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EX.HAVALDAR AKBAR SINGH versus CHIEF OF THE ARMY STAFF AND OTHERS

High Court of Judicature at Allahabad

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Ex.Havaldar Akbar Singh v. Chief Of The Army Staff And Others - WRIT - A No. 31363 of 1995 [2005] RD-AH 1804 (1 August 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

CIVIL MISC. WRIT PETITION NO. 31363 OF 1995

Ex Havildar Akbar Singh....................................Petitioner.

versus

Chief of the Army Staff and others ......................Respondents.

HON. SHISHIR KUMAR, J.

By means of the present writ petition the petitoner has approached this court for issuing a writ of certiorari summoning the record of the impugned Summary Court Martial proceedings and quash the same. The further relief claimed in the writ petition is to quash the order dated 12.3.1997, Annexure-1 to the amendment application and a writ of mandamus directing the respondents to reinstate the petitoner with all consequential benefits.

The facts arising out of the writ petition is that the petitoner was enrolled in the Army on 25.3.84. Then the petitioner was posted at Srinagar. Subsequently, the petitoner has served as Artillery Records, Nasik Road Camp from 28.10.1987 to 31.7.91 and from August 1991 to 15.8.94 at 17, Station Regiment. The petitoner joined Head quarter 31 Artillery Brigade located at Jhansi on permanent posting on 25.8.94. The petitoner while serving in 175, Field Regiment has availed his leave and after posting to 31 Artillery Brigade had asked for 30 days part of annual leave to be debited to the year 1995 and the same was sanctioned. It transpired subsequently that the petitoner has availed the excess leave and there was no entry. Then the petitoner was directed to show cause regarding his availing excess leave. A charge sheet was issued to the petitoner and after recording the summary of evidence a Summary Court martial as provided under the Act was held against the petitoner. The first charge against the petitoner was under Section 63 of the Army Act to the effect that at Jhansi on 27.8.1994 when interviewed by Lt. Col. N. Prasad stated that he had not availed his earned (annual) leave for the year 1994, which statement as he was aware was false. The second charge against the petitoner was that on 3.10.1984, the petitoner improperly proceeded on 35 days part of earned leave for the year 1994 knowing fully well that he had already availed his full-earned leave for the said period. The third charge against the petitoner was that on 31.12.1994 the petitioner improperly proceeded on 15 days part of earned leave for the year 1994 knowing fully well that he had already availed his full earned (Annual) leave for the said year.

It has been stated by the petitoner that the charges against the petitioner were leveled on the aforesaid dates and the Summary Court Martial which has been held that was totally improper, without following the proper procedure as provided under the Act and rules. It has further been stated that the summary of evidence reveals non-compliance of Rule 23 and the Army Rules 33 and 34 have been violated. The petitoner has not been allowed to have defending officer of his choice as provided under Rule 129 of the Army Rules. It has further been stated that there is no compliance of Rule 115 of the Army Rule. The total Court Martial proceedings has been concluded in a hasty manner on the same day, therefore, the same is liable to be set aside. It has further been argued that the appeal filed by the petitoner under Section 164 (2) of the Army Act has been dismissed by the authority without assigning any reason.

Notices were issued and a counter affidavit has been filed. It has been stated in the counter affidavit that the petitoner joined the Headquarter 31st Army Brigade at Jhansi on permanent posting on 25.8.94. In due course of time his documents were received from the previous unit. Since the petitoner was a clerk incharge of sub unit responsible for entries in documents and publication for Part-2 orders, no entry was made in his movement order. As such he was granted leave for 35 days part of annual leave from 3.10.1994 to 6.11.1994. Again in December 1994 when he requested for balance of leave, he was granted leave for 15 days from 31st Dec.1994 to 14th January 1995. It is submitted that on receipt of part-2 orders from Headquarters Nasik Road Camp observed that the petitoner had availed the annual leave twice. Thus grant of excess leave had taken place in 1994. It was then the Unit came to know about the petitioner's having obtained leave fraudulently while in Headquarter 31st Artillery Brigade. A charge sheet was issued to the petitioner and a charge was heard under Army Rule 22 and the proceedings were recorded by OC Troops Headquarter 31st Artillery Brigade to record summary of evidence. The summary of evidence was recorded from 13.7.95 twice strictly as per Army Rule 23. Then the case was sent to the D.J.A.G. Headquarter 21 Crops. for advice and it was intended to try the petitoner by Summary Court Martial. On receipt the additional summary of evidence was recorded on 23.8.95 and the petitoner was tried by the Summary Court Martial. The petitoner pleaded guilty of all the charges which were leveled against the petitioner in the charge sheet and a note to that effect was incorporated and accordingly the trial proceeded on plea of guilty. The petitioner was awarded a punishment (a) to be reduced to rank and (b) to be dismissed from service.

Aggrieved by the order passed by the Summary Court Martial, the petitoner filed an appeal and the appellate authority has also considered and has found that the charges leveled against the petitoner are proved but taking a lenient view the order of dismissal has been converted into discharge by order dated 30.9.1995.

The argument raised on behalf of the petitoner is that the total proceeding is vitiated only on the ground that the provisions of Army Rule 150 have not been followed and it has also been submitted that as provided under Rule 129 of the Army Rules, the petitoner has not been provided friend of accused during the Summary Court Martial, as such the total proceedings of the Summary Court Martial is vitiated. Further argument of the petitoner is that the Summary Court Martial was proceeded in a very haste manner and the Court Martial was assembled on 31.8.95 and on the same day, it has been concluded. This clearly goes to show the malafide of the respondents. The counsel for the petitoner has placed reliance upon a judgment of this Court reported in 2002 Vol. 4 E.S.C. Page 86, Union of India and others Vs. Ram Adhar Tiwari and has submitted that the Division Bench of this Court has taken a view that if the provisions of Rule 129 have not been followed, the proceeding of the Court Martial is vitiated. Other judgments relied upon by the petitoner are reported in A.I.R. 2001 S.C. 1512, Dhananjaya Reddy Vs. State of Karnataka , A.I.R. 1987 S.C. 2386, Ranjit Thakur Vs. Union of Inida. A.I.R. 1995 S.C. Page 980, Shivappa Vs. State of Karnataka, 2001 E.S.C. Vol-4 1600 M.Z.Khan Vs. Chief of the Army Staff, A.I.R. 1992 S.C. Page 417 Ex. Naik Sardar Singh Vs. Union of India and others and it has submitted that this Court has clearly held that if any mandatory provision of the Army Act and Rules has not been followed, the trial held by the authorities concerned are vitiated. It has further been submitted on behalf of the petitoner that the respondents themselves have not explained the effect of pleading guilty. As provided under Rule 150 if a person pleaded guilty, the plea shall be regarded as the finding of the Court. If this has not been done, in view of the judgment reported in 1989 Allahabad Law Report 315 (Division Bench) Uma Shanker Pathak Vs. Union of India and has submitted that the Division Bench of this Court in the aforesaid case has clearly held that the questions and answers have to be reproduced by the Court in their entirety in the context of Rule 115(2). The breach of said rule has the effect of vitiating the entire trial.

In such a way the counsel for the petitoner submitted that the proceedings for the Summary Court Martial is vitiated for non-compliance of Rule 115 of the Army Rules.

On the other hand the counsel for the respondents has placed reliance upon a judgment of the Apex Court reported in A.I.R. 1998 S.C. 577, Union of India and others Vs. Major A. Hussain and has submitted that unless and until it is proved from the record that any mandatory provisions of the Army Act and Rules have been violated, this Court under Article 226 of the Constitution of India cannot reappraise the evidence. If the 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 hand. Proceedings of Court Marital are not to be compared with the proceeding in a criminal court under the code of Criminal Procedure. Another judgment relied upon by the respondent is A.I.R. 2001 S.C. Page 3053 , Union of India and other vs. R.K. Sharma and has placed reliance upon paras 12 and 13 of the said judgment which are quoted below:

"12. As stated above, both the single Judge as well as the Division Bench have held that the four charges set out have been proved and that the Respondent was guilty of those charges. Having so held it was not open to the Court to have interfered in the sentence. The awarding of sentence is within the powers of Court Martial. These are not matters in which Court should interfere.

13. In our view, the observation in Ranjit Thakur's case (supra), extracted above, have been misunderstood. In that case the facts were such that they disclosed a bias on the part of the Commanding Officer. In that case the Appellant Ranjit Thakur had fallen out of favour of the Commanding Officer because he had complained against the Commanding Officer. For making such a complaint the Commanding Officer had sentenced him to 28 days rigorous imprisonment. While he was serving the sentence he was served with another charge sheet which read as follows:

"Accused 1429055-M Signalman Ranjit Thakur of4 Corps Operating Signal Regiment is charged with-

Army Act Disobeying a lawful

Section 41(2) command given by his superior officer

In that he

At 15.30 hrs on May 29,1985 when ordered by JC 106251-P Sub Ram Singh, the orderly Officer of the same Regiment to eat his food, did not do so."

On such a ridiculous charge rigorous imprisonment of one year was imposed. He was then dismissed from service, with the added dis-qualification of being declared unfit for any future civil employment. It was on such gross facts that this Court made the observations quoted above and held that the punishment was so strikingly disproportionate that it called for interference. The above observations are not to betaken to mean that a Court can, while exercising powers under Article 226 or 227 and / or under Article 32 interfere with the punishment because it considers the punishment to be disproportionate grounds a Court should not interfere."

Another judgment relied upon is A.I.R .1991 S.C. Page 1617, Major G.S. Sodhi Vs. Union of India and others and 1986 Division Bench Judgment of this Court reported in UPLBEC 663, Ruval Kumar Vasave Vs. Chief of the Army Staff and A.I.R. 1999 S.C. Page 1980 Union of India vs. Himmat Singh Chahar and has submitted that in view of the aforesaid fact, there is no illegality.

On the directions issued by this Court the original records of the Summary Court Martial was directed to be produced before this Court and this Court has perused the original record of the Summary Court Martial. As relates to non-following of the provisions of Rule 115, it will be necessary to reproduce the same. Rules 115 and 116 are quoted below:

"115. General plea of "Guilty" or "Not Guilty".--(1)The accused person's plea--"Guilty" (or if he refuses to plead, or does not plead intelligible either one or the other, a plea of "Not Guilty")--shall be recorded on each charge.

(2) If an accused person pleads  "Guilty", that plea shall be recorded as the finding of the court; but before it is recorded, the court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea, and in particular of the meaning of the charge to which he has pleaded guilty and of the difference in procedure wh9ch will be made by the plea of guilty, and shall advise him to withdraw that plea if it appears from the summary of evidence (if any) or otherwise that the accused ought to plead not guilty.

((2A) Where an accused pleads "Guilty", such plea and the factum of compliance of sub-rule (2) of this rule, shall be recorded by the court in the following manner:--

"Before recording the plea of "Guilty" of the accused the court explained to the accused the meaning of the charge(s) to which he had pleaded "Guilty" and ascertained that the accused had understood the nature of the charge (s) to which he had pleaded "Guilty". The court also informed the accused the general effect of the 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 (s) and the effect of his plea of "Guilty", accepts and records the same. The provisions of rule 115 (2) are thus complied with.)

(3) Where an accused person pleads guilty to the first of two or more charges laid in the alternative, the court may, after sub-rule (2) of this rule has been complied with and before the accused is arraigned on the alternative charge or charges, withdraw such alternative charge or charges without requiring the accused to plea thereto, and a record to that effect shall be made upon the proceedings of the court.

116. Procedure after plea of "Guilty".--(1)Upon the record of the plea of "Guilty", if there are other charges in the same charge-sheet to which the plea is "Not Guilty", the trial shall first proceed with respect to the latter charges, and, after the finding of these charges, shall proceed with the charges on which a plea of "Guilty" has been entered; but if they are alternative charges, the court may either proceed with respect to all the charges as if the accused had not pleaded "Guilty" to any charge, or may, instead of trying him, record a finding upon any one of the alternative charges to which he has pleaded "Guilty" and a finding of "Not Guilty" upon all the other alternative charges.

(2)After the record of the plea of "Guilty" on a charge (if the trial does not proceed on any other charges), the court shall read the summary of evidence, and annex it to the proceedings or if there is no such summary, shall take and record sufficient evidence to enable it to determine the sentence, and the reviewing officer to know all the circumstances connected with the offence. The evidence shall be taken in like manner as is directed by these rules in case of a plea of "Not Guilty".

(3) After such evidence has been taken, or the summary of evidence has been read, as the case may be, the accused may address the court in reference to the charge and in mitigation of punishment and may call witnesses as to his character.

(4) If from the statement of the accused, or from the summary of evidence, or otherwise, it appears to the court that the accused did not understand the effect of his plea of "Guilty", the court shall alter the record and enter a plea of "Not Guilty", and proceed with the trial accordingly.

(5) If a plea of "Guilty" is recorded and the trial proceeds with respect to other charges in the same charge-sheet, the proceedings under sub-rules (2) and (3) shall take place when the findings on the other charges in the same charge-sheet are recorded.

(6)When the accused states anything in mitigation of punishment which in the opinion of the court requires to be proved and would, if proved, effect the amount of punishment, the court may permit the accused to call witnesses to proved the same.

(7) In any case where the court is empowered by section 139 to find the accused guilty of an offence other than that charged, or guilty of committing an offence in circumstances involving a less degree of punishment, or where it could after hearing the evidence, have made a special finding of guilty subject to exceptions of variations in accordance with sub-rule (3) of rule121, it may, if it is satisfied of the justice of such course accept and record a plea of guilty of such other offence, or of the offence as having been committed in circumstances involving such less degree of punishment or of the offence charged subject to such exceptions or variations."

After hearing counsel for the parties and after perusal of the original Summary Court Martial record, it is not in dispute that the provisions of Rule 115 have to be followed. If the same is not followed, the total proceedings of the Court Marital is vitiated but in the present case as the petitoner has pleaded guilty of all the three charges, and before recording the plea of guilty in the proceedings, a plea has been recorded and it has been explained to the accused the meaning of pleading guilty and the Court will ascertain that the accused understands the nature of charge to which he has pleaded guilty. The Court has also to inform the general effect of plea and the difference in procedure which will be followed consequent to that plea. After perusal of Rules 115 and 116 it is clear that if a person pleads guilty and the same has been explained and recorded, then procedure is different in case of not pleading guilty. The procedure has been laid down in a case of pleading guilty under Army Rule 116. The Court has perused the original record and on page ''B" of the original record, the petitoner has pleaded Guilty and a note to that effect has been annexed regarding the compliance of pleading guilty and the petitoner was informed to that effect. In my opinion the provisions of Army Rule 115(2) have fully been complied with. The petitoner is not able to show that there is any different provision or if a note to this effect has been appended, whether it can be said that the provisions of Army Rule 115 has not been complied with. On page ''C' of the original record the petitioner himself has stated the fact " I have committed a mistake and I shall be pardoned" and there is a signature of the petitioner, therefore, the petitoner cannot say that the provisions of Army Rule 115 has not been followed.

Regarding the plea of following the provisions of Rule 129 which deals regarding the friend of the accused, from the record it is clear that the petitioner has pleaded guilty and the effect of pleading guilty is explained and a note to that effect has been incorporated in the proceeding of the Summary Court Martial and it is also apparent that if a army personnel pleaded guilty immediately procedure of trial will be different. In case of the not pleading guilty, the procedure is different. It is clear that after record of pleading guilty of a charge, the Court will read the summary of evidence and the proceeding and the Court shall take and record sufficient evidence to enable it to determine the sentence. As the petitoner himself has pleaded guilty, and on the basis of the said pleading guilty, the punishment has been awarded to the petitoner, there was no necessity to examine any witness or to give an opportunity to the petitoner for cross-examination of the witnesses, if any. After perusal of the original record of the Court Martial it is clear that the proper procedure has been followed and Rule 129 as submitted by the petitoner will not be applicable in the present case.

In view of the aforesaid fact, I see no justification to interfere in the proceeding of Court Martial. The writ petition is devoid of merit and is hereby dismissed. No order as to costs.

Aug.        ,2005

V.Sri/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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