Sepoy Rajesh Kumar vs Uoi & Ors.
2011 Latest Caselaw 5894 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          WP(C) No.8480/2011

%                      Date of Decision: 02.12.2011

Sepoy Rajesh Kumar                                       .... Petitioner

                     Through Mr. K. Ramesh & Ms. Archana Ramesh,
                             Advocates

                               Versus

UOI & Ors.                                            .... Respondents

                     Through Mr. Sumeet Pushkarna, Advocate



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


ANIL KUMAR, J.

*

1. The petitioner has challenged the order dated 1st September,

2010 passed by the Armed Forces Tribunal, Principal Bench in OA

No.122/2009 titled as Ex. Sepoy Rajesh Kumar Vs Chief of Army Staff

and Ors., dismissing his original application against the order dated

12th December, 2007 passed by Summary Court Martial (SCM),

whereby the petitioner was held guilty of committing the offence under

Section 40(b) of the Army Act and the punishment of dismissal from

service was imposed on him.

2. The petitioner was a sepoy of 24 Rashtriya Rifles (Bihar) and was

charged for using threatening language to his superior officer, Company

Hawaldar Major U.S. Pandey. The allegation against the petitioner was

that on 30th May, 2007 he used abusive language to CHM U.S. Pandey.

Though tentative charge sheet was issued to the petitioner under

Section 40 (a) of the Army Act, however, after the summary of evidence

was recorded, the charge sheet under Section 40(b) of the Army Act for

using insubordinate language and criminal force to the superior officer

was issued.

3. Though in the summary of evidence, a number of witnesses were

recorded, however, during the Summary Court Martial only two

witnesses were recorded on behalf of the respondents besides the

evidence of the petitioner and on the basis of the evidence recorded

during Summary Court Martial, petitioner was found guilty of the

charge made against him and he was dismissed from service on 12th

December, 2007.

4. The petitioner challenged his dismissal pursuant to Summary

Court Martial contending, inter alia, that he was falsely roped in the

case due to enmity and that he had not pleaded guilty to the charge and

the respondents purposefully withheld material witnesses during trial.

5. The petitioner also pleaded that though initially a charge sheet

under Section 40(a) of the Act was issued to him, however, after

recording summary of evidence, the charge was modified. The

petitioner also challenged his dismissal pursuant to Summary Court

Martial on the ground that he was not afforded full opportunity which

resulted into non-compliance of various provisions of the Army Act and

consequently, the proceedings against him, which resulted into his

dismissal, are vitiated.

6. The petition filed by the petitioner was contested by the

respondents contending, inter alia, that from the date of joining, the

petitioner had the tendency of questioning his superior officer and

arguing with them and he had not even spared his Company

Commander with whom he had entered into altercation. During the

altercation, he used abusive language with his superior officers, which

fact was established by the evidence produced by the respondents.

7. The respondents asserted that on 30th May, 2007, the petitioner,

with Ex. Sepoy Sunil Kumar Marandi, showed resentment and used

rude and offensive language against CHM US Pandey. The petitioner not

only used abusive language against his superiors but sought interview

with Company Commander as he was not ready to perform the duty

assigned to him by his superior. The interview with the Company

Commander was granted at the instance of the petitioner, however, his

request not to assign him the duty was turned down by the Company

Commander. The further allegation against the petitioner is that while

boarding the vehicle he had threatened CHM U.S. Pandey by pointing

his weapon towards him and stating that if they come back they will

shoot him. On 4th July, 2007, also the petitioner and Sepoy Sunil

Kumar Marandi manhandled and beat CHM U.S. Pandey and used

insubordinate language against him.

8. The petitioner had challenged the Summary Court Martial

findings before the Armed Forces Tribunal on the ground that the

evidence of PW-1 CHM U.S. Pandey, who had fixed the duties of the

petitioner, could not be relied on and had to be rejected which plea was

repelled by the Tribunal relying on Masalti Vs. State of UP, AIR 1965 SC

220. The Tribunal had noticed that the Supreme Court had held that it

would be unreasonable to contend that the evidence given by a witness

should be discarded only on the ground that it is evidence of partisan or

interested witnesses, as rejection of deposition of such witnesses would

invariably lead to failure of justice. The Tribunal also noticed that the

statement of CHM U.S. Pandey was corroborated by Subedar P.K.

Singh, who had detailed as to what was done by the petitioner and the

other sepoy Sh. Sunil Kumar Marandi. The Tribunal, after perusing the

testimonies of the two witnesses of the respondents and the statement

of the petitioner had held that there was no reason to disbelieve the

testimony of the witnesses of the respondents.

9. The plea of the petitioner that the initial charge framed against

him under Section 40(a) of the Army Act could not be changed to

Section 40(b) of the Army Act after recording the summary of evidence,

was also rejected on the ground that it was not prejudicial to the

petitioner in any manner and in any case, the petitioner was given full

opportunity to rebut the charge under Section 40(b) of the Army Act.

Reliance was also placed on Shamnasaheb M. Multtani Vs. State of

Karnataka 2001 (2) SCC 577 holding that conviction would be valid

even if there is omission or irregularity in the framing of the charge,

provided it does not occasion in failure of justice. The Tribunal also

relied on State of Andhra Pradesh Vs. Thakkidiram Reddy and Ors., AIR

1998 SCW 2750 to repel the plea of the petitioner.

10. Before the Tribunal, the grievance was also made that while

recording of summary of evidence there had been non compliance of

statutory provisions. This plea was also repelled by the Tribunal

holding that alleged irregularities in the course of investigation would

not be relevant for the purpose of Summary Court Martial because the

same had to be used for the purpose of contradicting the evidence

recorded during full-fledged Summary Court Martial. It was held that

such investigation loses its significance when there is ample evidence to

prove the guilt of the accused during full fledged Court Martial and in

any case, reasonable opportunity was given to the petitioner to cross-

examine all the witnesses, who had appeared in the Summary Court

Martial. Reliance was placed on UOI & Ors. Vs. Major A. Hussain (1998)

1 SCC 537 holding that when there is sufficient evidence during

Summary Court Martial to sustain conviction, it is not necessary to

examine if pre-trial investigation was adequate or not.

11. The learned counsel for the petitioner has challenged the order of

the Tribunal contending, inter alia, that in summary of evidence 13

witnesses were examined, however, the Commanding Officer while

conducting the Summary Court Martial had called only two prosecution

witnesses and had left balance 11 prosecution witnesses. The learned

counsel contended that if a prosecutor drops any prosecution witness,

who had deposed in summary of evidence, then under Army Rule-134

he has to produce them and surrender them to the accused for direct

cross-examination. It was asserted by the learned counsel for the

petitioner that though use of abusive language had been deposed by

CHM U.S. Pandey and PW-2 Subedar P.K. Singh, however, they did not

complain to Company Commander Major S. Bhattacharya on the same

date.

12. Relying on the statement of Major S. Bhattarcharya, recorded

during the summary of evidence, it is contended that his statement in

summary of evidence was conspicuously silent on this issue and thus,

the evidence recorded during the Summary Court Martial could not be

relied on.

13. The grievance of the petitioner is also that Company Commander

maliciously closed the prosecution case only with the deposition of 2

prosecution witnesses and dropped 11 prosecution witnesses specially

Company Commander and Subedar Major, who would have spilled the

beans in favour of the accused. The petitioner also challenged the

verdict of Summary Court Martial on the ground that a tentative charge

sheet was issued to him under Section 40(a), however later on the final

charge sheet was issued under Section 40(b) of Army Act, 1950 and

consequently entire Summary Court Martial proceedings were vitiated.

14. This Court has heard the learned counsel for the petitioner, as

well as, the counsel for the respondent, Mr. Pushkarna, who has

appeared for the respondents on advance notice. The learned counsel

for the petitioner is unable to show any provision or rule which

obligates the respondents to examine all the witnesses whose

statements are recorded during the summary of evidence.

15. Section-134 of the Army Rules, 1954 rather contemplates that the

Summary Court Martial court is not bound to call all the witnesses for

the prosecution whose evidence is in the summary of evidence. Rule-

134 under part IV of general provisions regarding witnesses and

evidence of Army Rules, 1954 is as under:-

"134. Calling of all prosecutor's witnesses:- The prosecutor or, in the cases of a trial by summary court-martial, the court is not bound to call all the witnesses for the prosecution whose evidence is in the summary of evidence of whom the accused has been informed he or it intends to call, but he or it should ordinarily call such of them as the accused desires, in order that he may cross-examine them, and shall, for this reason, so far as practicable, secure the attendance of all such witnesses."

16. The said rule contemplates that if the accused desires to call any

of the witnesses whose statements are recorded during summary of

evidence, then such witnesses would ordinarily be called by the Court

to be cross-examined by the accused, if he so desires.

17. The learned counsel for the petitioner is unable to show any

request made on behalf of the petitioner to call any of the witnesses,

which were recorded during summary of evidence. Under the said rule,

it was not obligatory on the part of the Court to call all the witnesses,

who were recorded in summary of evidence and who had not been

examined during the Summary Court Martial for the cross-examination

by the accused unless so desired by the accused. The petitioner did not

raise any plea to cross-examine any of the witnesses which were not

recorded before the Summary Court Martial but who had been

examined during the summary of evidence as no such request was

made on behalf of the petitioner. Even before the Tribunal while

challenging the order of punishment and the Summary Court Martial

proceedings no ground was taken that the petitioner wanted to cross-

examine some of the witnesses, who were recorded during the summary

of evidence but they were not called at the time of Summary Court

Martial despite specific demand by the petitioner.

18. The learned counsel for the petitioner has contended that he had

filed an application for review of the order of the Tribunal dated 1st

September, 2010 being RA No. 20/2011, however, the same was

withdrawn. The counsel has contended that the application for review

was withdrawn as the Armed Forces Tribunal had no power to review its

own order. Be that as it may, it has not been demonstrated by any

pleadings that the request was made on behalf of the petitioner to call

any of the witnesses which were recorded in summary of evidence but

were not allowed to be cross examined by the Court during trial by

Summary Court Martial despite specific request by the petitioner. The

plea of the petitioner is, therefore, rejected.

19. Though this Court does not have to re-appreciate the evidence

recorded before the Summary Court Martial, however, the evidence

recorded can be considered in order to ascertain whether any of the

findings of Summary Court Martial is perverse or not. If the inferences

drawn by the Summary Court Martial on the basis of evidence recorded

before it are probable, then even if a different inference is feasible, this

Court, in exercise of its jurisdiction, does not have to substitute its

inference with the inference drawn by the Summary Court Martial on

the basis of evidence recorded before it.

20. Perusal of the statement of prosecution witnesses, CHM U.S.

Pandey and Subedar P.K. Singh, it is apparent that the charge against

the petitioner is made out. The deposition of the petitioner cannot be

considered in isolation without taking into consideration the deposition

of the prosecution witnesses. On the basis of deposition of the petitioner

it could not be inferred that the deposition of respondents' witnesses

were unreliable. This has not been disputed by the petitioner that he

had sought an interview from company commander on account of order

given to him to do a particular duty by his superior officer. The

petitioner could not challenge the order of his superior officer directing

him to carry out certain work. In a disciplined force like army, the

petitioner had no right to challenge the order of his superior officer. If it

is admitted that the petitioner had challenged the order of the superior

officer, the version as given by the witnesses of the respondents is more

probable and it cannot be held that the inferences drawn by

respondents were perverse. In the circumstances, this Court does not

find any such illegality or perversity in the order of the Tribunal which

will require any interference by this Court in exercise of its jurisdiction

under Article 226 of the Constitution of India.

21. The plea of the petitioner that initially the charge under Section

40(a) of the Army Act, 1950 was framed against the petitioner, however,

after recording the summary of evidence, the charge was converted

under Section 40(b) of the Army Act does not vitiate the Summary Court

Martial proceedings. As has been held by the Tribunal that such a

change of charge could not be held to be prejudicial to the interest of

the petitioner as the petitioner had full opportunity regarding the

charge framed against him during the proceedings in the Summary

Court Martial.

22. The learned counsel for the petitioner has also not cited any

precedent laying down the law contrary to what has been relied on by

the Tribunal. No other plea or contention has been raised on behalf of

the petitioner.

23. In the totality of the facts and circumstances, there are no

grounds to interfere with the orders of the Tribunal. In the

circumstances, the writ petition is without any merit and it is, therefore,

dismissed.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

December 02, 2011.

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