High Court · 2012

After hearing the matter and on perusal of the relevant record, 8. the learned Single Judge negatived the contentions of the writ petitioners based on the above grounds and by the impugned judgment and order, declined to interf ere with the conclusion reached and the sentence imposed on the appellant by the court martial. The writ petition was dismissed and the interim order was vacate d.

9. esent appeal. Aggrieved, the petitioner No.2 as the appellant has filed the pr

10. nt and Mr. C. Baruah, learned Central Government Counsel for the respondents. Heard Mr. G.N. Sahewalla, learned Senior Counsel for the appella Learned Counsel for the appellant has challenged the finding of 11. the learned Single Judge basically on the ground of violation of Rule 22 of the Army Rules. He submits that provisions of Rule 22 are mandatory and non-complian ce thereof would vitiate the court martial proceedings. He contends that the wit nesses examined in the course of the proceedings under Rule 22 were not so exami ned in the presence of the appellant which was in clear violation of Rule 22. In support of his submissions, learned Senior Counsel has referred to and relied o n the following judgments of the Hon’ble Supreme Court :- AIR 1982 SC 1413 India and others) (Lt. Col. Prithi Pal Singh -vs- Union of (2007) 15 SCC 709 (Union of India and others -vs- Dev Singh).

12. Mr. C. Baruah, learned Central Government Counsel on the other h and supports the judgment of the learned Single Judge. He submits that the learn ed Single Judge after due consideration and on perusal of the relevant record ha d come to a definite finding that there was no violation of Rule 22. The aforesa id finding being a finding of fact, the appellate Court should not interfere wit h such finding. He therefore prays for dismissal of the appeal.

13. The rival submissions have been considered.

14. ules, a brief dilation on the same may be relevant. Rule 22 is as under :- Since the dispute primarily centers around Rule 22 of the Army R (cid:28) [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 acc used shall have full liberty to cross-examine any witness against him and to cal l 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 be en complied with in respect of that accused, the commanding officer may dispense with the procedure in sub-rule (1). The commanding officer shall dismiss a charge brought before him if, in (2) his opinion the evidence does not show that an offence under the Act has been co mmitted and may do so if, he is satisfied that the charge ought not to be procee ded with: Provided that the commanding officer shall not dismiss a charge which he is debarred to try under sub-section (2) of Sec.120 without reference to superi or authority as specified therein. (3) After compliance of sub-rule (1), if the commanding officer is of opinio n that the charge ought to be proceeded with, he shall within a reasonable time- (a) dispose of the case under section 80 in accordance with the manner and form in Appendix III; or (b) refer the case to the property superior military authority; or (c) adjourn the case for the purpose of having the evidence reduced to writing; (d) if the accused is below the rank of warrant officer, order his trial by a su mmary court martial. Provided that the commanding officer shall not order trial by a summary court ma rtial without a reference to the officer empowered to convene a district court m artial 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 r eference to that officer; or (b) he considers that there is grave reason for immediate action and such refere nce cannot be made without detriment to discipline. (4) Where the evidence taken in accordance with sub-rule (3) of this rule di scloses an offence other than the offence which was the subject of the investiga tion, the commanding officer may frame suitable charge(s) on the basis of the ev idence so taken as well as the investigation of the original charge.] (cid:29)

15. The sum and substance of the said provision, which is at a stage prior to trial by the court martial, is that the charge against the accused who is subject to the Army Act and the Rules should be heard by the commanding offi cer in his presence. The accused should have liberty to cross examine any witnes s against him, to call any witness and make statement which he may consider nece ssary for his defence. This is in compliance with the principles of natural just ice and broadly corresponds to what is contemplated by the Code of Criminal Proc edure. Where the charge against the accused arises as a result of investigation by the Court of inquiry, the commanding officer may dispense with such procedure . If the commanding officer is of the opinion that the charge ought to be procee ded with, he has the option of adjourning the case for the purpose of having the evidence reduced to writing (called summary of evidence) and order trial by sum mary court martial, if the accused is below the rank of warrant officer. Thus fr om a reading of Rule 22 it is evident that the provisions contained therein are mandatory in respect of every person subject to the Army Act other than an offic er.

16. The learned Single Judge noted that in the Court of inquiry held against the appellant, three witnesses were examined out of which admittedly tw o were also cross-examined by the appellant. The record of the proceedings under Rule 22, which was examined by the learned Single Judge, indicated that the thr ee witnesses examined in the Court of inquiry held against the appellant were ag ain examined in the proceedings under Rule 22 and the said witnesses were cross- examined by the appellant. The learned Single Judge also found from the record t hat though liberty was granted to the appellant to call his witnesses, no witnes s was examined by the appellant. The learned Single Judge held as under:- (cid:28)11. & & & & The respondents by placing before the Court the record of the proceedin gs held against the petitioner under Rule 22 of the Army Rules, have sought to d emonstrate that there was no violation of the provisions of Rule 22 in the prese nt case. The record of the proceedings under Rule 22 amply demonstrate that the witnesses in support of the charge were examined in presence of the petitioner w ho had cross-examined them. However, in the reply affidavit of the petitioner da ted 22-07-2008 the aforesaid position is disputed. A stand taken contrary to wha t is revealed by the records placed before the Court ordinarily and in the norma l course, will be difficult to accept. In any event, in the reply affidavit of t he petitioner dated 22-07-2008 the petitioner admits that the three witnesses in question were also examined in the court of enquiry and at least two of them ha ve been cross-examined by the petitioner. If that be so, the Court will find suf ficient basis for holding that in the present case, the proviso to Rule 22 can b e invoked, in which event also the decision of the Court will have to be against the petitioner. Coupled with the above, in view of the law laid down by the Ape x Court in Pradip Singh (supra) as quoted above, if the Court can arrive at the conclusion that on the evidence and materials on record no fault can be found wi th the findings recorded against the petitioner, violation of Rule 22 will be wh olly irrelevant. (cid:29)

17. There is no dispute to the proposition of law argued by the lear ned counsel for the appellant based on the judgment passed by the Apex Court in the case of Lt. Col. Prithi Pal Singh (supra) that Rule 22 of the Army Rules bei ng mandatory in respect of every person subject to the Army Act other than an of ficer, non-compliance with the same would invalidate the inquiry.

18. In the Dev Singh case (supra), the Hon’ble Supreme Court in the facts of that case observed that at the initiation of the court martial proceedi ngs itself, as the accused had raised the contention that the preliminary procee dings which directed initiation of court martial proceeding was in violation of Rule 22, the court martial could not be held against him. Thus, the objection as to the initiation of court martial proceeding was taken by the accused at the v ery beginning of the court martial proceedings and if the objections were then t o be considered by the military court, then as per the law laid down in Lt. Col. Prithi Pal Singh (supra) , the proceedings had to be dropped. The fact that the court martial failed to consider the preliminary objection of the accused could not have been taken advantage of by the army authorities to contend that in sub sequent proceedings, the lacuna, if any, in the preliminary proceedings having b een rectified, the court martial proceedings would not be vitiated. In such circ umstances, the Apex Court held that the case of the accused in that case was cov ered by Lt. Col. Prithi Pal Singh (supra). The facts of the present case, as already noticed above, are cle 19. arly distinguishable from the facts of Dev Singh. In the present case, the learn ed Single Judge recorded a clear finding of fact that in the Court of inquiry, t hree witnesses were examined out of which two were cross-examined by the appella nt. In the proceedings under Rule 22, the three witnesses examined in the Court of inquiry were again examined and they were also cross examined by the appellan t. Though opportunity was given to the appellant to adduce evidence, no witness was produced by him.

20. In view of above, we cannot agree with the submission of the app ellant that there was infraction of Rule 22 which would vitiate all subsequent p roceedings.

21. The conclusions and decisions of the summary court martial are b ased on a reasonable and plausible view of the materials on record, which have b een affirmed by the learned Single Judge on due consideration. Acknowledging the limited scope of interference in court martial proceedings by a writ Court unde r article 226 of the Constitution, this Court would not like to substitute its v iews for that of the court martial.

22. In view thereof, we are not inclined to intervene with the concl usions and decisions of the summary court martial which as noticed above, have b een affirmed by the learned Single Judge on due consideration.

24. Writ appeal is accordingly dismissed. However, there will be no order as to cost.