Anil Kumar Sangwan vs Union Of India (Uoi) And Anr.
2002 Latest Caselaw 1726 Del

JUDGMENT

S.B. Sinha, C.J.

1. The petitioner in this writ petition has inter alia prayed for issuance of an appropriate writ, order or directions for quashing the proceedings of the General Court Martial and the order dated 22.09.1993 whereby and whereunder he was found guilty of committing civil offence, that is to say, murder contrary to Section 302 of the Indian Penal Code (hereinafter for the sake of brevity referred to as, 'I.P.C.') and attempt to murder contrary to Section 307 of I.P.c. whereby and whereunder he was sentenced to suffer imprisonment for life and dismissal from service. The said sentence has been confirmed with the order that the sentence of imprisonment for life shall be carried out by confinement in civil prison.

2. According to the petitioner, in relation to the second charge, the weapon, which was used, was allegedly a Carbine Machinegun having Butt No. 73. However, in relation to the first charge, the description of the weapon used had not been specified. The petitioner pleaded guilty to the aforementioned charges.

3. The contention of the petitioner, however, is that PW-6, who is witness to the seizure of the weapon, stated that the Butt No. of the weapon used was 70, which was confirmed from the records of the Chief Judicial Magistrate (hereinafter for the sake of brevity referred to as, 'the CJM'). It is also admitted that the matter relating to commission of offence was informed to the Civil Police and PW-18 reached the spot, seized the weapon and registered a First Information Report (in short, 'F.I.R.') being No. 173 of 1992, P.S. 201 under Section 302 of I.P.C. Later on, however, the investigation and trial was taken over by the Military Authorities.

4. Allegedly, the said Carbine Machinegun with Butt No. 73 was deposited back in the office of the Additional District Magistrate (hereinafter for the sake of brevity referred to as, 'ADM') on the morning of 27.10.1992 after completion of the night guard duty by PW-12. Therefore, according to the petitioner, the offence cannot be said to have been committed from the said weapon, which had been produced.

5. PW-6, Hawaldar Jagtar Singh, who is witness to the seizure, is said to have stated:-

"On reaching the Company at 11.30 hours, I met the Officer Commanding Major D. Vaidyanathan, who took me to the site of offence at Barrack No. T/5/1. The Civil Police was already present there. I then collected 28 fired empty cases from the said barrack and then arranged for sealing of the weapon and handled the weapon and empty cases to the Civil Police."

6. However, the Judge Advocate also in para 25 of his submission to the General Court Martial while summering the contention of the petitioner, stated that:-

"From the above material seizure witness, it is amply clear that the weapon used for killing of HMT SC Haldar was a weapon with Butt No. 70, which was not in possession of the accused on the date and time of occurrence. It is also evident that the weapon seized at the place of occurrence was not sent for ballistic and forensic expert for examination, which is mandatory in such criminal case. Therefore, the accused has been falsely implicated in the case and he should be acquitted on the benefit of doubt."

7. It has further been pointed out that in order to frame and falsely implicate the petitioner, the prosecution not only tried to implant the weapon so as to link the petitioner with the alleged offence, but also the records were changed. Allegedly, with respect to the documents produced by PW-8, the Court observed that the time of entry in the 'time in' column is left blank and there were some erasures on the said column. The Court recorded as under:-

"The Registry shown and examined by the Defending Officer and defense Counsel. The Defending Officer submits that on page dated 26th October, 1992 it is observed that 3 entries have been scored out without any authentication and new names have been entered in their place. Defending Officer also submits that as per the entry in the said page, CTN Karam Chand has signed for accepting the relevant weapon against Serial No. 6 contrary to the sequence of duties."

8. It was contended by the petitioner that all out effort has been made by the prosecutors to frame the petitioner not only by planting the weapon but also by fabricating the records. Even the Civil Police, PW-18 became party to the criminal act of altering and fabricating the records.

9. According to the learned counsel for the petitioner, PW-18, Sub-Inspector Boarah made a false statement, which would be evident from the fact that when it had pointed out to him that there is overwriting in the copy of the Seizure Memo he had been carrying, he stated that in the original copy of seizure list Butt No. was mentioned as 73. The said original Seizure Memo was inspected the CJM, but therein the Butt No. was mentioned as 70 and not 73. It has further been pointed out that there was no eyewitness to the occurrence. Our attention has been drawn to the fact that in the said F.I.R. no mention has been made as regards the second offence, i.e., causing injury to HMT S. Dhanraj.

It has been contended that there has been violation of Rule 52(4) of the Army Rules, 1954, the relevant portion of which is as under:-

"A plea of "Guilty" shall not be accepted in cases where the accused is liable, if convicted to be sentenced to death and where such plea is offered, as plea of "Not Guilty" shall be recorded and the trial shall proceed accordingly."

10. Mr. N. Safaya, the learned counsel appearing on behalf of the petitioner, would submit that in the instant case the cardinal principles of criminal law had not been followed, although the rule to that effect has been stated by the Judge Advocate, which is as under:-

"3. There is a cardinal principle of criminal law, that an accused person is presumed to be innocent until he is proved to be guilty beyond, all reasonable doubt. It is, therefore, not for the accused to prove his innocence, but for the prosecution to prove every material ingredient of the charge levelled against the accused. The prosecution has to prove this charge through reliable, relevant and admissible evidence. It is not for the accused to prove his innocence and the accused may lead not evidence at all his defense. This burden of the prosecution to prove its case beyond all reasonable doubt never shifts. There must be a clear and unequivocal proof of the corpus delicit (Substance of the offence)"

11. The respondents, on the other hand, inter alia submitted that the petitioner had admitted his guilt. It was pointed out that the entire trial was conducted in a fair manner and in terms of the Army Act, 1950 and the rules framed there under, namely, Army Rules, 1954. As regards number of the Butt, it was contended that at the time of seizure of the weapon, PW-18, i.e., SI Inderswar Boarah had erroneously mentioned that the Butt No. of the said weapon as 70 in the Seizure Memo, but the actual Butt No. of the said weapon was 73, which fact had duly been admitted by him in is statement. The fact that the Butt No. of the said weapon was 73 was also corroborated by the statements of PW-6, PW-12 and PW-16.

12. In the instant case, the petitioner, as noticed hereinbefore, was charged with two offences. The occurrence took place on the night of 26/27.10.1992. At the time of incident, he was on Santry Duty. He was armed with the service weapon, i.e., carbine 9 mm. He caused death of S.C. Haldar and furthermore caused serous injuries to HMT S. Dhanraj. In relation to the aforementioned incident, a Staff Court of Inquiry was held, where after hearing of charge in terms of Rule 22 of the Army Rules was carried out by the Commanding Officer on 22.03.1993. In the Summary of Evidence, 22 witnesses were examined and cross-examined. Moreover, the petitioner made a voluntary statement, which is exhibited as Exhibit 'U'.

13. Being satisfied about the existence of a prima facie case, the Commanding Officer referred the matter to the superior Military Authority in terms of Rule 24(6) of the Army Rules, where after the petitioner was tried in the General Court Martial proceedings.

14. It is not in dispute that during proceedings of the General Court Martial, the petitioner was represented by a lawyer from Tejpur and therein he pleaded 'guilty' to both the charges, but having regard to the provisions contained in Rule 52(4) of the Army Rules his plea of guilt in relation to the first charge was altered to a plea of 'Not guilty'. So far as the second charge is concerned, it was not necessary for the General Court Martial proceedings to record any evidence.

As indicated hereinbefore, the petitioner had not seriously questioned his conviction on the first charge. There may not be any eyewitness to the murder, but during the course of trial, the injured, i.e., PW-15, himself was examined and stated about the death of said Shri S.C. Haldar. From the records, it appears that apart from the said injured, PW-4, PW-9, PW-10, PW-11 and PW-14 stated about the occurrence. PW-11 and PW-14 deposed that they saw the petitioner going to the Barrack where HMT S.C. Haldar and S. Dhanraj were sleeping and they heard the gun-shots where after they found the petitioner came out of the Barrack with the said weapon carried by him in firing position and thereafter the petitioner stated that he had killed both the HMTs. In that view of the matter, the overall facts and circumstances of this case is such, in our opinion, the same does not required any interference in exercise of the power of this Court of judicial review.

15. A noticed hereinbefore, the charges are absolutely separate and distinct. A large number of witnesses had been examined whose evidences had remained unshaken. We have also been taken through the Summary of Evidence made by the Judge Advocate General and we do not find that the same was such, which would vitiate the trial.

16. In Union of India and Ors. v. Naik Subedar Baleshwar Ram and Ors. , it has been held:-

"5. So far as the case against respondent No. 1 goes there was an inquiry under Rule 22. The point raised on behalf of respondent No. 1 in the High Court was different from the case made out by respondents 2 and 3. It had been pleaded that the inquiry under Rule 22 as against respondent No. 1 related to an offence which came under Section 63 of the Army Act, namely, conduct prejudicial to good order and military discipline; while the charge he was called upon to face in the General Court Martial was one of theft punishable under Section 52(a) of the Army Act. We have seen the evidence recorded in the inquiry under Rule 22. It is a fact that the allegations at the stage of inquiry under Rule 22 was described as prejudicial to good order and Military discipline but the basic facts said to constitute that allegation were nothing else than removal of the foodstuff which constituted the charge of theft. It is, therefore, clear that no prejudice has been caused to respondent 1 and the inquiry under Rule 22 and the trial before General Court Martial were over the self same facts."

17. In Major G.S. Sodhi v. Union of India , the Apex Court held:-

"21. ... It must be noted that the procedure is meant to further the ends of justice and not to frustrate the same. It is not each and every kind of defect preceding the trial that can affect the trial as such. In the instant case we have referred to almost all the so-called defects pointed out in the procedure preceding the court-martial and we are not convinced even remotely that any one of them is of vital nature so as to affect the trial substantially."

28. ... A combined perusal of all these rules would go to show that all that is required is that the delinquent should be apprised of the charges that he has to answer so that he is not caught unawares and handicapted in preparation of his defense. The main question is one of prejudice but in this case the charge-sheet shows that all the details are mentioned and the trial went on and that the petitioner participated in the trial duly. The next grievance is that these charge-sheets were not duly signed. We are mainly concerned with the final charge-sheet dated October 5, 1985. In that we find that all the details are mentioned elaborately and it is signed by Commanding Officer as well as Col. (Admn.) for the General Commanding Officer. Therefore even if the tentative charge-sheet is not signed it does not make any difference. The same reasoning applies to the alleged non-compliance of Rule 25 read with Rule 22. The scope and object of these rules have been considered by us in the other case. In any event the summary of evidence was recorded and we find there is a substantial compliance. Even otherwise as held in the other case, the recording of summary of evidence is only to find out whether there is a prima facie case to convene the court-martial. In this case also the petition did not exercise his option as provided under Rule 25. Therefore, there is no violation of mandatory rules so far as the petitioner, who is an officer, is concerned vide Lt. Col. Prithi Pal Singh Bedi v. Union of India case."

18. In High Court of Judicature at Bombay v. Udaysingh S/o Ganparrao Naik Nimbalkar , the law has been stated in the following terms:-

"11. Under these circumstances, the question arises whether the view taken by the High Court could be supported by the evidence on record for whether it is based on no evidence at all. From the narration of the above fats, it would be difficult to reach a conclusion that the finding reached by the High Court based on no evidence at all. The necessary conclusion is that the misconduct alleged against the respondent stands proved. The question then is what would be the nature of punishment to be imposed in the circumstances? Since the respondent is a judicial officer and the maintenance of discipline in the judicial service is a paramount matter and since the acceptability of the judgment depends upon the credibility of the conduct, honesty, integrity and character of the office and since the confidence of the litigant public gets affected or shaken by the lack of integrity and character of the judicial officer, we think that the imposition of penalty of dismissal from service is well justified. It does not warrant interference."

19. In Union of India and Ors. v. IC-14827 Major A. Hussain, I (1998) SLT 298, the Apex Court has held that some minor deficiencies in the trial may not be considered for the purpose of exercising the power of judicial review.

The same view had earlier been taken by a Division Bench of this Court in Ex. Major R.S. Budhwar v. Union of India and Ors. .

Furthermore, as it is well known, the scope of judicial review by this Court is also limited.

20. It is, therefore, not a case where there is no evidence at all. If a mistake has been committed by PW-18, the same by itself cannot be a ground for setting aside the entire proceedings. Furthermore, we have gone through the records of a case and are of the opinion that it cannot be said to be a case where the judgment of conviction and sentence has been pronounced illegally or in violation of the provisions of the Army Act and/or the Army Rules.

There cannot further be any doubt whatsoever as has been held by the Apex Court in Union of India and Anr. v. Charanjit S. Gill and Ors. (2002) 5 SCC 742 that the Judge Advocate has an important role to play in the instant case. We, however, do not find that the role of the Judge Advocate was such so as to enable this Court in exercise of its power of judicial review.

21. For the reasons aforementioned, we do not find any ground to interfere with the General Court Martial proceedings. This writ petition is dismissed accordingly. However in the facts and circumstances of the case, there shall be no order as to costs.