PETITIONER:
THE GENERAL COURT MARTIAL & ORS.
Vs.
RESPONDENT:
COL. ANILTEJ SINGH DHALIWAL
DATE OF JUDGMENT: 12/12/1997
BENCH:
M.M. PUNCHHI, M. SRINIVASAN
ACT
HEADNOTE
JUDGMENT
JUDGMENT Srinivasan, J.
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 or 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 exceeded 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 Bora 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 in 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 natural 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 the 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 of law apparent on the face of 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 to
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 a finding of "guilty" or
of "not guilty". It is also
required that the sentence should
be announced for the with 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 the 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, at 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 relines 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 respondent contends that the court martial has relied on inadmissible evidence and over looked 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 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 constr. of 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 defence
brick stores so that early
completion of permanent
Defence OP Task could be
ensured.
(b) PW 16 has further stated
that on the inster of the
accused he wrote letter dated
24th October, 1993 (Ext.M) to
all coys asking them to
identify such PDs where the
said SRTs have been utilise
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
consturction 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 inferred
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 of Army Rules. It is also held by the High Court that the court material 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 finding 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 Inquirty commenced on 28th September, 1992 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 letter was addressed to Maj. 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 Incharge 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 the Act,
nor shall any evidence respecting
the proceeding of the Court be
given against any such person
except upon the trial of such
person for willfully giving false
evidence before the 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 the above categories. The latter part of the Rules refers to evidence respecting the proceedings of the Court and prohibits the same being given except upon the trial of such person for wilfully 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 help 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 a flagrant error that the document was inadmissible in evidence. 14. The other reason given by the High Court for interferring with the findings is that Ex. AW by Lt. SRTs out of a 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 Son. 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 error in thinking that the Court Martial had not taken into consideration Ex.A.W. 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 filed, on 23rd Oct. 1993 while being Commanding
Office 116 Engr. Regt. signed 116 Engr. Regt. letter
OPW dated 23rd VSM, DOC 17 MTN Div. stating "It is
brought fwd. for your info. that all the FRTs procured
from M/s. Dhariwal Steel Pct. Lt. 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 the false"
(b) The decision of the Court Martial was a followed:
THIRD CHARGE:- In support of this
finding the evidence i.e.on record
is as follows:
(a) Lt. Col. B. Manickam, PW-5 has
deposed that during second week of
November 1992 he was called by the
accused in his office where he was
made to sign 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 has physically assembled to
check the generators/alternators
after repairs.
(b) Maj. G.K. Mediratta, 9PW 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 known at that
stage which 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 Hay. 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 PWs6, 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 has 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 reads 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
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 the
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 of the
Board. If at all, it can only be said that 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 markers thereof. In
Naqubai Versus B. Shama Rao AIR 1956 S.C. 593 the Court
held 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
nature 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 this 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 the 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 DEFENCE 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.
Regt. with intent to defraud, made
payments of Rs. 7,720/- (Rupees
seven thousand seven hundred twenty
only) against purported supply of
AIG Stores as per Appx ’B’ to the
charge-sheet, well knowing that no
such items were infact 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 on 18 March 1993, Hav.
Pillai brought a CRX for 2 Ltrs of
paint and 4 brushes 75 mm. As he
was not dealing with A10 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 1993 (Ex. BL)
(b) Capt. A.K.Gautam (PW 32) has
deposed that he had not received
any ARG stores in February 1993.
He has further deposed that he
signed the Bill No.420/92-93 dated
27 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 sing 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
he refused since no stores had
arrived. He further reflected the
deficiency of ATG stores in handing
taking over noted ME-2 which was
brought to the notice of accused on
09 June 1993.
(d) The fact that accused was made
aware on 09 June 1993 that
physically no ATG store had been
received and yet he did not take
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 give when we dealt with Charge No.3 are equally applicable here. 22. Hence, we hold that the High court s in error in interferring with the findings of the Court Martial on Charge No.8.
22. The Nineth Charge read as
follows:
AN OMISSION PREJUDICIAL TO GOOD
ORDER AND MILITARY DISCIPLINE
In that he,
at 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 13/2/80. A copy of the said SAO has been produced before us. The relevant part of it reads as follows:
ADJUTANT GENERAL’S 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 insubordinations.
(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.
(c) Other serious cases e.g. unnatural deaths not
covered under sub-para (b) above. 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 defence Brick Store and the same was not reported by the respondent. Not is the charge to the effect that it was the respondent himself who caused 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 uphold 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 service. 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 held 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 circumstances 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 direction of duties. These state of affairs is highly distressing. We record our displeasure.