High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 23..4..2007Coram:The Honourable Mr. Justice K.CHANDRUW.P. No.12293 of 2007andM.P.No.1 of 2007Major Uday NangiaOfficer's MessOfficers Training AcademySt. Thomas MountChennai....Petitioner:versus:1. The Assistant Adjutant Quarter Master GeneralO.T.A. St. Thomas MountChennai – 162.The General Court MartialRep. by its Presiding Officer Officers' Training AcademySt. Thomas Mount Chennai-16.... RespondentsPetition under Art.226 of the Constitution of India, prayingfor a Writ of Certiorarified Manadamus by calling for the entirerecords comprised on the file of the respondent 1 and to quashorder made in 441/1/UN/A dated 26.3.2007 and consequentially todirect the respondent 1 to accept petitioner's list of Defencewitnesses submitted by him on 24.3.2007 and issue summons to themand to furnish the Medical records on the file of the MilitaryHospital, Chennai and Command Hospital, Air force, Bangalorepertaining to the period between (i) 29.01.2003 and 07.02.2003(ii) between 08.3.2003 and 03.4.2003 (iii) between04.3.2004 and 24.5.2004 (iv) 05.10.2004 and 16.02.2005 (v)17.9.2005 and 27.9.2005 to examine the Defense Doctors.For Petitioner:: Mr. Rupert J. BarnabasFor Respondents:: Mr. D. Sreenivasan A.G.C.S.C. (for R1)- - - - - https://hcservices.ecourts.gov.in/hcservices/ ORDERThe petitioner in the present writ petition seeks for theprayer to quash the order dated 26.3.2007 passed by the firstrespondent wherein and by which he was told that the list ofwitnesses given by him will not be called as he had not availedRule 34 of the Army Rules, 1954 [for short, 'Rules'] at theearlier point of time.2.The case against the petitioner was taken by the secondrespondent General Court Martial [for short, 'GCM'] exercisingoption under Section 125 of the Army Act, 1950, which reads asunder:Section 125.Choice between criminal court and court-martial"When a criminal court and a court-martialhave each jurisdiction in respect of an offence,it shall be in the discretion of the officercommanding the army, army corps, division orindependent brigade in which the accused person isserving or such other officer as may be prescribedto decide before which court the proceedings shallbe instituted, and, if that officer decides thatthey should be instituted before a court-martial,to direct that the accused person shall bedetained in the military custody." 3. The facts of the case as seen from the records are asfollows:The petitioner is a Major in the Indian Army. His deceasedwife (Capt. Madhura Joshi) at the relevant time was working as anInstructor in the Officers' Training Academy (OTA), Chennai. On23.12.2002 petitioner's wife sustained severe burn injuries allover her body when she was in her house. The petitioner alsosuffered burn injuries. According to the petitioner, theincident was on account of his wife's attempt to commit suicide.Both of them were taken to the Military Hospital by theneighbours and from there, they were shifted to Kilpauk MedicalCollege Hospital. In respect of the said incident, a complaintwas given to the Inspector of Police and the same was registeredin Crime No.774 of 2002 on 23.12.2002 and the First InformationReport was sent to the Judicial Magistrate on 24.12.2002. On24.12.2002, dying declaration of the petitioner's wife as well asthe petitioner was recorded. Petitioner's wife succumbed to thesevere burn injuries on 24.12.2002. On 26.12.2002 the Revenue https://hcservices.ecourts.gov.in/hcservices/ Divisional Officer, Chinglepet conducted an enquiry and recordedthe statements of the relatives of the petitioner's wife. Thejurisdictional police continued the investigation and recordedthe statements of witnesses, etc. as required under the Code ofCriminal Procedure. In the mean time, the case registered underSec.285 IPC was altered to one under Sec.306 and 498-A I.P.C.The Commanding Officer, O.T.A. by his letter dated 20.7.2004addressed the Judicial Magistrate to submit the case files andaccordingly the case papers were sent to the Commanding Officer,O.T.A. On receipt of the case file, the first respondent,exercising his powers under Sec.109 of the Army Act, by orderdated 25.7.2004, convened a General Court Martial consisting ofseven Army Officers as Members to try the petitioner for theoffences alleged against him. Subsequently, by order dated02.8.2005, the first respondent modified the the composition ofthe said General Court Martial with five Army Officers asMembers. 4.Thereafter, the petitioner challenged the taking overof the criminal case by the respondent by way of writproceedings in W.P.No.35061 of 2005. The said writ petitionwas dismissed by an order dated 27.3.2006 by a learned Judge ofthis Court. Aggrieved by the same, the petitioner filed awrit appeal being W.A. No.407 of 2006. Before the DivisionBench, the petitioner sought for withdrawal of the very writpetition itself reserving his right to challenge the final order,if any passed, on the proceedings initiated by the respondents.The Division Bench, by an order dated 12.12.2006, grantedpermission and allowed the petitioner to withdraw the writpetition and the order passed by this Court was also recalled.However, while doing so, the Bench reserved the petitioner'sright to challenge any infirmity in the proceedings only at theend of the trial. The permission given by the Bench as found inthe order of the Division Bench in paragraph 4 reads as follows:Para 4:"In view of the stand taken by the respondents, asrequested by the learned counsel for theappellant, on the instructions of the appellant,is allowed to withdraw this appeal as well as thewrit petition with liberty to raise all the issuesbefore the appropriate authority at theappropriate stage or before the appropriate forum(Court of Law), if the appellant is convicted.The appellant will co-operate in the General CourtMartial proceedings and may raise all theseissues. The authorities are expected to concludethe proceedings on an early date, if possible on aday-to-day basis between 10.00 a.m. and 5.00 p.m., https://hcservices.ecourts.gov.in/hcservices/ as suggested by the counsel for the respondents."[Emphasis added]5.Notwithstanding that order, the petitioner had filed alist of defence witnesses containing as many as 28 names by hisletter dated 24.3.2007. When this was refused, the petitionerhas come before this Court and sought for a direction. Aftersome preliminary submission, this Court directed the petitionerto shortlist the 28 names and to confine his case only to sixnames found in the list, which may have some relevance to thedefence taken by him and the six names are as follows:1.Gp Capt AK Behl, Plastic Surgeon at Air Force CommandHospital, Bangalore in 2002-2003.2.Wg Cdr T Roy, Plastic Surgeon at Air Force CommandHospital, Bangalore in 2003-2005.3.JC-818103H Sub SC Dey of CMP who visited scene ofoccurrence on 23 Dec. 2002, took statements and made areport4.Head Constable 1713 C Jayakumar of Police5.Selvi, Maid servant6.Mr.Murthy, Tahsildar Egmore – Nungambakkam whoconducted RDO inquiry and took statements on 26 Dec.2002.6.I have heard Mr.Rupert J. Barnabas, learned counselappearing for the petitioner and Mr.D.Sreenivasan, learnedAdditional Central Government Standing Counsel representing thefirst respondent and have perused the records.7.Mr.D.Sreenivasan, learned Additional Central GovernmentStanding Counsel representing the first respondent, oninstructions, submitted that even in respect of the six names,the first two Doctors are under the control of Air Force and,therefore, he will not be in a position to bring those witnessesand with reference to the third name, the learned counsel statedthat the statement and reports were filed and marked and,therefore, the evidence of S.C. Dey may not be necessary. 8.However, Mr. Rupert J. Barnabas, learned counselappearing for the petitioner, stated that certain materials areplanted during inspection, and therefore, they are all required.9.With reference to the fourth name, the learned ACGSCstated that already, Inspector of Police has been examined and,therefore, the examination of Head Constable is not necessary.With reference to the fifth name Selvi, learned counsel stated https://hcservices.ecourts.gov.in/hcservices/ that in the earlier address, the said witness was not found andif the correct address of the witness is given, summons may besent. But with reference to the sixth name, he stated thatthe RDO enquiry is not relevant to this case. Even otherwise,the statements recorded by the RDO can be summoned. 10.This, he submitted without prejudice to the preliminaryobjection regarding the maintainability of the writ petition andthe binding nature of the earlier order of the Division Bench.He also drew the attention of this Court to Sections 153 and 164of the Army Act, which read as follows:Section 153. Finding and sentence not valid, unless confirmed"No finding or sentence of a general,district or summary general, court-martial shallbe valid except so far as it may be confirmed asprovided by this Act."Section 164.Remedy against order, finding or sentence ofcourt-martial"(1)Any person subject to this Act whoconsiders himself aggrieved by any order passed byany court-martial may present a petition to theofficer or authority empowered to confirm anyfinding or sentence of such court-martial, and theconfirming authority may take such steps as may beconsidered necessary to satisfy itself as to thecorrectness, legality or propriety of the orderpassed or as to the regularity of any proceedingto which the order relates.(2)Any person subject to this Act whoconsiders himself aggrieved by a finding orsentence of any court-martial which has beenconfirmed, may present a petition to the CentralGovernment, [the Chief of the Army Staff] or anyprescribed officer superior in command to the onewho confirmed such finding or sentence, and theCentral Government, [the Chief of the Army Staff]or other officer, as the case may be, may passsuch orders thereon as it or he thinks fit."Therefore, he stated that the entertainment of the writ petitionmay be premature and the petitioner's rights are adequatelyprotected by the Army Act.11.He also drew the attention of this Court to the orderof the Division Bench referred to above and stated that theattempt of the petitioner is only to drag on the proceedings and https://hcservices.ecourts.gov.in/hcservices/ it is a clear abuse of process of Court and this Court cannotgrant any order in view of the direction of the Division Bench.12.Per contra, the learned counsel appearing for thepetitioner submitted that since the petitioner is facing a GCM,which is akin to criminal trial, he should be given reasonableopportunities. The order of the Division Bench does not standin the way of granting relief. Examination of the witnesses ismandatory and when the accused exercised that option, the samemust be given. The learned counsel drew the attention of therelevant provisions of the Army Act and particularly, to Section135 of the Army Act as well as Rules 34, 136 and 137 of the ArmyRules, which read as follows:Section 135. Summoning witnesses"(1)The convening officer, the presidingofficer of a court-martial, [or courts ofinquiry], the judge-advocate or the commandingofficer of the accused person may, by summonsunder his hand, require the attendance, at a timeand place to be mentioned in the summons, of anyperson either to give evidence or to produce anydocument or other thing.(2)In the case of witness amenable tomilitary authority, the summons shall be sent tohis commanding officer, and such officer shallserve it upon him accordingly.(3)In the case of any other witness, thesummons shall be sent to the magistrate withinwhose jurisdiction he may be or reside, and suchmagistrate shall give effect to the summons as ifthe witness were required in the court of suchmagistrate.(4)When a witness is required to produceany particular document or other thing in hispossession or power, the summons shall describe itwith reasonable precision."Rule 34. Warning of accused for trial"(1)The accused before he is arraigned shallbe informed by an officer of every charge forwhich he is to be tried and also that, on his https://hcservices.ecourts.gov.in/hcservices/ giving the names of witnesses or whom he desiresto call in his defence, reasonable steps will betaken for procuring their attendance, and thosesteps shall be taken accordingly.The interval between his being so informedand his arraignment shall not be less than ninety-six hours or where the accused person is on activeservice less than twenty-four hours.(2)The officer at the time of so informingthe accused shall give him a copy of the charge-sheet and shall if necessary, read and explain tohim the charges brought against him. If theaccused desires to have it in a language which heunderstands, a translation thereof shall also begiven to him.(3)The officer shall also deliver to theaccused a list of the names, rank and corps (ifany), of the officers who are to form the court,and where officers in waiting are named, also ofthose officers in courts-martial other thansummary courts-martial.(4) If it appears to the court that theaccused is liable to be prejudiced at his trial byany non-compliance with this rule, the court shalltake steps and, if necessary, adjourn to avoid theaccused being so prejudiced."Rule 136. List of witnesses of accused"The accused shall not be required to give tothe prosecutor or court a list of the witnesseswhom he intends to call, but it shall rest withthe accused alone to secure the attendance of anywitness whose evidence is not contained in thesummary and for whose attendance the accused hasnot requested steps to be taken as provided bysub-rule (1) of rule 3."Rule 137. Procuring attendance of witnesses(1)In the case of trial by general ordistrict court-martial, the commanding officer ofthe accused, the convening officer or, after theassembly of the court, the presiding officer,shall take proper steps to procure the attendance https://hcservices.ecourts.gov.in/hcservices/ of the witnesses whom the prosecutor or accuseddesires to call, and whose attendance canreasonably be procured, but the person requiringthe attendance of a witness may be required toundertake to defray the cost (if any) of theirattendance.(2)The court shall, in the case of trialsby summary court-martial, take proper steps toprocure the attendance of the witnesses whom theaccused desires to call and whose attendance canreasonably be procured, but the accused may berequired to undertake to defray the cost (if any)of their attendance."13.Learned counsel for the petitioner also stated that acombined reading of the Section and the relevant Rules will showthat the petitioner has a right to bring the defence witnessesand even though the petitioner had not exercised the option interms of Rule 34 of the Rules, he always can exercise the optionunder Rules 136 and 137 of the Rules. According to thelearned counsel, Rule 34(1) of the Rules requiring the list ofwitnesses to be given even before arraignment, which is illegalas the witnesses are likely to be tampered with and the Rule isalso unconstitutional and contrary to the principles behind theCode of Criminal Procedure and it also does not guarantee a fairtrial. However, he fairly submitted that he is notchallenging the constitutional validity of the said Rule and hewill rest contend with an harmonious interpretation of Rule 34and 136 of the Army Rules. 14.Mr.D.Sreenivasan, learned ACGSC opposed anyintervention at this stage by stating that one of the member ofconstituted GCM is to retire on 30.4.2007 and the entire exercisewill go waste. The prosecution witnesses have been examinedand the petitioner has cross-examined most of them and only insome cases, he has deferred. He also stated that the names ofthe witnesses are already known to the petitioner and he has notexercised the option available under Rule 34 of the Rules. Evenunder Rule 136 of the Rules, there is a discretion vested on theGCM to call the witness or not. He also stated that Rule 137(2)of the Rules relate to summary Court Martial.15.In the light of the above, it is to be seen whether thepetitioner's request can be granted, more particularly, with thealtered list of six names, which he had agreed to examine beforethis Court. Had it not been for the binding order of theDivision Bench, this Court would have certainlyexercised discretion in the matter of examination of defence https://hcservices.ecourts.gov.in/hcservices/ witness and out of the six names shortlisted by the petitioner, afew witnesses could have been directed to be examined, especiallySelvi, the Maid servant, who is supposed to be an eye-witness,would have been a relevant witness. But the petitioner withhis conduct of coming before this Court on a jurisdictionalpoint, got a direction from the Division Bench and in that, theDivision Bench has clearly stated that all the issues can beraised if the petitioner is convicted. There was a furtherdirection to conclude the trial on day-to-day basis. Further,the learned counsel for the petitioner submits that while theorder of the Division Bench relates to the jurisdictional issue,the present cause of action is entirely different. 16.I am unable to agree with the said submission as thisCourt cannot go behind the observations made by the DivisionBench and then hold that notwithstanding the direction of the Division Bench, the trial should be balked at every stage and,therefore, entertainment of the writ petition is highly doubtful.At this stage, one cannot presume that the verdict may goagainst the petitioner. That is why, the Division Bench gavethe liberty to the petitioner to challenge the jurisdictionalissues in case the petitioner is convicted by GCM. Further, asrightly contended by the learned counsel for the respondents, thefindings recorded by the GCM will have to be confirmed by thehigher authorities under Section 153 of the Army Act and also aremedy is available to the highest authority under Section 164 ofthe Army Act. Therefore, it is not as if the petitioner is in ahelpless situation to seek remedies before the forums availableunder the Army Act. In view of the clear direction of theDivision Bench referred to above and also the further safeguardsprovided under Sections 153 and 164 of the Army Act, this Courtis unable to entertain the writ petition.17.In the light of the above, the writ petition fails andthe same shall stand dismissed. Interim order granted on20.4.2007 stands vacated. No costs. Connected MiscellaneousPetition is closed. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ griTo1. The Assistant Adjutant Quarter Master GeneralO.T.A. St. Thomas MountChennai – 162.The General Court MartialRep. by its Presiding Officer Officers' Training AcademySt. Thomas Mount Chennai-16+1cc to Mr.Rupert Barnabas, Advocate Sr 27050+1cc to MR.D.Sreenivasan, Advocate Sr 26979AKR (CO)km/23.4. W.P. No.12293 of 2007