Veer Bhan (sepoy) v. The Chief Of The Army Staff & Another

Gita Mittal, J.

1. The petitioner, by virtue of this writ petition, is seeking quashing of the proceedings, findings and sentence of the Summary Court Martial dated 11th July, 1994 whereby the petitioner was found guilty of the charge under Section 52(b) of the Army Act, 1950 and was sentenced to rigorous imprisonment of four months and dismissal from service.

2. The petitioner joined the Indian Army as Sepoy in the Jat Regiment in the year 1980 and claims that he has discharged his duties to the satisfaction of all the superior officers of the Indian Army. While on active service at Changri West Post on 26th June, 1994, it was alleged that he had dishonestly misappropriated Government ration valued at Rs. 4,031.24 p. and had sold it to civilians. Pursuant to these allegations, a summary of evidence was directed against the petitioner by his Commanding Officer Col. K.K. Bhattacharya which was recorded on 6th July, 1994.

3. Based on the summary of evidence, a tentative charge-sheet was drawn up against the petitioner on 10th July, 1994. The Commanding Officer thereafter directed trial of the petitioner by Summary Court Martial which proceedings were conducted on the 11th July, 1994. A charge-sheet dated 11th July, 1994 was drawn up against the petitioner whereby a charge under Section 52(b) of the Army Act alleging that the petitioner, while on active service on 26th July, 1994, while at Changri West Post, dishonestly misappropriated the Government ration, the property of the Government valued at Rs. 4,031.24 p. and sold it to the civilians. The petitioner was arraigned before the Summary Court Martial on the 11th July, 1994 and it is alleged that on a plea of guilt by the accused, he was found guilty of the offence with which he was charged. He was consequently, sentenced to rigorous imprisonment of four months and dismissal from service on the 11th July, 1994.

4. These findings and sentence of the Summary Court Martial dated 11th July, 1994 have been impugned before us inter alia on the following grounds:

(i) The trial, findings and sentence of the petitioner are liable to be set aside & quashed for non-compliance of the mandatory provisions of Army Rule 34 and denial of adequate opportunity to prepare and lead his defence to the petitioner.

(ii) The trial, findings and conviction of the petitioner is vitiated on account of non-compliance of Section 162 of the Army Act inasmuch as there was inordinate delay in forwarding the proceedings of the Summary Court Martial to the officer commanding the Division/Brigade within which the trial was held.

The delay of more than six months in forwarding the proceeding amounted to frustration of the valuable rights of the petitioner inasmuch as the same could have been legally reduced by the authority.

(iii) The findings and sentence are liable to be set aside and quashed for the reasons that copy of the proceedings was not available to the petitioner despite repeated requests including requests made on 19th January, 1995 and 10th February, 1995.

5. The respondents have sought to support their actions solely on the plea that the petitioner had pleaded guilty and nothing further was required to be done by the respondents. The respondents have further contended that the finding and sentence of the Summary Court Martial was not required to be confirmed as per Section 161 of the Army Rule 132. The respondents were justified in forthwith executing the sentence and that no fault could be found on the fact that the finding and sentence of Summary Court Martial was reviewed by the Competent Authority on 25th January, 1995.

6. We have given our thoughtful consideration to the submissions addressed by the learned Counsel for the parties. We have also had the benefit of perusing the original records of the summary of evidence as well as proceedings of the Summary Court Martial.

7. The Legislature has incorporated specific requirements and safeguards in order to ensure that an accused person has an opportunity to prepare and lead his defence. Valuable rights have been given to an accused person. In this behalf, Rule 33(7) of the Army Rules, 1954 renders it mandatory that that an accused person is provided with a copy of the summary of evidence or an abstract of the evidence, not less than 96 hours or on active service 24 hours before his trial. These have to be provided free of charge. The rules mandate that an explanation of the rights of the accused person under these rules as to preparing his defence and being assisted or represented at the trial is given to the accused person. It is also mandatory to ask accused to state in writing whether or not he wishes to have an officer assigned by the Convening Authority to represent him at the trial, if a suitable officer should be available. The convening officer is required to be informed as to whether or not the accused so elects.

8. We find that a letter in original dated 10th July, 1994 addressed to the petitioner is available on record whereby he was informed as under:

WARNING FOR TRIAL UNDER ARMY RULE 34

You are hereby informed that you will be tried by a Summary Court Martial on 11th July, 1994 for offence committed by you under AA Sec 52(b) DISHONESTLY MISAPPROPRIATING PROPERTY BELONGING TO THE GOVERNMENT. You may call the witnesses if desired for your defence during the SCM proceedings on 11 Jul 94.

9. We find nothing from the record that the accused person was informed of his rights under the Army Rules, 1954 as to preparing his defence or being arraigned or represented at the trial. We also find that the respondents have failed to ask the accused or obtain in writing from him as to whether or not he wishes to have an officer assigned by the Convening Authority to represent him at the trial. As such, the respondents have failed to comply with the requirement of Army Rule 33 in the facts and circumstances of the instant case.

10. As per Army Rule 34, the respondents were enjoined to inform the petitioner of every charge for which he is to be tried and also that on his giving the names of the witnesses or whom he desires to call in his defence, reasonable steps were required to be taken for procuring their attendance, and those steps shall be taken accordingly. The rules mandates that the interval between his being so informed and his arraignment shall not be less than ninety-six hours or where the accused person is on active service less than twenty-four hours.

11. It is contended that the trial stands vitiated and the petitioner is prevented from leading valid evidence on account of the fact that the charge-sheet was served on the petitioner on the 11th July, 1994 and the Summary Court Martial was conducted on the same date.

12. We find that the present case is a prime example of the age old adage that justice hurried is justice buried. The Army Act, 1950 & Army Rules, 1954 have provided certain mandatory procedure/safeguards in order to ensure that injustice is not meted out to the personnel of the Indian Army facing trial by the Military Tribunals. The Summary Court Martial by its very nomenclature shows that this is instituted for the reasons of expedition in trial. It is intended to be speedier as against proceedings in a regular criminal trial before a Civil Court or even trial before a District or General Court Martial. On account of their very nature, it is inherent in the proceedings and incumbent upon the officers holding and conducting proceedings of a Summary Court Martial to ensure compliance with the mandatory provisions of the Army Act, 1950 and the rules framed thereunder.

13. A scrutiny of the record shows that the summary of evidence in the case of the petitioner commenced at 08.00 hours on the 6th July, 1994 and was concluded the same day. The summary of evidence runs into 41 handwritten pages. It is admitted before us that no charge-sheet was served upon the petitioner 24 hours prior to the commencement of the trial. Learned Counsel for the respondents has drawn our attention to a document which is dated 10th July, 1994 and is styled as Tentative Charge-sheet. Reliance is placed on a receipt dated 10th July, 1994 whereby it is observed that the petitioner had received copy of the summary of evidence and one copy of a tentative charge-sheet at 0800 hours on 10th July, 1994.

14. It is admitted before us that the accused was arraigned for trial based on a charge-sheet dated 11th July, 1994 which was not served on the petitioner. It is noteworthy that both the tentative charge-sheets dated 10th July, 1994 and the final charge-sheet dated 11th July, 1994 contain an identical correction about the value of the property. We find that there is a correction of the figure of Rs. 4,031.24 in both the original documents. It is also noteworthy that the tentative charge-sheet as well as the charge-sheet in original are forthcoming on the records which lays suspicion to the assertion of the respondents that these documents were furnished to the accused person.

15. It is not disputed before us that the respondents draw distinction between the tentative charge-sheet on which a summary of evidence is recorded and the charge-sheet on which a defence personnel is arraigned and has been tried before Summary Court Martial. Admittedly, the petitioner was not served with the charge-sheet and there was non-compliance of Army Rule 34. Apart from informing the petitioner about the charges on which he had to stand trial, the respondents were bound to have called upon the petitioner to give the names of witnesses whom he desires to call in his defence so that reasonable steps could be taken. The period prescribed under the rules is to enable a person accused of an offence to prepare his defence and to give him time to dwell on the allegations levelled against him.

16. In our view, the provisions of Army Rule 34 are mandatory. A summary trial which is empowered to impose serious sentences of imprisonment, dismissal from service, etc. has serious consequences and the petitioner cannot be deprived of his liberty and constitutional rights as well as his legal right to defend the charges by depriving him of an opportunity to prepare his defence. Non-compliance of Army Rule 34 itself vitiates the entire proceedings of the General Court Martial and and hence also the findings and sentence imposed thereon.

17. However, since we have heard Counsel on the other aspects of the matter, we may comment on the same as well. Section 115 of the Army Act, 1950 reads as under:

115. General plea of Guilty or Not Guilty(1) The accused persons plea - Guilty or Not 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 which will be made by the plea of guilty, and shall advise him to withdraw 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 plead thereto, and a record to that effect shall be made upon the proceedings of the Court.

18. Section 115(2) mandates that if an accused person pleads Guilty, that plea shall be recorded as the finding of the Court, but before it is so 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. The Court is required to inform the accused person of the difference in the procedure which 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.

19. Perusal of the original record shows that the trial of the accused commenced at 1130 hours on the 11th July, 1994. The entire proceedings which would include his arraignment, trial, finding and sentence by the Court were over and the trial closed at 11.30 hours on the 11th July, 1994. The proceedings have been recorded in hand on a printed format. There is no certificate as is required under Section 115, Rule 2(A) as extracted above, recording the original proceedings of the Summary Court Martial. We find that a hand written certificate reproducing the contents of the Army Rule 2A has been pasted on the form. We find that columns setting out the requirement of Rule 115 (2) and the query with regard to its compliance have been mentioned on the form itself.

20. In these circumstances, we are unable to agree with the submission made on behalf of the respondents that the Summary Court Martial was conducted on the plea of guilt in compliance with Army Rule 115. Valuable safeguards provided in the Section, keeping in view the responsible role to be discharged by the Summary Court Martial, have been completely given a go by. For this reason as well, the proceedings, findings and sentence of the Summary Court Martial are liable to be set aside and quashed.

21. We further find from the record that Col. K.K. Bhatacharya has apprised the petitioner of his rights under the provisions of Army Rule 147 only on the 31st December, 1994. On this date, he has informed the petitioner that he was entitled to a set of Summary Court Martial proceedings.

22. We find from the record that immediately after sentencing, the petitioner was committed to the Civil Jail, Gangtok on the 11th July, 1994 itself. Vide a letter of the same date, the respondents informed the petitioners wife that her husband has been dismissed from service and awarded four months rigorous imprisonment which would be carried out in the civil prison. It is unfortunate that the respondents have acted in such a post haste manner to put together a semblance of a fair trial of the petitioner whereas they have given complete go by to the right of an accused person to get a fair trial and review of the findings and sentence against him.

23. Records show that Army Rule mandates that the proceedings of the Court Martial should be forthwith forwarded. In the instant case, the proceedings were forwarded and the matter placed before the reviewing officer under Section 162 of the Army Act more than six and a half months after the sentencing only on the 25th January, 1995. By this date, the petitioner had long undergone his sentence of rigorous imprisonment of four months. Assuming that such sentence was reduced or was set aside by the Reviewing Authority, there could have been no restitution of the rights of the petitioner or adequate compensation for deprivation of his liberty under Article 21 of the Constitution of India.

24. Even though Army Rule 70 prescribes that proceedings of a General or a District Court Martial require to be confirmed and in the instant case, this Court is concerned with the proceedings and trial by a Summary Court Martial, it cannot be lost sight of that a Summary Court Martial based on its finding on the plea of guilty of the accused person, imposed a sentence of rigorous imprisonment and dismissal of service of the accused. Valuable rights of the accused person were impinged upon and it was imperative that the proceedings of the Court Martial are made available to him forthwith. The petitioner was entitled to such review as was available to him not only under the provisions of Army Act, 1950 but opportunity to invoke his remedies, if any, under the Constitution of India. The respondents have proceeded in an utterly casual manner defeating all rights of the petitioner to invoke his remedies in accordance with law.

25. Keeping in view the entire conspectus of the facts emerging on record, we have no hesitation in holding that the proceedings of the Summary Court Martial held on 11th July, 2004 against the petitioner were in violation of the provisions of Army Act, 1950 and Army Rules, 1954 and we hereby set aside and quash the same. As a result thereof, the petitioner is entitled to all consequential benefits and is required to be reinstated with all consequential benefits. In asmuchas we find that the proceedings were held in violation of the rights of the petitioner and specific provisions of Army Act, 1950 and Army Rules, 1954, we award back wages as well to the petitioner. The respondents are directed to take all necessary steps for re-instating the petitioner and processing the matter for consequential benefits and back wages within a period of six weeks from the date of the judgment. The petitioner shall be entitled to costs of the petition which are awarded at Rs. 5,000/-.