V.C. Rajan and anr. Vs. the Presiding Officer of General Court Martial and ors. - Court Judgment

Dubagunta Subrahmanyam, J.

1. The writ petitioners in W.P. No. 11621 of 1991 filed this appeal against the order dated 30.08.1995 of the learned Single Judge dismissing the writ petition.

2. Both the appellants were prosecuted under the provisions of the Army Act on two counts. The first count is that on 25.6.1985 the two appellants committed theft of 400 liters of petrol worth Rs.2904=00. The second count is that on 11.7.1985 both of them committed theft of 2,400 liters of HS Diesel worth Rs.8352=00. The General Court Martial was convened on 23.7.1986. It assembled from 28.7.1986 till 20.10.1986. In all 26 witnesses were examined by the prosecution. The appellants examined one defence witness on their behalf. Documentary evidence was also adduced by the prosecution. The Court Martial on a consideration of evidence on record found both the appellants guilty of the two charges framed against them. It convicted both the appellants. It imposed the punishment of dismissal from service and also rigorous imprisonment for one year. The General Officer, Commanding-in-Chief, Southern Command and Army Headquarters, Pune, confirmed the findings and sentence given by the General Court Martial on 16.3.1987 under Section 154 of the Army Act. Thereupon both the appellants filed separately two writ petitions in W.P.Nos.6018 of 1987 and 10316 of 1987 questioning the proceedings of the General Court Martial as confirmed by the order dated 16.3.1987. By order dated 18.3.1991 a Division Bench of this court directed the appellants herein to avail statutory remedy of appeal as provided under Section 164(2) of Army Act. This Court directed the respondents to supply to the appellants the entire record of proceedings held at the Court Martial conducted against the appellants including the depositions of the witnesses recorded at the Court Martial and the findings recorded and the sentence awarded by the Court Martial. The above material was directed to be furnished to the appellants within four weeks from the date of the order in the above writ petitions. This court further directed the appellants herein to prefer appeals thereafter and a direction was given to the Appellate Authority to dispose of the appeals in accordance with law within three months thereafter. Alleging that the respondents herein failed to furnish the copies of the various proceedings as directed in the above two writ petitions, the appellants filed jointly a writ petition in W.P. No. 11621 of 1991 requesting this court to issue a writ in the nature of Writ of Certiorari for quashing the order dated 20.10.1986 issued by the first respondent and as confirmed by the third respondent by his order dated 16.3.1987 and to reinstate the appellants in service with full back-wages and with all attendant benefits. Various grounds were urged in the writ petition seeking quashing of the impugned orders. The above writ petition was opposed by the respondents. A learned Single Judge of this court after detailed consideration of material placed before him and various contentions urged before him, dismissed the above writ petition by order dated 30.8.1995. Aggrieved by the said order, the appellants preferred the present writ appeal.

3. The writ petition was based on one important ground. The said ground is that the directions given by this court in the earlier two writ petitions were not complied with by the respondents within the time fixed by this court in those orders and it resulted in grave injustice to the writ petitioners. If the respondents had complied with the orders of this court passed in the above two writ petitions, the appellants would not have any cause of action to file the present writ petition seeking same relief asked for by them in the earlier two writ petitions for quashing the impugned orders. This is an important circumstance to be kept in mind. Some reasons were advanced by the respondents for not complying fully with the orders passed by this court within the time prescribed in the earlier two writ petitions. In the present writ appeal, this court is not concerned with the reasons put forward by the respondents for not complying fully with the orders in the earlier two writ petitions. During the pendency of the present writ petition before the learned Single Judge, the respondents filed applications in the earlier two writ petitions requesting this court to extend the time fixed by this court in the earlier two writ petitions for supplying the various documents directed to be supplied to the appellants by this court. A Division Bench of this court in the above two writ petitions, after hearing the appellants herein also, extended the time earlier fixed by the Division Bench in its order dated 18.3.1991. It is not now in dispute that the respondents complied with the directions given by this court in the above two writ petitions within the time extended by the Division Bench. It is also not in dispute that after the respondents complied with the orders of the Division Bench, the appellants did not avail of the opportunity of filing of a statutory appeal over the orders passed by the respondents 2 and 3 herein. In our considered opinion, when the appellants failed to prefer any statutory appeal, as directed by the Division Bench of this court, they are not at all entitled in the present writ petition to obtain the same relief of quashing of the orders passed by the respondents 2 and 3 which relief was earlier asked for by them in the earlier two writ petitions. It is significant to point out that the relief asked for in the present writ petition was asked for earlier by the appellants in two separate writ petitions and Division Bench refused to quash the finding of guilty and sentence imposed by the respondents 2 and 3 and instead directed the writ petitioners to prefer a statutory appeal before the competent authority. Those orders in the two writ petitions were not challenged by the appellants. They allowed those two orders to become final and conclusive. Therefore, in our considered opinion, it is not open for the appellants to prefer another writ petition seeking the same relief which was denied to them by the Division Bench of this court. When the Division Bench in the two earlier writ petitions extended the time granted earlier by it and when that extension order was passed by the Division Bench during the pendency of the present writ petition before the learned Single Judge, it is not open for the appellants now to contend that as the respondents failed to comply with the original order of the Division Bench in the two writ petitions, they are still entitled to pursue the present writ petition and that they have no other alternative remedy to get the conviction and sentence imposed on them quashed. Admittedly the writ petitioners are having the alternative remedy of preferring a statutory appeal. In fact they were directed by this court to approach the Appellate Authority. The Appellate Authority was also directed by this court to admit the appeal to be preferred by the appellants and dispose it of in accordance with law within the time fixed by this court. If the Division Bench had refused to extend the time fixed by it initially, the matter would have been different and undoubtedly the present writ petition would be maintainable. After the Division Bench extended the time earlier fixed by it and after the respondents complied with the modified orders of the Division Bench, it is not open for the writ petitioners to proceed further with the present writ petition. Preliminary objection regarding the maintainability of the writ petition was raised before the learned Single Judge. The learned Single Judge was not inclined to dismiss the writ petition on the ground that the petitioners failed to avail the remedy of appeal as directed by this court. He was of the opinion that as the writ petition was filed even before the respondents have taken steps seeking extension of time for making the records available to the petitioners, the writ petitioners are entitled to proceed further with the writ petition. We are unable to accept the said reasoning of the learned Single Judge. The question is not whether the writ petitioners have got alternative remedy. The crucial question is when after the Division Bench refused to quash the conviction and sentence imposed by the respondents 2 and 3 on the writ petitioners and after the respondents complied with the modified orders of the Division Bench, the writ petitioners are entitled to seek the same relief of quashing of the impugned orders which was already rejected by the Division Bench. The learned Single Judge did not consider this aspect from this angle. He considered it only from a limited angle, namely, when there is alternative remedy the writ petitioners are entitled to any remedy in the writ petition. For the reasons stated supra, it is very clear to our mind that the present writ petition does not survive for consideration after respondents complied with the orders of Division Bench and it is liable to be dismissed summarily.

4. When the writ petition is liable to be dismissed in view of the subsequent orders of the Division Bench in the earlier two writ petitions, it is not necessary for us to consider the contentions raised on behalf of the appellants regarding the legality or otherwise of the proceedings of the respondents 2 and 3 questioned in the writ petition. However, as the above contentions were considered by the learned Single Judge and as those contentions have been reiterated before us, we propose to deal with those contentions.

5. It is contended that Rule 22 of Army Rules and A.O. 70/84 are not followed at the time of trial of the appellants before the Court Martial, the above Rule and guidelines are mandatory and as the above Rules are not complied with, the entire procedure is vitiated and the prosecution is liable to be quashed. The non-compliance with Rule 22 is not specifically raised in the writ petition. It is also contended that the copy of summary evidence and the proceedings of Court of Inquiry are not supplied to the appellants as required under Rules 33 and 184 of Army Rules and it tantamounts to violation of principles of natural justice. It is the contention that the entire proceedings before the respondents 2 and 3 are vitiated. Rule 22 of the Army Rules, 1954, reads 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 liberty 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).

(2) The commanding officer shall dismiss a charge brought before him if, in his opinion, the evidence does not show that an offence under the Act has been committed, and may do so if, he is satisfied that the charge ought not to be proceeded with.

Provided that the commanding officer shall not dismiss a charge which he is debarred to try under sub-section (2) of Section 120 without reference to superior authority as specified therein.

(3) After compliance of sub-rule (1), if the commanding officer is of opinion that the charge ought to be proceeded with, he shall within a reasonable time---

(a) dispose of the case under Section 80 in accordance the manner and form in Appendix III; or

(b) refer the case to the proper superior military authority; or

(c) adjourn the case for the purpose of having the evidence reduced to writing; or

(d) if the accused is below the rank of warrant officer, order his trial by a summary court-martial:

Provided that the commanding officer shall not order trial by a summary court-martial without a reference to the officer empowered to convene a district court-martial or on active service a summary general court-martial for the trial of the alleged offender unless-

(a) the offence is one which he can try by a summary court-martial without any reference to that officer; or

(b) he considers that there is grave reason for immediate action and such reference cannot be made without detriment to discipline.

(4) Where the evidence taken in accordance with sub-rule (3) of this rule discloses an offence other than the offence which was the subject of the investigation, the commanding officer may frame suitable charge(s) on the basis of the evidence so taken as well as the investigation of the original charge'.

As per Rule 22 of Army Rules every charge against a person subject to the Act other than an Officer shall be heard in the presence of the accused who shall have the full liberty to cross-examine any witness against him and to call any witness and make any statement in his defence. In the present case, two charges have been framed and they were read over and explained to the accused. There is no denial of the above fact by the appellants. Both the appellants pleaded not guilty to the charges framed against them. The non-compliance of Rule 22 alleged is that the signatures of the appellants were not obtained in the prescribed form after they pleaded not guilty to the two charges. Rule 22 of Army Rules as such did not lay down that the signature of the accused shall be obtained after the plea of the accused is recorded. Reference to the signature comes in the Form prescribed in the Appendix A to A.O.70/84. It is to be stated that failure to take the signatures of the accused in the form did not result in any prejudice to the appellants - accused and it did not result in any miscarriage of justice. Suppose if the plea recorded is a plea of guilty and it is not authenticated by the signatures of the accused concerned and then later if they complain that they did not plead guilty to the charges framed against them, then it can be said that the absence of the signatures of the accused concerned in the form prescribed under Rule 22 of the Army Rules casts a serious doubt and suspicion regarding the proceedings before Court Martial and it resulted in injustice to the accused concerned. In the present case the plea of the accused is not guilty. As per the above Rule evidence is to be recorded in the presence of the accused. The entire evidence was in fact recorded in the presence of the two accused. It is not the case of the appellants that evidence of any of the witnesses is recorded in their absence. The appellants were defended initially by Civilian Advocates and six witnesses are cross-examined by the Civilian Advocates on behalf of the appellants. Subsequently the Civilian Advocates of the appellants voluntarily withdrew. Subsequently the record clearly indicates that the prosecution provided defence assistance as per the Army Rules to the appellants. Both the appellants refused to avail the services of defence assistance provided by the Army to the appellants as per the rules. The appellants filed a memo stating categorically that they need no assistance and they would defend themselves. Later on, the remaining witnesses were examined by the prosecution. All those witnesses have been cross-examined personally by the two appellants. Further, the appellants examined one person as a defence witness on their behalf. In this background, it is not possible to hold that Rule 22 of the Army Rules is not complied with by the respondents 2 and 3 and thus the entire proceedings are vitiated.

6. The learned counsel for the appellants relied upon a decision of the Supreme Court in PRITHI PAL SINGH v. UNION OF INDIA, 1983 Crl. L.J. 647.. In the above decision, the Supreme Court held in paras 37 and 38 of its judgment that Rules 22 to 24 are mandatory in respect of every person, subject to the Act, other than an Officer. It also held that the requirements of the above Rules are not mandatory in case of an Officer. We have already stated supra that absence of the signatures of the appellants in the form prescribed under Rule 22 did not result in any prejudice to the appellants. Entire evidence was recorded in the presence of the appellants. They were given ample opportunity to cross-examine each and every witness examined by the prosecution. The appellants participated in the entire trial and even examined a defence witness on their behalf. In view of the above facts, the above decision of the Apex Court would not help the appellants.

7. Learned counsel for respondents placed reliance on a recent judgment of the Supreme Court in UNION OF INDIA Vs . A. HUSSAIN, : (1996)ILLJ781SC . The order of this High Court was set aside by the Apex Court. One of the contentions of the appellants therein is that the record pertaining to the inquiry by the Court of Inquiry is not furnished to them. Dealing with that contention, the Supreme Court in the above decision held that when there is sufficient evidence to sustain conviction, it is unnecessary to examine if pre-trial investigation was adequate or not. The Supreme Court further held that requirement of proper and adequate investigation is not jurisdictional and any violation thereof does not invalidate the Court Martial unless it is shown that the accused has been prejudiced or a mandatory provision has been violated. The Supreme Court further held that Rule 184 does not postulate that an accused is entitled to a copy of the report of Court of Inquiry. It further observed that proceedings before Court of Inquiry are not adversarial proceedings and is also not a part of pre-trial investigation. The Supreme Court is of the opinion that if a Court Martial has 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 stay its hands. The entire para 22 of the judgment is extracted hereunder for proper appreciation of the principle of law laid down by Apex Court.

' Though court-martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the court-martial is not subject to the superintendence of the High Court under Article 227 of the Constitution. If a court-martial has 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 stay its hands. Proceedings of a court-martial are not to be compared with the proceedings in a criminal Court under the Code of Criminal Procedure where adjournments have become a matter of routine though that is also against the provisions of law. It has been rightly said 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. Court-martial discharges judicial function and to a great extent is a Court where provisions of Evidence Act are applicable. A court-martial has also the same responsibility as any Court to protect the rights of the accused charged before it and to follow the procedural safeguards. If one looks at the provisions of law relating to court-martial in the Army Act, the Army Rules, Defence Service Regulations and other Administrative Instructions of the Army, it is manifestly clear that the procedure prescribed is perhaps equally fair if not more than a criminal trial provides to the accused. When there is sufficient evidence to sustain conviction, it is unnecessary to examine if pre-trial investigation was adequate or not. Requirement of proper and adequate investigation is not jurisdictional and any violation thereof does not invalidate the court-martial unless it is shown that accused has been prejudiced or a mandatory provision has been violated. One may usefully refer to Rule 149 quoted above. The High Court should not allow the challenge to the validity of conviction and sentence of the accused when evidence is sufficient, court-martial has jurisdiction over the subject-matter and has followed the prescribed procedure and is within its powers to award punishment'.

In the present case the jurisdiction of the Court Martial to try and punish the accused for the charges framed against them is not at all disputed. As already pointed out, no prejudice to the accused by the procedure followed by Court Martial is proved. There is no force in the above contentions raised by appellants.

8. Another contention advanced on behalf of the appellants is that at the commencement of Court Martial proceedings, the Judge- Advocate did not conduct himself fairly and even the prosecution raised objections regarding the conduct of Judge-Advocate and it resulted in great prejudice for the appellants in conducting the defence properly. It is true that proceedings revealed that the prosecution raised certain objections regarding the conduct of the Judge- Advocate. The Judge-Advocate also raised some objections regarding the behaviour of the Prosecuting Officer. The Court Martial took notice of the allegations made against each other by the Prosecuting Officer and the Judge-Advocate and warned both of them and subsequently changed both of them and appointed new officers in their places. The learned Single Judge in his order categorically mentioned that he has meticulously gone through the proceedings of the Court Martial including its verdict and held that the Court Martial was never impressed or influenced by the Judge-Advocate or the Prosecutor or the conduct of the Judge-Advocate and that the role of the Judge-Advocate is only to advice the court and the verdict is always given by the Court. We are entirely in agreement with the above view expressed by the learned Single Judge. The impugned proceedings cannot be quashed on the allegations made against Judge-Advocate and Prosecuting Officer regarding their personal behaviour.

9. The next contention advanced is that the three persons including the two appellants herein were shown in the charge-sheet as co-accused and there is a confession said to have been made by the other person, namely, A.3. It is the contention that the confessional statement of A.3 is written in Telugu language, the said A.3 is not conversant with Telugu and thus the credibility of the confession statement is doubtful. It is also further contended that though the charge relates to theft of Diesel and Petrol, there is no corresponding shortage in the books of account maintained by the Army and it amounts to a conviction based on no evidence. The conviction of the accused is not based on the sole alleged confessional statement of A.3. The conviction and sentence of the appellants are based on the evidence adduced by the prosecution before the Court Martial. Independent and civilian witnesses were also examined by the prosecution to bring home the guilt of the accused 1 and 2. Whether there is any evidence to corroborate theft of Petrol and Diesel by way of relevant entries in the accounts maintained by the Army amounts to appreciation of evidence on record. It cannot be done by this court exercising its powers under Article 226 of the Constitution of India. The adequacy or inadequacy of evidence as well as adequacy or inadequacy of the sentence imposed in a Court Martial proceedings does not fall for consideration in a writ proceedings. If really the appellants are satisfied that there is no evidence to convict them, they should have agitated that matter before the competent authority in a statutory appeal to be preferred by them. Though that opportunity was given by Division Bench of this court, the appellants failed to avail of that opportunity. Having failed to avail that opportunity, it is not now open for the appellants to contend that there is inadequate or no evidence to convict them and that the sentence imposed on them is harsh and severe. Regarding confessional statement of A3, it is already made clear that the conviction is not based on the solitary confessional statement of A.3. There is other independent evidence to prove the guilt of the accused. Regarding the language in which that statement was written, it is to be stated that A.3 was working at Hyderabad during the relevant time. It may be that he became conversant with the local language. Some circumstances are mentioned to show that the statement is a fabricated document. Two witnesses viz., P.W.2 and P.W.3 who are concerned with the said document are examined by the prosecution. If there are any suspicious or doubtful circumstances to impeach the credibility of the said confessional statement, efforts should have been made during the cross examination of those two material witnesses to elicit necessary information to show to the court that the said statement is false or unreliable. Consideration of material and decision on this aspect amounts to appreciation of evidence on record regarding the truth or otherwise of the confessional statement of A.3. It cannot be undertaken by this court. There are no reasons to come to the conclusion that the trial conducted by the Court Martial is not fair and that it resulted in any prejudice whatsoever in the defence of the appellants. We do not find any grounds to interfere with the considered order passed by the learned Single Judge in the writ petition. We see no merits in the writ appeal.

10. In the result, the writ appeal is dismissed. No costs.