ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI
T.A No. 17 OF 2011 (W.P.NO.6206 OF 1988 BEFORE THE HON'BLE HIGH COURT OF JUDICATURE, LUCKNOW BENCH, LUCKNOW.
FRIDAY, THE 28TH DAY OF FEBRUARY, 2014/ 09TH OF PHALGUNA, 1935
CORAM:
HON'BLE MR. JUSTICE SHRIKANT TRIPATHI, MEMBER (J) HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A)
APPLICANT /PETITIONER:
K.G.SAMUEL AGED ABOUT 71 YEARS, SON OF MATHAN GEEVARGHESE, RESIDING AT KOCHUTHEKKEL VILAYIL HOUSE, VILLAGE VALLICODE, P.O.KAIPATTOOR, DISTRICT PATHANAMTHITTA,KERALA.
BY ADV.SRI.BIJU ABRAHAM.
versus
RESPONDENTS/OPPOSITE PARTIES.:
1. UNION OF INDIA THROUGH THE SECRETARY, TO GOVERNMENT, MINISTRY OF DEFENCE, NEW DELHI – 110 001.
2. CHIEF OF THE ARMY STAFF, ARMY HEADQUARTERS, NEW DELHI .
3. GENERAL OFFICER COMMANDING-IN-CHIEF, CENTRAL COMMAND, LUCKNOW.
4. GENERAL OFFICER COMMANDING, U.P.AREA, BAREILLY.
5. DEPUTY ASSISTANT ADJUTANT GENERAL (LEGAL), U.P.AREA, BAREILLY. T.A.No. 17 of 2011. : 2 :
6. GENERAL COURT MARTIAL THROUGH ITS PRESIDING OFFICER, CENTRAL COMMAND, LUCKNOW.
7. COMMANDANT, COMMAND HOSPITAL, CENTRAL COMMAND, LUCKNOW.
8. SENIOR REGISTRAR, COMMAND HOSPITAL, CENTRAL COMMAND, LUCKNOW.
9. COMMANDANT, BASE HOSPITAL, CENTRAL COMMAND, LUCKNOW
BY ADV.SRI.S.KRISHNAMOORTHY, SENIOR PANEL COUNSEL
ORDER
VAdm.M.P.Muralidharan, Member (A):
1. This petition was filed by the applicant as
W.P.No.6206 of 1988 before the Hon'ble High Court of
Judicature at Allahabad, Lucknow Bench on 09th August
1988, which was subsequently transferred to the Armed
Forces Tribunal, Regional Bench, Lucknow on 15.03.2011 and re-numbered as T.A.No.52 of 2011. Based on the request of the applicant, it was transferred to this Bench and registered on 18.08.2011 as T.A.No.17 of 2011. T.A.No. 17 of 2011. : 3 :
2. In this Transferred Application the applicant has challenged the findings and sentence of the General Court
Martial delivered on 12 June 1987 dismissing him from service and the Confirmatory Order dated 17 Jul 87 issued by the General Officer Commanding in Chief, Central
Command and the Post Confirmatory Order passed by the
Chief of he Army Staff on 15th March 1988 and prayed for quashing them. He has further prayed for a mandamus to respondents to treat him as in service and to pay him all his emoluments and to issue any other direction deemed just and proper.
3. Issues relevant to the case are that the applicant held the rank of Subedar and joined the
Command Hospital, Central Command, Lucknow on 17th
November 1986 as Pharmacist in charge of Pharmacy No.1 of the Hospital. On 29th November 1986 at about 2030 hours, a civilian one AE Varghese (who was an Ex Havildar) was caught by the Security Staff of the hospital with large T.A.No. 17 of 2011. : 4 :
quantities of medicines in a cloth bag on a scooter No.DHF
7028 in family quarters area. The Security Staff brought him
to the duty Medical Officer and on inquiry the civilian stated
that he had taken the medicine packets from
Subedar/Pharmacist K.G.Samuel (applicant) for disposing
the same in civil market. The applicant who was called for
interrogation denied having given the medicines to the
civilian. The Civil Police was called and the said
AE Varghese was handed over to them along with the
medicines by the duty Medical Officer on the same day.
4. On 30th November 1986 a Board of Officers was
convened by the Army Authorities to check the medical
stores which were held in charge of the applicant. The Board
reported that some medicines were in surplus whereas some
other items are deficient.
5. On 02 December 1986 a Court of Inquiry was ordered to investigate into the circumstances of the civilian being caught by Security Staff with medicines which were T.A.No. 17 of 2011. : 5 : marked for use in service hospitals (PVMS). On 16th
December 1986 another Court of Inquiry was ordered to find out the responsibility for surplus and deficiency of medicines as pointed out by the Board of Officers. The Court of Inquiry blamed the applicant for the deficiency and surplus medicines found in the Pharmacy as he was in charge of the Pharmacy. Subsequently, the Officer Commanding
Troops of the Command Hospital ordered recording of summary of evidence which was submitted on 21st January
1987 and additional summary of evidence was ordered based on directives of the Headquarters, Central Command on 23rd
March 1987. An application for convening of Court Martial was submitted to the Headquarters, Central Command by the
Hospital on 2nd April 1987. The applicant was thereafter attached to the Base Hospital, Lucknow with effect from 27th
April 1987 for trial by a General Court Martial, which was held from 21st May 1987 to 12th June 1987. The applicant was tried for the following charges: T.A.No. 17 of 2011. : 6 :
“(a) First charge under section 52(f) of Army
Act – such offence as mentioned in Clause
(f) of Section 52 of the Army Act, with intent
to defraud in that he at Lucknow on 29 Nov
1986 at about 2030 hours with intent to
defraud, handed over a cloth bag containing
medicines, as per details given below, the
property of Government to Ex-Hav AE
Varghese. (serial No 1 to 15 of medicines)
(b) second charge under Section 63 of Army
Act – An omission prejudicial to good order
and military discipline in that he at Lucknow,
between 17 Nov 86 and 30 Nov 1986, while
being JCO-in-Charge, Pharmacy No.I,
Command Hospital (Central Command),
Lucknow, omitted to exercise proper
supervision over the issue of medicines, the T.A.No. 17 of 2011. : 7 :
property of the Government, in the said
pharmacy, resulting in their surplus and
deficiency as per Appendicees 'A' and 'B'
attached.
6. The GCM found the applicant guilty of the first charge with minor variation of figures in the medicines list attached to the first charge and also found him guilty of the second charge with variations in some of the contents of the list attached to the second charge. The Court sentenced him to be dismissed from service subject to confirmation. The said sentence was confirmed by GOC-in-C, Central
Command on 17th July 1987. The Post Confirmatory Appeal against the finding of the GCM made to the Chief of the
Army Staff by the applicant was rejected by Chief of Army
Staff on 15th March 1988.
7. Heard Mr.Biju Abraham for the applicant and
Mr.S.Krishnamoorthy, Senior Panel Counsel for the T.A.No. 17 of 2011. : 8 : respondents.
8. It was brought out by the counsel for the applicant that the applicant joined the Command Hospital, Central
Command, Lucknow on 17.11.1986. He was posted to the said station from Sikkim. This was the first posting of the applicant at Lucknow. He was having no connection in that area except that of a staff of the hospital upon joining duty.
Immediately after his joining duty, one Havildar Gurcharan
Singh, the security N.C.O. of the Command Hospital, Central
Command, Lucknow, came to the applicant and introduced himself on the date of his joining stating that he is a favourite man of the authorities in the Command Hospital and he suggested to the applicant for dealing with medicine without any prescription. Applicant declined his requirement and he went away from the pharmacy by remonstrating his anger to avenge the insult.
Subsequently on 29 Nov 1986, a case was registered against one Ex-Havildar A.E. Varghese on the allegation that he was T.A.No. 17 of 2011. : 9 :
caught by the aforesaid Gurcharan Singh and his
subordinates from the family quarters area of the Command
Hospital carrying a bag of medicines. He was produced
before the D.M.O. Major Chopra and thereafter a case was
registered against the aforesaid A.E.Varghese at
Cantonment Police Station as Crime No.252/86 under
Section 379, 411 IPC on the basis of FIR (Annexure 1) filed
by DMO of Command Hospital, Lucknow. The FIR did not
contain any mention about the involvement of the applicant.
Subsequently, a Court of Inquiry was ordered as per
Annexure 5 of the Transferred Application. Therein also
there was no mention about the applicant. However the
COI opined that the applicant had planned and executed the
misappropriation and pilferage of hospital property. Based
on the above, disciplinary action was initiated against the
applicant vide Charge Sheet at Annexure 12.
9. The learned counsel further submitted that the inquiry itself was ordered in violation of Rule 22 (2) of the T.A.No. 17 of 2011. : 10 :
Army Rules. The second Court of Inquiry and the evidence collected by it was not placed before the Commanding
Officer, thereby the order for GCM had been obtained by misleading the Commanding Officer.
10. The learned counsel also contended that the
Court Martial proceedings were allegedly initiated by U.P.
Area by order dated 16.05.1987 in violation of Rule 37 (1) of the Army Rules. The order ought to have been passed by the GOC UP Area, but it was passed by Lt.Col. Ram Nagina
Singh. This was evident from Annexure 13. He further stated that the witnesses were examined and Exhibits were marked without taking an oath or affirmation, therefore the same was done in violation of Section 131 of the Army Act.
The entire proceedings is vitiated because of non-compliance of Rule 42 of the Army Rules.
11. As per the learned counsel, there is no evidence under Rule 23 of the Army Rules to show that the medicines allegedly caught belonged to the Command T.A.No. 17 of 2011. : 11 :
Hospital, Lucknow and there is no record to indicate which particular batch number medicines were sent to which pharmacy. The deposition of PW3, Subedar Singh, the Head
Constable of Cantt. Police Station, Lucknow and the evidence let in by him based on Ext. M.E.I in connection with
Crime No. 252 of 1986 filed under Sections 379 and 411 of the Indian Penal Code against A.E. Varghese and the circumstances and records kept in the police station as explained by the witness, would show that there are lot of contradictions in connection with the specimen seal and story narrated by Gurcharan Singh to clothe the applicant with the offence. The evidence of PW6, S.I. Shashank
Choudhary will also contradict the version of the prosecution in many aspects, particularly in respect of the specimen seal and list of medicine.
12. The learned counsel for applicant also brought out that as regards Charge I, there were many contradictions in statements of Prosecution Witnesses. T.A.No. 17 of 2011. : 12 :
More over, the said A.E. Varghese was not examined as a witness, even though he was cited as a witness by the prosecution. Therefore the first charge was not substantiated by the independent witness. He also submitted that the civil court had acquitted A.E.Varghese after filing the writ petition. This fact was reported by the applicant in his rejoinder, which was not denied by the respondents. In respect of the second charge, there is no evidence to show that the applicant had made any omission as provided under Section 63 of the Army Act. This can be found from the evidence of PW13.
13. The finding of charge No.2 was made by the
Court Martial in contravention of the Defense Service
Regulation. The law requires that the stolen property recovered should be produced in the Court and identified by the owner or any other witness, who mentioned it in their evidence. But no witness came forward to claim the ownership of the property mentioned in Charge No.1 nor had T.A.No. 17 of 2011. : 13 : identified the same as stolen property from Pharmacy No.1 of the Army. No opportunity was given to the applicant under Rule 58(2) of the Army Rules, which is equivalent to
Section 313 of the Criminal Procedure Code, to explain his defence and to produce the evidence. Therefore the learned counsel for the applicant submitted that the story narrated against the applicant, which was concocted at the instance of
PW5 due to his enmity towards the applicant, has to be set aside.
14. As per learned counsel for applicant, the prosecution examined 15 witnesses in support of the two charges. Pws. 3 to 11 were produced by the prosecution to connect the applicant with the first charge. Pws. 12 to 15 tried to connect the applicant with the second charge. The applicant pleaded not guilty. In spite of the fact that there is no direct or indirect evidence against the applicant, he was found guilty on both the charges and he was dismissed from the service. The learned counsel further contended that the T.A.No. 17 of 2011. : 14 :
Pre Confirmatory Petition of the applicant dated 6th July,
1987 under Section 164(1) against the finding and sentence awarded by the General Court Martial on 12th June, 1987
(Annexure 15) was not forwarded to the confirming authority by respondents 6 to 9. Further neither the confirming authority nor the Chief of the Army Staff gave due application of mind to the facts of the matter and rejected the same in a mechanical way.
15. The applicant was charge sheeted and dismissed from service after 22 ½ years of meritorious service and in the rank of Subedar and he had another 5 ½ years service in the same rank. Since he was having a bench mark of above average, there was every chance of getting promotion to the next rank of Subedar Major with five years' more service and he should have 33 years of service in the Army if he was not charge sheeted at the instance of PW5. The learned counsel submitted that the applicant has lost his reputation and dignity before the Army and the public for no T.A.No. 17 of 2011. : 15 : fault of his and therefore prayed that the Tribunal may direct the respondents to compensate him with all service salary and pensionary and other consequential benefits with interest.
16. The learned counsel for the respondents stated
that the contention of the applicant that he was introduced
to Hav Gurcharan Singh, as the favourite man of the
authorities, is incorrect. With regard to the demand of
medicines, without prescription, by Hav Gurcharan Singh,
the applicant did not report any such incident to the
authorities concerned. The statement of the applicant that
Ex Hav A.E. Varghese was involved by Hav Gurcharan Singh
is incorrect, since he was caught red-handed by Hav
Gurcharan Singh, carrying the bag of medicines which was
handed over to him by the applicant (Ex Sub K.G. Samuel).
Ex Hav A.E. Varghese was taken to MI Room and produced
before Maj B.K. Chopra, D.M.O. along with the medicine
bag, where he admitted that the bag of the medicines was T.A.No. 17 of 2011. : 16 :
handed over to him by Ex Sub K.G. Samuel (applicant) for
disposing of the medicines in the Civil Market. An FIR was
lodged against Hav A.E. Varghese and he was handed over
to Civil Police, being civilian, along with the bag of
medicines. A Court of Inquiry was conducted and the
involvement of the applicant in handing over the medicine
bag, containing Prized Vocabulary of Medical Stores (PVMS)
Medicines, to Ex Hav A.E. Varghese was established beyond
doubt and disciplinary proceedings under the Army Act were
initiated against the applicant.
17. Learned counsel for the respondents submitted that the statement of the applicant that the Court of Inquiry acted in a biased manner is incorrect and misconceived. The learned counsel further submitted that the surplus/deficiency of medicines was found by the duly constituted Board of
Officers and the applicant was made to sit near the
Pharmacy-1 and he never had any objection against the procedure. As per orders, the key of Pharmacy-1 used to T.A.No. 17 of 2011. : 17 : be deposited in the Key Box of the unit, kept with the Duty
Medical Officer in his room, which is sealed by the duty
Junior Commissioned Officer in the presence of Duty Medical
Officer (DMO) every day. It is further submitted that the applicant could not be allowed in Pharmacy-1, since the
Board of Officers were looking into the deficiency/surplus of medicines held on ground and the store in charge, i.e. the applicant could not be allowed to be along with the Board of Officers, who were responsible to ensure the correctness of the stores.
18. The learned counsel also submitted that the
compliance of the Army Rule 22, which is mandatory, was
ensured to give the applicant an opportunity to be heard, in
accordance with the principle of Justice, before disciplinary
proceedings were formally initiated against him, by ordering
recording to Summary of evidence. The allegation of non-
compliance of Army Rule 22 sub rule 3(c) is totally malicious
and far fetched. The copy of the proceedings of the T.A.No. 17 of 2011. : 18 : preliminary hearing under Army Rule 22 is produced as
Annexure R1. It is also submitted that the involvement of the applicant was clearly brought out by the evidence on record and from the circumstantial evidence also, which proved beyond doubt, that the medicines caught were of defence supply.
19. The learned counsel for the respondents stated that the allegations raised by the applicant are ill-founded and baseless. The General Officer, Commanding, U.P. Area, as convening Officer of General Court Martial (GCM) for trial of the applicant, had satisfied himself as provided under
Army Rule 37. The convening order issued (Annexure 13) was duly signed by Lt. Col. Ram Singh, in his capacity as
Staff Officer to the Convening authority. The convening order was signed “For” the convening authority, i.e. General
Officer Commanding UP Area, by his staff Officer, which is in accordance with the orders on the subject. It is denied that no evidence or any record of the case was placed before the T.A.No. 17 of 2011. : 19 : convening authority. It is further submitted that the convening authority had satisfied itself with the validity of the charges and the desirability to bring the applicant before a GCM, in the interest of justice. The convening order is not required to disclose the offences, for which an offender is to be tried, as the charge sheet would reveal the offences, to which the accused has to answer.
20. It is submitted that the GCM proceeding had commenced, progressed and concluded well in accordance with the Rules of procedure as stipulated in the Army Rule.
The applicant, who had pleaded not guilty of both the charges, was found guilty of the same by the Court, after considering all the matter before it and sentenced the applicant to be dismissed from service. The sentence of dismissal was commensurate with the gravity of the offence, of which he was found guilty.
21. The learned counsel for the respondents submitted that the Court, before commencing the T.A.No. 17 of 2011. : 20 : examination of witnesses, had complied with the provisions contained in Rule 42 of the Army Rules in letter and spirit and had satisfied that the charges were laid against a person subject to the Army Act and that the applicant was amenable to the jurisdiction of the Court. The learned counsel further submitted that the allegation of the applicant that he was not afforded an opportunity to defend his case is absolutely baseless. The applicant was given all the facilities to defend himself as provided in Rule 33 of the
Army Rules. There is no reason for the applicant at this stage to contend that his defence was materially prejudiced.
It is also submitted that, to prove the prosecution case, 15 witnesses were examined before the Court. Thus the prosecution case was conclusively proved and the applicant was found guilty of the charges levelled against him. The allegation regarding authenticity of the documents, exhibited before the Court, is an after thought on the part of the applicant. Ext.'P' was a genuine document duly T.A.No. 17 of 2011. : 21 : produced by its author and the evidence contained therein was admissible. The allegation of the applicant that the prosecution had planted evidence to implicate him is totally mischievous and raised with a view to gain sympathy.
22. The learned counsel further stated that the applicant has tried to run down the veracity of depositions made by PWs.5, 7, 8, 9 and 10. The GCM, while convicting the applicant on Charge I, has considered evidence in toto and hence on this ground Hon'ble Tribunal is not entitled to interfere in findings.
23. It is submitted on behalf of the respondents that the investigation with regard to the offence committed by the applicant was conducted in accordance with the rules and procedures laid down by the Army Rules. At no stage the applicant was prejudiced in any manner and his attempt to raise the lacuna in the investigation, is the result of an after thought, which is liable to be rejected. The charge against the applicant was proved beyond reasonable doubt T.A.No. 17 of 2011. : 22 : and accordingly he was convicted. No prejudice was caused to the applicant, as the witnesses produced before the GCM were not under any kind of pressure, undue influence or coercion so as to implicate the applicant in a false case.
24. The learned counsel for respondents submitted that the first charge against the applicant was preferred under sub clause (f) of Section 52 of the Army Act, notwithstanding the fact that the FIR lodged in the Police
Station against Ex Hav A.E. Varghese was under Section
379/411 of the Indian Penal Code. He was correctly charged under Section 52(f) of the Act and hence his contention that his case falls under Section 52(a) of the
Army Act is untenable. The findings recorded by the Court is based on cogent evidence on record and hence it is not vitiated. It is further submitted that the recovery of the bag of medicine is a fact, which had taken place and not fictitious as alleged by the applicant. There was neither any forged document produced before the trial nor there was T.A.No. 17 of 2011. : 23 : tampering of any evidence.
25. The applicant was convicted of the second charge on the basis of cogent evidence brought on record by the witnesses. He was afforded ample opportunity to defend himself before the GCM. With regard to the authenticity of the evidence by Capt Tara Chand (PW13), it is submitted that, as the Officer-in-charge, Medical Stores, Capt Tara
Chand had clearly brought on record that the medicines were issued from the medical stores as per record maintained therein. The second charge was proved beyond reasonable doubt and hence he was found guilty of the charges. Various contentions raised by the applicant are merely his imagination beyond reasons and hence they are liable to be rejected.
26. With regard to the evidence brought on record before the GCM, learned counsel for respondents submitted that, it is well settled by the Hon'ble Supreme Court that “it is not for the High Court or Supreme Court to re-apprise the T.A.No. 17 of 2011. : 24 :
evidence of court martial since a petition preferred under
Article 226 of the Constitution of India is not a petition or
appeal.”
27. The learned counsel for the respondents also
submitted that the prayer of the applicant for grant of
Armed Forces Provident Fund, Army Group Insurance and
FSA (Final settlement of account) has been finalised and
payment has been made. Since the applicant was
dismissed from service on disciplinary ground by the GCM,
he is not eligible for service gratuity and pensionary
benefits.
28. We have considered rival contentions and
submissions of the parties and perused the records.
29. At the outset we would like to examine the contentions of the learned counsel for respondents on the powers of the Tribunal. The learned counsel contended that “the GCM while convicting the applicant has considered evidence in toto and hence on this ground Hon'ble Tribunal T.A.No. 17 of 2011. : 25 : is not entitled to interfere in findings”. The learned counsel for the respondents further submitted that “it is well settled by the Hon'ble Supreme Court that it is not for High Court or Supreme Court to re-appraise the evidence of Court
Martial since the petition under Article 226 of the
Constitution of India is not a petition or appeal”.
30. The Apex Court in the case of Union of India vs. Major A Hussain, AIR 1998 SC 577, had held that
“Though Court Martial proceedings are subject to judicial review by the High Court under Article 226 of the
Constitution, if a Court Martial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter any Court must stay its hands”. Further in the case of Union of India
& Ors. vs. Himmat Singh Chahar , AIR 1999 SC 1980, the Apex Court held as follows: T.A.No. 17 of 2011. : 26 :
“5.....It is of course true that notwithstanding the finality
attached to the orders of the Competent Authority in the
Court Martial Proceeding the High Court is entitled to
exercise its power of judicial review by invoking
jurisdiction under Art.226 but that would be for a limited
purpose of finding out whether there has been infraction of
any mandatory provisions of the Act prescribing the
procedure which has caused gross miscarriage of justice
or for finding out that whether there has been violation of
the principles of natural justice which vitiates the entire
proceeding or that the authority exercising the jurisdiction
had not been vested with jurisdiction under the Act. The
said power of judicial review cannot be a power of an
Appellate Authority permitting the High Court to re-
appreciate the evidence and in coming to a conclusion
that the evidence is sufficient for the conclusion arrived at
by the Competent Authorities in Court Martial
Proceedings. “
31. However, Section 15 of the Armed Forces
Tribunal Act 2007 authorises jurisdiction, powers and authority in matters of appeal against Court Martial. The T.A.No. 17 of 2011. : 27 : following sub sections of the Act being relevant are re- produced as below:
“15. Jurisdiction, powers and authority in matters of appeal against court -martial. - (1) Save as otherwise expressly provided in this Act, the Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable under this Act in relation to appeal against any order, decision, finding or sentence passed by a court-martial or any matter connected therewith or incidental thereto.
xx xx
(4) The Tribunal shall allow an appeal against conviction by a court-martial where - (a) the finding of the court-martial is legally not sustainable due to any reason whatsoever; or (b) the finding involves wrong decision on a question of law; or (c) there was a material irregularity in the course of the trial resulting in miscarriage of justice.
xx xx
(6) Notwithstanding anything contained in the foregoing provisions of this section, the Tribunal shall have the power to - T.A.No. 17 of 2011. : 28 :
xx xx
(b) if sentence is found to be excessive, illegal or unjust, the Tribunal may -
(I) remit the whole or any part of the sentence, with or without conditions; (II) mitigate the punishment awarded.”
32. In view of the above, the Tribunal has adequate powers to review de novo all aspects of a Court Martial including re-appreciating the evidence on record. Therefore, we do not agree with stand of the learned counsel for respondents.
33. Learned counsel for the applicant submitted that
Court of Inquiry initiated was in violation of Rule 22(2) of the Army Rules and that the evidence collected by the second inquiry was not placed before the Commanding
Officer.
34. Army Rule 22 (2) pertains to hearing of charges.
The relevant sub-rules of the Rule are re-produced as T.A.No. 17 of 2011. : 29 : below:
“22. Hearing of Charge:- (1) Every charge against a person subject to the Act shall be heard by the Commanding Officer in the presence of the accused. The accused shall have full liberty to cross- examine any witness against him, and to call such witness and make such statement as may be necessary for his defence.
Provided that where the charge against the accused arises as a result of investigation by a Court of inquiry, wherein the provisions of rule 180 have been complied with in respect of that accused, the commanding officer may dispense with the procedure in sub-rule (1).
(2) The commanding officer shall dismiss a charge brought before him if, in his opinion the evidence does not show that an offence under the Act has been committed, and may do so if, he is satisfied that the charge ought not to be proceeded with:
Provided that the commanding officer shall not dismiss a charge which he is debarred to try under sub-section (2) of Sec.120 without reference to superior authority as specified therein.
(3) After compliance of sub-rule (1), if the commanding officer is of opinion that the charge ought to be proceeded with, he shall within a reasonable time - xx xx T.A.No. 17 of 2011. : 30 :
(c) adjourn the case for the purpose of having the evidence reduced to writing;
35. As regards conduct of Court of Inquiry, the
Hon'ble Apex Court in the case of Major General
Inder Jit Kumar vs. Union of India & Ors. , (1997) 9
SCC 1 held that:
“Under Rule 177 of Army Rules, 1954, a Court of Inquiry can be set up to collect evidence and to report, if so required, with regard to any matter which may be referred to it. The Court of Inquiry is in the nature of a fact-finding inquiry committee. Army Rule 180 provides, inter alia, that whenever any inquiry affects the character of military reputation of a person subject to the Army Act, full opportunity must be afforded to such a person of being present throughout the inquiry and of making any statement, and of giving any evidence he may wish to make or give, and or cross-examining any witness whose evidence, in his opinion, affects his character of military reputation and producing any witnesses in defence of his character of military reputation.”
36. Further, in the same judgment, the Apex Court also examined procedures related to Court of Inquiry and T.A.No. 17 of 2011. : 31 : framing of charges. The Apex Court held that :
“The procedure relating to a Court of Inquiry and the framing of charges was examined by this Court in the case of Major GS Sodhi vs. Union of India [1991 (2) SCC 382]. This Court said that the Court of Inquiry and participation in the Court of Inquiry is at a stage prior to the trial by Court martial. It is the order of the Court Martial which results in deprivation of liberty and not any order directing that a charge be heard or that a summary of evidence be recorded or that a Court martial be convened. Principles of natural justice are not attracted to such a preliminary inquiry. Army Rule 180, however, which is set out earlier gives adequate protection to the person affected even at the stage of the Court of Inquiry.”
37. In the instant case it is observed that the reports of the Court of Inquiry were duly considered by the
Commanding Officer before he decided to initiate disciplinary action against the applicant. In this regard
Annexures A7 and A11 are relevant. It is also observed from Annexure R1 that the procedure under Army Rule 22 was correctly followed in the proceedings before the T.A.No. 17 of 2011. : 32 :
Commanding Officer. The hearing of charges took place in the presence of the applicant, where he was also given chance to cross examine witnesses. He cross examined four witnesses and declined to cross examine two others. The accused also gave a voluntary statement. At the conclusion of the hearing of charges, order was passed that evidence be recorded in writing (to record summary of evidence). It is also seen that proceedings were held in the presence of two witnesses. It was also observed that when the summary of evidence was recorded the applicant was given opportunity to cross examine all the prosecution witnesses
(pages 324 to 359 of GCM proceedings). Hence contentions of the learned counsel for the applicant is not valid in this regard.
38. Learned counsel for the applicant contended that the Court Martial proceedings were in violation of Army Rule
37(1) and was signed by Lt.Col.Ram Nagina Singh on behalf of GOC UP Area, whereas it should have been signed by T.A.No. 17 of 2011. : 33 :
GOC UP Area. The learned counsel for respondents
contended that the Convening Officer, GOC, UP Area has
satisfied himself as provided for under Army Rule 37, and
the convening order had been signed by Lt.Col Ram Nagina
Singh in his capacity as Special Officer having signed for the
convening authority in accordance with orders on the
subject. While the learned counsel did not quote the specific
rule, it is seen from the reply affidavit filed by the
respondents in the Transferred Application that it is in
accordance with Note 5 to Army Rule 41.
39. It is not disputed that the convening order of the
GCM (Annexure A13) has been signed by Lt.Col Ram
Nagina Singh Deputy Asst. Adjutant General (Legal) for
General Officer Commanding UP Area.
40. Army Rule 37 being relevant is also re-produced as below:
“37. Convening of General and District Court Martial:--(1) An officer before convening a general or district court martial T.A.No. 17 of 2011. : 34 :
shall first satisfy himself that the charges to be tried by the court are for offences within the meaning of the Act, and that the evidence justifies a trial on those charges, and if not so satisfied, shall order the release of the accused, or refer the case to superior authority.
(2) He shall also satisfy himself that the case is a proper one to be tried by the kind of court martial which he proposes to convene.
(3) The officer convening a court martial shall appoint or detail the officers to form the court and, may also appoint or detail such waiting officers as he thinks expedient. He may also, where he considers the services of an interpreter to be necessary, appoint or detail an interpreter to the court.'
41. Section 109 of the Army Act 1950 gives the powers to convene a General Court Martial. It being relevant is reproduced below:
“109. Power to convene a general court- martial. - A general court-martial may be T.A.No. 17 of 2011. : 35 :
convened by the Central Government of (the Chief of the Army Staff) or by any officer empowered in this behalf by warrant of the Chief of the Army Staff”
42. Army Rule 41 pertains to inquiry by Court as to legal constitution and the relevant sections are re-produced as below:
“41. Inquiry by court as to legal constitution:- (1) On the court assembling, the order convening the court shall be laid before it together with the charge sheet and the summary of evidence or a true copy thereof, and also the ranks, names and corps of the officers appointed to serve on the court; and the court shall satisfy itself that it it legally constituted; that is to say--
(a) that so far as the court can ascertain, the court has been convened in accordance with the provisions of the Act and these rules;
…... (3) The court, if not satisfied with regard to the compliance with the aforesaid provisions shall report its opinion to the convening authority, and may adjourn for that purpose. T.A.No. 17 of 2011. : 36 :
43. While there are no Notes in the Army Rules 1954, the Manual of Military Law, Volume II has Notes after Army
Rule 41. The relevant Notes in this regard are as follows:
“5. In the case of GCM or DCM, the convening order must be signed by the Convening Officer. The absence of a properly signed convening order is a fatal flaw although an order for trial is endorsed on the charge sheet. Apart from the specific requirements of this rule, the court must be satisfied that it is constituted strictly in accordance with the convening order.
6. The court, in considering whether it is convened in accordance with the AA and AR, can only look at the convening order. The convening officer is responsible that he holds the necessary court martial warrant, empowering him to convene the court, and the court is not required to satisfy itself in this respect “
44. The order to convene a GCM is a power vested in an individual by issue of a warrant by the Chief of the
Army Staff and the order has to be signed by him alone.
There is nothing in the Army Act or Rule which authorises T.A.No. 17 of 2011. : 37 : the person holding such a warrant to further delegate it.
While we could accept the contention of the learned counsel for the respondents that the GOC had satisfied himself that the charges to be tried are within the meaning of the Act and that the evidence justified a trial on the charges, it is amply clear that in case of GCM, the convening order must be signed by the Convening Officer. The Court also overlooked this aspect. Therefore the convening of the Court Martial was not in accordance with the law and the proceedings become void. This point itself is enough to declare the GCM null and void. However as the TA has been in the Courts for more than 26 years, we would like to give the matter a finality and therefore we proceed to look at the other issues raised by the applicant.
45. The learned counsel for the applicant has contended that there was violation of Section 131 of the
Army Act, and proceedings of the GCM were also vitiated because of non compliance of Rule 42 of the Army Rules. T.A.No. 17 of 2011. : 38 :
Section 131 of the Army Act pertains to oaths to be taken by members, Judge Advocate and witnesses before commencement of the trial. It further states that every person giving evidence before a Court Martial shall be examined after being duly sworn or affirmed in the prescribed form. Army Rule 42 pertains to inquiry by court as to amenability of accused and validity of charge. It is observed from the proceedings of the GCM on record that the Court had satisfied themselves as per provisions of Army
Rules 41 and 42, before the accused was brought before the Court. The Presiding Officer had also questioned the accused if he had any objection to be tried by the Board convened, to which he had answered in the negative. The
Presiding Officer, Members and Judge Advocate were thereafter duly sworn in and affirmed. The objections raised by defence counsel regarding summary of evidence was duly considered by the Court as per prescribed rules and had been over ruled. The objection to the charges T.A.No. 17 of 2011. : 39 : against the accused by the defence was also considered by the Court and disposed of in accordance with the rules. The applicant (as accused) was also given the option to apply for an adjournment on the ground that any of the rules relating to procedure before trial had not been complied with and that he has been prejudiced thereby or on the ground that he was not given sufficient opportunity to prepare for defence. The applicant had answered in the negative based on which the Court had commenced the GCM. It is further observed that all witnesses had been duly sworn in as per laid down rules. Therefore we do not agree with the contentions of the learned counsel for the applicant.
46. The counsel for the applicant contended that since Ex Hav AE Varghese who was caught with the medicines in the family area had been acquitted by a Court in the FIR filed by the respondents, the applicant could not be held guilty of the charge. The Hon'ble High Court of
Judicature of Allahabad while considering the case of Akash T.A.No. 17 of 2011. : 40 :
Kumar Sharma & Anr. vs. State of U.P., Application
No.19497 of 2011, held as follows:
“6. In order to appreciate the question of relevancy of a judgment of acquittal in the subsequent trial against another accused of the same incident, it seems to be just and expedient to examine the relevant provisions contained in the Evidence Act. Sections 40, 41, 42, 43 and 44 of the Evidence Act provides for relevancy of judgment of Courts of justice. Section 40 provides the circumstances in which a previous judgment, order or decree may be relevant to bar a subsequent suit or trial. Section 41 deals with the relevancy of certain judgments in probate, matrimonial, admiralty or insolvency jurisdiction. Section 42 deals with the relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41 in so far as they relate to matters of a public nature. Section 43 provides that judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of the Evidence Act. Section 44 deals with, fraud or collusion in obtaining judgment, or incompetency of the Court which delivered it. Therefore, a previous judgment, order or decree which is final, can be relied upon in any way as provided in sections 40 to 44 of the Evidence Act in a criminal case T.A.No. 17 of 2011. : 41 :
as well as in civil suits and not otherwise.
7. The Apex Court had occasions to consider the relevancy of judgments of acquittal in the subsequent trial being held against other accused. Some of the decisions of the Apex Court being relevant on the point in issue are as follows:
(1) S.P.E. Madras vs. K.V. Sundravelu (1978) 2 SCC 514; (2)Rajan Rai vs. State of Bihar, 2006 (1) SCC 191; (3)K.G. Premshanker vs. Inspector of Police & another, 2003 (1) JIC 206 (SC); (4)Karan Singh vs. State of M.P. AIR 1965 SC 1037.
13. The aforesaid decisions have settled the legal position that judgments of courts of justice may be relevant under any of the provisions of sections 40 to 44 of the Evidence Act and not otherwise. In other words, if any judgment, order or decree of a court does not fulfill requirements of any of the aforesaid sections, it has no relevancy and must be held to be irrelevant. It is also well settled that every trial has to be decided on the basis of the evidence adduced in the trial itself, therefore, the previous judgment of acquittal rendered in a trial, if it is not relevant under any of sections 40 to 44 of the Evidence Act has no relevancy in the subsequent trial being held against co-accused and he can not be permitted to claim any advantage of such judgment, which is merely an opinion of the judge on T.A.No. 17 of 2011. : 42 :
the basis of the evidence led in the previous trial. The only relevancy of such judgment is to decide the question of applicability of bar to the subsequent trial under section 300 of the Code as section 40 of the Evidence Act makes the previous judgment relevant only for such purposes and not otherwise. In such matters, sections 41 to 44 of the Evidence Act also have no application. In this view of the matter the proceeding of the session trial being held against the petitioners cannot be quashed on the basis of the judgment of acquittal rendered in favour of co-accused persons.”
47. From the above it is clear that the acquittal of
Ex Hav AE Varghese in no way prevented the trial of the applicant by GCM. Therefore we do not agree with the view of the learned counsel for the applicant in this regard.
48. The learned counsel for the applicant has also raised the issue of Ex Hav AE Varghese not having been produced as a witness in the GCM. The applicant does not have any plea in this regard as it was up to the prosecution to produce witnesses as desired by them to prove the charges. It was open to the defence to produce material or T.A.No. 17 of 2011. : 43 : witnesses to counter the evidence being produced by the prosecution. If the applicant felt at any stage that presence of Ex Hav AE Varghese was crucial to his defence against the charges, he could have sought him to be produced as a defence witness. It is observed that on completion of the examination of the prosecution witnesses defence had been given an opportunity by the Court to produce witnesses. However the defence had declined to produce any witness. Therefore at this stage we do not agree with the contention of the learned counsel for the applicant.
49. The applicant has raised the issue of his pre confirmation representation not being considered by the
Confirming Authority. The sentence against the applicant was announced by the GCM on 12 June 1987 and the applicant submitted his Pre Confirmation Petition on 06 July
1987 (Annexure 15). The confirmation of the sentence against the applicant was approved by GOC-in-C , Central T.A.No. 17 of 2011. : 44 :
Command on 17 July 1987 (Annexure 21). The Pre
Confirmation Petition submitted by the applicant was apparently not put up to the Confirming Authority, as evident from the reply given to the applicant on 30 July
1987 (Annexure 16). Considering a similar issue in
S.N.Mukherjee v. Union of India, (1990) 4 SCC 594, the Apex Court observed:
“Section 164 of the Act provides as under:
“164. (1) Any person subject to this Act who considers himself aggrieved by any order passed by any court martial may present a petition to the officer or authority empowered to confirm any finding or sentence of such court martial and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates. (2) Any person subject to this Act who considers himself aggrieved by a finding or sentence of any court-martial which has been confirmed, may present a petition to the Central Government, the Chief of the Army Staff or any prescribed officer superior in command to the one who confirmed such finding or sentence and the Central Government, the Chief of the Army Staff or other officer, as the case may be, may pass such orders thereon as it or he thinks fit.” T.A.No. 17 of 2011. : 45 :
53. In sub-section (1) reference is made to orders passed by a court-martial and enables a person aggrieved by an order to present a petition against the same. The said petition has to be presented to the officer or the authority empowered to confirm any finding or sentence of such court-martial and the said authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order or as to the regularity of any proceedings to which the order relates. Sub-section (2), on the other hand, makes specific reference to finding or sentence of a court-martial. and confers a right on any person feeling aggrieved by a finding or sentence of any court-martial which has been confirmed, to present a petition to the Central Government, Chief of the Army Staff or any prescribed officer. The use of the expression "order" in sub-section (1) and the expression "finding or sentence" in sub-section (2) indicates that the scope of sub-section (1) and sub-section (2) is not the same and the expression "order" in sub-section (1) cannot be construed to include a "finding or sentence". In other words in so far as the finding and sentence of the court-martial is concerned the only remedy that is available to a person aggrieved by the same is under sub-section (2) and the said remedy can be invoked only after the finding or sentence has been confirmed by the confirming authority and not before the confirmation of the same. Rule 147 of the Rules also lends support to this view. In the said Rule it is laid down that every person tried by a court-martial shall be entitled on demand, at any time after the T.A.No. 17 of 2011. : 46 :
confirmation of the finding and sentence, when such confirmation is required, and before the proceedings are destroyed, to obtain from the officer or person having the custody of the proceeding a copy thereof including the proceedings upon revision, if any. This Rule envisages that the copies of proceedings of a court-martial are to be supplied only after confirmation of the finding and sentence and that there is no right to obtain the copies of the proceedings till the finding and sentence have been confirmed. This means that the appellant cannot make a grievance about non-supply of the copies of the proceedings of the court-martial and consequent denial of his right to make a representation to the confirming authority against the findings and sentence of the court- martial before the confirmation of the said finding and sentence. Though a person aggrieved by the finding or sentence of a court martial has no right to make a representation before the confirmation of the same by the confirming authority, but in case such a representation is made by a person aggrieved by the finding or sentence of a court-martial it is expected that the confirming authority shall give due consideration to the same while confirming the finding and sentence of the court-martial.”
50. In the present case the petition dated 06
Jul 1987 submitted by the appellant to the confirming authority was not considered by the confirming authority T.A.No. 17 of 2011. : 47 : when the order of confirmation dated 17 Jul 1987 was passed. According to the counter affidavit filed on behalf of respondents this was due to the reason that the said petition had not been received by the confirming authority till the passing of the order of confirmation. The respondents further contended that this was due to delay of almost a month by the applicant before submitting the petition which then had to be forwarded as per channel of correspondence. In our view, since the Apex Court has held that the applicant had no legal right to make a representation at that stage the non- consideration of the same by the confirming authority before the passing of the order of confirmation would not vitiate the said order.
51. The learned counsel for the applicant brought out that there were many contradictions in the statements of prosecution witnesses and the first charge was not substantiated. He also contended that no witness came forward to claim the ownership of the stolen property T.A.No. 17 of 2011. : 48 : namely, the medicines nor had it been identified as having come from Pharmacy No.1 of the Army. In his view therefore the charges were not conclusively proved against the applicant. The proving of charges were based on the evidence and statements of witnesses presented during the
GCM. Statements of prosecution witnesses relevant in this regard are examined at succeeding paragraphs.
52. PW 5 Hav Gurcharan Singh stated at the GCM
(pages 35 to 44 of proceedings) that at around 2000 hours on 29 Nov 1986, he noticed a person on a scooter heading towards family lines and he became suspicious since he had not earlier seen that person in the area. He observed the person parking the scooter outside the residence of the applicant before going inside. PW 5 states that he went close to the scooter and did not find anything in the basket of the scooter at that time. He subsequently took position under the cover of a Neem tree some 15 yards away from the scooter. He then observed the applicant coming out of T.A.No. 17 of 2011. : 49 : his house and applicant had a bag in his hand which he handed over to the suspect (who was later identified as Ex
Hav AE Varghese). He further states that it was quite dark at that time. However the visibility was good as the area was well lit. He chased and apprehended the said Hav AE
Varghese who then told him that the bag containing medicines were given to him by the applicant.
53. During cross-examination by the defence counsel, PW 5 brought out that the windows of the quarters were closed due to winter. Further, when confronted with the statement he had made at the Court of Inquiry about having seen the said Ex Hav AE Varghese earlier, he said that at Court of Inquiry he had stated that he saw the scooter parked in front of Pharmacy No.1 and also in front of wet canteen on 29 Nov 1986. He further added that the above statements recorded at the Court of Inquiry are incorrect and only whatever he had stated before the
GCM was correct. PW 5 was also questioned by Defence T.A.No. 17 of 2011. : 50 : about his statement during the summary of evidence wherein he had stated that the said scooter had been under suspicious observation earlier. He once again stated that the statement in the summary of evidence is incorrect and only what he has stated now is correct. Similarly PW 5 claimed that he had made a statement at Summary of
Evidence that the applicant had told him “mere bacchon or meri nowkari ka saval hai”. However he could not say why the same was not recorded verbatim.
54. It is evident that PW 5 has made different statements at the Court of Inquiry, Summary of Evidence stage and at the GCM before the Court. The Court of Inquiry was held on 02 Dec 1986 and the Summary of Evidence was recorded from 13 Jan 1987 and additional summary from 23 Mar 1987. These dates were closer to the said incident of Ex Hav AE Varghese being nabbed by PW 5 on
29 Nov 1986. Therefore in normal case, the events would have been fresher and hence clearer in the mind of the T.A.No. 17 of 2011. : 51 : witness as against at the stage of GCM which was held from
21 May 1987.
55. The next witness who is stated to have observed exchange of bag between the applicant and the said Ex Hav
AE Varghese is PW 7 Nk SS Pati (Pages 48 to 57). In his deposition before the GCM he stated that he returned to his home (which was adjacent to applicant) at around 2000 hours on the day of the incident, ie, 29 Nov 1986. When he came out of his room to wash his feet, he saw a civilian, later identified as Ex Hav AE Varghese, on a scooter in front of the house of the applicant. He also stated that it was dark night but the area was well lit. He noticed that at that time there was nothing in the hands of Ex Hav AE
Varghese nor was anything kept in his scooter. About 10-
15 minutes later when he again came out of his house to bring his child, he saw the applicant and Ex Hav AE
Varghese coming out of the house of the applicant. The applicant was carrying a cloth bag which he handed over to T.A.No. 17 of 2011. : 52 :
Ex Hav AE Varghese when he came near the scooter who then kept it in the basket of his scooter before driving out of the area. Meanwhile as his child had returned, he went back inside the house. About 10-15 minutes later he heard lot of noise outside and went in the direction from where the noise was coming. He noticed that the said Ex Hav AE
Varghese had been caught by Hav Gurcharan Singh and three others and he (Varghese) was having a cloth bag in his hands.
56. PW 7 further stated that applicant also reached the area and he heard the applicant stating that Ex Hav AE
Varghese had come to his residence and that he had given medicines contained in the bag to him. It is pertinent that such a statement has not been made by PW 5 before the
GCM. As per PW 5, the accused had only requested him to release the scooterist and had also told him that “isko chod do, meri nowkari or mere bacchon ka saval hai”. PW5, a
Security N.C.O, would have clearly remembered and T.A.No. 17 of 2011. : 53 : made a statement if the applicant had admitted or had stated that he had given the medicines to Ex Hav
AE Varghese.
57. PW 7 Nk SS Pati during cross examination by the defence counsel, stated that he had seen the applicant handing over a cloth bag to Ex Hav AE Varghese. His attention was then drawn by Defence to the statement made at Court of Inquiry (during cross examination by the applicant) where he had specifically stated that he did not see the applicant handing over anything to the said Ex Hav
AE Varghese. PW 7 stated that the statement made by him at Court of Inquiry was incorrect and whatever he now said before the GCM was correct. He also added that there were no street lights in the area where he was living.
58. During further cross examination by the defence counsel, PW7 stated that he was not certain as to when the applicant came to the site of incident but he was present when the applicant asked for release of Ex Hav AE Varghese. T.A.No. 17 of 2011. : 54 :
The attention of the witness was then drawn to his earlier statement at the Court of Inquiry “after some time there was lot of sound and noise and I ran to that direction when Sub
KG Samuel also came along with me”. The witness once again stated that his statement at the Court of Inquiry is incorrect and whatever he stated before the Court is correct.
59. When questioned by the Court, the witness added that Ex Hav AE Varghese appeared very scared that he had even passed stool and urine in his pants. This fact has not been mentioned by any of the prosecution witnesses including DMO before whom he had been taken. It is quite logical that if a person had passed urine or stool in his trousers the resultant stench would have attracted the attention of all the other witnesses in whose close proximity he was.
60. It is observed that PW 7 has also made differing statements at various times. The statements made soon T.A.No. 17 of 2011. : 55 : after the incident when the events would have been fresh in his mind are different from what he deposed before the
GCM.
61. PW 8 Nk AA Christuraj (Pages 57 to 63) brought out that he returned from duty at the Command Hospital at about 2015 hours on 29 Nov 1986 (the day of the incident).
While entering the family quarters area, he met PW5 standing near the Ashram in a dark area. After that when he reached his house he saw a scooter standing in front of the house of the applicant. As per PW 8, he turned back while knocking at the door of his house and saw the accused coming out of his house along with a civilian. He further stated that at that time the applicant was having a cloth bag in his possession which he handed over to the said civilian, who he later on came to know as Ex Hav AE
Varghese. The cloth bag was kept in the basket of the scooter by Ex Hav AE Varghese before driving away in his scooter. T.A.No. 17 of 2011. : 56 :
62. During cross examination by the defence counsel
PW 8 was asked as to why at the Court of Inquiry he had not made any statement about seeing the applicant handing over the cloth bag to Ex Hav AE Varghese. He stated that he had said so but did not know why it has not been recorded. It is unlikely that the Court of Inquiry convened to examine the incident would have deleted such a relevant information if a statement to that effect had been made by him or any of the other witnesses during the inquiry.
63. PW 8, has also made differing statements and the version at GCM, varied from those at COI and Summary of Evidence.
64. PW 9 Nk AA Baldev Singh (Pages 63 to 68) was at his residence which was in the same area as that of the applicant on 29 Nov 1986. At about 2015 hours he heard a lot of noise and when he came out of his house he did not find anyone, so he went towards the Ashram area where T.A.No. 17 of 2011. : 57 : there were some people standing. There he found PW 5
Gurcharan Singh, PW 8 Christuraj and PW 10 L/Nk S.Tripathi and another civilian who he later came to know as Ex Hav AE
Varghese. Ex Hav AE Varghese tried to run away with the cloth bag but was chased and apprehended and lot of people gathered in the area, where he also observed the applicant. He states at that stage he asked Hav AE
Varghese regarding the bag and he replied that he got the bag from the applicant and it contains some medicines. He also states that in his presence the applicant had requested
PW 5 to release Ex Hav AE Varghese which he declined to do.
65. During cross examination by defence, PW 9 stated that he had deposed in the Summary of Evidence that the applicant had come and requested for Hav AE
Varghese to be released. At that stage the statement made by him at the Summary of Evidence was read over to him by the defence. In his statement during Summary of Evidence T.A.No. 17 of 2011. : 58 : he had stated that he saw a bag hanging on the basket of the scooter, there is no mention of his having spoken to Hav AE Varghese or his stating that the bag had been given to him by the applicant.
However he had stated that in the MI room he heard Hav AE
Varghese saying to DMO and CMP that the bag had been given to him by Subedar K.G.Samuel (applicant) and he also heard the applicant requesting to release him (Ex Hav
AE Varghese). The witness now submitted that he had not heard the applicant say anything in the MI room but he added that he heard him requesting for release Ex Hav Varghese in the family quarters area.
66. On being questioned by the Court, PW 9 stated that the applicant had come to the MI room at about
2145 hours and he was observed to be quite normal at that time. He also stated that he did not notice if Hav AE
Varghese had urinated or passed stool in his pants (as claimed by PW 7). T.A.No. 17 of 2011. : 59 :
67. Once again it is evident that this witness has also changed his statements from what he made at the summary of evidence when the events would have been more fresh in his mind. Some of the key aspects brought out at GCM found no mention in the summary of evidence.
68. PW 10 L/Nk S Tripathi (pages 68 to 72) stated that he saw a scooter standing in front of the house of the applicant at about 2015 hours on 29 Nov 1986 while he was returning to his residence. Later on he heard some commotion and saw people running towards the Ashram.
He reached the area and helped PW 5 and others to nab
Ex Hav AE Varghese who was trying to run away. He also saw the applicant in the area. The applicant at that time requested PW 5 to release Hav AE Varghese, but he does not remember the exact words used.
69. During cross examination by the Defending
Officer, he brought out that at the Court of Inquiry he had stated the fact that the applicant had come to the site of the T.A.No. 17 of 2011. : 60 : incident and had requested for release of AE Varghese. He further added that he had not been tutored to depose before
Court, but notwithstanding the fact that he had given detailed statements at the Summary of Evidence and at
Court of Inquiry, they had been recorded very briefly. On being questioned by the Court he said that he was in the MI room for about 4 to 5 minutes when Hav AE Varghese was taken inside the MI room. He also told the Court that when the applicant came to site of the incident and he was nervous and perplexed.
70. PW 11 Maj VK Chopra, Duty Medical Officer at the time of the incident [pages 73 to 79] brought out that
PW 5 had reported to him about the apprehension of Ex Hav
AE Varghese and the events that took place. He further stated that he had sent for the applicant at about 2230 hours on 29 Nov 1986 and when questioned about the incident the applicant replied that Hav AE Varghese had come to his residence on that day and had a cup of tea with T.A.No. 17 of 2011. : 61 : him but the applicant had denied having handed over any medicines to Ex Hav AE Varghese. When questioned by the
Court, he stated that he had found Hav AE Varghese shaken and completely nervous but he had observed the applicant to be quiet normal.
71. It is observed that the Court visited the site where the incident of handing over of the medicines by the accused to Ex Havildar AE Varghese is alleged to have taken place (Pages 120-125 of GCM proceedings).
72. The Court visited the site at 0830 hours on 04
June 1987. PW 5 Havildar Gurcharan Singh took the Court to the house of the accused. The Court observed that :
“There are no street lights in the area. However, the area is quite open. The ventilators of bath rooms of all the houses face the open area in front of the then house of the accused.” The Court also observed that distance between the Neem tree where PW 5 was standing and house of the accused was about 35 yards. There is no intervening T.A.No. 17 of 2011. : 62 : feature in between the two. The Court also observed that the place pointed out by PW 5 as where the scooter was parked was 8-10 feet from door of accused.
73. The Court observed that the house of PW 7 was adjacent to the house of the accused and there is a wall separating both the houses. PW 7 Naik SS Pati was also questioned on site. He pointed out where the scooter was parked in front of the house of the accused on the day of the incident. As observed by the Court, the location matched that shown by PW 5. The witness further pointed out from where he was washing his feet. The Court observed that from there the scooter standing outside the house of the accused could be seen. The witness also added that he had put an extra light point in the toilet which was emitting light outside his house.
74. PW 8 Nk A Christuraj, when questioned at the site, pointed out the place where the scooter was parked in front of the house of the accused which Court observed was T.A.No. 17 of 2011. : 63 : the same as that shown by PW 5 and PW 7. The Court also observed that from the house of this witness, entrance of the house of the accused was not visible. However, where the scooter was standing was visible from the place where he was standing.
75. As per PW 1 Lt.Col (Mrs) GR Lobo, (Pages 13 to 18 of GCM) who was the Medical Officer in charge of the
Pharmacy from 02 Sep 1986 to 26 Nov 1986, she was in a supervisory capacity and running of the Pharmacy was the responsibility of applicant from 17 Nov 1986. As per PW 1, there were no surpluses or deficiencies in medicines checked by her when she was MO I/C. However she did not check all medicines in the store. She has further stated that when the applicant took over charge of the Pharmacy from
Naik Paulose, no surplus or deficiency of medicines was reported to her by him.
76. During cross examination by Defence, she stated that when the applicant was in the process of taking over T.A.No. 17 of 2011. : 64 : charge, he had reported that there were deficiencies in few cough tablets and potassium chloride syrup was surplus but at the time of actual handing over/taking over on 17 Nov
1986 she had been informed that all medicines were correct.
On being questioned by the Court she brought out that indents are normally made twice a month, but entries in the day book are made daily but the medicines are charged off at the end of each month based on the summary made on the basis of daily expenditure of medicines.
77. PW 2 Maj VS Yadav (Pages 18-26 GCM proceedings) took over Medical Officer in charge of
Pharmacy on 21 Nov 1986. He again stated that his duty was basically supervisory in nature. He used to make random checks of few items and used to tally them with daily summaries. He further stated that during random checks he did not find any discrepancy in the stores. On 30
Nov 1986 he found a Board of Officers were checking the stores of the Pharmacy and he learnt that the applicant had T.A.No. 17 of 2011. : 65 : been involved in a case of theft of medicines. A few days later he was told that there was certain discrepancies found by the Board. The Board of Officers took about one week to complete their task of checking.
78. During the cross examination by the defence, PW
2 brought out that he had not found duties of Medical
Officer-in-Charge in the standing orders of hospital but it had been explained to him by the Senior Registrar of the hospital before he took charge. He further stated that between 21 Nov 1986 to 29 Nov 1986 at least four times he had carried out random checks of few medicines by comparing the prescription chits with daily summaries and found them to be correct. During the check by the Board of Officers Sub Ram Chander was holding charge of the said Pharmacy. He added that the discrepancies brought out by the Board of Officers were not rectified at any stage during his tenure as MO I/C in the
Pharmacy. T.A.No. 17 of 2011. : 66 :
79. PW 2 further stated that the applicant, did not hand over charge to Sub Ram Chander, but the latter had been told to take over based on stock found by Board of
Officers. He further added that Sub Ram Chander did not report to him any deficiency or surplus in the stock of medicines held on charge of Pharmacy No I, but around 15
Dec 1986 (two weeks after the incident and taking over of new JCO in charge of pharmacy) he was informed that there were some boxes containing unaccounted medicines which were found by the Board of Officers hidden in a drawer and the same had been handed over to the Presiding Officer of the Board. He further stated that on 22 Dec 1986 when
Sub NA Ram Chander handed over the charge to Nb
Sub PM Yadav certain medicines were found surplus as well as deficient. The discrepancies discovered on 22
Dec 1986 were not rectified during his tenure. Boxes containing medicines which were found by the Board of
Officers were given back to the Pharmacy for taking charge T.A.No. 17 of 2011. : 67 : in January 1987. The witness had not checked whether there was any difference in the discrepancies as brought out by the Board of Officers and the discrepancies revealed during the handing/taking over on 22 Dec 1986. He further added that no Board of Officers was detailed to ascertain the discrepancies reflected during handing/taking over between Sub NA Ram Chander and Nb Sub PM Yadav. He was also not aware of any orders as to how the surplus or deficient medicines are to be regularised. He did not remember any specific regulation under which handing/taking over procedure is laid down.
80. PW 13 Capt Tara Chand (Pages 89-98) stated that he was OIC Medical Stores responsible to issue medicines to Pharmacy No.I. On 24 March 1987, he was directed by the Senior Registrar of the Hospital to check whether certain medicines mentioned in a list which was given to him were issued by Medical Stores to Pharmacy T.A.No. 17 of 2011. : 68 :
No.I prior to 29 Nov 1986. He checked and found that the medicines mentioned in the list given to him were issued to
Pharmacy No.I prior to 29 Nov 1986 from the Medical Store.
81. On cross examination by the defence, it was brought out that if the requirement is in bulk then packs of the required quantity are issued without physically counting them. He also added that most of the medicines are issued by Medical Store in bulk to Pharmacy No.I and II. Pharmacy
No.I further issues medicines to various other
Wards/Departments. He further added that it is not possible to find out as to which particular batch of medicines has been issued to a particular Ward or
Pharmacy. He also brought out that it is possible that the medicines with a particular batch number which were issued to Pharmacy No.I may also have been issued to other Wards and Departments. He further stated that he had brought out that all medicines contained in the list which was given to him for checking were issued T.A.No. 17 of 2011. : 69 : by Medical Stores to Pharmacy No.1, based on the fact that all medicines in the list had been demanded by Pharmacy
No.1 and had been issued by store. However the batch numbers of all the medicines were not maintained by the
Medical Stores.
82. PW 14 Maj VP Singh (Pages 98-115) stated that he had been detailed as Presiding Officer of a Board to check stock verification of pharmacy No.I along with two other members namely Sub Maj (Hon Lt) SN Rai and Sub Ram
Chander. The Board started checking on 30 Nov 1986 and submitted the report on 07 Dec 1986. The witness stated that the Board had listed some medicines as surplus and some as deficient (pages 99 to 105 of the GCM proceedings). He also brought out that he found two card board boxes containing various medicines which were hidden behind some bottles in the mixture room, on 30
Nov 1986. He sealed those boxes after having made list of the contents. He also said that he had been given a list of T.A.No. 17 of 2011. : 70 :
15 medicines and was told to give special attention to those medicines while checking the stock of the Pharmacy No.I.
He found that out of those 15 medicines, 09 were surplus and 02 were deficient. He further brought out on cross examination by the defence that the Board started checking on 30 Nov 86 and was to submit report on 01 Dec
86 but could do so only on 07 Dec 86. He further said that the medicines found in the two card board boxes (serial
Nos.1 to 35 - pages 111 and 112 of proceedings) were presumed to be not on charge because they were not at the proper place meant for them. He was not sure whether the medicines were on ledger charge or not and they were not included in the ground balance calculated by the Board because they were found hidden in the mixture room of the
Pharmacy.
83. During subsequent cross examination of PW 14 by the defence, (Pages 126-131 of Proceedings) he brought out that a list of 38 medicines ( pages 126 to 128 of GCM T.A.No. 17 of 2011. : 71 : proceedings) were found hidden in a drawer during handing/taking over between Sub Ram Chander and Nb Sub
PM Yadav on 15 Dec 1986. He brought out that the Board proceedings of 15 Dec 1986 were separate from the Board proceedings of 30 Nov 1986 and the Board on 15 Dec 1986 only counted the medicines as found in the drawers and did not tally with the stock. From 01 Dec 1986 onwards
Sub Ram Chander was the JCO in charge of Pharmacy No.I.
He (PW 14) did not know anything regarding the surplus or deficiency in medicines as found during the handing/taking over between Sub Ram Chander and Nb Sub PM Yadav.
The witness's attention was drawn to the three stock ledgers belonging to Pharmacy No.I and he confirmed that they are the same ledgers that were being checked by him.
On being questioned by the Court the witness stated that after perusal of the three stock ledgers of Pharmacy No.I he found that the discrepancies as shown by the Board proceedings of 30 Nov 1986 have been rectified in the stock T.A.No. 17 of 2011. : 72 : ledgers on 06 Feb 1987. He brought out that the entries as made on 06 Feb 1987 in the stock ledgers have not been initialed by anybody. He was not aware as to who has done this rectification on 06 Feb 1987.
84. In order to prove Charge No.1, it was essential to establish that the applicant had handed over the bag containing medicines with PVMS markings which were the property of the Government to Ex Hav AE Varghese. While it is not disputed that a bag with medicines with PVMS markings was found in possession of the said Ex Hav AE
Varghese, linking it as having been given by the applicant was based on the evidence of prosecution witnesses 5, 7, 8,
9 and 10.
85. The Court visited the site of the incident at 0830 hours on 04 June 1987. The alleged incident took place around 2030 hours on 29 Nov 1986. In our view, considering that the incident happened at night in November, a winter month and the Court visited the site on a morning T.A.No. 17 of 2011. : 73 : in June, a summer month, in view of the differing light conditions the appreciation of the scene would have been entirely different. Further, as observed by the Court, there were no street lights in the area. Essentially the light in the area was what emerged from the ventilators of bath rooms of the house. As brought out by the statement by PW 5, being winter, the ventilators were all closed. This would have further reduced the light available in the open area around houses. It is also for consideration that a normal scooter would not have been out of place in the family living area where the applicant and other witnesses were staying and in normal case would not have attracted anything other than a cursory glance. Based on the above facts, it is difficult to believe the statements of some of the witnesses that they observed there was nothing in the basket of the scooter when they first saw it.
86. There is no debate in the fact that the applicant knew Ex Hav AE Varghese and he was inside the residence T.A.No. 17 of 2011. : 74 : of the applicant around 2000 hours on 29 Nov 86. It would therefore have been normal for him to hand over a bag inside his house rather than carrying it and giving it near the scooter especially if he had any ulterior motive, when such an exchange could have been observed by anybody.
Further, as observed by PW 11 (Maj Chopra-DMO); the applicant appeared quiet normal soon after the nabbing of
Varghese, while Varghese was nervous and shaken. PW 11 also brought out that the applicant did not deny having Ex
Hav Varghese in his house, but had only denied giving him any medicines.
87. As observed from proceedings of the GCM, witnesses have changed their statements between the Court of Inquiry, Summary of Evidence and the proceedings of the
GCM. The Court of Inquiry/Summary of Evidence were recorded closer to the event than the GCM and therefore in normal case the events would have been fresher and clearer in the minds of witnesses. During the cross examination by T.A.No. 17 of 2011. : 75 : defence, when the attention of witnesses were drawn to their earlier statements, all of them have said that what they said in Court of Inquiry/Summary of Evidence is wrong and only what they said before the GCM was correct.
Some have also said that their statements were not recorded correctly by the Court of Inquiry/Summary of
Evidence. Almost all witnesses changing their stands makes their statements before the GCM suspicious. PW 7 further added during the visit of the Court to the site that he had put up an extra light in his bath room so more light was available outside. It is as though that he was trying to prove that he could see things very clearly. Reliability/veracity of the statements made by PW 7 is also doubtful as he is the only one who has made a statement that Ex Hav AE
Varghese had passed stool and urine in his pants, a fact that was not observed by any of the other prosecution witnesses including the DMO. As brought out earlier, the resultant stench in the trousers of Ex Hav AE Varghese would T.A.No. 17 of 2011. : 76 : have attracted the attention of all other witnesses. It is also pertinent to bring out that at the Summary of Evidence, the witnesses have only claimed that a bag was exchanged between the applicant and the said Ex Hav AE Varghese. At the GCM they have all insisted on a “cloth bag”. In view of the above, there is an element of doubt as to whether some of the witnesses were tutored.
88. While the medicines found were of PVMS markings and therefore of military origin, as brought out by PW 13, medicines with a particular batch number which had been issued to Pharmacy No.1 could also have been issued to other Wards and Departments. He also brought out that it is not possible to find out as to which batch of medicines has been issued to a particular Ward or Pharmacy. It was also brought out that all medicines did not have batch numbers and the medicines could have been issued during previous six months i.e. before applicant joined.
89. Based on the above, neither the bag found with T.A.No. 17 of 2011. : 77 :
Ex Hav Varghese, nor the medicines found in them can be linked directly to the applicant. In our view, therefore,
Charge No.1 has not been conclusively proved to pronounce the applicant guilty.
90. Second charge is with respect to Section 63 of the Army Act, namely an omission prejudicial to good order and military discipline, in that he omitted to exercise proper supervision over the issue of medicines, the property of the
Government as JCO in charge of Pharmacy No.1, resulting in surplus and deficiency in medicines. Statements of Pws 1,
2, 13 and 14 are relevant in regard to this charge.
91. It is evident that there was no streamlined procedure being followed on supervising or running of the
Pharmacy by the Officer-in-Charge or on handing/taking over proceedings. Applicant took over as JCO in Charge on
17 Nov 86 and the incident took place on 29 Nov 86 ie after
12 days. Both the officers who were in charge of the
Pharmacy during this period ie PW1 and PW 2 have stated T.A.No. 17 of 2011. : 78 : that they were only doing a supervisory role and were not clear about any laid down duties of Officer-in-Charge.
However both of them stated that during random checks no untoward discrepancies were observed. PW 2 said that he had actually carried out random checks on at least four occasions between 21 Nov and 29 Nov 1986. It was also brought out that the actual tallying would only take place at the end of each month, in this case it should have been on
30 Nov 86.
92. It has also been brought on record that the Board of Officers specifically appointed to tally the medicines and bring out deficiency and surplus, if any, took nearly 07 days to complete their task. However, the second lot of hidden medicines discovered later were not found by them over this period. It is hence not unlikely that the hidden boxes and the medicines that were found in the drawers of the cup board were in existence even prior to the applicant taking over and he was unaware of it. It is also for T.A.No. 17 of 2011. : 79 : consideration that as the applicant had taken charge only on
17 Nov and the incident took place on 29 Nov, whether within a period of 12 days a large stock of unaccounted medicines or deficiencies or surpluses could have generated by the applicant.
93. Sub Ram Chander had taken over the Pharmacy based on the Board of Officer's report and had stated that there were no short falls or surplus, but within about three weeks, when he was handing over, surpluses and deficiencies were observed. As per PW 2 (MO I/C), no Board of Officers was deputed to examine it. These discrepancies were not regularised during his time. He was not aware of any orders on regularising discrepancies or on handing/taking over. PW 14 had brought out that discrepancies of 30 Nov 86 observed by Board of Officers was possibly regularised only on 06 Feb 87, but had no verification signatures. T.A.No. 17 of 2011. : 80 :
94. Therefore, in our view, with the entire accounting system of Pharmacy No.1 in a disarray, it would be incorrect to blame the applicant for all the short falls and deficiencies that emerged considering he held the job only for 12 days. The statements of the applicant that he found no discrepancies when he took over, would need to be taken as none were observed/came to his notice. It becomes more so considering that his successor who took over based on Board of Officers' checking was also observed to have discrepancies three weeks later on handing over. It is therefore difficult to assume any negligence/mala fide intentions on part of applicant. Hence in our view, on
Charge No.2 also applicant needs to be given benefit of doubt and cannot be held guilty.
95. Army Rule 60 provides for summing up by the
Judge- Advocate on completion of closing evidence by the
Prosecutor and the accused or his defence counsel. The Rule being relevant is quoted below: T.A.No. 17 of 2011. : 81 :
“Summing up by the Judge-advocate:(1)The Judge-advocate (if any) shall sum up in open court the evidence and advise the court upon the law relating to the case.
(2) After the summing up of the judge- advocate, no other address shall be allowed.”
96. The Apex Court in S.N.Mukherjee v. Union of
India, (1990) 4 SCC 594 had commented on the role of the Judge Advocate:
“44. From the provisions referred to above it is
evident that the judge-advocate plays an important role
during the courts of trial at a 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. …....
97. As brought out by the Apex Court, the Judge-
Advocate plays a crucial role and he is to maintain an impartial position. As brought out in Rule 60 above, he is to sum up the evidence and advise the Court upon the law T.A.No. 17 of 2011. : 82 : relating to the case. In the instant case, the Judge-
Advocate in his summing up has advised the Court on general principles of criminal law, charge sheet and the law relating to the charges and has further explained the law in relation to the first charge and the second charge. He has then summed up the prosecution case and the counter by defence on the first and the second charge. All this is in accordance with provisions of Rule 60. He has also explained to the Court on the issues regarding the first and second charge with respect to the point of law, in that he has amplified as to what needs to be proved by prosecution beyond reasonable doubt to find the accused guilty in case of both the charges. This again could be related to explaining the law points on “law relating to the case”.
98. However, it is observed that he has further gone on to analyse the evidence on each of the sub points of law.
This, in our view, is beyond the scope of Rule 60. Further, it is observed that in the analysis of evidence the thrust of T.A.No. 17 of 2011. : 83 : his arguments is in favour of the prosecution and not impartial. On the main aspect of handing over of the bag by the applicant he has focused on all the issues brought in by prosecution witnesses. He has only mentioned in passing the arguments of defence or the issues that emerged during cross questioning by defence. The witnesses have said that it was a dark night but as the area was well lit they could see properly. The Judge-Advocate has mentioned to the Court that as they have visited the site they could decide. He has not brought out the fact that the Court itself observed that there were no street lights in the area and the light could emerge only from the ventilators of bath rooms. Further, he has also not brought to the notice of the
Court that there would be appreciable difference in light conditions between the time the Court visited (day light in summer) to the time of the incident (night in winter).
99. On the issue of medicines, while it is not debated that they were all PVMS markings showing that they T.A.No. 17 of 2011. : 84 : were medicines to be supplied only to the military hospitals, linking them to the applicant was based on it being available at Pharmacy No.1 during the time applicant held charge. The
Judge-Advocate has brought out that as per PW 13 some of the medicines had batch numbers which had been issued to
Pharmacy No.1. He did not bring out that during the proceedings, PW- 13 has also brought out that medicines with similar batch numbers could also have been issued to other wards/departments. Similarly on the defence argument that emerged from the evidence of PW 11 and PW
4 regarding difference in quantity of various medicines, the
Judge- Advocate has gone to state that the explanation given by the witnesses in the difference in the quantity is their opinion (ie the witness) and it is not relevant. He further amplified that it is for the Court to decide whether it is mistake or intentional tampering. On the aspect of deceit or defraud, the Judge-Advocate has kept his focus on the aspect that the applicant arrived at the scene when Ex Hav T.A.No. 17 of 2011. : 85 :
AE Varghese was apprehended and had requested for his release and has quoted as corroborating evidence statements of the other prosecution witnesses. His thrust has been to show that it is for the Court to consider whether as to “where was the requirement of the accused to come to the site and request for the release of Ex Hav AE
Varghese”. He has further dismissed the contention of defence in a passing sentence “the defence as appears has contended that there are no circumstances to show that the accused acted with intention to defraud.” It has come on record that the applicant has admitted that he knew Ex Hav
AE Varghese and he has come to his residence that evening and had a cup of tea with him. It is for consideration that it could also be natural for the accused to have asked for his release as he knew him.
100. As regards the second charge, Judge Advocate again focused on the discrepancies observed by the Board of Officers and about card board boxes and medicines lying T.A.No. 17 of 2011. : 86 : hidden and also the fact that the accused had stated that when he took over charge of Pharmacy No.1, there was no surplus or deficiency in medicines.
101. Said statement of the applicant was not under oath nor has it been proved that the medicines that were found hidden in the drawers and in boxes were kept by the applicant. The aspect whether these could have existed even prior to the applicant taking over has not been examined. It was also not brought to the notice of the Court that the surplus medicines itself were found in two batches by the Board of Officers. Further, he has also failed to bring out that it has emerged during the GCM proceedings that even when Sub Ram Chander handing over to Sub Yadav after two Board of Officers had checked stocks, discrepancies were found.
102. Judge-Advocate also advised the Court that when a large number of witnesses are examined there may be disagreement on issues and hence advised them that it is T.A.No. 17 of 2011. : 87 : broad facts of the case and not small details that need to be looked at, as minute attention may make them focus on immaterial discrepancies and could lead to failure of justice. However in an earlier portion of his analysis he brought out to the attention of the Court “you have already seen that the place as shown by various witnesses where the said scooter was standing on 29 Nov 1986 is identical.” It is apparent that the Judge-Advocate at one place has pointed out to the Court that the case gets consolidated by similar statements being made by witnesses, but at another point he has told them to ignore difference in statements.
103. In view of the above, we observe that the Judge-
Advocate had not been truly impartial as envisaged in the
Army Act and Rules. This could also have had an impact on the findings of the Court to the detriment of the applicant.
104. On post confirmation findings, the Apex Court in
S.N.Mukherjee v. Union of India, (1990) 4 SCC 594 T.A.No. 17 of 2011. : 88 :
(supra) has brought out that :
“47. With regard to post-confirmation proceedings we find that subsection (2) of Section 164 of the Act provides that any person subject to the Act who considers himself aggrieved by a finding or sentence of any court-martial which has been confirmed, may present a petition to the Central Government, the Chief of the Army Staff or any prescribed officer superior in command to the one who confirmed such finding or sentence and the Central Government, the Chief of the Army Staff or other officer, as the case may be, may pass such orders thereon as it or he thinks fit. In so far as the findings and sentence of a court-martial and the proceedings for confirmation of such findings and sentence are concerned, it has been found that the scheme of the Act and the Rules is such that reasons are not required to be recorded for the same...... Since reasons are not required to be recorded at the first two stages referred to above, the said requirement cannot, in our opinion, be insisted upon at the stage of consideration of post-confirmation petition under Section 164(2) of the Act.”
105. While the Apex Court has held that there is no need to record reasons, where there are no differences from the findings of the Court Martial, the absence of any orders signed by the Chief of the Army Staff himself (Annexure 23) T.A.No. 17 of 2011. : 89 : leaves reason for doubt as to whether enough attention was given at the level of the Chief of the Army Staff in considering this case.
106. It is also observed from the statement of
Character and particulars of service of the accused
(applicant) that the applicant has an exemplary and unblemished record of service of 22 years and 145 days prior to this incident.
107. For reasons as brought out herein above, we find that the convening of the GCM was flawed and that the charges against the applicant (accused) were not proved beyond all reasonable doubts. Therefore the Original
Application is allowed and the order of the GCM is quashed.
The applicant is acquitted of all the charges, consequently he be reinstated in service notionally and be given all the pay and other allowances as though he would have been in service till the age of superannuation in normal course and be also given the pension and other retiral benefits in T.A.No. 17 of 2011. : 90 :
accordance with law, within a period of four months from the
date of receipt of a copy of this order, failing which the
unpaid amount will carry a simple interest at the rate of 8%
per annum to be paid by the respondents.
108. There will be no order as to costs.
109. Issue free copy to the parties.
Sd/- Sd/-
VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE SHRIKANT TRIPATHI, MEMBER (A) MEMBER (J) an. (true copy)
Prl.Pvt.Secretary