HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. LPA(OW) no. 336 of 2000 Union of India & ors. Petitioners Ayodhya Nath. Respondent !Mr. Tashi Rabastan, CGSC. ^Mrs. S. Kour, Advocate. Hon'ble Mr. Justice Barin Ghosh, Chief Justice. Hon'ble Mr. Justice J. P. Singh, Judge. Date: 04.04.2009 :J U D G M E N T :
Per Barin Ghosh, CJ:
In a writ petition, petitioner-respondent challenged the
Summary Court-martial verdict sentencing him to undergo 6
monthsb�(tm) rigorous imprisonment in civil prison and also
terminating his service on this count. Petitioner-respondent also
prayed for quashing of the order by which the appeal filed by
him was rejected. By the judgment and order under appeal, the
order terminating the service of petitioner-respondent was not
2
interfered with, but a direction was given that petitioner-
respondent shall appear before the Commanding Officer of the
Unit when he shall be at liberty to prove his defence, with a
further direction upon the Commanding Officer to conduct an
enquiry after affording a prospective hearing. The Writ Court
directed that the relief to which petitioner-respondent is entitled,
would depend upon the outcome of the enquiry. The Writ Court
further fixed a date for appearing of petitioner-respondent
before the concerned officer and directed completion of the
enquiry within three months from the date thereof. This was
done proceeding on the basis that petitioner-respondent was
not given a reasonable opportunity of hearing since the
proceedings were concluded in one day. Being aggrieved
thereby, the present appeal has been filed by the appellants
herein.
The principal contention of the appellants in the appeal is
that they have acted strictly in accordance with rules governing
the field and there was, and is, no scope for directing a further
enquiry in respect of matters which have been enquired into in
accordance with rules and concluded strictly in accordance
therewith.
The undisputed facts of this case are that, on October 5,
1982, petitioner-respondent joined the Army. In the month of
December, 1991, he was a Gunner in the Army, attached to
18/12 Field Regiment. He was then, thus, not an officer in the
Army. Petitioner-respondent approached for leave for the
purpose of attending his sisterb�(tm)s marriage to be performed on
December 11, 1991. Accordingly, casual leave with effect from
December 9, 1991 was accorded to him. By telegram sent by
3
petitioner-respondent and received by the appropriate authority
on December 10, 1991, petitioner-respondent held out that the
marriage has been shifted to December 15, 1991 with a request
to extend the leave. Accordingly, his leave was extended till
December 26, 1991. By another telegram received by the
appropriate authority on December 18, 1991, petitioner-
respondent purported to hold out that his wife was serious and,
accordingly, sought extension of leave by 20 days. By a
telegram, the date of which is not on record of this case,
petitioner-respondent was purportedly informed that he has not
been sanctioned leave as was requested for. Petitioner-
respondent on January 6, 1992 rejoined duty. In the meantime,
since petitioner-respondent did not join on December 27, 1991,
apprehension warrant was issued on December 28, 1991 which
was cancelled on January 9, 1992.
As it appears from the records produced by the
appellants, on January 21, 1992, proceedings under Army Rule
22 were initiated by the Commanding Officer, Col. Arun. On that
date, two witnesses were allegedly examined in the presence of
petitioner-respondent who, allegedly, declined to cross-examine
them. Allegedly, in course of such proceedings, petitioner-
respondent made no statement but pleaded guilty. He also did
not produce any witness.
The proceedings under Army Rule 22 pertained to the
following charge:
b�He is charged for without sufficient cause overstaying
leave granted to him, in that he having been granted
leave from 09 Dec. 91 to 26 Dec. 91 to proceed to his
home, failed without sufficient cause to report on duty
on expiry of the said leave till rejoined voluntarily on 06
4
Jan 92 at 2030h. (Total period of absence 11 days)
[(Army Act 39(b)]b�.
Petitioner-respondent signed annexure II of the
proceedings conducted under Army Rule 22. The contents of
annexure II is as follows:
b�A brief of the statement made by the accused
No.14480997P Rank Gunner (General Duties) Name
Ayodhya Nath of 12 Field Regiment:-
b�I am guilty of the above charge as mentioned
in Annexure Ib�(tm).b�
The entire body of annexure II is type-written, except the
signature appended thereto by petitioner-respondent.
On conclusion of the hearing, in course of the proceedings
before the Commanding Officer under Army Rule 22, an order
was passed on January 21, 1992 to the effect as follows:
b�Evidence to be reduced to writingb�
Thereupon, on January 22, 1992 evidence of Major Ranbir
Singh; Subedar Govind Singh and Havildar Vijay Kumar was
recorded before Capt. Jaya Kumar in the presence of Naib
Subedar Brij Gopal Singh, when it was recorded that petitioner-
respondent declined to cross-examine the witnesses and that
the summary evidence was recorded in the presence of the
accused and independent witness.
5
There is one more document produced by the appellants,
dated February 10, 1992, which appears to be a certificate to
the effect as follows:
b�Before recording plea of guilty offered by the accused
No.14480997P Gunner (General Duties) Ayodhya
Nath, the Court explained to the accused the hearing of
charge to which he has pleaded guilty and ascertained
that the accused understand the nature of the charge
to which he has pleaded guilty. The Court also
informed the accused the general effect of the plea of
guilty and the difference in procedure which will be
followed consequent to the same plea. The court
having satisfied itself that the accused understand the
charge and the effect of his plea of guilty, accepts and
records the same. The provision of Army Rule 115(2)
are complied with.b�
This certificate records that the accused refused to sign the
certificate. It then records that friend of accused, Capt. Shivesh
Tandon, has signed the certificate.
The documents produced by the appellants suggest that
in course of Summary Court-martial conducted by the
Commandant, Col. Arun, Commanding Officer, 12 Field
Regiment, the accused pleaded guilty to the charge as
mentioned above. It further appears that on February 10, 1992,
sentence of the Court presided over by the Commanding Officer
was pronounced whereby petitioner-respondent was sentenced
to rigorous imprisonment in civil prison and was directed to be
dismissed from service. It appears that the said sentence was
counter-signed by Brigadier L. K. Arora, Commandant, 24
Artillery Brigade, on March 4, 1992.
It appears that on August 19, 1992 discharge certificate
was handed over to petitioner-respondent.
6
The question is: In the facts and circumstances of the
case, can it be said that the proceedings complained of in the
writ petition are contrary to rules or procedure established by
rules requiring interference by the Writ Court?
Clause (b) of Section 39 of the Army Act, 1950 provides
that any person subject to the said Act, who, without sufficient
cause, overstays leave granted to him shall, on conviction by
Court-martial, be liable to suffer imprisonment for a term which
may extend to three years or such less punishment as is
mentioned in the Act. There is no dispute that petitioner-
respondent was subject to the said Act and he overstayed leave
granted to him. The question as to whether or not such overstay
was without sufficient cause, by the nature of the provisions
contained in clause (b) of Section 39 of the Act, was required to
be ascertained by the Court-martial, for, without ascertainment
of the same, no conviction could be awarded.
Sub-section (3) of Section 20 of the Act provides that an
officer having power not less than a Brigadier or equivalent
Commander or any prescribed officer may dismiss or remove
from the service any person serving under his command other
than an officer or a junior commissioned officer. Rule 17 of the
Army Rules, 1954 authorises dismissal or removal from service
on the ground of conduct which has led to conviction of the
person concerned by a Court-martial. Therefore, dismissal can
be effected when the conduct of the person has led to his
conviction by a Court-martial by an officer having power not less
than a Brigadier. In the instant case, the sentence as well as the
order of dismissal had been countersigned by the Brigadier,
Shri L. K. Arora.
7
Clause (d) of Section 108 of the Army Act recognizes
Summary Court-martial; whereas section 116 of the Act
provides that a Summary Court-martial may be held by the
Commanding Officer of any corps, department or detachment of
the regular army and he shall alone constitute the Court. It
further provides that the proceedings shall be attended
throughout by two other persons who shall be officers or junior
commissioned officers or one of either, and who shall not as
such be sworn or affirmed. There is no dispute that Lt. Col Arun
was the Commanding Officer of the corps or the department or
detachment of the regular army to which petitioner-respondent
was attached.
Section 120 of the Act provides that a Summary Court-
martial may try any offence punishable under the Act, subject to
certain exceptions with which we are not concerned. It further
provides that the Summary Court-martial may try any person
subject to the Act and under the command of the officer holding
the Court, except an officer, junior commissioned officer or
warrant officer. Therefore, Lt. Col Arun was duly authorized to
hold Summary Court-martial to try petitioner-respondent for the
offence for which he was tried. There is no dispute that the
sentence which the Summary Court-martial could award has
been awarded in the instant case.
Section 191 of the Act has authorized the Central
Government to make rules, including those pertaining to
assembly and procedure of the Courts of Inquiry, recording of
summaries of evidence, administration of oaths or affirmations
by such Courts, convening and constituting Courts-martial and
appointment of prosecutors at trials by Courts-martial. In terms
8
of the power so conferred, the Central Government has made
the said Rules. Chapter V thereof deals with investigation of
charges and trial by Court-martial. Rule 22(1) contained in the
said Chapter says that every charge against a person subject to
the Act shall be heard by the Commanding Officer in presence
of the accused and that the accused shall have enough
opportunity to cross-examine any witness against him and to
call such witness and make such statement as may be
necessary for his defence. In the instant case, as it appears
from the records referred to above, the charge against
petitioner-respondent was heard by the Commanding Officer
when he heard witnesses against petitioner-respondent, but the
petitioner declined to cross-examine such witnesses and
instead admitted his guilt. Rule 22(3)(c) provides that after
hearing the charge, if the Commanding Officer is of the opinion
that the charge ought to be proceeded with, he shall adjourn the
case for the purpose of having the evidence reduced to writing.
In the instant case, inasmuch as petitioner-respondent pleaded
guilty, as it appears from the records referred to above, the
Commanding Officer adjourned the case for the purpose of
having the evidence reduced to writing.
Rule 23(1) of the Rules provides that where the case is
adjourned for having the evidence reduced to writing, at the
adjourned hearing evidence of witnesses, who were present
and gave evidence before the Commanding Officer, whether
against or for the accused, and of any other person, whose
evidence appears to be relevant, shall be taken down in writing
in the presence and hearing of the accused before the
Commanding Officer or such officer as he directs. In the instant
9
case, evidence was not recorded before the Commanding
Officer, but before Capt. Jaya Kumar and there is nothing on
record to suggest that Capt. Jaya Kumar was not directed by
the Commanding Officer to record such evidence. No such plea
has also been taken.
Rule 23(3) of the Rules provides that the evidence of each
witness, after it has been recorded, as provided in the rule,
when taken down, shall be read over to him and shall be signed
by him or, if he cannot write his name, shall be attested by his
mark and witnessed as a token of the correctness of the
evidence recorded, which means that the evidence recorded
should be acknowledged by the witness whose evidence is
recorded and such acknowledgement should be made by
signing or by putting the mark of the witness. It further provides
that after the evidence against the accused has been recorded,
the accused will be asked, b�Do you wish to make any
statement? You are not obliged to say anything unless you wish
to do so, but whatever you say will be taken down in writing and
may be given in evidenceb�. It further provides that any
statement thereupon made by the accused shall be taken down
and read over to him, but he will not be cross-examined upon it
and that the accused may then call his witnesses, including, if
he so desires, any witness as to character. In the instant case,
the evidence of witnesses, as recorded, has been
acknowledged by the witnesses as evidence given by them.
It is the contention of petitioner-respondent that recording
of such evidence is required to be countersigned by the person
charged. But Rule 23(3) does not say so. Reliance of petitioner-
respondent on the case of Ranjit Thakur v. Union of India,
10
AIR 1987 SC 2386, for the preposition that procedure
prescribed must be scrupulously observed and non-compliance
thereof is such an infirmity which goes to the root of the
jurisdiction and vitiates the proceedings, particularly in view of
the nature of the provisions of the Act and the Rules which
curtail, to a large extent, the protections contained in Article 21
of the Constitution on the strength of Article 33 of the
Constitution of India, appears to be not applicable to the instant
case, for, rule 23(3) does not suggest that the evidence of
witnesses recorded must be countersigned or signed by the
person charged.
Rule 115(2) of the rules provides that if an accused
person pleads guilty, that plea shall be recorded as a finding of
the Court but, before recording the same, the Presiding Officer
is required to do certain things. The contention of petitioner-
respondent that the plea of guilty has not been signed by him on
the certificate given to that effect, which was done to comply
with rule 115(2) and, instead, was signed by his alleged friend,
is of no consequence, for, the plea of guilty in terms of the
requirements of rule 115(2) of the rules is required to be
recorded as the finding of the Court and the finding of the Court
need not be countersigned or accepted by the person charged.
As held in Union of India v Ex. Havildar Clerk Prithpal Singh,
KLJ 1991 513 (DB), signature of the accused is not required
after recording of the plea of guilt, but as a matter of caution the
same should be taken. In the instant case, the same was taken
in course of the proceedings under Rule 22. Since at that stage
summary of evidence was not recorded, the same was directed
to be recorded and later the certificate was issued signifying
11
compliance of the mandate contained in Rule 115(2) to
conclude the Summary Court-martial.
It is true that the alleged friend of petitioner-respondent
could not sign on his behalf the subject certificate and his
signing of the same is of no effect inasmuch as in terms of Rule
95(4) of the Rules the friend of the person charged is not even
entitled to examine or cross-examine witnesses or to address
the Court, but the same will not vitiate the finding of the Court
that petitioner-respondent pleaded guilty. When the plea of
guilty had been taken of the sole charge, in terms of Rule 54,
the Court, upon receiving any statement made by the person
charged, was required to take further steps as were taken in the
instant case and, accordingly, the sentence was awarded in
terms of rule 65 and the same was accepted by the Brigadier by
his counter-signature and, therefore, it does not appear that the
applicable rules were not followed by the Summary Court-
martial. Consequentially, overstaying leave without sufficient
cause, a punishable offence under section 39 of the Act, was
determined not only on the plea of guilt pleaded, but also on
evidence which appears to be the mandate of the law. Such
determination entailed conviction, on which it cannot be said
that petitioner-respondent could not be removed from service.
That being the situation, there was no scope of
interference in the instant case.
The other aspect of the matter is that the proceedings in
question, resulting in conviction and dismissal took place
outside the jurisdiction of this Court. The Appellate Authority
decided the appeal outside the jurisdiction of this Court. Mere
12
communication of a copy of the order within the jurisdiction of
this Court is no part of the cause of action which could give
jurisdiction to this Court to entertain the present writ petition.
The judgment rendered in Union of India v. Narinder Singh
Mehta, 1996 SLJ 276, is distinguishable inasmuch as in that
case pre-confirmation petition against conviction and sentence
was dismissed on February 19, 1994 and the sentence was
promulgated on October 3, 1994 and on October 10, 1994 the
post-confirmation appeal was filed when the petitioner was
serving on transfer within the jurisdiction of this Court. An
appeal is a continuation of the original proceeding and,
accordingly, it must be held that the original proceeding at the
appellate stage continued against the employee residing within
the jurisdiction of this Court as a condition of his service, and
termination of the proceedings by appeal, resulting in his
dismissal, took effect within the jurisdiction of this Court.
The appeal, accordingly, stands allowed and the judgment
and order under appeal is set-aside.
(J. P. Singh) (Barin Ghosh)
Judge Chief Justice.
Jammu,
04.04.2009
A. H. Khan, JR.
