, 1954 (hereinafter referred to as the Rules), the Court Martial found the petitioner guilty of the charge and eventually after hearing the petitioner on the question on sentence ordered that he be dimissed from service and suffer imprisonment for life. The finding and sentence awarded by the Court Martial was thereafter duly confirmed by the appropriate authority. The petitioner preferred an appeal/representation before the Director General, Assam Rifles, Shillong against the finding and sentence of the Court Martial and confirmation thereof. Further, he also preferred an appeal/revision against the finding and sentence of the Court Martial and his confirmation before the Secretary, Ministry of Home Affairs, Central Government of India. Though the petitioner in the writ petition had taken a stand that no action thereon was taken by the respondent-authorities, it transpires from the communication dated 8.5.2001 and 18.5.2001, Annexures II and III to affidavit-in-opposition filed by the respondents that the said appeal/revision/representation was considered on merits and rejected by the appropriate authorities.
7. In the appeal/revision/representations so filed by the petitioner, he had challenged the finding and sentence of the Court Martial mainly on the ground that the same was against the weight of evidence on record and that the Court Martial had misappreciated the same. The further contention of the petitioner therein was that the witnesses were all tutored and he was not afforded reasonable opportunity to defend himself in the proceedings. In the alternative, it was contended that considering the materials on record, it was an offence punishable under Section 304 Part II of the Indian Penal Code and not one under Section 302 I.P.C. No plea with regard to contravention of any provisions of the Act or the Rules or want of jurisdiction of the Court Martial was raised in the said appeals/revisions/representations before the respondents-authorities.
8. The main thrust of the arguments of Ms. Dutta Mazumdar, learned counsel for the petitioner is that the charge levelled against the petitioner had not been proved beyond reasonable doubt in the Court Martial proceedings and, therefore, the finding and sentence recorded against him is not sutainable in law and is liable to be set aside. The learned counsel while referring to the deposition of the witnesses in details has sought to point out the discrepencies and inconsistencies therein to buttress her arguments in the above lines. According to her, the witnesses PWs 5, 10, 13, 14 and 15 who have been cited as eye witnesses, were not at all present in the civil Video Hall on the date of alleged occurrence and that, she argued, that the same was evident from the discrepant details provided by the said witnesses in their testimony. She argued that admittedly the alleged incident had occurred when the movie was on and it was dark inside the hall and, therefore, it was not possible for the said witnesses to see the actual occurrence. With reference to the evidence of the said witnesses recorded in the Court Martial proceedings, the learned counsel strenuously argued that from the chain of events narrated by the witnesses, it was clear that their versions mutilated each other and that it was not possible to hold beyond reasonable doubt that the petitioner was guilty of the alleged offence. She argued that in such circumstances, the petitioner is entitled to the benefit of doubt.
9. The learned counsel while referring to Ext. O, which is an extract from the ammunition in and out register pointed out to this Court that it was clear therefrom that no ammunition for AK-47 rifle was issued to the petitioner on that day and that the related column showing issue of such ammunition to Hav. N.N. Goswami (who thereafter, as claimed, had handed over the ammunition to the petitioner) contained mutilations indicating that initially the figure was 50 and was thereafter, replaced by 60. She accordingly argued that from contemporaneous records therefore, it was established that the ammunition allegedly used by the petitioner was not issued to him and, therefore, the question whether the petitioner had fired from his AK-47 rifle with the said ammunition did not arise. The learned counsel also drew the attention of this Court to the sketch map Ext. M and, with reference to the statements made by the witnesses about the place of occurrence, situs of the dead body, etc., and argued that there were material inconsistencies which had the effect destroying the substratum of the case of the respondents against the petitioner. She further argued that the respondents had failed to prove that the injuries sustained by the deceased were caused by bullets fired from an AK-47 rifle no bullets were recovered to connect the same with the AK-47 rifle issued to the petitioner, she argued. She contended that the evidence of the witness PW 9, Armourer Laxman Singh Rawat was not conclusive of the fact that AK-47 rifle seized from the petitioner was the weapon used in the alleged offence. She submitted that the said witness in his cross-examination admitted that he had not used the inspection mirror which is generally used for inspecting the barrel to form an opinion as to whether the concerned fire arm had been used or not. The learned counsel further urged that the opinion of the Forensic Science Laboratory as contained in the report Ext. W is also not conclusive of the fact that the AK-47 rifle issued to the petitioner was the weapon of assault. She further argued that the opinion of Dr. C.N. Mantaw who had performed the post-mortem examination on the dead body does not inspire confidence inasmuch as, admittedly when the post-mortem examination was done, the dead body was in an advanced stage of decomposition. She has, therefore, argued that with that state of body, it was not possible to form an exact opinion with regard to injuries sustained and the causes of death. She also drew the attention of this Court to the statement made by the doctor to the effect that it was the first case of postmortem examination performed by him and that according to him, similar injuries could be caused by a spear or a penetrating object and could also to be a self-inflicted one. The learned counsel, therefore, argued that thus no reliance could be placed on the said opinion of the doctor in order to hold without any doubt that the injuries were caused by bullets as alleged against the petitioner. The learned counsel further assailed the evidence of PW 7 and PW 8 wherein the witnesses deposed that the petitioner had disclosed before them the incident admitting that on that day he had been to be civil video hall and being turned out therefrom following an altercation with some civilians, he came back to the unit and picked up his weapon and ammunition and returned to the video hall, knocked the door and as soon as one civilian opened the door, he fired 2/3 rounds from the close range. She argued that the petitioner had not made any such disclosure to the said two witnesses and, therefore, their evidence was no admissible in law. She further argued that without prejudice to the above stand, the said disclosure made by the petitioner at best may be taken to be an extra judicial confession which by itself is a very week piece of evidence and as in the instant case there is no other corroborative evidence on record, the petitioner cannot be held to be guilty of the offence alleged solely on the basis of the evidence of the said two witnesses. The learned counsel further argued that from the evidence on record, the identity of the petitioner as the assailant had not been established beyond reasonable doubt. According to her, the petitioner being on duty was in combat dress but most of the witnesses found the assailant to be in civilian dress. She contended that the deceased also had bad antecedents and was treated to be a bully in the area. She further argued that the AK-47 rifle alleged to be the weapon of assault, was freely available to extremists in the said area and, therefore, the possibility that the offence was an act of extremists could not be ruled out.
10. The learned counsel has placed great reliance on the evidence of PW 20. M. Lushai who had stated that on the date of occurrence he was one of the sentries detailed for guard duty at RP Gate of E' Coy along with the petitioner and that he had found the petitioner sleeping in the unit video hall (resting place for the sentries) at 2000 hours. He further stated that when he came back from his duty at 2200 hours, he still found the petitioner to be sleeping there. The learned counsel has, therefore, argued that the petitioner was in fact not present at the place of occurrence on the date of the alleged incident and the case has been framed up to falsely implicate him in the charge. The learned counsel, therefore, emphatically urged that considering the evidence on record the charge against the petitioner was not proved beyond reasonable doubt, and, therefore, the finding and sentence recorded by the Court Martial was apparently not sustainable in law and on facts and is liable to be set aside by this Court. In the passing, the learned counsel raised the plea that the Court Martial had no jurisdiction to conduct the proceedings. She however did neither draw the attention of this Court to any provisions of law in this regard nor any material on record to substantiate her said plea. As a matter of fact, the learned counsel did not elaborate her arguments on that ground. No other point was also canvassed before us by the learned counsel for the petitioner. In support of her submissions, the learned counsel placed reliance on the following auhtorities.
(1) 1998 Cri LJ (Vol. 2} 1314 (Mahendra Singh v. State of Rajasthan);
(2) 1999 Cri. LJ 267 (Surinder Kumar v. State of Punjab, Respondent);
(3) 1999 Cri. LJ (Vol. 1) 467 (Din Dayal v. Raj Kumar) ;
(4) 1998 Cri. LJ 3861 (Ramesh Jogi (Yogi), Appellantv. State of U.P., Respondent)
11. In reply, Mr. Choudhury, learned Addl. Central Govt. Standing Counsel has strongly contended that the Court Martial proceeding had been conducted strictly adhering to the provisions of the Act and the Rules and that all reasonable opportunities had been granted to the petitioner to defend himself against the charge. He argued that the evidence on record both oral and documentary amply proved the fact the AK-47 rifle in question with 60 rounds of ammunition had been issued to the petitioner for his sentry duty on the date of occurrence. He submitted that the evidence of the eye witnesses PWs 5,10, 13, 14 and 15 was consistent, coherent and cogent, corroborative of each other and was sufficient to hold beyond reasonable doubt that the petitioner was guilty of the offence alleged. He further argued that it was clear from the evidence of PW 9 and the F.S.L. report Ext. W that AK-47 rifle issued to the petitioner had been used as the weapon of assault. He further argued that it was clear from the evidence of PW 16 that he recovered 3 (three) fired bullet cases from the place of occurrence and also a bullet after digging the ground at a distance of about 4 ft. from the head of the deceased. He argued that the evidence of the said witnesses read with the evidence of PW 21. The FSL report and the fired cases and the bullets being material Exts. 3, 4, 5 and 6 would go to show without any manner of doubt that the AK-47 rifle issued to the petitioner had been used in murdering Siyosa Yobin. He further argued that it was amply established from the evidence on record that the petitioner was, present in the video hall on the date of occurrence and was turned out therefrom after having misbehaved with a lady, P.W. 10. He contended that the evidence on record established that the petitioner returned to his unit and rushed back to the civil video hall with AK-47 rifle and ammunition and knocked the door of the hall and no sooner Siyosa Yobin had stepped out of the hall, the petitioners fired 3 (three) shots at him killing Soyosa Yobin at the spot. The learned counsel argued that keeping in mind the sequence of events, it could not be said that the act of the petitioner in rushing back to the unit, picking up his AK-47 rifle, knocking the door of the civil video hall and opening fire on the petitioner were all due to grave and sudden provocation or on the spur of the moment being deprived of power of self-control. On the other hand, he argued that having regard to the version of the witnesses, the minor issue for which the petitioner was asked to leave the hall, he (petitioner) had sufficient time to cool off and his act of returning to the unit and, thereafter, coming back to the hall and opening fire on Siyosa Yobin clearly demonstrated his intention of killing the deceased. He further argued that having regard to the number of shots fired and the parts of the body where the deceased was shot at, it is apparent that the petitioner had both the intention of killing him and had used his weapon with the full knowledge that by using the same, Siyosa Yobin would not survive such an attack. According to the learned counsel, therefore, it was a case of murder out and could not by any stretch of imagination be said to be an offence of culpable homicide not amounting to murder. The learned counsel further argued that the Court Martial had come to the finding that the petitioner was guilty of the charge on a proper appreciation of the materials on record and this Court in exercise of its power of judicial review under Article 226 would not reappreciate the evidence to upset the said finding. He further argued that the petitioner being a member of the disciplined force was not expected to behave in such an irresponsible and unruly manner and having committed a heinous crime like murder, the sentence imposed cannot be said to be disproportionate so much so to shock the conscience of this court. He has, therefore, argued that the facts and circumstances of the case are such that no interference by this Court under Article 226 of the Constitution of India is called for and the petition is liable to be dismissed. The learned counsel in support of his submissions placed reliance on the following authorities.
(1) AIR 1991 SC 1617 (Maj. G.S. Sodhi Petitioner v. Union of India Respondent);
(2) AIR 1983 SC 454 (Bhagat Ram, Appellant v. State of Himachal and others, Respondent);
(3) (1998) 1 SCC 537 (Union of India and others, Appellant v. Maj. A Hussain, Respondent);
4) AIR 1990 SC 1984 (S.N. Mukherjee, Appellant v. Union of India, Respondent);
(5) (1997) 9 SCC 1 (Maj. General Inderjit Kumar, Appellant v. Union of India and others, Respondent);
(6) (2001) 9 SCC 592 (Union of India and others, Appellant v. R. K. Sarma, Respondent)
12. The learned counsel for the petitioner in her reply while reiterating her submissions generally, submitted that the evidence of PWs suffered from serious discrepancies which could not be overlooked for the purpose of ascertaining as to whether the charge has been proved or not. She further submitted that the report of Forensic Science Laboratory and the evidence of P.W.9 cannot be said to be conclusive of the fact that AK-47 rifles issued to the petitioner was used as the weapon for killing Siyosa Yobin. She, therefore, contended that the respondents-authorities had failed to prove the charge and, therefore, it is a fit case where this Court would issue an appropriate Writ/direction or order to set aside and quash the finding and sentence recorded by the Court Martial and the orders confirming the same as well as rejecting his appeals/revisions/representations.
13. Before adverting to the rival contentions of the parties, it would be apposite to deal with the authorities cited at the Bar.
14. In Mahendra Singh and others (supra) relied upon by the learned counsel for the petitioner, their Lordships of the Rajasthan High Court was seized inter alia, with a question as to whether one Nathu, PW-9 claiming to be an eye witness of an incident of murder would be relief upon in support of the charge. It was a criminal appeal against the judgment and order of conviction of the appellants under Sections 302/34 I.P.C. along with other sections of the Indian Penal Code and the Arms Act. In the facts of that case, their Lordships after noticing the intrinsic infirmities of the evidence held that the said witness was only a chance witness and no reliance could be placed on his statement. While coming to the said conclusion, their Lordships took note of the fact that Bhanwarlal, PW-4, an eye witness had not mentioned about the presence of Nathu, PW9 at the place of occurrence and the statement of the said witness (P.W.9) was recorded much belatedly though, the investigating officer was supposedly made aware of the fact that Nathu was an eye witness. No entry was made in the case diary explaining the delay in not examining Nathu in time. Another circumstance, which weighed with their Lordships, was that though this witness claimed to have seen the incident, he did not inform the mother and brother of the deceased about the same.
15. In Surinder Kumar, Appellant (supra), the question before the Apex Court was whether the extra-judicial confession made by the four accused persons therein to PW 6 could be acted upon. The Apex Court in the facts of that case, after carefully going through the evidence on record, held that the prosecution had failed to conclusively prove the charge levelled against the appellant-accused and that it was improbable that all the four accused-persons, who had no particular relationship or connection with P.W. 6 so as to confide in him, were seized at the same time by a mood to approach him to make a joint confession. The Apex Court held that such extrajudicial confession was lacking in credence and could not be acted upon.
16. In Din Dayal, Appellant (supra), the Apex Court was examining the question as to whether the High Court was correct in discarding the evidence of P.Ws 1, 2, 3 and 4 on the ground that the version given by them was improbable and that their conduct was so unnatural that it created a serious doubt regarding truthfulness of their evidence. The Apex Court in that connection, on an analysis of the evidence, noticed that the witnesses who were not merely eyewitnesses but also to closely connected with the deceased, had not accompanied him (deceased) to the hospital nor had taken any trouble for going and informing the police about what had happened. They instead, after seeing the incident, quietly went back to their home. The Apex Court in the said circumstances, upheld the view taken by the High Court.
17. Their Lordships of the Allahabad High Court in Ramesh Jogi (Yogi), Appellant (supra), was inter alia, seized with two questions, firstly - whether Tulsi, PW 3 could have really identified the accused committing the offence and secondly, whether the statement of P.W. 6 Ram Babu was reliable to be acted upon in view of the delay in recording of his statement by the investigating officer. Their Lordships on a consideration of the statement of Tulsi, PW 3 that the incident had taken place like a blitz within a minute or so and that he had no opportunity to note the features of the accused, came to the conclusion that the said witness could not have identified the accused. While holding so, their Lordships also took note of the statement of the said witness to the effect that he had not seen or known the name of the accused before the incident. With regard to P.W. 6 Ram Babu, their Lordships in the facts and circumstances of the case, discarded his evidence on the ground that his statement was recorded much belatedly and that there was no explanation for such delay.
18. It may be relevant to observe here, that the above cited decisions were all rendered in appeals filed against the judgments and orders of convicted by the Criminal Court in criminal proceedings. These do no relate to a Court Martial proceeding conducted under the Act and the Rules as in the present case.
19. In Major G.S. Sodhi, Petitioner (supra) relied upon by the learned counsel for the respondents, the issue inter alia, before the Apex Court was whether the Inquiring Officer was prejudiced and biased against the petitioner and, further whether the general court - martial proceedings were not conducted as per law. The proceedings before the Apex Court was registered under Article 32 of the Constitution of India. A writ petition was filed challenging the proceedings of the court-marital culminating in the removal of the petitioner from service by way of punishment. While dealing with the aspect of appreciation of evidence of the witnesses examined in the court-martial, the Apex Court observed that it would not reappreciate the evidence and that it was not within the scope of the writ petition. It further observed that if all necessary evidence had been brought on record and the defence had cross-examined the witnesses effectively, it could not be said that there was no evidence against the accused-petitioner and, therefore, it was for the General Court Martial to arrive at the conclusion on the basis of the evidence. The other issues which fell for consideration of the Apex Court in that case being not relevant for the case in hand, we do not wish to burden this judgment by referring to the same in details.
20. In Bhagat Ram, Appellant (supra), a disciplinary enquiry was held against the appellant, a Class IV semi-lieterate Forest Guard inter alia, on the charge of negligence in duty and doubtful honesty. The penalty of removal was imposed on the appellant. The High Court of Himachal Pradesh having rejected his application under Article 226 of the Constitution of India, the matter reached the Apex Court. Their Lordships in that factual background, while dealing with the aspect whether the principles of natural justice was complied with in the proceedings, held that where in a disciplinary proceedings the department is represented by a Presenting Officer, it would be incumbent upon the disciplinaryauthority, while making appointment of a Presenting Officer, to simultaneously inform the delinquent of the fact of such appointment and his right to take the help of another Government servant before the commencement of inquiry. While dealing with the scope of Article 226 of the Constitution in relation to finding of a disciplinary authority, it held that High Cdu'rt does not function as a Court of appeal over such proceedings but where the finding is utterly perverse, the Court can always interfere with the same. It referred to its earlier decision reported in AIR 1964 SC 364, Union of India v. H.C. Goel wherein, it was held that the High Court under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rested was not supported by any evidence at all. It recalled its earlier observations made in that case to the effect that such proceedings are in the nature of quasi-judicial proceedings and that a writ of certiorari could be claimed by a public servant if he was able to satisfy the High Court that the ultimate conclusion of the Government in the said proceedings, which is the basis of his dismissal, is based on no evidence.
21. In (1998) 1 SCC 537, Union of India and others, Appellants (supra), the respondent therein had challenged the conviction and sentence in a court-martial proceedings before the High Court in a writ petition. The High Court set aside the court-marital proceedings on the ground of denial of reasonable opportunity to the respondent. The Apex Court in the appeal filed by the Union of India, on a survey of the materials on record held that the proceedings of the general court-martial was fair and every possible opportunity was afforded to the respondent to defined his case. While referring to the finding of the Division Bench of the High Court that the learned Single Judge had minutely examined the record of the Court Martial proceedings and after it, had come to the conclusion that the respondent was denied reasonable opportunity, the Apex Court observed that it was a fundamental mistake committed by the High Court. It was not necessary for the High Court to minutely examine the record of the General Court-Martial as if it is sitting in appeal, it observed. With regard to the scope of judicial review by the High Court under Article 226 of the Constitution relating to Court-Martial proceedings, the Apex Court observed that such proceedings are subject to judicial review but was not subject to the superintendence of the High Court under Article 227 of the Constitution. It held that if a court-martial had been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter any court must say Its hands. It further held that the proceedings of the court-martial are not to be compared with the proceedings in a criminal court under the Code of Criminal Procedure and observed that court-martial remains to a significant degree, a specialised part of overall mechanism by which the military discipline is preserved. It is for the special need for the armed forces that a person subject to Army Act is tried by court-martial for an act which is an offence under the Act. Referring to the provisions of the Act and the Rules, the Apex Court observed that the procedure prescribed therein is equally fair if not more than in a criminal trial and when there is sufficient evidence to sustain conviction, it is unnecessary to examine if pre-trial investigation was adequate or not.
22. In S.N. Mukherjee, Appellant (supra), it was held that the Supreme Court under Article 32 and the High Courts under Article 226 of the Constitution have the power of judicial review in respect of the proceedings of court-martial and the proceedings subsequent thereto and can grant appropriate relief if the said proceedings had resulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said proceedings suffer from a jurisdictional error or any error of law apparent on the face of the record. Following a detailed examination of the scheme of the Act and the Rules, the Apex Court held therein that no reasons are required to be recorded in support of the findings and sentence of court-martial and in the proceedings for confirmation of such findings.
23. In Major General Inder Jit Kumar, Appellant (supra), the appellant therein challenged the finding and sentence of the Court-Martial inter alia, on the ground that he was not furnished with a copy of the report of the Court of Inquiry and that, therefore, the trial was vitiated. In the facts of that case, the Apex Court observed that such plea was not tenable and that the court-martial proceedings could not be faulted on the ground of non-compliance with the principles of natural justice. It further observed that it was not sitting in appeal in the proceedings and the findings of the General Court-Martial.
24. In (2001) 9 SCC 592, Union of India and others, Appellants (supra), the respondent was dismissed from service following a General Court-Martial. The High Court before which the court-martial proceeding was challenged held that the same was conducted properly and there was no breach of principles of natural justice. It further held that having regard to the nature and degree of the offence, ' the punishment of dismissal from service was not sustainable. The Apex Court in that factual background held that the High Court having held that the charges had been proved, it was not open to the Court to have interfered with the sentence. It observed that awarding of sentence was within the power of the Court Martial and these were not matters in which the Court should interfere. It held that it is only in extreme cases, which on their face show perversity or irrationality that there can be judicial review and that merely on compassionate grounds, a court should not interfere.
25. The proposition of law which can therefore be culled out from the above decisions is that though the Court Martial proceedings is subject to judicial review of the High Court under Article 226 of the Constitution, it cannot exercise its power of superintendence over the same under Article 227 of the Constitution. It is only where there is a denial of fundamental rights or if the proceedings are vitiated by a jurisdictional error or any error or law apparent on the face of the record and if the findings in the Court Martial are perverse inasmuch as, there is no evidence whatsoever to support the same, interference by the High Court in exercise of power of judicial review under Article 226 of the Constitution is called for. Thus, the High Court in exercising its power of judicial review is not supposed to act as a Court of appeal and embark on an exercise of reapprcriating the evidence and materials on record and substitute its findings for those arrived at by the administrative authorities or the subordinate courts and/ or tribunal.
26. As alluded above, the decisions relied upon by the learned counsel for the petitioner relate to criminal trial and the deductions and conclusions recorded therein are dominantly fact oriented. Those do not lay down any concrete proposition of law of general application. Considering the fact that in the instant case the legality and validity of the finding and sentence in a Court Martial proceeding conducted under the Act and the Rules is under scrutiny, we are of the opinion that the said decisions do not render much assistance to the petitioner.
27. The core submission of the learned counsel for the petitioner has been that the respondents-authorities had failed to prove the charge of murder against the petitioner and in order to substantiate the said contention, she referred to the evidence in details pointing out the infirmities and inconsistencies therein. According to her, the evidence on record does not establish the guilt of the petitioner beyond reasonable doubt and, therefore, the finding and sentence of the Court Martial is liable to be set aside. We would advert to that aspect of the case a little later. As observed above, the learned counsel for the petitioner has faintly submitted that the other ground of attack is that the Court Martial had no jurisdiction to try the case of the petitioner as the alleged offence was one of murder and that ' accordingly, the petitioner ought to have been tried by a criminal court. We would like to deal with this submission before we take up the principal contention raised on behalf of the petitioner as indicated above.
28. We have examined the proceedings of the Court Martial but we do not find anything on record to suggest that the petitioner had any point of time raised the plea of want of jurisdiction of the Court Martial. On the other hand, he participated in the said proceedings without any demur. Under Section 125 of the Act, when a criminal court and a court martial have each jurisdiction in respect of an offence, it shall be the discretion of the officer commanding the Army. Armed Crops Division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which court, the proceedings shall be instituted and if that officer decides that those should be instituted before a Court Martial, it will be within his power and authority to direct that the accused person shall be detained in military custody. Section 126 provides that when a criminal court having jurisdiction is of the opinion that proceedings should be instituted before it in respect of any alleged offence, it may, be written notice require the officer referred to in Section 125 at his option, either to deliver over the offender to the nearest magistrate to be proceeded against according to law or postpone proceedings pending a reference to the Central Government. It would thus appear that primarily when a criminal court and a court martial have each jurisdiction in respect of an offence, it is in the discretion of the Officer Commanding the Army, etc. to decide before which court the proceedings shall be instituted. For the criminal court to exercise power under Section 126 it has to form an opinion that the proceedings should be instituted before it. If it is so satisfied, then it may issue a written notice to the officer commanding the Army etc. to hand over the offender to the nearest magistrate to be dealt with in accordance with law or submit a reference to the Central Government by postponding the proceedings. We have not been referred to any such order or notice by the criminal court. No other material on record has been pointed out to us to indicate that any such exercise was done by the criminal court under Section 126 of the Act. On the other hand, it is evidently clear that the appropriate authorities under the Act had decided to convene the General Court Martial to try the petitioner for the civil offence for which he was eventually charged. We do not find on a consideration of the appeals/ revisions/representations submitted by the petitioner to the higher authorities under the Act that such plea of want of jurisdiction of the Court Martial had been taken at any point of time. We are therefore not impressed with the half-hearted submission made by the learned counsel for the petitioner in this regard. This contention of hers, therefore, fails.
29. The Act and the Rules amongst others provide a complete scheme for initiating and conducting Court Martial proceedings. We have inspected the records of the Court Martial produced before us by the learned counsel for the respondents. We find that the procedure prescribed by the Act and the Rules in this regard has been scrupulously observed. There is no complain with regard to the composition of the Court Martial and convening thereof. We find that the petitioner was provided with a Defending Officer and was also representing by a Defence Counsel in the proceedings. He was properly arraigned upon the charge. He pleaded 'not guilty' to the charge when explained. The witnesses for the respondents-authorities were examined in presence of the petitioner and they were extensively cross-examined on his behalf. The documentary evidence was adduced also in his presence and cross-examination was made thereon. After the examination of the witnesses for the respondents-authorities was closed, the petitioner was asked as to whether he would adduce any evidence in defence to which he answered in the negative. Thereafter, the petitioner was generally examined with reference to the incriminating circumstances brought on record through the evidence of the witnesses for the respondents-authorities. Pointed questions were put to him in order to enable him to explain the said circumstances and he duly answered to those questions. Thereafter, the Court Martial on a consideration of the material on record held the petitioner to be guilty of the charge. Thereafter, for the purpose of determining the sentence, the Court Martial hear the petitioner as required under Rule 64 and ultimately imposed the sentence of dismissal from service and imprisonment for life, The finding and sentence dated 17.10.1999 of the Court Martial was thereafter confirmed by the appropriate authority and was finally promulgated as required under Rule 71. No. contravention of any provision of the Act and the Rules in conducting the Court Martial proceedings has been pointed out to us. On a scrutiny of therecords pertaining to the said proceeding, no violation of the procedure prescribed is discernible. We are, therefore, of the opinion that the Court Martial proceedings do not suffer from any defect of non-compliance of the procedure laid down in that regard under the Act or the Rules.
30. Turning to the evidence on record, we are of the opinion, on a consideration thereof, that it is not a case of 'no evidence' in support of the charge. The death of Siyosa Yobin is not disputed. The witnesses PW 5, 10, 13, 14 and 15 have stated consistently that they have seen the petitioner firing upon the said Siyosa Yobin on the date of the occurrence as a result of which, he succumbed to the injuries sustained. Though, this defence of the petitioner in the proceedings was one of clear denial, in course of the cross-examination PW 5, PW 10 and PW 15, it was suggested to the witnesses that the deceased had tried to snatch the rifle from the petitioner-accused which resulted in a scuffle and the gun went of accidentally. This in a way amount to an admission of the presence of the petitioner-accused at the time and place of occurrence. That the AK 47 rifle in question along with 60 rounds of ammunition was issued to the petitioner by the unit where he was posted before the occurrence, has also been testified by PW 2 and PW 6. Referring to the Arms in and out register Ext. N and ammunition in and out register Ext. O., PW 4 the doctor, who performed the post-mortem examination on the dead body, in his evidence affirmed the injuries on the chin whereby the mandible was fractured and corotid artery was severed. The other injury referred to by the doctor is downward penetrating injury from the public region 01 inch left of penis to left buttock. He opined that there were established track of both the injuries from entry to exit ones. P.W. 7 and PW 8 had stated in the proceedings that the petitioner had disclosed before them that on the date of occurrence, he had been at the place of the occurrence and that following an altercation he was turned out of the civil video hall where he came back to the unit, took his AK 4 rifle and returned to the place of occurrence and knocked door of the hall. He further stated that as the door opened, a civilian came out, he fired at him following which he (civilian) fell dowh. PW 9 Laxman Singh who had examined the AK 47 rifle allegedly used in committing the offence stated in his evidence that some rounds were fired from that weapon. The report of the Senior Scientific Officer, Ballistic Division, Forensic . Science Laboratory Ext. W, however, discloses that no firm opinion could be given whether the empty fired cartridge cases and the fired bullets collected at the place of occurrence, were fired through the AK 47 rifle, in question. PW 16, Head Constable K. Pradhan however in his evidence had stated that he recovered 3 (three) fired bullet cases from the place of occurrence together with a bullet after digging the ground at a distance of about 4 ft. from the head of the deceased. PW 20 M. Lushai in his evidence, inter alia, stated that at the relevant time he found the petitioner sleeping at the unit Video hall (resting place). The Court however on an appreciation of the evidence on record both oral and documentary, held that the petitioner was guilty of the offence charged. As observed earlier, having regard to the materials on record and the nature of the proceedings where the standard of proof is not of one beyond reasonable doubt, we are not in a position to hold that the findings and conclusions of the Court Martial can be branded as perverse. In exercise of out power of judicial review, as we are not satisfied that the respondent-authorities had totally failed to produce any evidence whatsoever in support of the charge, we are not inclined to upset the findings and conclusions recorded by the Court Martial in the instant proceedings under Article 226 of the Constitution of India. The proceedings of the Court Martial is a quasi judicial one and in the exercise of power of judicial review, this Court is not to examine the decision reached at but, only the decision making process. Even if two views are possible on the basis of the materials on record, if the view taken by the administrative authority is a plausible one on the evidence available on record, this Court in exercise of the power of Judicial review would not upset the said finding only on the ground that it entertains the other view. Sufficiency of the evidence on record cannot be gauged in the instant proceedings under Article 226 of the Constitution of India. It is generally not open to weigh the evidence on which the administrative authority has acted, in golden scales, as done in a criminal trial. Hairsplitting analysis of the evidence is not called for. If that is done, having regard to the nature of the proceedings before this Court, it would amount to overstepping the limits of judicial review as has been marked by a series of decisions of the Apex Court on the subject.
31. The Apex Court in its decision reported in (1999) 4 SCC 521, Union of India and others, Appellants v. Himmat Singh Chahar, Respondent was dealing with the situation where the dismissal of the respondent following a Court Martial proceedings was set aside by the Bombay High Court on a writ petition filed by him on the ground of insufficiency of evidence. In that context, in the appeal filed by the Union of India, the Apex Court observed as follows :
'It is of course true that notwithstanding the finality attached to the order of the competent authority in the court-marital proceedings the High Court is entitled to exercise its power of judicial review by invoking jurisdiction under Article 226 but that would be for a limited purpose of finding out whether there has been infraction of any mandatory provisions of the Act prescribing the procedure which has caused gross miscarriage of justice or for finding out that whether there has been violation of the principles of natural Justice which vitiates the entire proceedings or that the authority exercising the jurisdiction had not been vested with Jurisidiction under the Act. The said power of Judicial review cannot be a power of an appellate authority permitting the High Court to reappreciate the evidence and in coming to a conclusion that the evidence is insufficient for the conclusion arrived at by the competent authorities in court-marital proceedings. At any rare it cannot be higher than the jurisdiction of the High Court exercised under Article 227 against an order of an inferior tribunal. This being the parameter for exercise of power of judicial review against the findings of a competent authority in court-marital proceedings, and applying the same to the impugned judgment of the High Court we have no hesitation to come to the conclusion that the High Court overstepped its jurisdiction in trying to reappreciate the evidence Mrs. Nirmala Sharma and in corning to he conclusion that her evidence is not credible enough to give a finding of guilt against the respondent of a charge under Section 354.
32. The parameters of judicial review has been laid down by the Apex Court in a number of decision. For the sake of brevity, we are referring to the oft-quoted decision rendered in Tata Cellular, Appellant v. Union of India, Respondent, reported in (1994) 6 SCC 651, where the Apex Court enumerated the grounds upon which an administrative action was subject to control by judicial review as hereunder:
'(i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness,
(iii) Procedural impropriety.
The above are only the board grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. V. Secretary of State for the Home Department, ex Brind, Lord Diplock refers specifically to one development, namely, the po'ssible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, 'consider whether something has gone wrong of a nature and degree which requires its intervention'.
While elaborating on the aspect of irrationality, the Apex Court referred to a passage in the speech of Lord Diplock in council of Civil Service Unions v. Minister for Civil Service. (1984) 3 All ER 935 : P 680, which is quoted below :
'By 'irrationality' I mean what can now be succinctly referred to as 'Wednesbury unreasonableness'. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation) It applies to a decision which is so outrageous in its defiance to logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at,''
33. In Haryana Urban Development Authority and another, Appellants v. Roochira Ceramics and another, Respondents, (1996) 6 SCC 584, the Apex Court observed as follows :
'It has been held repeatedly by this Court that the power under Article 226 is the power of judicial review. The High Court can only examine the procedural correctness. It cannot go into the merits of the controversy like an appellate authority:
There is no room for any benevolence under Article 226 of the Constitution, If the Court departs from law and enters the arena of benevolence the perils and pitfalls are too many to recount. There will be no objective standards of judging. Justice becomes personalised. It would vary from Judge to Judge. In the absence of any procedural irregularity, the High Court had no jurisdiction to interfere in the matter.'
34. In a very recent decision reported in (2000) 5 SCC 11, Union of India and others, Appellants v. Narain Singh, Respondent, the Apex Court while dealing with the scope of the power of judicial review under Article 226 of the Constitution of India and the punishment impossible in disciplinary matters, observed as follows, referring to its two earlier judgments on the subject:
'This Court has, in the case of Union of India v. Sandar Bhadur held that there are limits to the powers which can be exercised by a Single Judge under Article 226 of the Constitution and, similarly, there are limits to the powers of a Division Bench while sitting in appeal over the judgment of Single Judge. This Court has held that where there are relevant materials which support the conclusion that the officer is guilty, it is not the function of the High Court to arrive at an independent finding. It has been held that if an enquiry has been properly held the question of adequacy or reliability of evidence cannot be canvassed before the High Court.'
'In the case of Apparel Export Promotion Council v. A.K. Chppra it has been held by this Court that it is within the jurisdiction of the competent authority to decide what punishment is outside the purview of the High Court's interference unless it is so disproportionate to the proved misconduct as to shock the conscience of the Court. It has been held that reduction of sentence by the High Court would have a demoralising effect and would be a retrogade step. It has been held that repentance/unqualified apology at the last appellate stage does not call for any sympathy or mercy.'
Reduction of sentence, particularly in military, paramilitary or police services can have a demoralising effect and would be a retrograde step so far as discipline of these services is concerned.'
35. Having regard to the authoritative and pronounced judicial opinion expressed at above, we are not in a position to persuade ourselves to concur with the submissions made by the learned counsel for the petitioner assailing the finding and sentence in the impugned General Court Martial proceedings. We are also of the view that having regard to the nature of the offence committed and the manner in which the offending act was executed, the penalty imposed does not warrant any interference by his Court. Nothing has been pointed out to us that the penalty imposed is one, not contemplated or admissible under the Act or the Rules. Having regard to the fact that the petitioner is a member of a 'disciplined force and understandably the respondents-authorities have imposed the penalty being satisfied that the offence had been proved in order to maintain the discipline and probity of the force, we are not inclined.
in the exercise of our power of judicial review to interfere with the penalty imposed.
The upshot of the above discussion, therefore, is that the petitioner has failed to make out a case for interference by this Court with the finding and sentence in the General Court Martial holding the petitioner guilty of the offence charged as well as the penalty imposed. The petition is, therefore, devoid of merits and, is thus dismissed. However, in the facts and circumstances of the case, we make no order as to costs.