Delhi High Court
Chandra Kumar vs State on 23 July, 2001
Equivalent citations: 95 (2002) DLT 448
Author: R Sodhi
Bench: R Sodhi
JUDGMENT
R.S. Sodhi, J.
1. Criminal Writ Petition 590/91 seeks to challenge the proceedings
of a General Court martial, its order and sentence dated 4.6.1990. The grievance of
the petitioner is that the Court Martial is void ab-initio on the grounds that it has been
convened by an officer against whom statutory complaint was pending and that the
officers manning the Court are subordinate to the Convening Officer, therefore, the
proceedings were biased. He, further, challenges the Court Martial on the ground
that the defense was not allowed to lead evidence, inasmuch as he was not allowed
to produce the transporter who transported his luggage and Maruti Car No. DDU4101
from Bangalore to Udhampur. As also no one was produced from the check-post
to establish that truck Nos. JKQ 3285 and JKR 9587 crossed the barrier carrying the
baggage as also the car of this petitioner. Another grievance of the petitioner is that
the charge framed against him qua receiving LTC twice in the same year has already
been adjudicated upon and this petitioner was punished. Therefore, he could not
have been tried for the same offence again.
2. The facts of this case are that the petitioner was sought to be tried by a
General Court Martial on the following charges:
First charge "SUCH OFFENCE AS IS MENTIONED IN CLAUSE
Army Act (f) OF SECTION 52 OF THE ARMY ACT WITH INTENT TO
Section 52(f) DEFRAUD,
in that he,
at field, on 30th Jan. 89, with intent to defraud submitted a claim of Rs.
35,270/- in respect of transportation of his household luggage and car in civil
truck Nos. JKQ 3285 and JKR 0587 respectively on permanent posting from
Bangalore to Udhampur well knowing that his such luggage and car had not
been so transported.
Second Charge "SUCH AN OFFENCE AS IS MENTIONED IN CLAUSE
Army Act (f) OF SECTION 52 OF THE ARMY ACT WITH INTENT TO
Section 52(f) DEFRAUD,
in that he,
at field, on 18th Jan. 89, with intent to defraud submitted Leave Travel
Concession (LTC) claim for year 1988 to CDA(O) Pune, well knowing that he
had already availed the LTC for the year 1988.
Third change "AN ACT PREJUDICIAL TO GOOD ORDER AND MILITARY
Army Act DISCIPLINE.
Section 63
in that he,
at filed, on 17th Nov. 1988, improperly utilised for himself IAFT-1752-PA/53-
869651 dated 15th Nov. 1988, single/return journey railway warrant from
Jammu to New Delhi and back."
3. The petitioner at the first instance made a grievance as to the constitution of
the Court saying that the officers manning the same were subordinate to the
Convening Officer against whom the petitioner had filed a statutory complaint and,
therefore, he had no confidence in the Court. This objection was adjudicated upon
by the Court and over-ruled vide its order dated 15th March, 1990. The petitioner
chose not to carry his grievance any further instead participated in the proceedings
till the very end. He challenged the same only by way of this writ petition in 1991,
where inter alia he took grounds of bias based on his objections taken by him earlier
before the Court.
4. I have heard learned Counsel for the petitioner who has strenuously argued
that once the petitioner had shown lack of confidence in the composition of the
Court, it was incumbent upon the Convening Officer to have attached him to
another unit. Learned Counsel has also submitted that the defense of the petit (SIC)
was handicapped inasmuch as a biased Court had not allowed him to produce (SIC)
witness essential to his case.
5. I have carefully examined the record of the case. Undoubtedly, it is (SIC)
within the purview of this Court to examine the sufficiency of evidence add (SIC)
However, the correctness of the Court Martial, procedural error or any lapse (SIC)
fairness could always be enquired into by way of judicial review. I have been (SIC)
through the record of the case by learned Counsel for the respondent(SIC)
submitted that the statutory complaint alleged to have been made by the petit (SIC)
was against Commander 71, Sub Area, who at that time was Brig. I.S. Sahni (SIC)
the Convening Officer of the present Court Martial was Brig. J.S. Phoolka. There (SIC)
the contention of the learned Counsel that prejudice has been caused to him (SIC)
convening of the Court is misfounded. From the record it appears that (SIC)
contention of the learned Counsel for the respondent is correct and that (SIC)
petitioner's basis of this objection is factually erroneous. The next attack (SIC)
learned Counsel for the petitioner is to his denial of defense inasmuch as transp(SIC)
who transported his goods was not examined. That also is factually incorrect.(SIC)2
6, Sh. Satinder Pal Singh s/o Sh. Janak Singh has been produced by the petit (SIC)
in his defense as the transporter who is alleged to have transported his goods (SIC)
witness categorically states that only a receipt for transporting of goods was (SIC)
but no goods were in fact transported. The Toll in charge has been examined as (SIC)
13 who sates that the trucks alleged to have carried the goods of the petitioner (SIC)
namely, JKQ 3285 and JKR 9587 did not cross the check-posts of the (SIC)
Therefore, this contention of the petitioner is also baseless. The next conten(SIC)
namely that he has been punished twice for use of LTC is denied by the respon (SIC)
and the petitioner has not placed on record any order by which he was punish (SIC)
the first instance. This also to my mind holds no water.
6. Having, therefore, examined the record of the case, in order to ascerta (SIC)
fairness of the proceedings as also the legality thereof, I am of the firm opinion (SIC)
the proceedings of the Court Martial sought to be challenged in this writ pe(SIC)
suffers from no infirmity that calls for interference by the Court.
7. Crl. Writ Petition 590/1991 is dismissed.
8. Writ Petition dismissed.
