JUDGMENT
P.K. Bhari, J.
(1) This petition has been brought by Capt. K. Madhav Rao under Article 226 of the Constitution of India seeking quashment of the order dated October 6, 1988, by which the punishment of reprimand has been administered to the petitioner on the basis of the charge that the petitioner on September 15, 1988, failed without sufficient cause to appear at 09.30 hours at 16 Sikh Li the place appointed for spectators to witness the 16 Inf Div Walk and Marathon Championship finals. The petitioner was at the relevant time posted with 7th Battalion The Maratha Light Infantry. The impugned order has been challenged on various grounds by the learned counsel for the petitioner.
(2) One of the points raised is that the summary of evidence had not been recorded in accordance with the Indian Army Rules, in the counter affidavit filed on behalf of the respondents by Second Lt. R. Chaudhary working with 7th Maratha Li, it has been pointed out that the petitioner had himself dispensed with the requirements of Army Rule 22(1) and more over Rule 25 clearly envisages that an officer charged with an offence, if he so requires then the summary of evidence is to be recorded in accordance with Rules 22 & 23 and the petitioner did not express any such desire. Along with the counter affidavit annexure I has been filed which shows that the petitioner himself submitted that he did not require that the charges be heard in accordance with Army 22(1). In the rejoinder the petitioner had come forward w’th the plea that he was coerced to sign this certificate of which annexure I is the copy. It is not possible to give credence to the plea taken in the rejoinder that petitioner who has put in sufficient service in the Army holding the rank of Captain could have been coerced to sign such a certificate and particularly when no such grievance had been made by him in his statutory complaint dated May 26, 1989, made under Section 27 of the Army Act (for short ‘the Act’) copy of which is annexure Ii to the writ petition.
(3) Even otherwise in the case of an officer the requirement of Rule 22 and Rule 23 are not mandatory as it is clear from sub-rule (1) of Rule 25 which provides that where an officer is charged with an offence under the Act the investigation shall, if he requires, be held and the evidence, if he so requires, be taken in his presence in writing in the same manner as nearly as circumstances admit, as is required by Rule 22 and Rule 23 in the case of other persons subject to the Act. So, it does not now lic in the mouth of the petitioner to assert that any violation of rule has been place in recording the summary of evidence in his absence.
(4) It is not disputed that the charge sheet Along with the abstract of the evidence so recorded were supplied to the petitioner before he was tried by the Brigadier under Section 83 of the Act. In Major G. S. Sodhi Vs. Union of India, 1991 Cr. L. J. 1947, also a similar sort of plea was sought to be taken by an officer who was tried by Court Martial and was punished and such a plea was negatived and more over the Supreme Court reiterated the law laid down in the case of Lt. Col. Prithvi Pal Singh Bedi Vs. Union of India, (1938)1 Scr 393, which lays down that unless there is a request by the officer under Rule 25 for summary of evidence being recorded in accordance with Rule 22 and Rule 23 the evidence need not be recorded in compliance with the aforesaid Rules. In the present case the petitioner had himself dispensed with the necessity of recording of summary of evidence in accordance with Rule 22. At any rate, he had never prayed as required by Rule 25 that evidence be recorded in accordance with the aforesaid rules. So, there is no merit in this contention being raised by the learned counsel for the petitioner which we, hereby, negative.
(5) The learned counsel for the petitioner has then contended that no proper counter affidavit has been filed on behalf of respondents by any authorised person and he drew our attention to Regulations 546 & 547. We have gone through these regulations and find that these are not applicable to the counters to be filed in a writ petition. They pertain to proceedings under the Code of Civil Procedure. These regulations pertain to the officers authorised to take steps as contemplated by provisions of the Code of Civil Procedure. At any rate, the affidavit has been made on the basis of the record and thus, it cannot be said that the Second Lt. R. Choudhary, who is working in the same regiment, was not competent to swear to the facts mentioned in the counter affidavit based on the record.
(6) The learned counsel for the petitioner has submitted in his initial arguments that the facts mentioned in the charge sheet do not disclose the offence under Section 63 as mentioned in the charge sheet but disclose an offence committed under Section 39 or 41 of the Act and thus, the petitioner ought to have been tried by a Court Martial and not by the Brigadier under Section 83 of the Act. But later on when the contents of Section 63 were read the learned counsel for the petitioner had to concede that all offences enumerated in the Act could be tried by a Brigadier if only the penalties contemplated under Section 83 are proposed to be imposed. The learned counsel for the petitioner then shifted his argument and asserted that the offences under Sections 39 & 41 being more grave in nature would have called for trial by a General Court Martial and ‘the petitioner who has been not tried by the General Court Martial has been prejudiced in his defense. There appears to be no substance in this contention. It is not the choice of the petitioner which is to prevail as to whether he should be dealt with under Section 83 or should be dealt with under the provisions pertaining to Court Martial appearing in Chapter X of the Act. It is not understood how the petitioner could be considered to have been prejudiced for his being tried by the Brigadier under Section 83 of the Act. The petitioner has not at any time on his own prayed to the authorities for being tried by the Court Martial. There is. thus. no merit in this contention.
(7) The learned counsel for the petitioner has also contended that the proceeding held against the petitioner stand vitiated as, in fact, Section 63 of the Act was not applicable to the facts mentioned in the charge sheet and only Section 39 or Section 42 were applicable. There is again no merit in this contention because the facts have been enumerated in the charge sheet which disclose the commission of an offence by the petitioner. Mere fact that those facts bring out the offence under Section 39(d) do not in any manner result in any prejudice to the petitioner.
(8) The facts leading to the charge arid imposition of penalty of reprimand, in brief, are that on the night of September 14, 1988, at about 9.30 Pm the petitioner was told by his help Nco that the petitioner was to go to Fazilka and the vehicle will come to pick him up on the following day. I he petitioner then wrote a chit to his adjutant Maj. Thomas enquiring as to what order had been made as nothing was clear to him. On that very chit Maj. Thomas gave the details mentioning that the petitioner was required to proceed to Fazilka at 6 Am and be present there at 9 Am on September 15, 1988 as a spectator for 50 kms, walk. It is the case of the respondents that the petitioner did not attend the said duty and there was no sufficient cause for the petitioner to have remained absent from that duty. Hence, the charge was framed as has been enumerated in the earlier part of the order. The respondents had considered the said facts Stated in the charge as amounting to an offence under Section 63 of the; Act. It is laid down in Section 63 that any person subject to the Act who is guilty of any act or omission, which though not specified in this Act is prejudicial to good order and military discipline, shall on conviction by Court Martial be liable to suffer imprisonment for a term which may extend to seven years of such less punishment as is in this Act mentioned. Section 39(d) makes it an offence if any person subject to the Act without sufficient cause fails to appear at the time fixed at the parade or place appointed for exercise or duty and on conviction is liable to suffer imprisonment which may extend to three years- or such less punishment as is in this Act mentioned. It is true that if the offence is covered by Section 39(d), then Section 63 would not bs applicable.
(9) Assuming for the sake of argument that the facts mentioned in the charge sheet bring out the offence under Section 39(d) and not an offence under Section 63, could it be said that the petitioner has been in any manner prejudiced by mentioning of Section 63 instead of Section 39(d) in the charge sheet? To our mind, no such prejudice appears to have been caused to the petitioner by such error in the charge. After all the respondents have thought of dealing with the petitioner under Section 83 which prescribes for very minor punishments than can be awarded by the Court Martials, Such omission in a charge in not mentioning the particular section even under the Code of Criminal Procedure is not treated as fatal to the conviction unless it is shown that some prejudice has been caused to the accused. The Supreme Court in willie (William) Sidney Vs. State of Madhya Pradesh, , has laid down that the omission to frame a charge is a grave defect and should be vigilantly guarded against and in some cases it may be so serious that by itself it would vitiate a trial and render it illegal, prejudice to the accused being taken for granted. The Supreme Court has, however, laid down that in the main, the provisions of Section 535 would apply to cases of inadvertence to frame a charge induced by the belief that the matter on record is sufficient to warrant the conviction for a particulate offence without express specification, and where the facts proved by the prosecution constitute a separate and distinct offence but closely relevant to and springing out of the same set of facts connected with the one charged. In the present case, the facts have been clearly mentioned in the charge sheet and they definitely make a ware to the petitioner as to what offence he had committed. So, no prejudice appears to have been caused to the petitioner by non-mentioning of Section 39(d) of the Act in the charge sheet. It was also emphasized by the Supreme Court in Chittaranjan Das Vs. State of West Bengal,. , that the basic requirement in every criminal trial, therefore, is that the charge must be so framed as to give me accused person a fairly reasonably idea as to the case which he is to face and the validity of the charge must in each case be determined by the application of the test, namely, had the accused a reasonable sufficient notice of the matter with which he was charged ?
(10) Applying this ratio to the facts of the present case, by no stretch of reasoning it can be said that the petitioner has been in any manner prejudiced of had no opportunity to meet the charge against him when facts, mentioned in the charge are quite clear and bring out the offence, may be under Section 39(d) of the Act against the petitioner. Section 41 would not apply to the present case because it was not a case of petitioner deliberately showing any defiance of the authority or disobeying the superior officer. The petitioner has come out with the defense that he had become unwell during the night and thus, was not in a position to comply with the directions. In the trial the evidence was ied which showed that the petitioner was not so unwell as not to be able to comply with the orders and thus, was found guilty.
(11) Ons of the grievance raised in the writ petition was that the rules were not followed inasmuch as Form Ao 70/84 was not filled in by the Commanding Officer. In the return this fact is controverter and copy of the said form has been filed showing that it was duly filled in. In the arguments the learned counsel for the petitioner took up a new point by pointing out that in the said form the Commanding Officer had ordered the summary disposal of the case by the Brigadier. He has urged that the Commanding Officer could make only a recommendation and could not pass any peremptory order in this respect. There is no merit in this contention. Under the Rules the Commanding Officer after recording the evidence could either drop the charge against the petitioner but if he thinks fit that some case is made out against the petitioner he could recommend the action to be taken against the petitioner by the Brigadier. In the present case, the Commanding Officer had recommended the action against the petitioner by requiring his summary trial by the Brigadier under Section 83 of the Act.
(12) Another grievance raised in the writ petition is that the petitioner was not given sufficient time for preparing for his defense and also for the counsel in defense. It is nor shown by the petitioner that the petitioner had asked for any time for preparing for defense or had prayed for getting any counsel. It is not shown that in a trial taking place under Section 83 of the Act the petitioner’ has a legal right to be represented by any counsel. In the statutory complaint the petitioner had not made any such grievance. It appears that these pleas have been taken in the writ petition for the first time as an after thought. So, the same cannot, be given any importance.
(13) The learned counsel for the petitioner has also contended that the order which has been sent to the petitioner was not in proper form and was not even signed. No such plea has been raised in the writ petition. The statutory representation of the petitioner clearly shows that the petitioner knew about the order made and he had taken the plea that he could not obey the order and be present at the place of duty due to his having become unwell. The same plea he has taken in the trial. So, mere fact that the order has not been promulgated in any official manner is of no consequence in the present case because the petitioner was well aware of the order and thus, he had no option but to obey the said order. No prejudice has been caused to the petitioner by giving him the order in the manner in which it was given to the petitioner.
(14) The learned counsel for the petitioner drew our attention to Regulations 361 & 364 which pertain to complaints. petitions and appeals and which prescribe different periods to be taken at different levels while dealing with the statutory complaint. Counsel for the petitioner has argued that the statutory complaint of the petitioner was not disposed of within 90 days and thus, the order imposing the punishment on the petitioner stands vitiated. There is no merit in this contention. It is true that 90 days have been prescribed for dealing with the statutory complaint at different levels and thereafter 45 days period has been prescribed for dealing with the matter in Army Headquarters but the regulation also makes it clear that in case of delay a report explaining the reasons for delay would be forwarded to the next higher authority. The Regulation does not lay down that if the delay remains unexplained the statutory complaint would be deemed to have been accepted. By mere fact that the complaint has been disposed of a little bit belatedly does not mean that any prejudice has been caused to the petitioner. His complaint was rejected by the proper authorities and thus, it cannot be said that punishment of the petitioner stands washed out by some delay occurring in disposing of the statutory complaint. It is to be emphasized that no plea was taken in the writ petition on this point. So, the respondents did not have the opportunity to meet this point by giving out facts explaining the delay which occurred in disposing of the statutory complaint. The petitioner cannot be permitted to raise this plea at all.
(15) The learned counsel for the petitioner has then referred to the facts showing that his Commanding Officer was biased against him and was seeking an opportunity to teach the petitioner a lesson and thus, the petitioner has been victimised on account of the malafide act of his Commanding Officer. It appears that the petitioner was keen to take up flying as the profession in the Army and for that purpose there was a Pab Test. He had earlier made an application for taking this Test but due to exigencies of service his Commanding Officer did not allow him to take the Test and had assured that his application in the next year would be forwarded. It is pleaded by the petitioner that he had made such an application and was informed on August 4, 1988, that he was to take the said Test. However, his Commanding Officer had moved the authorities for not selecting the petitioner for the said Test due to paucity of officers but that request of the Commanding Officer was declined and directions were given that the petitioner should be allowed to take the Test and should be relieved so that he could reach the place of Test a day prior. The petitioner has mentioned that he was supposed to have left for Mysore for taxing the test on. August 24, 1988, but he was not given any information and on the morning of 25th August 1988 he was told by Second in Command to proceed for the Test but as he did not receive any movement order as late as 1 Pm he was told by the concerned Clerk that he could issue the movement order only after consulting the Second in Command but the said officer was not available and thus, he managed to get the movement warrant signed by the Quarter Master who was temporarily officiating as Adjutant and he was asked to explain as to how he managed to get the movement warrant signed by the Quarter Master instead of Second in Command. So, according to the petitioner, he managed to reach Mysore on August 28, 1988. at about 10 Pm while he was to appear in the Test on the following day at 6 Am and he could not qualify the Test because he had no sufficient opportunity to concentrate due to late arrival in Mysore. The question which arises for consideration is whether from these facts any inference of malafide could be drawn on the part of the Commanding officer or Second in Command? In our view, it is not possible to hold that the Commanding Officer or second in Command were actuated by any malice against the petitioner or they deliberately delayed the departure of the petitioner for taking the Test at Mysore. It may be that due to exigencies of service sufficient officers being not available the Command ing Officer thought it fit to make a recommendation that the petitioner may not be selected for taking the Test in that particular year but that would not mean that he was acting in any malafide intention against the petitioner.
(16) It is now seized law that ordinarily civil courts have no jurisdication to interfere with the administration of military law by the property constituted tribunals acting within their jurisdiction. The jurisdiction of the Supreme Court or the High Court under Article 32 and 226 of the Constitution of India respectively could be invoked to interfere in the extra ordinary proceedings arising only if there is an error of jurisdiction or violation of principle of natural justice or manifest error of law patent on the record or the orders have been made on the basis of malafide or bias. In the present case, the petitioner has not been able to satisfy us that any such defects appear in the proceeding taken against the petitioner and the orders passed against him. We, thus. find no merit in this petition which we, hereby, dismiss but with no costs.