ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL ......purchases from the CSD Canteen which indicated that...
Transcript of ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL ......purchases from the CSD Canteen which indicated that...
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OA (Appeal) 1523 of 2014 [Ram Gopal v. UOI & Ors] - 1 -
ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL
BENCH AT CHANDIMANDIR -.-
OA (Appeal) 1523 of 2014
Ram Gopal …… Petitioner(s)
Vs
Union of India and others …… Respondent(s)
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For the Petitioner (s) : Mr DS Kauntae, Advocate
For the Respondent(s) : Mr Rajesh Sehgal, CGC
Coram: Justice Prakash Krishna, Judicial Member.
Lt Gen (Retd) Sanjiv Chachra, Administrative Member
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ORDER
16.02.2016
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This petition is in the nature of appeal filed under Section 15 of
the Armed Forces Tribunal Act, 2007 questioning the legality, validity
and propriety of the Summary Court Martial conducted against the
petitioner and its verdict.
2. The petitioner joined the Army as an Infantry soldier in the JAT
Regiment on 2nd
April, 2005. He at relevant point of time was under the
command of respondent No.4, Commanding Officer 14th Battalion,
JAT Regiment. The petitioner was placed in Low Medical Category,
when the Unit was at the Base Camp, Siachen Glacier, he was directed
to appear before the Review Medical Board through 403, Field Hospital
on 12th October, 2010 but he failed to do so and his whereabouts were
unknown. An apprehension roll was issued vide letter dated 24th
November, 2010 and he was ultimately declared as „deserter‟. It
appears that the petitioner thereafter (after more than two years) in the
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year 2013 approached the Unit and was tried by the SCM for the
following charges:
“First Charge Army Act Section 39(a)- Absenting himself without leave In that he, At field, on 12
th October, 2010, when referred
To 403 Field Hospital for Review of Medical Category absented himself without leave till He voluntarily reported at JAT Regimental Centre, Bareilly on 19
th October,2011.
Second Charge Army Act Section 39(a)- Absented himself without leave In that he, At Bareilly on 19 July, 2011, when dispatched to 14 JAT vide JAT Regimental Centre movement Order No. 0364/A-2 dated 19 July, 2011, absented himself without leave till he voluntarily reported at JAT Regimental Centre, Bareilly on 19
th October, 2011.
Third Charge Army Act Section39 (a)- Absenting himself without leave In that he, At Bareilly on 20 October, 2011, when dispatched to 14 JAT vide JAT Regimental Centre Movement order No. 0364/A-2 dated 20
th
October, 2011 absented himself without Leave till he voluntarily reported at JAT Regimental Centre, Bareilly on 12 February, 2012. Fourth charge Amry Act Section 39(a)- Absenting himself without leave In that he, At Bareilly on 19
th July, 2012, when dispatched
to 14 JAT vide Jat Regimental Centre Movement order No. 0364/A-2 dated 19
th
February, 2012, absented himself without Leave till he voluntarily reported at 14 JAT 01 March, 2013.”
3. The Summary Court Martial after recording the evidence of the
prosecution found that all the charges are proved and the guilt of the
petitioner is established and it awarded the sentence to be dismissed
from service on 23rd
day of May, 2013, impugned in the present
petition (appeal).
4. The case of the prosecution in brief is that the petitioner was
required to appear before the Re-Assessment Medical Board at Field,
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403 Field Hospital vide movement order dated 11th October, 2010 but
he failed to appear without any reasonable excuse and absented
himself. After more than one year, the petitioner instead of reporting
back to the Unit, reported to the JAT Regimental Centre and obtained a
movement order therefrom to report to the Unit, but in that too he failed
to report to the Unit. A Summary of Evidence was recorded and
thereafter a Summary Court Martial was convened / ordered. He was
served with the charge-sheet but he refused to sign on the
acknowledgement receipt of the charge-sheet. In the Summary Court
Martial proceedings, the petitioner remained physically present but
refused to sign any document etc. nor did he produce any evidence in
his defence. Questions were put to him in the Summary Court Martial
but he did not give any reply.
5. The present appeal has been filed on the allegations that an
Apprehension Roll was issued to him on 24th November, 2010; the
petitioner accepted the apprehension roll and immediately reported and
tried to join voluntarily for further duties at his Unit, but no action was
taken by the said authority. He thereafter reported to his Regimental
Centre Bareilly on 19th July, 2011 at 1300 hrs and was directed to
report to his parent unit 14 JAT Regiment vide movement order dated
19.07.2011. The petitioner moved from Bareilly to his parent unit
through transit camp but he was not allowed to join his duties. He was
not sent to the unit location at the Base Camp in Siachen Glacier, for
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which movement of the petitioner was routed through three Transit
Camps. The further allegation is that the petitioner made certain
purchases from the CSD Canteen which indicated that he actually tried
to report to his Unit but the Unit Commander did not allow him to join.
Hence, the finding of guilt with regard to absence of duty is totally
uncalled for, the fault if any, lies with the Commanding Officer and not
with the petitioner. Along with the petition (appeal), the petitioner has
enclosed copies of the movement orders and copies of two CSD
Canteen Bills in support of his case.
6. We may also place on record that further case of the petitioner is
that the entire SCM proceedings are nothing but an eye wash, false,
fabricated and a concocted one. A Civil Writ Petition No. 965 of 2013
was filed in the High Court in the year 2013 and copies of the said
petition were sent to the respondents therein. The Commanding Officer
in order to cover up his inaction, ordered trial of the petitioner by
Summary Court Martial.
7. The respondents have filed a detailed reply refuting the
allegations of the petitioner. They have come out with the case that the
petitioner is a habitual defaulter and in a short span of 5 years service,
he has been punished four times as brought out in para 2 of the written
statement. The petitioner absented himself without leave since 13th
October, 2010 from the unit when it was deployed in Siachin Glacier
and did not report to the Unit since then, even after reporting at JAT
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Regimental Centre and getting movement orders. He has shirked away
from his soldiery obligation to serve in the operational area and thus
brought a bad name to the organization. The petitioner, after
completion of stipulated period of 30 days of absence without leave,
was declared a deserter and a desertion roll was sent to the concerned
authorities and his documents were closed and forwarded to Records
JAT vide letter No. 1140/DC dated 31st December, 2010. Although
copies of movement order(s) issued by the JAT Regimental Centre,
prepared in triplicate, were received by the Unit but the petitioner did
not physically report to the Unit. He sent a telegraph after consulting
Advocate Shri DS Kauntae of Delhi High Court and raised the
allegation of not being taken on strength and non-payment of salary.
The movement orders produced by the petitioner do not contain any
seal or authentication with date of reporting. He was informed about
convening of SCM proceedings vide unit letter No. 1113/1/A/3202021
dated 15th
May, 2013. The further allegation is that after reporting to
the Unit on 1st March, 2013, the petitioner immediately spoke to his
father and lawyer on mobile phone and told “mere lawyer ne kaha hai
kahin sign mat karo, main tume bacha lunga.” To guard against this
and to show that the proceedings were conducted in a fair manner,
photographs of Summary Court Martial trial were recorded. The
allegation that the petitioner was confined and his movement was
restricted has been denied by the respondents and they have produced
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the Arrest Register to show that during the relevant period, the
petitioner was not arrested.
8. The reply/written statement is a detailed document and it is not
necessary to note all other pleas raised therein and they will be
considered at the appropriate stage.
9. Heard the learned counsel for the parties and perused the record.
10. The learned counsel for the petitioner argued the case with great
vehemence on the ground that the entire Summary Court Martial
(SCM) proceedings are a manufactured document and as a matter of
fact, no such SCM ever took place in presence of the petitioner.
Elaborating the argument, it was submitted that petitioner‟s signature
does not find place on any piece of paper before the Court Martial
proceedings. It shows that the SCM as a matter of fact was never
convened. He was not served with the charge-sheet nor any reply was
called for from him. He was neither associated with Court Martial
proceedings and the entire Court Martial proceedings seem to have
been conducted behind the back of the petitioner. He was not informed
about the SCM proceeding at any point of time. Further, the petitioner
had all the time been trying to join the Unit but the Commanding
Officer did not permit him. To buttress this argument, reliance has been
placed upon copy of certain movement orders filed before us for the
first time along with the petition to show that the petitioner, as a matter
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of fact, reported to JAT Regimental Centre and he was directed to
report to the Unit. To show that he thereafter proceeded to join the
duty to the Unit, two CSD Canteen bills showing purchases from the
Canteen have been annexed. This is the entire evidence given by the
petitioner in support of his case with regard to his joining the Unit.
Pointedly, we asked the learned counsel for the petitioner as to whether
there is any other documentary evidence besides these to prove his
actual reporting to the unit, but he answered in the negative. The
learned counsel for the petitioner submitted that the petitioner had filed
Civil Writ Petition No. 965 of 2013 in the Punjab and Haryana High
Court at Chandigarh claiming certain reliefs such as deeming the
petitioner to be in service w.e.f. 20th
July, 2011 etc which infuriated the
Commanding Officer who after the receipt of the notice of the writ
petition, manufactured the so called SCM proceedings.
11. We have given our thoughtful consideration to the aforesaid
submissions of the learned counsel for the petitioner and crux of the
matter is, whether the petitioner, in pursuance of the movement orders,
reported / joined duty to the Unit or not.
12. Reference was made to the movement order dated 19th
July,
2011. Its bare perusal would show that the petitioner reported to the
JAT Regimental Centre Bareilly and was asked by the JAT Regimental
Centre Bareilly to proceed to 14th JAT. Further reliance has been
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placed on movement orders dated 20th October, 2011 and 19
th February,
2012. The case of the petitioner is that in pursuance of the aforesaid
movement orders, he did join his unit, 14th JAT but was not permitted
to do so by the Commanding Officer. To prove his case, reference has
been placed upon a photocopy of Canteen Bill dated 28th September,
2011 filed as Annexure A-4. It has been categorically stated by the
respondents that the petitioner was directed to report to the unit but he
failed to report. Much reliance has been placed on two CSD Canteen
receipts. One of the said receipts is of 3983-HQ 29 Infantry Div, Ext I,
HQ 29 INF Div URC Ext I C/o 56 APO. It was pointed out by the
respondents that the said canteen receipt is of a different canteen which
is situated far away from the Unit of the petitioner. The petitioner was
supposed to move from Bareilly to Pathankot with direct train
connectivity since by then the Battalion had moved and reached
Pathankot on 10th July, 2011. The petitioner‟s contention that he
reported to Jammu, a distance of 120 KM from Pathankot, when was
not required to report to Jammu Transit Camp which is also not
specified in movement order. The respondents have come out with the
case that as per movement order, the petitioner was required to report to
14th JAT and Jammu Tawi was not enroute to Unit location. It is for
the petitioner to explain as to why he did not report to Unit directly at
Pathankot and went to Jammu. There is also no evidence to prove that
he actually reported to Jammu Transit Camp. The items purchased by
the petitioner through the above canteen receipt is from 29th Infantry
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Div CSD which is also situated near Pathankot. In para 4.9 of the
reply, the respondents have taken a specific stand that the said canteen
is adjacent to highway and anybody can buy from there without
physically reporting to Battalion. CSD card can also be used by a third
person as well. The said canteen is located at 8.5 KM away from the
Battalion location. If the petitioner had indeed reported to the Battalion,
he should have used the Battalion CSD Canteen. There are numerous
CSD Canteens in the Cantt adjacent to the Battalion which could also
have been used by the petitioner. These facts have not been rebutted by
the petitioner either by filing a rejoinder affidavit nor the learned
counsel for the petitioner could place any material during the course of
the argument to dispute these facts as pleaded in the said para 4.9 of the
written statement. It leads to the conclusion that as a matter of fact the
petitioner did not report to the Unit and has indulged in manufacturing
the documents for the purposes of the case.
13. A strange plea has been taken by him that since the present
proceeding is in the nature of appeal, as a matter of fact, no written
statement or reply could have been filed by the respondents. The said
plea is like a double edge weapon. It is rejected for the simple reason
that it is the petitioner who has created such a situation. It is admitted
by him that for whatever reason, he did not file any document or could
he produce any evidence before the SCM. For the first time during
these proceedings in appeal, he is questioning the legality of the
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Summary Court Martial on the basis of the documents filed for the first
time during appeal. This being the position, it is but obvious for the
respondents to give a reply, otherwise it would amount to violation of
principles of natural justice. The point which we try to bring home is
that there is, as a matter of fact, no evidence worth convincing, to show
that the petitioner in pursuance of any of the movement orders, reported
for duty to the Unit. Pointedly we asked repeatedly to the learned
counsel for the petitioner to refer any material which may establish the
petitioner‟s case of joining duty at the Unit. Fairly enough, except for
the two canteen bills, he could not refer to any other document. We are
of the opinion that the canteen bills were obtained by the petitioner for
the purposes of the case. Had he reported to his Unit, he should have
purchased the goods from the canteen of the Unit or other CSD
Canteen nearby to the Unit. The learned counsel for the petitioner
submits that the petitioner was all alone and as such there was no
necessity to purchase items mentioned in the canteen bill dated
28.09.2011, which relate to ladies wear or use. It cannot be said that
the said argument has got no force but we leave it as it is.
14. The upshot of the above discussion is that the petitioner has not
been able to establish even prima facie that he reported for duty to his
Unit at any point of time prior to 1st March, 2013. The petitioner failed
to report to 403 Field Hospital from the Base Camp, Siachen Glacier
for review of his medical category in pursuance of the movement order
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dated 12.10.2010 and absented himself thereafter from duty, and
finally reported on 1st March, 2013 after more than two years.
15. The petitioner was found absent without leave and as per
procedure provided under the relevant Army Act/Rules, the matter was
investigated by the concerned authority and apprehension roll of the
petitioner was issued. A copy of the apprehension roll was served upon
the petitioner on 24th November, 2010. He should have reported to the
Unit shortly thereafter but from the documents produced by him, he
reported to JAT Regimental Centre on 19th July, 2011 as per the
movement order filed as Annexure A-3. The reporting to JAT
Regimental Centre at Bareilly was done with a view to create evidence
that the petitioner still wants to serve the Army although he was already
declared „deserter‟.
16. We find substance in the argument of the learned counsel for the
respondents that after receiving apprehension roll, the petitioner started
manufacturing documents to prove his innocence and in pursuance of
the design he obtained firstly movement order on 19th July, 2011 with a
direction to proceed to Unit but never proceeded to join the duty and
secondly the CSD Canteen Bills. It is not difficult to make purchases
from CSD Canteen by a soldier by producing CSD card of his friend
and this appears to have been done in the present case. Another CSD
Canteen bill produced by the petitioner is of 28th September, 2011 of
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Div CSD at Mamun Cantt. The respondents have further pleaded that
the petitioner claims to have stayed at JAT Regimental Centre for three
months from 19th
July, 2011 to 19th
October,2011 vide para 11 of the
Writ Petition at page 56 of the paper book. If that is so, how he was
present at both places i.e. Bareilly and Pathankot during the same
duration. In the facts and circumstances of the case, it is difficult to
believe the version of the petitioner that in pursuance of the movement
orders, he reported to the Unit but the Unit Commander refused to
permit him to join the Unit. The evidence produced by the petitioner is
sketchy and is not worthy of credence and the same is hereby
discarded.
17. At one point of time, the learned counsel for the petitioner
vehemently argued that all these proceedings are barred by time in view
of Section 122 of the Army Act, 1950. The period of limitation as
prescribed is 3 years and when it was pointed out to him to demonstrate
as to how the trial has commenced after a period of three years, the said
point was not pressed and was given up.
18. It was then argued that the entire Court Martial proceedings are
based on forged and fabricated documents and as such the alleged
Charge-Sheet and the subsequent proceedings should be quashed. The
argument proceeds on the footing that the petitioner was never served
with copy of any charge-sheet nor was he associated with the SCM
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proceedings. The impugned SCM proceedings were conducted in total
violation of the principles of natural justice and, therefore, are null and
void. Reference was made to a judgment of the Apex Court given in
the case of Union of India and others v. AK Pandey [2009]10 SCC
552.
19. We have given our thoughtful consideration to the aforesaid
submissions of the learned counsel for the parties. The first and
foremost question of fact which falls for consideration is, whether as a
matter of the fact, the petitioner was served with a copy of the charge-
sheet and was associated with the SCM proceedings? It is admitted by
the respondents that there is no receiving receipt under the signature of
the petitioner of the charge-sheet. They have come out with the case
that the petitioner was totally non-cooperative and he refused to put his
signature in token of having received the charge-sheet but however, the
record shows that the charge-sheet was actually served on the petitioner
and he was physically present during the SCM proceedings throughout.
20. We have examined the original record of the SCM proceedings.
The presence of the petitioner is established from the witnesses who
were examined in the SCM proceedings. Sub Maj (Clerk) Rohitesh
Kumar has been examined by the prosecution. He states in para 1 (c )
of his deposition that “I recognize Sep Ram Gopal who is sitting as
accused in the Court”. He has further deposed that after absence of
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280 days, Sep Ram Gopal reported to JAT Regimental Centre Bareilly
on 19th July, 2011 and was dispatched from JAT Regimental Centre on
19th July, 2011 to report to the Battalion vide movement order dated
19th July, 2011. He did not report to the Battalion. At the end of
deposition, there is an endorsement by the concerned officer, that Sep
Ram Gopal (petitioner) declined to sign in presence of independent
witnesses i.e. Maj Subhash Pradhan and Sub Ramesh Kumar with
requisite certificate that Army Rules 144(2)(3) and (4) have been
complied with. The second prosecution witness is Havildar (Clerk)
Jitender Singh, who has also stated that he recognizes Sep Ram Gopal
who is sitting as accused in the Court. The cross-examination of said
witness was denied by the accused and the requisite certificate under
Army Rules is endorsed. The third prosecution witness is Havildar
(Clerk) Sikander Ekka who was examined on the next date i.e. 23rd
May when the Court re-assembled. The proceeding shows the presence
of the accused as also his friend vide page D-13 of the SCM
proceedings. He has also stated that he recognizes the accused Ram
Gopal who is sitting in the Court. The cross examination of the witness
was declined by the petitioner as per the certificate attached thereto.
Havildar Dalpat Ram has been examined as PW4 . He also recognized
the accused who was sitting in the Court. The cross-examination was
declined by the petitioner. In the absence of any contrary evidence, the
statements of the prosecution witnesses to the effect that the accused
(petitioner) was present in the Court and they recognized the accused,
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cannot be discarded. There is no evidence in rebuttal. The accused
could not produce any evidence either before the SCM or in this appeal
before us, to discard the statements of the prosecution witnesses. It is a
case of no defence evidence.
21. It appears that looking to the defiant attitude of the petitioner, the
Commanding Officer was apprehensive that any such kind of plea
could be taken by the accused in future. To safeguard and as a matter
of precaution, the Commanding Officer very wisely took photographs
of the proceedings and they have been annexed along with the reply by
the respondents to show participation of the petitioner in the SCM
proceedings. These photographs have been filed as Annexure A-19.
They are 13 in number and were taken out at different stages of SCM
proceedings to show the presence of the petitioner. We may place on
record that during the course of the argument when these photographs
were pointed out to the learned counsel for the petitioner, he could not
give any satisfactory reply. It is not the case of the petitioner that he is
not present as shown in the photographs of SCM proceedings or it is by
way of trick photography. A U-turn was taken by him that the
petitioner being an obedient soldier may have been physically present
without understanding the things which were going on around him. The
explanation given by the petitioner is far from satisfactory. It is an
explanation for the sake of the explanation. The pleadings of the
petitioner in this regard before us are completely silent. The petitioner
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could have challenged those photographs had there been any doubt by
filing an affidavit in rebuttal. What to say about an affidavit, there is no
plea that these photographs are manufactured documents. There is no
reason to disbelieve these photographs and thus we reject the case of
the petitioner that he was not present during the SCM proceedings.
22. Annexure A-10 (on page 129 of the paper book) is a copy of
application filed by Shri D.S.Kauntae Advocate of the petitioner to the
Additional Registrar to treat Civil Writ Petition No. 965 of 2012 as
urgent and ground of urgency is “The petitioner is ordered to be tried
by Court Martial on 22.05.2013, ad-interim relief is prayed for.” It is
dated 20.05.2013. Thus, it does not lie in mouth of the petitioner to say
that he had no knowledge of SCM proceedings or charge-sheet was not
served on him.
23. The attending facts and circumstances of the case as also the
conduct of the accused and his documents would show that the entire
case of the petitioner is based on falsehood. Annexure A-11 (on page
146 of the paper-book) is a copy of letter dated 28.06.2013 wherein it is
stated that “accused was assured by the said CO that a complete set of
SCM trial proceedings would be supplied to him within a week”. This
shows that the accused had full knowledge of SCM proceedings.
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24. In totality of the circumstances i.e. the statements of the
prosecution witnesses, referred to here-in-above, coupled with the
photographs and the fact that there was no personal enmity of the
Commanding Officer with the petitioner, there is no manner of doubt
about the presence of the petitioner during the course of the SCM
proceedings.
25. Feebly it was argued that it is a case of total violation of
principles of natural justice and the petitioner was not asked to produce
his defence. The said argument is meritless and has no legs to stand.
Firstly, the petitioner came out with the case that he was not associated
with the SCM proceedings and everything was done behind his back
which as demonstrated above, he failed to prove. On further probing of
the matter, we find that the Commanding Officer not only granted
opportunity to the petitioner to cross-examine the prosecution
witnesses, asked specific questions to enable the petitioner to put his
defence. As many as 13 questions vide Exhibit E2 were put to him and
the reply of each question is „No‟. There is an endorsement by the
Court that the accused declined to call any witness in his defence. He
has declined to sign the SCM proceedings. In the facts situation, what
reasonably one could do? If an accused is adamant not to sign any
document and not to answer question, the authorities concerned are not
supposed to force him to sign a document. One can bring a horse to
water but not force him to drink water. The prosecution has taken every
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possible step to see that justice is done to the petitioner by giving
opportunity to cross-examine the prosecution witnesses, and an
opportunity to produce the evidence in defence and through questions
answers, as permissible under the Army Act and Rules. If a person
refuses to avail the opportunity afforded to him he cannot be heard to
say afterwards that principles of natural justice have been violated. This
disposes of the above argument raised by the learned counsel for the
petitioner.
26. At one point of time the learned counsel for the petitioner argued
that no summary of evidence was recorded before convening the
Summary Court Martial proceedings. This is not correct. The
respondents have placed the Summary of evidence recorded along with
the written statement and we have no reason not to accept it on the ipse
dixit of the petitioner. An attempt was made that the said summary of
evidence is undated but we find that at the end of the document. Major
Bikram Ashok Rastogi officer recording the summary of evidence has
put the date after his signature as 26th March 2013. The proceeding of
recording of Summary of Evidence would also show that the petitioner
was associated with it, as the witnesses have stated his presence in the
SCM proceedings also. For example witness No 1 Hav (clerk) Sikander
Ekka has stated that he recognizes the petitioner Sep Ram Gopal who is
sitting next to him.
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27. It is interesting to note that in the petition the petitioner has
stated that he was put under house arrest when he reported on duty on
1st March,2013 and as such he could not have participated in the SCM
proceedings. To rebut it the respondents have filed the „Arrest Register‟
of the relevant period to show that the name of petitioner does not find
place therein. A general argument was raised that the copy of the said
register is also a manufactured document as it is in the same
handwriting and has not been certified by anybody to be correct. We
find that at no stage of the proceedings, the petitioner could dare to
challenge the authenticity of the said document in his pleadings. Only a
general remark that the document is forged one has been made during
the course of the argument for the first time. Such conduct of the
petitioner is not permissible under the law. There is no explanation as
to why he has not filed any pleading disputing the genuineness of the
said document. Even otherwise the document in question is an official
document prepared by an official of the Government in the ordinary
course of business and a presumption about its genuineness is available
under the Evidence Act. Such a presumption cannot be denied by
making sweeping remarks without pleadings during hearing.
28. Much was said that a copy of charge-sheet was not served on the
petitioner. A perusal of the documents on the record would show that it
was served to the petitioner but he refused to give the receipt under his
signature. Certificate has been attached to this effect and we have no
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reason to discard such a certificate when the petitioner has not set out
anything in his pleading that he was never served with a copy of
charge-sheet. The Learned counsel for the petitioner could not point out
any specific plea in this regard from the pleading. In the absence of
necessary pleadings and presence of the certificate given by the officer
in the discharge of official duty, the plea of the petitioner is liable to be
rejected.
29. The argument that the petitioner was tried in respect of four
charges under a single trial is not permissible under the law is liable to
be rejected. Firstly the learned counsel for the petitioner could not point
out any provision that for each charge, there should be a separate trial.
Secondly, no prejudice has been caused to the petitioner if he has been
tried for four charges simultaneously. Instead of four separate trials,
one trial has reduced the mental agony and pain of the petitioner. Even
otherwise also, it is an acknowledged legal position that on such
technical pleas, trial is not vitiated unless it is shown that some
prejudice has been caused to the accused which is not so here in the
present case.
30. The argument that instead of dismissal from service, the
petitioner should have been provided punishment of imprisonment as it
would have met the ends of justice, has got no force. Section 71 of the
Army Act provides for the punishment awardable by Court Martial
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according to the scale provided thereunder. Dismissal of service as
provided in clause (e) of Section 71 is below imprisonment either
„rigorous‟ or „simple‟ for any period not exceeding 14 days. See [2001]
9 SCC 592 “Union of India and others v. R.K.Sahrma. Thus, the
SCM was considerate to the petitioner by awarding less sentence and
this cannot be a matter of complaint in appeal.
31. Rules 23 and 117 of the Army Rules were not complied with and
as such trial is vitiated, was also argued. The necessary pleadings in
this regard have not been set out in the appeal nor the petitioner could
point out any specific violation of any of them. Mere saying that these
rules have been violated is not sufficient to set aside the verdict of the
Court Martial. At the cost of repetition, it may be stated that it has been
found on perusal of summary of evidence that the petitioner was
present during its recording. Moreover, the verdict of SCM is based on
the evidence recorded before it. It has been laid down by the Apex
Court in the case of Prithipal Singh Bedi v. Union of India and
others AIR 1982 SC 1413 that pre-trial irregularity, if any, will not
vitiate the Court Martial proceedings or its verdict.
32. According to the respondents, the petitioner was legally advised
by his counsel that he should not speak any word or sign any document
“mere lawyer ne kaha hai kahin sign mat karo, main tume bacha
lunga.” That is the reason which impelled him to adopt a total non-
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cooperative attitude. Be that as it may, we are not required to say
anything in this regard.
33. Before saying omega of the case, we cannot lose sight of the fact
that the petitioner has been punished earlier of his misdeeds. The
details have been given in para 2 of the written statement. He has
served only for 5 years 6 months and has been punished for four times.
He was awarded rigorous imprisonment for seven days for overstaying
of leave by the then Commanding Officer Deepak Joshi. On the second
time, he again failed to join back the Unit for a long time and he was
declared a deserter and the „Apprehension Roll‟ was prepared and sent
to concerned authorities. The petitioner after absence of 7 months and
16 days, joined the duty on 16th
March, 2008. He was awarded 28 days
RI on 25th February, 2008. Thirdly, he was dispatched for medical re-
categorization as he was in Low Medical Category to 153 General
Hospital where he was admitted and where he committed theft but was
verbally warned by the Commanding Officer. On a fourth time he
committed theft of combat uniform of Ganesh Bisoyi and was awarded
7 days RI and 14 days pay fine. The habitual conduct of the petitioner
speaks itself. Thereafter, the incident in question has happened.
34. We find that the petitioner is in habit of making wild and
frivolous allegations against his superiors. The allegation that he was
not permitted to join the duty in the Unit made against his superior
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officer has been found to be incorrect by us in this judgment. The
further allegation that he was not made to participate in the SCM
proceeding has been found to be not proved. Looking to the earlier
conduct of the petitioner that some frivolous pleas may be taken by him
in future, the Commanding Officer got photographic evidence of the
SCM proceedings, which completely demolishes the case of the
petitioner. Much was said against the respondents but we are of the
view that this is a case where the work and conduct of the Summary
Court Martial should be appreciated, instead of condemnation. Difficult
situation like the present one gives rise to new solutions. Here the
officer concerned in his wisdom has rightly got the proceedings
photographed to belie the claim. Persons like the petitioner, should be
dealt with firm hands. Court of justice is not meant for such type of
person. Nobody should entertain the belief that he can do anything at
his whims and desire or is permitted under the law to make any sort of
allegation against his superiors without any seriousness.
35. The reliance placed by the learned counsel for the petitioner on
the judgment of the Apex Court in Ranjit Thakur v. Union of India
and others [1987] 4 SCC 611 is misplaced one and has no application
to the facts of the present case. There the Apex Court has found that
the charge leveled against the accused was ridiculous, which is not so
here. It is a case where the individual during his posting at Siachin
Glacier absented from duty. If such a course is permitted then it is
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beyond imagination of anyone how the frontiers of the country would
be protected. In the case of Rajiv Arora v.Union of India and others
[2008] 15 SCC 306 relied upon by the learned counsel for the
petitioner, the Hon‟ble Supreme Court interfered with charge Nos.1,2
and 3 as the witnesses named in support of the charges were not
produced for cross-examination. It was given in a different factual
matrix and has no application here.
36. It will be useful to refer to the following observations of the
Apex Court in Kishore Samrite v. State of Uattar Pradesh and
others [2013] 2 Supreme Court Cases 398, paragraphs 34 to 38 in
particular, reproduced below:
“34.It has been consistently stated by this Court that the entire
journey of a Judge is to discern the truth from the pleadings,
documents and arguments of the parties, as truth is the basis of
the justice-delivery system.
35.With the passage of time, it has been realized that people
used to feel proud to tell the truth in the courts, irrespective of
the consequences but that practice no longer proves true, in all
cases. The court does not sit simply as an umpire in a contest
between two parties and declare at the end of the combat as to
who has won and who has lost but it has a legal duty of its own,
independent of parties, to take active role in the proceedings
and reach at the truth, which is the foundation of administration
of justice. Therefore, the truth should become the ideal to
inspire the Courts to pursue. This can be achieved by statutorily
mandating the courts to become active seekers of truth. To
enable the courts to ward off unjustified interference in their
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working, those who indulge in immoral acts like perjury,
prevarication and motivated falsehood, must be appropriately
dealt with. The parties must state forthwith sufficient factual
details to the extent that it reduces the ability to put forward
false and exaggerated claims and a litigant must approach the
court with clean hands. It is the bounden duty of the court to
ensure that dishonesty and any attempt to surpass the legal
process must be effectively curbed and the court must ensure
that there is no wrongful, unauthorized or unjust gain to anyone
as a result of abuse of process of court. One way to curb this
tendency is to impose realistic or punitive costs.
36. The party not approaching the court with clean hands would
be liable to be non-suited and such party, who has also
succeeded in polluting the stream of justice by making patently
false statements, cannot claim relief, especially under Article
136 of the Constitution. While approaching the court, a litigant
must state correct facts and come with clean hands. Where such
statement of facts is based on some information, the source of
such information must also be disclosed. Totally misconceived
petiton amounts to an abuse of process of Court and such a
litigant is not required to be death with lightly, as a petition
containing misleading and inaccurate statement, if filed, to
achieve an ulterior purpose amounts to an abuse of process of
Court. A litigant is bound to make full and true disclosure of
facts” (refer: Tilokchand Motichand v. HB Munshi, A.
Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya
Nandhavana Paripalanai Sangam, Chandra Shashi v. Anil Kumar
Verma, Abhyudya Sanstha v. Union of India, State of MP v.
Narmada Bachao Andolan, Kalyaneshwari v. Union of India).
37. The person seeking equity must do equity. It is not just the
clean hands, but also clean mind, clean heart and clean objective
that are the equi-fundamentals of judicious litigation. The legal
maxim jure naturae aequum est neminem cum alterius
detriment et injuria fiery locupletiorem, which means that it is a
law of nature that one should not be enriched by the loss or
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injury to another, is the percept for courts. Wide jurisdiction of
the court should not become a source of abuse of process of law
by the disgruntled litigant. Careful exercise is also necessary to
ensure that the litigation is genuine, not motivated by
extraneous considerations and imposes an obligation upon the
litigation to disclose the true facts and approach the court with
clean hands.
38. No litigant can play “hide and seek” with the courts or adopt
“pick and choose”. True facts ought to be disclosed as the court
knows law, but not facts. One, who does not come with candid
facts and clean breast cannot hold a writ of the court with soiled
hands. Suppression or concealment of material facts is
impermissible to a litigant or even as a technique of advocacy. In
such cases, the court is duty bound to discharge rule nisi and
such applicant is required to be dealt with for contempt of court
for abusing the process of Court.”
37. Having regard to what has been stated above, we do not find any
merit in the petition (Appeal). The same is hereby dismissed. Looking
to the fact that the petitioner is a dismissed soldier, we make no order
as to costs.
The SCM record may be returned to the respondents.
(Justice Prakash Krishna)
(Lt Gen (Retd) Sanjiv Chachra)
16.02.2016
raghav
Whether the judgment for reference is to be put on internet? Yes / No.