* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 23rd November, 2009
Judgment Delivered on: 2nd December, 2009
+ LPA No.485/1998
EX. MAJ.ANIL BEHL ....Appellant
Through: Mr.A.K.D.Sayene, Advocate for
Mr.Asim Vachher, Advocate
Versus
UOI & ANR. ....Respondents
Through: Ms.Jyoti Singh, Advocate and
Mr.Amandeep Joshi, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported in the
Digest? No
PRADEEP NANDRAJOG, J.
1. Vide impugned judgment and order dated 25.8.1998
the writ petition filed by the appellant, challenging his conviction
at a Court Martial and levy of penalty of ‘Cashiered From Service’,
has been dismissed.
2. From a perusal of the pleadings in the writ petition and
the impugned judgment and order it is apparent that the
appellant questioned the verdict of guilt and the sentence
LPA No.485/1998 Page 1 of 12
imposed upon him on 3 counts. It was firstly urged that the
verdict of guilt is based solely and wholly on the confessional
statements made by co-accused Bhagwan Singh, Jagdish Chand
and Suresh Chand and hence the verdict of guilt and the
sentence are contrary to law for the reason the confessions were
subsequently retracted. The second contention urged was that
the wife of the appellant was not permitted to be examined as a
witness in defence and in view of the charges alleged against the
appellant she was a relevant witness. Thus, it was urged that the
appellant being prevented from examining a relevant witness,
the verdict of guilt and the sentence were liable to be set aside.
Lastly, it was urged that the appellant was effectively denied the
services of a defence counsel.
3. All three pleas have been negated by the learned
Single Judge, who, while referring to the confessional statements
made by the three co-accused which were subsequently
withdrawn, has inadvertently referred to an alleged confessional
statement made by the appellant and thus the said finding has
given birth to a 4th plea in appeal; being that, the appellant never
made any confession and that the learned Single Judge has
referred to an relied upon a non-existant confessional statement
made by the appellant. A fifth plea has been urged in appeal,
which we note has not been urged before the learned Single
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Judge; being that, the penalty imposed of being cashiered from
service is disproportionate keeping in view the gravity of the
offence.
4. Before noting the relevant facts, we may note at the
outset, that at the trial of the appellant and his co-accused before
the Court Martial, the authorities never relied upon any
confessional statement made by the appellant. Even the learned
Single Judge has not relied upon any confessional statement
made by the appellant. In para 4 of the impugned decision, while
noting the submission made by learned counsel for the appellant,
the learned Single Judge has referred that the submission urged
was that the confessions made by the appellant and his co-
accused which were retracted could not be relied upon.
5. This is the sole reference in the impugned decision to
the confessional statement made by the appellant. None has
been used at the trial and none has been relied upon by the
learned Single Judge.
6. It is apparent that an inadvertent error, by way of a
narrative of a fact, has inadvertently found its way in para 4 of
the impugned decision. Noting that the said inadvertent
recording of a fact in the narrative of the impugned decision is
inconsequential for the reason while discussing the evidence led
at the trial, the learned Single Judge has not referred to any
LPA No.485/1998 Page 3 of 12
confessional statement made by the appellant, we repel the
challenge to the impugned decision on the 4th count urged in the
appeal.
7. Reverting to the three submissions which were urged
before the learned Single Judge, the facts which require to be
noted, in brief, are that on 26.12.1988 the petitioner, on being
posted with 503 ASC Battalion was required to take over charge
of the stores from Subedar Bijender Singh. The appellant was
required to submit a monthly stock verification by 30 th December
1988; which time according to the appellant was insufficient for
him to physically verify the stocks and hence on the basis of the
previous certificates, acting in good faith, he signed and
submitted the verification certificate pertaining to the stock lying
in the store. The verification was completed on 23.1.1989 when
certain surplus stocks were noted. In between, on 14.1.1989, 14
vehicles with stores were dispatched to Chushul. The petitioner
claims that he had nothing to do with the misappropriation of the
goods loaded in one vehicle which left his store fully loaded and
the goods were siphoned off enroute.
8. Three charge sheets were served upon the appellant.
Two articles of charge were alleged against him under the first
charge sheet and one article of charge each were alleged against
him under the second and the third charge sheet.
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9. Since the appellant has been found not guilty
pertaining to the second charge sheet, the gravement of the
charge under the first and third charge sheet may be noted.
Under the first charge sheet the first charge alleged was that the
appellant committed theft of 240 kgs. of tea and 200 gms. of milk
powder valued at Rs.15,405.60. The second article of charge was
that on 26.12.1988, knowing it to be false, the appellant falsely
certified that there were neither a surplus nor any deficiency in
the store. Under the third charge sheet the appellant was
charged with having committed theft of 1275 kgs Flour (Atta),
475 kgs Dal Chana, 475 kgs Dal Masoor, 475 kgs Dal Urad and
375 kgs Besan (Gram Flour) valued at Rs.19,171.50.
10. The three charge sheets were served upon the
appellant on 27.5.1990 along with the copy of the summary
evidence recorded at the Court of Inquiry. The appellant was
notified that the general Court Martial shall be convened on
2.6.1990.
11. The petitioner engaged Major Lalit Kumar as his
defence officer to defend him at the General Court Martial. On
2.6.1990 Major Lalit Kumar defended the appellant when
proceedings were conducted at the Court Martial. The next date
notified was 4.6.1990, on which date Major Lalit Kumar did not
appear and at the request of the appellant who desired to engage
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another counsel, the proceedings were adjourned to 21.6.1990.
On said date the appellant appeared without any counsel and
told that he desired Major Lalit Kumar to defend him, with further
request that since Major Lalit Kumar could not appear at Leh i.e.
the place where the sittings of the Court Martial were being held,
the venue be changed. The request was declined and one
Sh.Jaskiran Singh was appointed as the defence counsel. No
proceedings were held. Sh.Jaskiran expressed his inability to
defend the appellant and accordingly, at the request of the
appellant, the matter was adjourned to 25.6.1990. On said date
Major Lalit Kumar was present but appellant filed an application
marked ‘Q’ withdrawing his request to engage a defence counsel.
The Court reassembled on 27.6.1990. Notwithstanding the
request to be defended by a defence counsel being withdrawn on
the previous date, Major Lalit Kumar appeared for the appellant
on 27.6.1990 and raised a plea of general jurisdiction of the
General Court Marital under Rule 51 of the Army Rules and
examined 3 witnesses in support thereof. 2 witnesses were
examined by the prosecution to rebut the plea of jurisdiction. On
30.6.1990 the plea of jurisdiction was overruled. On said date
the statement of the officiating Commanding Officer was
recorded. This transpired in the presence of Major Lalit Kumar.
On 5.7.1990 Major Lalit Kumar sought permission to leave trial as
LPA No.485/1998 Page 6 of 12
he had to attend some personal matter. On 6.7.1990 the Court
was adjourned to 13.7.1990 to enable the appellant to engage a
defence counsel. On 13.7.1990 Major Lalit Kumar appeared but
immediately withdrew and thus no trial could take place till
25.7.1990, on which date Capt.Ajay Gupta was appointed as the
Defending Officer for the appellant and the other co-accused as
the Court had no option but to do so in view of the past conduct
of Major Lalit Kumar. Thereafter, evidence was recorded and
after hearing arguments, verdict was pronounced.
12. The plea of the appellant to examine his wife as a
witness was turned down inasmuch as it was opined that she was
not a necessary witness to be examined.
13. Pertaining to not summoning the wife of the appellant
as a witness we note that reason why she was sought to be
summoned as a witness as per the wishes of the appellant is the
fact that 2 bank drafts each in sum of Rs.9,900/- in the name of
the wife of the appellant were recovered from the appellant and
at the trial were proved to have been prepared by the Bank
Manager of the Branch from where the bank drafts were got
issued; namely, Sh.T.Morup. Who also proved the application
submitted by the appellant for bank drafts to be prepared and as
per said witness, money in cash, was deposited by the appellant.
LPA No.485/1998 Page 7 of 12
14. Except for stating that his wife should be summoned
and examined as a witness, no reason was furnished by the
appellant as to what possibly could his wife depose about the two
bank drafts.
15. Even before the learned Single Judge and before us in
appeal, learned counsel for the appellant could not throw any
light on the relevance of examining the wife of the appellant.
16. We shall be dealing with this issue a little later while
discussing the submissions urged by learned counsel for the
appellant.
17. Reverting to the evidence led at the Court Martial, we
note that the prosecution examined as many as 12 witnesses.
Only PW-11 and PW-12 were the witnesses relating to the
confessional statements made by three co-accused i.e.
Sh.Bhagwan Singh, Sh.Jagdish Chand and Sh.Suresh Chand.
Angiyal PW-3, Paldhan PW-4 and Kama PW-5 as also Ram Kanwar
PW-8 deposed that at the asking of the appellant goods were
loaded on vehicles on 14.1.1989. Thus, these witnesses have
categorically deposed that rations were transported out from the
stores at the behest of the appellant. PW-3 and PW-8 have
deposed that one truck halted at Old TCP Number and the goods
were transferred to a civil truck.
LPA No.485/1998 Page 8 of 12
18. With reference to the testimony of the witnesses,
other than those who proved the confessional statements made
by the co-accused, the learned Single Judge has held that the
plea of the appellant that except the retracted confessional
statements of three co-accused, there was no other evidence
against the appellant is not borne out from the record of the
Court Martial proceedings.
19. That apart, with reference to decision reported as AIR
1959 SC 71 Kachu Govindam Kalmal Vs. Theyyiankot Thekkat
Lakshmi Amma, the learned Single Judge has held that as per
said decision a retracted confessional statement made by an
accused could be considered as a piece of evidence against a co-
accused.
20. In that view of the matter, the plea of the appellant
that there was no legally admissible evidence against him has
been negated. The plea of the trial being vitiated on account of
the wife of the appellant not being summoned as a witness has
been negated by the learned Single Judge by holding that the
appellant failed to explain the relevance of her being examined.
21. Noting the facts as noted by us in paras 10 and 11
above, the finding returned by the learned Single Judge is that it
is not a case where the Army Authorities have deprived the
LPA No.485/1998 Page 9 of 12
appellant, the right of fair defence by engaging a defence
assistant.
22. As held by the learned Single Judge, it is settled law
that exercising power under Article 226 of the Constitution of
India with respect to matters pertaining to discipline in the Armed
Forces, the Court cannot sit in appeal over the decisions of the
Competent Authorities. The jurisdiction of the Court is limited to
ensure that the procedure prescribed by law is followed by the
Competent Authorities and that the fundamental right of none is
affected to his prejudice and lastly there is no error apparent on
the face of the record and that power has been exercised within
the confines of the jurisdiction of the Competent Authority.
23. The first plea urged that save and except the
confessional statements of the co-accused which were retracted,
there being no other evidence, the finding of guilt returned is
liable to be set aside is not sustainable for the reason as noted in
para 17 above there are witnesses who have deposed against the
appellant and in view of said evidence there certainly exists
material on record against the appellant. In addition to the
reasons given by the learned Single Judge, we may only add, that
adequacy or inadequacy of material is not to be gone into by us.
We may further add that there is conclusive evidence on record
that the appellant had deposited cash and obtained two bank
LPA No.485/1998 Page 10 of 12
drafts in the sum of Rs.9,900/- each in the name of his wife. The
appellant failed to render any explanation as to how he came into
possession of Rs.19,800/-. Further, through the testimony of PW-
3 and PW-8 there is evidence of the involvement of the appellant
in theft of the goods from the stores.
24. The plea of the appellant that non-examination of his
wife has caused prejudice to him, remains a mere plea, without
any explanation as to in what manner prejudice has been caused.
A faint attempt was made to urge before us that since the bank
drafts were in the name of the wife of the appellant, she was the
best person to throw light as to how the bank drafts were
prepared in her name. The said plea ignores the fact that
through the testimony of T.Morup, the Bank Manager concerned,
it stood proved that the appellant had deposited the cash and
had filled up the requisite forms for issuance of the two bank
drafts in the name of the wife of the appellant. It thus stood
established that the appellant had deposited Rs.19,800/- with the
bank. It was for the appellant to explain the source of the funds
utilized for preparation of the bank drafts. What light could
possibly be thrown on the preparation of the drafts by the wife of
the appellant? Obviously none.
25. The plea of denial of services of a defence counsel
stands negated when one peruses the record of the Inquiry
LPA No.485/1998 Page 11 of 12
proceedings, which has been briefly noted by us in para 11
above. We note that the learned Single Judge has noted the
same and we concur with the finding returned that no prejudice
has been caused to the appellant due to any act or omission of
the Court.
26. The last plea of the penalty being disproportionate to
the gravity of the offence was not raised before the learned
Single Judge. Be that as it may, with reference to the acts of the
appellant and the misdemeanour which involves moral turpitude,
it cannot be said that the penalty of ‘Cashier From Service’ is so
shocking that it can be labelled as disproportionate.
27. We find no merit in the appeal which is dismissed.
28. Considering that the appellant is without a job, we
refrain from imposing cost.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
December 02, 2009
mm
LPA No.485/1998 Page 12 of 12