Patna High Court · 2012

7. Aggrieved, all the respondents in the writ petition, including t he respondent Nos. 6, 7 and 8, have preferred this writ appeal questioning the d ecision of the learned Single Judge.

8. We have heard Mr. C. Baruah, learned Central Govt. counsel for a ll the appellants and Dr. G. Lal, learned counsel for the sole respondent/writ p etitioner.

9. Learned counsel for the appellants has limited his challenge to the judgment of the learned Single Judge to two specific grounds. Firstly, there was a confession by the petitioner and in the face of such a confessional state ment, the learned Single Judge could not have accepted the plea of the petitione r. Secondly, he submits that the SCM proceeding was conducted in accordance with the Army Act and the Army Rules, 1954 (briefly (cid:28)the Army Rules (cid:29) hereafter) and, therefore, the interference with the said proceeding by the writ Court would no t be justified.

10. Learned counsel for the respondent/writ petitioner, on the other hand, supports the decision of the learned Single Judge and places entire relia nce on the said judgment.

11. Before proceeding further, it would be relevant to take note of the facts of the case as recorded by the learned Single Judge. The facts pleaded by the petitioner, as has been taken note of by the learned Single Judge, are e xtracted hereunder: On 26.5.1998, while the petitioner was serving as a Gunner (Surveyor) un (cid:28)4. der respondent No. 8 at HQ No.2 Mountain Artillery Brigade, he was ordered to at tend A (cid:28)Short Range Firing (cid:29) at Chabua Air Force station area. On such occasion i t is the usual practice to fire only small arms like Pistols, Revolvers, etc. Bu t at Chabua on 26.5.1998, apart from small arms, AK-47 rifles were unauthorizedl y fired by the civilians present namely the wife of Brigade Commander J.S. Chamb a (respondent No.6) and their 2 children, the wife of the Deputy Commander Colon el Amar Deep Singh (respondent No.7) and their 2 daughters, 2 young children of Major Vijay Kohali and the wife and 2 children of one Brigadier Mang.

4.1 During the said firing activity on 26.5.1998, the wife of Brigadier J.S. Chamba fired from an AK-47 rifle. At that moment, Naik DMT Rajinder Singh was d etailed to assist her and he was standing by her right side. While firing the we apon, the lady lost grip over the AK-47 due to jerk and the bullets fired from t he rifle injured Naik DMT Rajinder Singh who had to be shifted to the Military h ospital.

5. To prevent the actual truth of the incident from getting out, the office rs responsible devised a strategy with the help of pliant personnels and it was projected in the enquiry that Naik DMT Rajinder Singh suffered the injury when h e was collecting empty boxes of the fired rounds while (cid:28)Khali Kar (cid:29) command was g iven. But the petitioner refused to support this concocted story. As the petitioner refused to support the concocted version about the fir 6. ing incident of 26.5.1998, he was transferred to Bailong (Arunachal Pradesh) fro m Sibsagar as a measure of harassment for a period of 6 months although normally posting in the transferred station is for a smaller duration of 3 months. Then the petitioner went on home leave and for having belatedly reported after 4 days allegedly without information (denied by the petitioner), he was awarded rigoro us imprisonment from 23.12.1998 to 5.1.1999. The firing incident of 26.5.1998 at Chabua being a serious matter, a for 7. mal Court of Inquiry was ordered and it was scheduled to be conducted by one Maj or Raju at Dinjan Army Camp from 1.1.1999 to 6.1.1999. Apprehending complicacies for themselves if implicated in the scheduled Court of Inquiry, the respondents 6 and 7 summoned the petitioner from his confinement and 2 others and persuaded them to lie in the enquiry and support the concocted version of the incident. T he petitioner was released early before serving out the 14 days rigorous impriso nment, and was ordered to depose, that Naik DMT Rajinder Singh got injured durin g the (cid:28)Khali Kar (cid:29) process and was not injured through accidental firing by the w ife of the Brigade Commander.

8. The petitioner in the Court of Inquiry unlike DMT Manoj Kr. Yadav, did n ot depose as directed and spoke the truth as to how Naik DMT Rajinder Singh actu ally suffered the injuries. When respondent Nos. 6,7 & 8 learnt about petitioner ’s speaking the truth during the Court of Inquiry, a concerted attempt was made to punish him for defying the command of his own superiors.

9. After the petitioner returned on 8.1.1999 from Dinjan after conclusion o f enquiry, his persecution was started by the respondents 6, 7 & 8. At first the annual leave earlier sanctioned to the petitioner with free railway traveling w arrant was cancelled and opportunities were explored and devised to frame the pe titioner in some way.

9.1 In furtherance of a well designed conspiracy, on 15.11.99 the petitioner was sent from his camp at Sibsagar to Dinjan camp accompanied by Subedar Major Jogindar Singh. They made the journey from Sibsagar to Dinjan in a civil bus and the petitioner was made to spend the night at Dinjan Army Camp. At night at abo ut 1 a.m. the petitioner was woken up by one Havildar Ganesh with the informatio n that one AK-47 Rifle No. TU 7379 of the Dinjan Camp armoury is missing and the petitioner’s rifle was checked to match the rifle number. As the petitioner was carrying the rifle bearing No. TU 3348, nothing further was done thereafter and the petitioner also joined in the search for the missing rifle.

9.2 On 16.1.99 the respondent No.7, Colonel Amar Deep Singh and respondent N o.8 Captain B.M.S. Talwar came to Dinjan Camp and respondent No.7 remained at c amp and the Captain went back on the next day.

9.3 On 18.1.1999 the petitioner was detailed to accompany the Deputy Command er (respondent No.7) who went to Duliajan to play Golf and at the end of the day the petitioner was taken back to Sibsagar.

9.4 On 18.1.99 night, the petitioner was detailed for Guard Duty and at abou t 2400 hours (midnight), the petitioner was taken to Captain Talwar (respondent No.8) at his office. It is during this meeting at midnight, the Captain held a r ifle nozzle against the right temple of the petitioner with his finger on the tr igger and threatened execution of the petitioner for having told the truth in th e Court of Inquiry. 2 other personnels present in the room namely BHM Sarvan Sin gh and BQMH Rajinder Prasad were then told by the respondent No. 8 to bring some papers and on the blank envelope brought by the said 2 personnel, the petitione r was forced to write in Hindi as per the dictates of Captain Talwar, as follows : (cid:28)HATHIAR DINJAN MEIN HAI. SIVIL GARI MEIN GYA THA. MAINEY RAKHA HAI. LINE MEIN UPPAR HAI. J.C.O. LIVING MEIN (cid:29) (The arm is in Dinjan. Had gone in a civil vehicle. I have kept it above, in the line of J.C.O’s living). (cid:29) Fearing for his life, the petitioner wrote on the envelop as dictated.

10. The next morning i.e. on 19.1.1999, the Dy. C.O. Col. Amar Deep Singh ( respondent No.7) summoned the petitioner and told him that since the petitioner had not supported the officers during the Court of Inquiry and have deposed agai nst them, they will make his life miserable and he was instructed to do whatever is told to him by Captain Talwar.

10.1. On the same day Captain Talwar and Subedar Matadin took the petitioner t o Dinjan Camps (J.C.O. Lines) and then to a locked room, from where they took ou t a rifle and again forced him to write a confessional statement on a piece of p aper. Petitioner under fear of life, wrote whatever was dictated and then he was brought back to Sibsagar.

11. Between 20.1.1999 and 17.2.1999, the petitioner was kept in tight lockup and was not allowed to meet anybody except a few interested officers and especi ally Captain Talwar (respondent No.8). During his confinement the petitioner was forced to sign several blank papers. For 2 days i.e. 18.3.1999 and 19.3.1999, t he petitioner was released from custody and allowed to move within the Camp area but only under armed escort. Again on 20.3.1999 the petitioner was taken into c ustody and was tortured for 2 days to force him to act as per their dictates dur ing the intended proceeding to be held against him.

11.1 On 22.3.1999 while the petitioner was under arrest, the (cid:28)Summary of Evid ence (cid:29) was recorded during which the petitioner was not allowed to say anything a nd was forced to sign on a confessional statement pleading for less punishment.

11.2 He continued to remain in custody and on 27.3.1999 at about 0730 hours a charge sheet signed by the C.O. was served where signature of the petitioner wa s obtained to show that the said charge was served on him 2 days previously i.e. on 25.3.1999. The Summary Court Martial was started at about 11 am on 27.3.1999 and wa 11.3 s concluded on the same day at about 4 p.m. When sentence of civil imprisonment was pronounced, the petitioner was immediately sent to District Jail, Sibsagar t o serve out the sentence. (cid:29)

12. The learned Single Judge noted that against the specific and pin -pointed statements of the petitioner, particularly those made in paragraphs 2 t o 7 of the writ petition, the reply of the answering respondents was evasive. Al l that was stated was that the deponent would not prefer any comment as the alle ged sequence of events did not pertain to the unit of the deponent. As has been noticed above, the respondent Nos. 6, 7 and 8 were conspicuous by their absence in the proceeding before the learned Single Judge.

13. Coming to the two grounds of challenge as articulated by the lea rned Central Govt. counsel, this is how the learned Single Judge dealt with the same: (1) Confessional statement of the petitioner: The confession of the petitioner was recorded as follows: (cid:28)I No. 15118576F Svyr Rupesh Kumar Singh confess that (cid:28) I Svyr Rupesh Kumar Sing h on 15 Jan 99 between 1530h to 1545h stole the rifle AK-47 Regd No. TU-7379 wit h a magazine and 30 live rounds which I carried to Dinjan in Civil Mini Bus AS-0 4-4275, the rifle was recovered on 19 Jan 99. I am willingly ready to accept the punishment awarded to me but plead in the court that my martial status may be c onsidered and I may be awarded with the minimum punishment that is possible. (cid:29) The learned Single Judge noted that the unnecessary details mentioned in the sai d statement were quite unnatural and gives room for doubt that the confession wa s not voluntary. It was also noted that it is neither natural nor normal for a p assenger to re-collect the registration number of the bus in which he had travel led two months ago. The learned Single Judge also considered the confessional st atement vis-à-vis the deposition of the prosecution witnesses and because of the glaring contradictions found, the contention that the petitioner had admitted t o his guilt and that he had made the confession voluntarily was disbelieved. The relevant portion of the finding of the learned Single Judge on this issue is as follows: The embellishment by way of unnatural and unnecessary details contained (cid:28)15.3 in the said statement gives cause for suspicion that the confession was not volu ntary. It is not expected from any normal traveling passenger to note and rememb er the bus number in which he undertook a journey a couple of months earlier. Bu t contrary to a natural recollection, in the confessional statement purported to have been made by the petitioner, the registration number of the bus he travele d in 2 months previously, is recorded as civil Mini Bus AS-04-4275. Therefore it is quite possible that the so called confession was recorded on their own by th e officers while the petitioner was under custodial detention, and he was simply made to sign the same.

16.1 Additionally, if we examine the confession vis-à-vis the deposition of t he prosecution witnesses, further contradiction are found in the version project ed in the Court Martial proceeding.

16.2 It must be borne in mind that charge is theft of an AK-47 rifle in the B rigade Camp at Dinjan and not at the Sibsagar camp, where the petitioner was pos ted. The rifle bearing No. TU 7379 was issued to Gunner Jagpal Singh from the Di njan Camp armoury and on 15.1.1999 morning, he traveled with the said gun to Jor hat, as per his assigned duty.

16.3 It is found from the deposition of Gunner Jagpal Singh (P.W.1) that he r eturned from Jorhat to their Dinjan camp at about 1530 hours and he proceeded to have launch, leaving his issued rifle on his bed. When he returned after launch at about 1545 hours, he found the rifle missing. But notwithstanding the missin g rifle, it is seen from the evidence of P.W.4 Subedar Matadin that Gunner Jagpa l Singh was assigned Guard duty at night, without his weapon.

16.4 If the gun was really missing from 1545 hours, it is not understood how the personnel who was issued the missing gun (P.W.1) was assigned to Guard Duty at night at Dinjan camp without a weapon and furthermore why no action was taken against the said personnel who has been so careless with the AK-47 rifle issued to him. The Arms Issue Register (Exbt. ’A’) of Dinjan camp which was exhibited i 17.1 n the SCM proceeding also cast doubt on the version given by P.W.1 and P.W.4 abo ut the weapon being missing at 1545 hours from the bed of P.W.1 Gunner Jagpal Singh. In the Exbt.-A register, an entry is recorded on 15.1.1999 showing deposi t of the gun ( (cid:28)Time in (cid:29) at 1940 hours) but the said entry was struck off subsequ ently. There is no explanation anywhere as to why, Istly the entry showing retur n of the rifle to the armoury was made and how it was struck off subsequently fr om the Register. Furthermore it is clear from the evidence of P.W.4 Subedar Matadin that 17.2 on 15.1.1999 (cid:28)Night OK Report (cid:29) (Exbt-’C’) at 2130 hours was produced by Brigade Camp Havildar Lalchand and thereafter P.W.4 gave (cid:28)All OK report (cid:29) to Colonel Amar Deep Singh, the Dy. C.O. of Dinjan camp.

17.3 If an AK-47 rifle was actually missing at 1545 hours on 15.1.1999, there could not and should not have been any (cid:28)Night OK Report (cid:29) at Dinjan camp. There fore Exbt.-C itself clouds the version introduced through the evidence of P.W.1 and P.W.4 that AK-47 rifle issued to P.W.1 had actually gone missing on 15.1.199 9 as the Arms Issue Register (Exbt.-A) shows that the weapon was deposited back in the Dinjan camp Armoury, at 1940 hours. In the present case it is projected by the prosecution that the gun issu 18. ed to P.W.1 was found missing at 1545 hours on 15.1.1999 and it is alleged that the petitioner committed theft of the said gun and hid the same in the J.C.O’s b arracks in the Dinjan Camp. Here one must not forget that the petitioner is base d at Sibsagar and it is difficult to accept as true the projected version that h e stole a gun from a personnel of Dinjan Camp and kept it hidden in the J.C.O’s barracks of the said camp for retrieval at a later stage. When the petitioner wa s a man posted at Sibsagar camp, which is at a distance of at least 50 k.m. from the Dinjan camp, the frame up contention appears to be probable. The Arms Issue Register (Exbt.-A) and the Night OK Report (Exbt.-C) cas 18.1 t serious doubt on the story that the gun issued to P.W.1 had actually gone miss ing on 15.1.1999 and that the same was stolen by the petitioner on that day. Considering these discrepancies, it is quite probable that the petitione 18.2 r was sent from Sibsagar to Dinjan on 15.1.99 and made to spend the night at Din jan camp only to facilitate the frame up. This conclusion appears more reasonabl e particularly in view of the evasive reply of the respondents. (cid:29) It is to be noted that in this appeal, the appellants have not questioned the de cision of the learned Single Judge holding that the confession of the respondent /writ petitioner was vitiated and, therefore, could not have formed the basis of his sentence. (2) Validity of the SCM proceeding: Under Section 116 of the Army Act, a SCM is to be conducted by the Commanding O fficer (C.O) and he alone constitutes the Court. As per Rule 23 of the Army Rule s, the summary of evidence is to be recorded by the C.O or by such Officer as ma y be directed by the C.O. From the records relating to the SCM proceeding, the l earned Single Judge found that there was no order of the C.O convening the SCM p roceeding. It was convened by Adjutant Major DK Upadhyay on behalf of the C.O bu t without any authorization. Regarding recording of summary of evidence, it was found that Lieutenant S. M. Bandkhadke had recorded the summary of evidence. Ins tead of the C.O, it was Adjutant Major DK Upadhyay who had authorized him to rec ord the summary of evidence. The finding of the learned Single Judge on this iss ue is an under: (cid:28)14.4. A perusal of the original records of the SCM proceedings supports the co ntention of the petitioner in as much as, no order of the Commanding Officer is found authorizing Lieutenant S.M. Bandkhadke to record the Summary of Evidence a nd in fact instead of the C.O., the Adjutant Major DK Upadhyay (respondent No.4) ordered Lieutenant S.M. Bandkhadke to record the Summary of Evidence in SCM pro ceeding. This appears to be a clear violation of the mandates of the Rule 23 of the Army Rules.

14.5 The Summary Court Martial proceeding also reveals that the same has been conducted in violation of procedure prescribed by Section 116 of the Army Act a nd Rule 24(2) which requires the C.O. himself to convene the Court Martial Proce eding. In the original records no order of the C.O. convening the Court Martial Proceeding is found but what is seen is that proceedings have been convened by t he Adjutant Major D.K. Upadhayay who purports to act on behalf of the Commanding Officer. No authorization of the Commanding Officer is available on record auth orizing the Adjutant to exercise the powers of the C.O. as prescribed under Sect ion 116 and Rule 24(2). Under such circumstances, this Court is constrained to h old that the Court Martial Proceeding have been convened in violation of the man dates of the Army Act and the Rules.

20. Having regard to the ratio laid down by the Apex Court in G.S. Sodhi (Su pra) and Major A. Hussain (Supra), I find in the instant case that the Court Mar tial Proceeding on the basis of which the petitioner has been found guilty have not been convened as per the prescriptions of Section 116 of the Army Act and Ru le 24(2) of the Rules as it was not the C.O. who had convened the proceeding.

20.1 It is further seen that evidences were recorded by an officer who was no t authorized by the C.O. himself as was the requirement under Rule 23 of the Arm y Rules.

20.2 Therefore in my view the impugned Court Martial Proceeding have been con vened and conducted, in contravention of the provisions of the Army Act and the Army Rules. Accordingly the sentences ordered against the petitioner on the ba sis of such Summary Court Martial Proceeding which have not been convened in acc ordance with the Army Act and the Rules and where evidences have been recorded b y an officer who was not authorized to do so, by the Commanding Officer, cannot be sustained in law. (cid:29)

14. xious consideration of the Court. The submissions advanced at the bar have received the due and an

15. While it is true that a writ Court would be slow and some-what c ircumspect while dealing with a challenge to a court martial proceeding, however , no fetters can be imposed on the writ Court in exercising its power under Arti cle 226 of the Constitution, when a case of gross injustice or an abuse of power is clearly discernible. As can be seen from the above, the learned Single Judg e has taken great pains and has delved deep into the matter to unravel a sordid episode, which would have otherwise always remained under wraps.

16. For all the aforesaid reasons, we are unable to accept the submi ssions of the learned counsel for the appellants. We find no error in the view t aken by the learned Single Judge. We, therefore, dismiss this appeal and affirm the decision of the learned Single Judge.

17. Before parting with the record, we would also like to associate with the sentiment expressed by the learned Single Judge that there should be an adequate in-built mechanism within the Indian Army establishment to tackle this kind of aberration. This Court would also like to express its displeasure at th e conduct of the appellants 6, 7 and 8 (respondent Nos. 6, 7 and 8 in the writ p etition) who did not contest the writ petition but have chosen to file the appea l when the decision of the Court went in favour of the writ petitioner. We hope and trust the higher authorities in the Indian Army establishment will take appr opriate remedial steps to ensure that the fair name of the Indian Army is not su llied by the unbecoming activities of a few. Beyond this, we refrain from saying any further.

18. As the learned Single Judge had already imposed cost, no further cost is imposed on the appellants.