General Court Martial & Ors.

Vs

Col. Aniltej Singh Dhaliwal

(M. M. Punchhi, M. Srinivasan JJ)

12.12.1997

JUDGMENT

 

SRINIVASAN, J.

1.The respondent was an Army Officer of the rank of Lt.Col.and was posted as Commanding Officer under 116 Engineer Regiment, with head quarter, 17 Mta, Arty.Brde. Nine charges were framed against him on 24.6.1995 and General Court Martial was held from 1.7.95 to 10.11.95.He was found guilty on charges 2,3,8 and 9.He filed Crl. Writ Petition No.1 of 1995 in the High Court of Sikkim on 11.12.95.Thereafter on 2.3.1996 the order of the Court Martial was confirmed under Section 154 of the Army Act. By judgment dated 9.8.96 the High Court allowed the writ petition and quashed the order of the Court Martial. The appellant has preferred this appeal against the judgment of the High Court.

2.The main contention of the appellant is that the High Court has exceed its power of judicial review under Article 226 and acted as a court of appeal by discussing and appreciating the evidence. Reliance is placed on Nagendra Nath Brora Versus The Commissioner of Hills Diven and Appeals 1958 SCR 1240 wherein this court held that the High Court had no power under Article 226 to issue a writ of certiorari in order to quash an error of fact, even though it may be apparent on face of the record unless there is an error of law which is apparent on the face of the record. The court observed that the jurisdiction of the High Court is limited to seeing that the judicial or quasi-judicial tribunals or administrative bodies exercising quasi-judicial powers do not exceed their statutory jurisdiction and correctly administer the law laid down by the Statute under which they act.

3.In H.S.and I.E.Board, U.P.Versus Bagleshwar AIR 1966 SC 875, the court held that an order passed by a Tribunal holding a quasi judicial enquiry which is not supported by any evidence is an order which is erroneous on the face of it and as such is liable to be quashed by the High Court under Article 226.In Parry & Co.Versus Judge, 2nd I.T.Cal.AIR 1970 SC 1334 the court held that a writ is granted generally when a court has acted without or in excess of its jurisdiction or where the Tribunal acts in flagrant disregard of the rules of procedure or violates the principle of nature justice where no particular procedure is prescribed.

4.In Bhagat Ram Versus State of H.P.AIR 1983 SC 454 the court held that where a finding of disciplinary authority is utterly perverse, the High Court can interfere with the same.

5.In S.N.Mukherjee Versus Union of India (1990) 4 SCC 594, the Constitution Bench dealt with a case wherein the appellant had challenged the validity of the finding and the sentence recorded by the General Court Martial and the order of the Chief of Army Staff confirming the same. The court held that the Supreme Court under Article 32 and the High Court under Article 226 have the power of judicial review in respect of proceedings of courts martial and the proceedings subsequent thereto and can grant appropriate relief if the said proceedings have resulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said proceedings suffer from a jurisdictional error or any error in law apparent on the face on the record. After elaborately considering the provisions of the Army Act and Rules, the court pointed out that at the stage of recording of findings and sentence the Court Martial is not required to record its reasons. It will be advantageous to extract the following passage in the judgment. From the provisions referred to above it is evident that the judge-advocate plays an important role during the course of trial at general court martial and he is enjoined to maintain an impartial position. The court-martial records its findings after the judge-advocate has summed up the evidence and has given his opinion upon the legal bearing of the case. The members of the court have express their opinion as to the finding by word of mouth or each charge separately and the finding on each charge is to be recorded simply as the finding of "guilty" or "not guilty". It is also required that the sentence should be announced forthwith in open court. Moreover Rule 66(1) requires reasons to be recorded for its recommendation in cases where the court makes a recommendation to mercy. There is no such requirement in other provisions relating to recording of findings and sentence. Rule 66(1) proceeds on the basis that there is no such requirement because if such a requirement was there it would not have been necessary to make a specific provision for recording of reasons for recommendation to mercy. The said provisions thus negative a requirement to give reasons for its finding and sentence by the court martial and reasons are required to be recorded only in cases where the court martial makes a recommendation to mercy. In our opinion,. therefore, t the  stage  of recording  of findings and sentence the court martial  is not  required  to record its reasons and at  that  stage reasons are only required for the recommendation to mercy if the court martial makes such a recommendation.

6.In Chaturvedi Versus Union of India (1995) 6 SCC 749,  the court observed that judicial review is not an appeal  from  a decision  but a review of the manner in which the decision  is made and the power of judicial review is meant to ensure  that the  individual receives fair treatment and not  to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court.

7.Relying  on the aforesaid ruling learned counsel  for  the appellants submit  that  the  High Court  in  this  case  has exceeded  its jurisdiction not only  by  reappreciating  the evidence but also by erroneous understanding provisions of the Evidence Act. It is argued by him that in this case there  has been no violation of principles of natural justice or rules of procedure  and  that  there is ample evidence  on  record  to support the findings of the Court Martial.

8.Learned  counsel for the respondents  contends  that  the court martial has  relied  on  inadmissible  evidence   and overlooked certain  relevant evidence  on  record  and   its findings are vitiated. He has placed reliance on the ruling in Ranjit  Thakur Versus Union of India & Ors. (1987) 4 SCC 611. In  that  case  the court found that there was  a  failure  to enquire from accused as required by Section 130 of  the  Army Act whether he objects to trial by any of the officers present and  held that the entire proceedings was vitiated. The  court went   on   to   hold  that   the   punishment awarded   was disproportionately excessive and quashed the same.

9.Now, we shall proceed to consider the four charges  found against the respondent and the decisions of the  High  Court thereon.

10 (a) Charge No.2 reads as under:

IN  A  DOCUMENT SIGNED BY HIM KNOWINGLY MAKING  A  FALSE STATEMENT (Army Act - Section 57 [A]) :

In  that he, at field, on 23rd October 1993, while  being Commanding Officer 116  Engr. Regt.  signed  116  Engr. Regy. letter No.2012/Gen/SAT/OPV dated 23rd October  1993 addressed Maj. Gen. K.C.Dhingra, V.S.M., GOC 17 Mtn. Div. stating "It is brought fwd for your information that  all the  SRTs  procured from M/s. Dhariwal  Steel  Pvt.  Ltd. Calcutta  have since been issued out for the  construction  of PDs  in  the current working season. All these PDs are likely  to be completely ground applied by 30th  October, 1993, well knowing the said statement to be false".

(b) The Court Martial dealt with it in the following manner :

Second Charge After  considering the evidence on record the court  find that there is no denial on the part of accused for having written the said letter to Maj.Gen.K.C.Dhingra, V.S.M. It has  also nowhere being brought on record that  prior  to date  of  writing this letter dated 23rd  October, 1992 (Ext. Q), the accused had ascertained that the said Arts had  been issued  for ground  application  although  the accused has  averred in his unsworn statement (Ext.BT) that  he had checked up with Maj. P.K.Mangal (PW 16).In addition  to  the  above the  following reasons  clearly indicate the guilt of the accused :-

(a)  Maj.  P.K.Mangal (PW 16) has deposed  that  on  27th September, 1992 he was told by the accused that  he  was issuing  SRTs  from defense brick stores  so  that  early completion of permanent Defense OP Task could be ensured.

(b)  PW 16 has further stated that on the in ster  of  the accused he wrote letter dated 24th October, 1993  (Ext.M) to  all coys asking them to identify such PDs  where  the said SRIs have been utilize and confirm the same by 13th October,  1992, this action of accused is subsequent  to and not prior to his writing the said letter (Ext. Q).

(c)  Vide  his  noting sheet  dated  20th  October,  1993 (Ext.M) addressed to Maj.Gen. K.C.Dhingra,  V.S.M.  the accused  in para (c) had mentioned that he  had  accepted below  specification SRTs to make up the SRTs of  defence brick issued by him for Job S-212.

(d)  vide  his letter to Maj.  Gen.  K.C.Dhingra,  V.S.M. dated 20th October, 1993 (Ext. O) the accused had  stated therein  his opinion the SRTs supplied by  M/s. Dhariwal Steel  Ltd.should  be  utilise for making  up  of  the deficiency  of Defence Brick SRTs which had  been issued for construction of PDs.

(e)673  SRT out of a total of 680 were found  at  ETP-V when checked by Lt. Col.K.K.Khosla (PW 27) and Capt. Sant Ram Verma (PW 25) on 10th December, 1993.

(f)By common military knowledge it can be  interferred that  between  the date of writing the letter  Ext.  Q-10 i.e.  23rd October, 1993 and probable date of  completion given therein i.e. 30th October, 1993 it is not  possible to apply the said quantity of SRTs on ground."

11.Before the High Court the contention of  the  respondent was  that the letter Ext. Q-10 on the basis of  which  Charge no.2 was framed was written by him in response to a query from the  staff  of  Court  of Inquiry and  it was  therefore  not admissible   in  evidence.  The High  Court   accepted that contention and held that the said letter was not admissible in view  of the provisions in Rule 182 of Army Rules. It is  also held  by the High Court that the court martial had not  taken into  consideration a report of Lt. Col. K.K.Khosla which was marked as Ex.AW. On those grounds the High Court held that the findings of the Court Martial were wholly unsustainable.

12.Both the reasons given by the High Court for quashing the findings of the Court Martial, as stated above,  are  totally erroneous.   As regards  the admissibility  of  Ex.Q-10   in evidence, Rule 182 of the Army Rules is not applicable to  the same. It is brought to our notice that factually, the court of Inquiry  commenced on 28th September, 1993 and culminated  on 14th October, 1993. The letter Ex. Q-10 was written only  on 23.10.1993. i.e. after the Court of Inquiry concluded. Further the   letters  was  addressed to  Mah.Gen.K.C.Dhingra,   VSM. Admittedly he was not a member of the Court of Inquiry and had nothing to do with the same. The only contention urged before us is that he was the Commanding officer In charge at the  time when the alleged offence took place. That is not sufficient to attract Rule 182 of the Army Rules.13. The Rule reads as follows :

"182.  Proceedings of Court of Inquiry not admissible  in evidence: The proceedings of a Court of Inquiry, or any confession, statement,  or answer to a question made or given  at  a Court  of  Inquiry shall not be  admissible  in  evidence against  a person subject to the  Act,  nor  shall  any evidence respecting the proceedings of the Court be given against  any  such person except upon the trial  of  such person  for willfully giving false evidence  before  that Court. "The  Rule refers only to the proceedings of a  Court  of Inquiry  or  any  confession, statement or  answer  to  a question  made or given at a Court of Inquiry, Ex.  Q-10 does  not belong to any of any the above categories.  The latter part of the Rule refers to evidence respecting the proceedings  of  the Court and prohibits the  same  being given  except upon the trial of such person for  willfully giving false evidence before that Court. That part of the rule is also not acceptable. Moreover, Ex. Q-10 does  not refer  to  any query being put by the addressee.  It  has only  referred  to an earlier  letter dated  20.10.1993. Reliance  is  placed upon the caption in Ex.  Q-10 which makes  a  reference to staff of Court of  Inquiry.  That does not held the respondent in any manner. We have  been taken  through  the averments contained  in  the   writ petition  filed by the respondent before the High Court. They  do not disclose as to how the letter could be  said to  be falling within the scope of Rule 182 of  the  Army Rules.  Hence,  the view of the High Court  is  based  on flagrant error  that the document  was inadmissible  in evidence. 

14.The other reason given by the High Court for interfering with  the findings is that Ex. AW has been ignored.  The  said document  is a report given by Lt. Col. Khosla who as a  matter of fact found that 673 SRTs out of total of 680 were found at ETP-V  when he checked the same on 10.12.1993. Lt. Khosla  was examined  as  PW 27 before the Court Martial and  there  is  a specific  reference  to  the same in the order  of  the  Court Martial.  The respondent places reliance on a portion of  that report  in  which  the responsibility  for  the lapses was attributed to Sub. Sukhdev Singh. It is argued that the  report of Lt. Col. Khosla fixing the responsibility  on Sub. Sukhdev Singh should have been accepted by the Court Martial. There is no  merit  in this contention. In the first  place,  the  High Court  is in error in thinking that the Court Martial had  not taken  into consideration Ex.AW. On the other hand, the  Court Martial  has  expressly referred to the evidence of  Lt.  Col. Khosla himself and contents of Ex.AW. Secondly, the High Court is   wrong   in   thinking  that  the   report fixing the responsibility on Sub. Sukhdev Singh should have been accepted and  the respondent should have been  exonerated.  Admittedly, Sub. Sukhdev   Singh is  a   subordinate   official. The responsibility for  the stores was with  the  respondent.  He cannot  escape by contending that a subordinate official  was responsible. It is for the Court Martial to consider the  said question and come to a conclusion. When the Court Martial  has held  that the respondent was responsible for the  lapse,  it was  not  for the High Court to interfere with  the same  as there  was  no omission on the part of the Court  Martial  to consider the relevant evidence.

15.  (a) Turning to Charge No.3, the same is to the  following terms:

IN  A  DOCUMENT SIGNED BY HIM KNOWINGLY  MAKING  A  FALSE STATEMENT :- ARMY ACT- Sec.57 (a)In that he, as  field,  on  23rd Oct. 1993,  while being Commanding Officer  116  Engr. Regt. signed 116 Engr.  Regt. letter No.2012/Gen/SAT/OPW  dated  23rd Oct. 1993  addressed  to Maj. Gen. K.C.Dhingra, VSM, GOC 17 MTN Div. stating  "It is brought fwd., for your into that all the FRTs procured from  M/s.  Dhariwal Steel Pvt. Ltd. Calcutta  has since been  issued  out for the constr. of PDs in  the  current working season. On these PDs are likely to be completely ground applied by 30th Oct. 1993", well knowing the  said statement to be false:

(b) The decision of the Court Martial was as followed :

THIRD CHARGE :- In support of this findings the  evidence i.e. on record as follows:

(a) Lt. Col. B.Manickama, PW-5 had deposed  that  during second week of November 1992 he was called by the accused in  his  office  where  he was made  to  sing  the  Bd. proceedings  pertaining  to  generators and alternators (Ex.U).  At the same time the accused asked him  to take the Bd. proceeding  to Maj.G.K.Mediratta  (PW  21)  and obtained his  signatures also on the Bd.  proceeding  to whom  the  accused had already spoken to PW 6 has  also stated that at no stage the Bd. of offers had  physically assembled to  check  the  generators/alternator after repairs.

(b)  Maj.G.K. Mediratta, 9 PW (21) has deposed  that  the Bd. proceeding were brought to him by PW 6 and he  signed the  said Bd. proceedings. He has also averred  that  the Board physically never assembled.

(c) Sub. KKV Pilla (PW 24) has deposed that he signed the Board  proceedings on insistence of PW 21 and he did  not even know at that stage Bd. proceeding he was signing.

(d)  Major  MMS Bharaj (PW 11) has  deposed  that  before making the payment he had told the accused that the  said Bd.  proceeding  (Ex.U) were  neither countersigned  nor dated  and on the inster, of accused he put the  date  as 27'  (Exhibited as U-5)d. He (PW 11) has further  stated that  at the time of making payment he had also  informed the  accused  that  it will not be correct  to  make  the payment since all generators had not come after repairs.

(e) According to deposition of Hav. Amin Ali (PW 12)  and Hav. B.L.Prajapati (PW 28), the generators  kept  coming even after 30th Nov.1992 i.e. the date of payment.

16.The respondent contended before the High Court  that  the oral evidence of PWs 6, 21 and 24 was not admissible in  view of  the provisions of Section 94 of the Evidence Act  as  the same  was contrary to the proceedings of the Board.  The  High Court  has accepted the said contention and held that  Section 94  of the Evidence Act barred the admissibility of  the  oral evidence. The High Court has also observed that the Members of the  Board who had deposed that they had assigned  the  Board proceedings because the respondent wanted them to do so should have been proceeded against for their lapses. According to the High  Court  the non consideration of the said aspect  of  the matter was a gross omission on the part of the Court Martial. It was further observed by the High Court that the evidence of PW 20 was omitted to be considered by the Court Martial.

17.None  of  the  reasons  given  by  the  High  Court   is sustainable. A perusal of Section 94 of the Evidence Act shows that it has no applicability whatever. The Section read  thus :

94. Exclusion of Evidence against application of document to existing facts:-

"When language used in a document is plain in itself  and when  it applies accurately to existing  facts,  evidence may  not be given to show that it was not meant to  apply to such facts. The Section will come into play only when there is a document and the language of it has to be considered with reference  to a  particular factual situation. That Section will apply  only when  the execution of document is admitted and  no  vitiating circumstance has  been put forward against the same.  In  the present case, the document in question is a proceeding on  the Board.  If  at all, it can only said that the  said  document contains  an  admission made by the signatories  thereto that they had checked the materials and the serviceability thereof. It  is well settled that an admission can be explained by  the makers  thereof. In Naqubai Versus B.Sharma Rao AIR 1956  S.C. 593  the Court held that an admission is not conclusive as  to the truth of the matter stated therein and it is only a  piece of  evidence, the weight to be attached to which  must  depend upon the circumstances under which it is made. The Court  said that it may be shown to be erroneous or untrue so long as  the person  to whom it was made has not acted upon it at the  time when  it might become conclusive by way of estoppel. The same principle  has been reiterated in K.S.Srinivasan Versus  Union of India AIR 1958 S.C. 419, Basant Singh Versus Janki  Singh AIR  1967  S.C. 341 and P.Ex-S Co-op. T.F.S. Versus  State  of Haryana, AIR 1974 S.C. 1121.

18. The appellants herein contended before the High Court that the relevant provision of the Evidence Act  is  Section  92, Proviso 1. The same contention was repeated before us. In  our view  neither  Section 92 nor Section 94 is attracted  in  his case. Hence, the view of the High Court that the oral evidence given by PWs 6,21 and 24 is inadmissible is totally erroneous.

19.There is another aspect of the matter to  be  considered. Section 133 of the Army Act provides that the Indian  Evidence Act shall subject to the provisions of the Act applied to  all proceedings before the Court Martial. Section  134  provides that  a Court Martial may take judicial notice of  any matter within  the general military knowledge of the members.  It  is quite obvious that in this case the Court Martial  had  taken judicial  notice  of the fact that a lower official  obeys implicitly the directions of a higher official. The respondent being  an official higher in rank to aforesaid witnesses, the latter  carried  out  his  directions  by  signing  the  Board proceedings.  The  High  Court  has  also  observed  that  the evidence of PW 20 was not considered by the Court Martial.  We are unable to appreciate how the evidence of PW 20 is relevant in  this  regard. hence, the reasoning of the High  Court  for setting aside the finding of the Court Martial on Charge  No.3 is wholly unsustainable.

20. (a) Charge No.8 was in the following terms :-

SUCH AN OFFENCE AS IS MENTIONED IN CLAUSE (f) OF  SECTION 52 OF THE ARMY ACT WITH INTENT TO DEFRAUD in that he, at  field, between 30 Dec. 1992 and 22 July, 1993,  while being  the  Commanding  Officer of 116 Engr.  Rgt.  with intent  to defraud, made payments of  Rs.7,720/- (Rupees seven   thousand  seven  hundred  twenty  only)   against purported supply of ATG Stores as per Appx 'B' to chargesheet,  well  knowking  that no such  items  were  in fact received in the said unit

(b)  It  is  dealt  with by  the  Court  Martial  in  the following terms.

Eight Charge:- The reasons are as follows:

(a) Hav.Rajkumar Singh (PW 30) has deposed that 18  March 1993, Hav. Pillai brought a CRX for 2 Ltrs. of paint  and 4 brushes 75 mm. As he was not dealing with ATO stores he refused to sign the CRV. Thereafter he was called by  the accused  and ordered to sign the CRV and  he accordingly signed CRV dt. 18 March 193 (Ex. BL)

( b) apt. A.K.Gautam (PW 32) has deposed that he had  not received any ATG stores in February 1993. He has  further deposed  that he signed the Bill No.420/92-93 dated  27th February  1993  after he had informed the  accused  that Capt.  A.K.Jain has refused to sign since no stores have been  received. Capt.A.K.Jain was also not  available  at Mile  2 location at that time. The  accused,  thereafter, instructed Capt. A.K.Gautam (PW 32) to sign the said bill and he accordingly signed.

c)Lt.  Col.  B.Manickam (PW 6) has  deposed  that  the accused  asked him to take on charge ATG stores which  here if used since no stores had arrived. he further reflected the efficiency of ATG stores in handing taking over noted ME-2  which was brought to the notice of accused  on  9^th June, 1993.

(d)  The  fact that accused was made aware on  9th  June,1993  that physically no ATF store had been received  and yet he did not taken any action, is an indication of  his intent.

21. The High Court reversed the finding on this charge on the same reasoning  as with reference to Charge  No.3. The  High Court has held that the oral evidence adduced before the Court Martial  was inadmissible. The reasons which we have  already given  when we dealt with Charge No.3 are  equally  applicable here.

22.Hence,  we  hold  that the High  Court  is  in  error  in interfering with the findings of the Court Martial on  Charge No.8.

22.The Nineth Charge read as follows :

AN  OMISSION  PREJUDICIALE  TO GOOD  ORDER  AND  MILITARY DISCIPLINE.

In that heat filed, between 01 Nov., 92 and 21 Nov., 93 while being the Commanding Officer of 116 Engr.Regt. and having  come to  know about the losses/deficiencies of  Defence  Brick Stores  on charge of his Regiment, improperly omitted  to report the said losses/deficiencies in contravention  of Para 1 (c) of SAO 13/s/80.

23.It  is unnecessary for us to consider the  discussion  of this charge  by the Court Martial for on the face of  it  the charge is unsustainable. The charge is under Para 1(c) of  SAO 13/s/80.  A copy of the said SAO had been produced before  us.The relevant part of it reads as follows:

ADJUTANT GENERAL' BRANCH SAO 13/s/80  DISCIPLINE-PROCEDURE  FOR SUBMISSION OF REPORTS REGARDING INCIDENTS AND OFFENCES INVOLVING  ARMY PERSONNEL AND FOR THEIR INVESTIGATION Incidents and offences to be reported.

1.The  following  incidents  and  offences will be reported:-a) All cases of assault and affray where persons subject to Army Act are involved.

(b) Breaches of discipline:-

(i) Collective insubordination.

(ii) Suicide, attempted or suspected suicide;

(iii) Murder or an attempt to murder.

(iv) Rape

(v)   MT   accidents  resulting  in  fatal   or   serious causalities, accidents  involving   civilian   vehicles resulting in damage to property or injuries to  civilians or persons subject to Army Act.

24.It is quite obvious that the charge framed  against  the respondent will not fall under Para 1 (c). The charge is  not that  some other persons brought about losses/deficiencies  of Defense  Brick  Store and the same was not  reported  by  the respondent.  Nor is the charge to the effect that it  was  the respondent  himself  who cause such losses/deficiencies.  The charge  itself  is  very vague. The High Court  is  therefore justified  in  holding that the charge is defective  and  the respondent cannot be made guilty.

25. There is no doubt that the High Court has erroneously set aside the findings of the Court Martial on Charges 2, 3 and 8. Now  that we upheld the findings of the Court Martial  on  the said charges, the only question which remains to be considered is that of punishment awarded to the respondent. Prima facie, the  sentence awarded by the Court Martial appears to be  very severe. But we do not want to decide the question here. As the Court  Martial  awarded such a sentence on the basis  of  the findings on all the four charges, namely, 2,3,8 and 9 the same cannot  be sustained as we have now hold that Charge  No.9 is unsustainable  and  the  finding  thereon  has  been   rightly quashed. Hence, the question of sentence has to be  considered on  the basis of three charges namely 2,3 and 8  being  found against  the respondent.  That has to be done  by  the  Court Martial. Therefore, the matter has to be remanded back to  the Court Martial for deciding that question.

26.  Consequently  the  appeal  is  partly  allowed  and  the judgment of the High Court is set aside except with  reference to its conclusion on Charge No.9. The sentence awarded by  the Court  Martial is set aside and the matter is remitted to  the Court  Martial  for considering and  passing  an  appropriate sentence on the basis of findings on Charges 2,3 and 8.

27.  In  the  facts and circumstance of the case  we  find  it necessary to invite attention of appellants 2 to 4 to consider initiating appropriate proceedings against PWs 6,21,26,30  and 32  who deposed at the Court Martial that they had  signed  or prepared  official  record  on  the  oral  directions  of  the respondent  without verifying the correctness, thereof,  which act  of  their was in dereliction of duties.  These  state  of affairs is highly distressing. We record our displeasure.