Sunil Kumar P.S. Naik (Operator), Field Regiment Vs. the Union of India, Represented by the Defence Secretary, New Delhi and Others - Court Judgment

Shrikant Tripathi, Member (J):

1. The applicant, Sunil Kumar.P.S., Ex.Naik (Operator), No.15127244 filed the instant matter in the Honourable High Court of Kerala at Ernakulam vide Writ Petition (Civil) No.13514 of 2005 challenging the legality and propriety of the proceedings of the Summary Court Martial and its final order dated 17th July, 2004, whereby he was directed to be reduced to ranks and was also to be dismissed from service. The applicant has also questioned the order dated 4th January, 2005 rendered by General N.C.Vij, the then Chief of Army Staff on his appeal. By that order, the Chief of Army Staff found no merit in the appeal preferred by the applicant. After the establishment of the Armed Forces Tribunal at Kochi, the matter was transferred to this Bench and is registered here as T.A.No.9 of 2011.

2. The applicant was enrolled in the Indian Army on 14^th February, 1996 and was mustered in the trade of TLST/RT/Opr. While on the post strength of Field Regiment 803/80, Houshara, Jammu and Kashmir, he was tried in a Summary Court Martial by the 4th respondent, on the charge of “disgraceful conduct of an indecent kind”, being an offence under Section 46(a) of the Army Act. According to the charge sheet, the applicant while at field on 20.6.1994 at about 22.30 hours got into the bed with No.15151372P, Gunner (Operator) S.Mutharasu of the same Regiment and held his penis. The Summary Court Martial was presided over by Col.KDS Sahney, Commanding Officer of the 80 Field Regiment Major Vishal Dubey was appointed as the friend of the accused(applicant). The Commanding Officer himself acted as the interpreter. Major S.K.Jaini and Capt V.P.Dwivedi also attended the trial. The charge sheet was read over and explained to the accused at the commencement of the trial, who pleaded guilty to the charge. The Commanding Officer before recording the plea of guilt made by the applicant ensured compliance of Army Rule 115 and recorded the following certificate, as an evidence of such compliance, which being relevant, is reproduced as follows:

“Before recording the plea of guilty of the accused, the Court explained to the accused the meaning of the charge to which he had pleaded guilty and ascertained that the accused understood the nature of the charge which he had pleaded guilty. The Court also informed the accused the general effect of this plea and the difference in procedure which will be followed consequent to the said plea. The Court having satisfied itself that the accused understands the charge and the effect of his plea of guilty, accepts and records the same. The provision of Rule 115(2) are thus complied with”.

3. In this way, the Commanding Officer is alleged to have made sufficient compliance of Army Rule 115 before recording the plea of guilt made by the applicant. After recording the plea of guilt, the Summary of Evidence was also read over and explained to the applicant, which was marked as Annexure K. In this way, the Commanding Officer seems to have followed the requirements of Army Rule 115. After observing the aforesaid formalities,the Commanding Officer asked the applicant whether he wanted to make any statement in reference to the charge or any mitigation of the punishment. While answering the said question, the applicant sated that he had committed a grave mistake and he will not repeat it in future. Accordingly, he requested for a pardon. The applicant was thereafter required to state whether he wished to call any witness as to character, he replied in the negative. The Summary Court Martial found the applicant guilty of the aforesaid charge and after considering his age, service tenure, rank and other relevant material, sentenced him with the following punishments:

“(a) to be reduced to ranks; and

(b) to be dismissed from service”.

4. The applicant filed Writ Petition No.26107 of 2004 in the Honourable High Court of Kerala at Ernakulam against the aforesaid punishment awarded by the Summary Court Martial. The High Court disposed of the writ petition on 7th October, 2004 with the observation that the statutory appeal filed by the applicant was pending before the second respondent therein and accordingly he was directed to consider the statutory appeal in accordance with law and pass appropriate orders therein within a period of two months from the date of receipt of a copy of that order. The Honourable High Court further provided that if the applicant wanted hearing, such an opportunity would be given to him. A copy of the statutory appeal filed by the respondent No.2, has been filed as Ext.P2. The respondent No.2, the Chief of Army Staff, considered the applicant's appeal and dismissed the same vide order dated 4th January, 2005 (Ext.P4). The findings of the Chief of Army Staff, recorded in para 3, 4 5 and 6 of the order (Ext.P4) being relevant are reproduced as follows:

“3. The petitioner has mainly contended that, he was compelled at the Summary of Evidence to sign a statement under threat, coercion and influence, which he signed without knowledge and its effect, that, the said statement had been used as an evidence against him, which is in contravention to the provisions of Cr.P.C; that, Army Act Sec.46(A) has been misinterpreted and digressed in order to make the petitioner a scapegoat; that, he was not given a proper chance to defend his case; that, there is no eyewitness or other proper chance to defend his case; that, there is no eyewitness or other circumstantial evidence to connect the petitioner with the commission of offence; that, the finding of the SCM is per-se illegal, which is liable to be set aside; that, the punishment awarded to him is harsh and excessive.

4. Available record of the case reveal that before recording the statement of the petitioner at the Summary of Evidence, he was cautioned by the officer recording Summary of Evidence in the presence of an Independent Witness under Army Rule 23 (3) i.e. “Do 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 evidence”. Having understood the ibid caution, he voluntarily made the statement which was recorded accordingly. The petitioner has been tried under the Army Act and Rules made there under and the provisions of CrPC are inapplicable in the instant case. Army Rule 23(3) explicitly states that the statement given by the accused may be given in evidence against him. The petitioner has been tried on a charge under Army Sect.46(a) which was framed on the basis of the evidence contained in the Summary of Evidence. The charge is explicit and the petitioner knew what he had to answer. The petitioner was given full opportunity before and during the trial under the law to defend himself. There is sufficient, direct and circumstantial evidence on record to establish the culpability of the petitioner. He has pleaded 'Guilty' to the charge at the trial, which has been recorded after due compliance of Army Rules 115(2) and (2A) by the Court. The trial has been conducted strictly as per the provisions of the Army Act and the Rules and there is no illegality in the same.

5. The contentions of the petitioner as mentioned in his petition are misconceived, misleading and bereft of merit. The finding of the court is legal and supported by cogent and reliable evidence, which inspires confidence. The sentence is commensurate with the gravity of the offence for which he stand convicted.

6. I, therefore, reject the petition dated 25 July 2004.”

5. After receiving a copy of the order of the Chief of Army Staff, the applicant filed Writ Petition No.13514 of 2006 in the Honourable High Court of Kerala. Hon'ble Mr. Justice Harun-Ul- Rashid heard the matter and partly allowed the writ petition with a direction to the respondents to reinstate the applicant in service with all consequential benefits within a period of two months from the date of receipt of a copy of that order. The learned Single Judge found that there was no justification to impose the punishment of dismissal as also the punishment of reduction to the ranks together. So,the punishment of dismissal from service was found harsh and excessive compared to the gravity of the misconduct. Accordingly, the learned Single Judge quashed the order of dismissal from service but maintained the sentence of reduction to ranks. The respondents preferred Writ Appeal No.1305 of 2009 before a Division Bench of the Honourable High Court of Kerala against the order of the learned Single Judge. The Division Bench heard the matter on 21st February 2011 and decided to transfer the same to this Bench in terms of Section 34 of the Armed Forces Tribunal Act, 2007. But, the Division Bench while directing for transfer of the matter to the Tribunal set aside the judgment rendered by the learned Single Judge. Consequently, the position prior to the order of the learned Single Judge revived.

6. In view of the aforesaid, we have to proceed with the matter afresh treating that there is no judicial order against the verdict of the Summary Court Martial and also the order of the Chief of Army Staff.

7. Learned counsel for the applicant could not point out any infirmity in the proceedings of the Summary Court Martial. He very frankly stated that he would not press the appeal on the merits of the finding of guilt. He confined his submission on the quantum of punishment and contended that the punishment of dismissal from service in addition to the punishment of reduction to ranks was highly excessive and harsh. He tried to contend also that the applicant had raised the issue of harsh punishment in the statutory appeal, but the Chief of Army Staff failed to give any due consideration to that plea. But, when we examined the order of the Chief of Army Staff, we found that he had given due consideration to that ground and arrived at the conclusion that the sentence was commensurate with the gravity of the offence for which the applicant was convicted. It was therefore incorrect to state that the plea raised by the applicant in the statutory appeal regarding harsh punishment was not considered by the Chief of Army Staff. In fact, he considered the same and passed the appropriate order.

8. Learned counsel for the applicant next submitted that according to Army Act section 71 (e) and (f), the order of dismissal from service and reduction to ranks are two different and independent punishments. He then referred to Section 77 of the Army Act and contended that the Warrant Officer or non-Commissioned Officer sentenced by a court martial with the punishment of dismissal from service, shall be deemed to be reduced to ranks. If a sentence of dismissal from service is passed, the same results automatically in causing reduction to ranks by operation of law. Therefore, there was no justification to impose both the punishments together.

9. It is true that according to Army Act section 71(e) and (f), dismissal from service and reduction to ranks are two different punishments. But,when in a given case, the only punishment of dismissal from service is imposed, the consequence as provided in Section 77 of the Army Act comes into operation automatically and in that eventuality, it is deemed that the individual concerned was also reduced to ranks. To put it otherwise, in such matters, the punishment of reduction to ranks is automatic on imposition of the punishment of dismissal and as such, no specific order is required in such matters. But, where the Summary Court Martial decided to impose both the punishments as per Army Act Section 71 (e) and 71 (f), there was no question of any application of Army Act Section 77.

10. We have to see whether both the punishments of dismissal from service and reduction to ranks could be imposed altogether or not. In this connection a reference may be made to Army Act Section 73 which deals with the combination of punishments. Section 73 provides that a sentence of a court martial may award in in addition to, or without any one other punishment, the punishment specified in clause (d) or clause (e) of section 71, and any one or more of the punishments specified in clauses (f) to (l) of that section. In this view of the matter, both the punishments of dismissal from service and reduction to ranks could be imposed together and as such we do not agree with the aforesaid submissions of the learned counsel for the applicant.

11. The learned counsel for the applicant lastly tried to contend that imposition of both the sentences of dismissal from service and reduction to ranks was wholly unjustified and it was highly excessive and harsh and was not in any way commensurate with the gravity of the crime. He further submitted that the applicant's antecedents had been good and there was no material to show that he had ever acted in an indecent manner prior to the incident in question. The charge for which the applicant was tried and convicted was not so serious as to justify imposition of both the punishment of dismissal from service and reduction to ranks. According to the learned counsel, the ends of justice would be met if the applicant is punished with the punishment of reduction to ranks only.

12. Learned Counsel for the applicant tried to place a reliance upon the judgment of the learned Single Judge of the Hon'ble High Court of Kerala and submitted that the learned Single Judge after carefully considering the matter, found the sentence of dismissal from service as harsh and excessive, therefore, the same yardstick, according to the learned counsel, was liable to be applied by this Bench also. The counsel for the respondents on the other hand submitted that the applicant was in the service of the Army, which is not only a sensitive service but is also a highly disciplined force. Any modification of the punishment may result in causing indiscipline in the Army. He, therefore, submitted that the proper punishment in this case was dismissal from service, so as to maintain proper discipline in the Army and to console the victim.

13. By way of rejoinder, learned counsel for the applicant submitted that the imposition of the sentence of dismissal from service and reduction to ranks for a solitary indecent act was not justified in any way especially when the applicant's conduct, behaviour and service performance had been satisfactory without any complaint. The crime was not so serious as to dislodge the applicant from the service permanently. Learned counsel for the applicant very frankly made the statement that the applicant will be satisfied if he is notionally re-instated in service on the reduced rank with no benefit of pay and allowances till the date of superannuation, being the date of completion of 15 years service in that rank and is permitted to draw only the retiral benefits including service pension. According to the learned counsel, the punishment of dismissal has resulted not only dislodging the applicant from the service, but also made him disqualified to seek any other employment.

14. We have considered the rival submissions on the point of sentence and perused the impugned order and the relevant materials. We are of the view that the sentence to be imposed on a convicted person must be commensurate with the crime. While deciding the quantum of punishment, apart from the gravity of the crime, the conduct, behaviour and antecedents of the convicted person are also required to be given due consideration. The applicant's conduct, behaviour and other antecedents had been quite good and satisfactory prior to the incident in question. The charge for which he was tried and sentenced was his solitary act. What the applicant did was that he slept on the bed of the victim and held his private part and did no other overt act beyond this. The reasons behind the said indecent act of the applicant are not known. But it is admitted position that there had been no such complaint against the applicant either in the past or after the incident. So, for such solitary act, how the Summary Court Martial could be said to be justified to sentence the applicant both for dismissal from service and reduction to ranks. In service jurisprudence, reduction to ranks is also considered as one of the major penalties, which carries several penal consequences, such as forfeiture of pay and allowances of the higher rank, loss of seniority, stoppage or postponement of future chances of promotion; whereas dismissal from service has a graver consequence. In the event of dismissal the incumbent is not only deprived of his total service and its benefits, the future pay, promotions, retiral benefits, but also becomes disqualified to seek any future employment. So, before imposing the punishment of dismissal, the authority has to see as to whether the offence is so serious as to warrant only dismissal of the person concerned from service as the appropriate punishment. For a solitary act of indecent nature with no other further overt act, we fail to understand as to how the respondents could be said to be justified in imposing in addition to the punishment of reduction to ranks, the punishment of dismissal from service on the applicant. In our view, the punishment of reduction to ranks was, in view of the facts and circumstances of the case, proper, adequate and appropriate punishment being commensurate with the crime, especially in view of the past conduct, behaviour and other antecedents of the applicant.

15. In view of the aforesaid, we consider it just and expedient to quash the sentence of dismissal from service imposed against the applicant and to maintain the sentence of reduction to ranks.

16. The Original Application is partly allowed. The conviction of the appellant under Army Act Section 71(f) recorded by the Summary Court Martial as approved by the Chief of Army Staff is confirmed. The sentence of reduction to ranks imposed on the applicant is also confirmed. The sentence of dismissal from service imposed on the applicant is, however, quashed. The respondents are, therefore, directed to notionally reinstate the applicant in service with effect the date of his discharge and allow him to serve notionally in the rank of Sepoy, till he completes the pensionable service. It is however, made clear that the applicant will not be entitled to any pay and allowances till the date of his notional retirement on completion of 15 years. He will, however, be entitled to and be paid all retiral benefits including pensionary benefits with effect from the date of notional retirement as per this order.

17. There will be no order as to costs.

18. Issue free copy to both side.