S.P. Gupta (Ex. Major) vs Union Of India & Ors.
2000 Latest Caselaw 31 Del

ORDER

K. Ramamoorthy, J.

1. The petitioner has prayed for the following relief :-

"(a) Declare that the General Court Martial held from 4.10.90 to 21.12.90 is not legally constituted and had no jurisdiction to proceed in the matter, and that its findings and sentence against the petitioner are perverse, without any evidence on record and illegal;

(b) Order, direction or Writ in the nature of :

(i) Certiorari quashing the entire proceedings of the aforesaid General Court Martial in so far it relates to the petitioner;

(ii) Mandamus directing the Respondents to reinstate the petitioner in the service forthwith retrospectively with all consequential benefits including promotions and pay/allowances as if he is continuously in the service.

(c) Record be summoned."

2. The petitioner had challenged the trial proceedings on the ground that the respondents had not followed the procedure prescribed and thus the petitioner was deprived of his right to safeguard his interest in defending himself. The petitioner had contended that the joint trial was ordered with mala fide intentions. The petitioner has stated that the G.C.M. was not legally constituted. While convening the G.C.M. it was to consist of 7 Members. As against this, only 5 Members were there and this was not in accordance with the Rules.

3. In the counter affidavit, the respondents had clearly, mentioned the facts, at page 80, it is stated :-

"During the investigation it came to light that the petitioner has involved himself in malpractices during medical examination of many recruits where some of whom with glaring permanent disabilities have been declared medically fit by him. Moreover, in his short texture of 1 year and five months in BRO Meerut there have been nine cases of Sub standard recruitment done by petitioner and in all cases the recruits have been invalidated of service."

4. Referring to Rule 35 in respect of joint trial, it is stated :-

"35. Joint trial of several accused persons: - (1) Any number of accused persons may be charged jointly and tried together for an offence averred to have been committed by them collectively.

(2) Any number of accused persons, although not charged jointly, may be tried together for an offence averred to have been committed by one or more of them and to have been abetted by the other or others.

(3) Where the accused are so charged under sub-rules (1) and (2), any one or more of them may at the same time be charged with and tried for any other offence averred to have been committed individually or collectively, provided that all the said offences are based on the same, facts or form or are part of a series of offences of the same or similar character."

"In view of the above clear cut provisions, the contention of the petitioner that since the investigation of charges and remand for trial under Army Rules 22-24 were carried out separately in respect of them including the petitioner, their joint trial is not permissible, is misconceived, and hence denied. A bare perusal of the charges against the petitioner would reveal that they fall within provisions of Army Rule, 35, and hence joint trial is justified and permissible. The contention of the petitioner that for joint trial even the charges were required to be herd jointly under Army Rule 22 is mis-conceived and hence denied. As per Army Act and Rules, on receipt of a complaint/allegation against a person (s) subject to Army Act, the Commanding Officer carries out preliminary hearing to satisfy himself to ascertain the existence of a prima facie case. The charge at this stage is merely an accusation and hence, it is called tentative charge. After recording the Summary of Evidence, the whole of the evidence is analysed in its totality and proper charges are framed against the accused persons for trial by court martial. Further, the contention of petitioner stands already settled by Supreme Court in the case of Naib Subedar Baleshwar Ram Vs. Union of India . It is also submitted that as per Army Rule 35(3), where accused persons are tried together, any one or more of them may also be charged separately in respect of any offence alleged to have been committed by them separately. Hence the contention of petitioner that he could not have been charged for charges Nos. 1 and 2 alongwith the charges Nos. 8 and 11 in Annx. P-5 is misconceived. It is denied that charges Nos. 1 and 2 never existed against the petitioner. It is also denied that proceedings under Army Rules 22-24 were not carried out in respect of these charges. It is respectfully submitted that the petitioner had at no stage raised this. It is also denied that the convening authority did not satisfy himself as required under Army Rule 37, in respect of these charges. It is submitted that all the charges against petitioner are based on same facts and hence there was no prejudice what so ever caused to him."

5. Referring to the way in which the offence was committed, it is stated:- "That any number of accused persons can be tried together for the offences either committed individually or collectively provided that all the said offences are based on the same facts and form or part of series of offences of the same or similar character. In the instant case, the offences have been committed by the petitioner and other accused persons. These offences were arising out of recruitment of Shri Mukesh Kumar and Narandra Kumar from whom the petitioner had taken money and hence he was separately charged as well. Therefore, there is no illegality on part of convening authority in ordering joint trial. When the accused was given a notice of joint trial by way of a charge sheet, the accused person either by notice or when arraigned before the court martial could have claimed separate trial on the ground that the evidence of other accused persons proposed to be tried together with him will be material to his defense or that the trial otherwise will be prejudicial to his defense. In the instant case, the petitioner choose not to exercise his statutory right to claim separate trial, his contention now is an after thought made with a view to mislead this Hon'ble Court."

6. Dealing with the point relating to composition of the G.C.M., it is stated that though the G.C.M. is constituted under the orders of the Convening Officer the proceedings after assembly are governed by Army Act and the Army Rules and the Court is fully empowered to deal with a situation. Again it is stated :-

"The GCM has been legally constituted in all respect. The composition of GCM is laid down clearly in Army Act Section 113, which says :-

"A general court martial shall consist of not less than five officers, each of whom has held a commission for not less than three whole years and of whom not less than four are of a rank not below that of Captain".

The mandatory requirement of the Act has always been kept in mind through out the trial of petitioner. It is submitted that under the provisions of Army Rule 41 read with Army Rule 38, the GCM of petitioner was fully empowered to proceed with the statutory minimum of five members, after two members were disqualified/absent. Where the convening authority details seen members (in instant case as well) the authority might have anticipated the trial to continue for a longer time and in the absence of one or two members due to unforeseen circumstances even during continuance of trial the GCM should continue without being dissolved for want of legal minimum quorum. Since the present GCM was attended through out by legal minimum of five members, there was no requirement of referring the same to the convening authority. It is also clarified that when ever a waiting member is taken from the list to replace a retiring member, an office of corresponding rank to the retiring or absent member is taken. In the instant case, Col. Garg having become disqualified and Col. Bhati and Col. Balot being absent, there was only one officer of corresponding rank namely Col. Roy Anil Chandra, available to serve, since the other waiting member was Brig Bator Ravinder Kumar. Moreover the scheme of Army Act is in favour of having a Court Martial composed of odd number of members rather than even number. Under these circumstances and considering the necessities of discipline and interests of service, the GCM of petitioner appear to have proceeded with five members constituting it. Hence the contention of petitioner that the GCM was not legally constituted and its composition was illegal is false, misleading and hence denied. Had the petitioner so desired he could he challenged the jurisdiction of GCM at trial in terms of Army Rule 51 which he had not done. In any case no prejudice has been caused to him on this court."

7. Reference is made to Rule 38 of the Army Rules and the respondents had stated that the contention of the petitioner is not correct.

8. Dealing with the disqualifying of Col. Garg. it is stated in paragraph 18:- "The contention of petitioner that Col. Garg was not disqualified is misleading and hence denied. It is submitted that the underlying principle of disqualifying an officer who had recorded summary of evidence against an accused is to ensure that an officer who had already formed an opinion against the accused is not allowed to sit in judgment. It is immaterial whether the summary of evidence was pertaining to an earlier case or the present one. It is submitted that since it was a joint trial Sub Rachpal Singh had full right to a trial by totally balanced and impartial members as juriors. The petitioner in fact has no right under the Statute to insist that a particular officer should be a member of the court martial for his trial. He has only a right to object to the continue of a member. Under these circumstances, the petitioner cannot complain about the retirement of Col. Garg from the trial. The Court Martial rightly asked Col. Garg to withdraw in the circumstances explained above."

9. The petitioner has come forward with a case that a reading of the petition would show as if this Court is sitting in appeal over the proceedings of the General Court Martial. The parameters of the scope of jurisdiction of this Court under Article 226 of the Constitution are clearly laid down by the Supreme Court.

10. In the light of the facts mentioned in the counter and the stand explained, in my view, the respondents had not committed any illegality. There is no irrationality in the decision taken by the respondents.

11. Consequently, the writ petition stands dismissed. There shall be no order as to costs.