Sadhan Kumar Gupta, Member (Judicial)
1. This original application has been preferred by the applicant praying for setting aside the order dt. 5.10.2004 passed by the respondent No. 3 in connection with the summary court martial proceedings, awarding sentence of dismissal of the applicant from the service.
2. The case of the applicant is that he was appointed as Radio Operator in the Army and in connection with the said job, he was posted at various places and was discharging his duties to the satisfaction of his superior officers. In the month of March 2000, the applicant joined in the post of Lance Naik (Radio Operator) at Panagarh, West Bengal. While he was posted as such, in the month of September 2004, a proceeding of summary court martial was initiated against him pursuant to the report dt. 30-31/8/2004, as submitted at the Station Workshop, Panagarh by one minor boy, viz. Master N. Praveen son of Shri M.M.Umapathi.
3. Pursuant to the said complaint, statements of the victim and the witnesses were recorded in absence of the applicant and subsequently, the applicant was forced to sign over the same. On the basis of such statements and the complaint made by Master N. Praveen, a direction was issued by the respondent No. 2 for initiating disciplinary proceeding against the applicant. A charge-sheet was issued against the applicant whereby two charges were framed for disgraceful conduct against the applicant under section 46(a) of the Army act. Subsequently the applicant was held guilty on the basis of the alleged plea of guilt by the applicant and during such proceeding, the statement of the applicant was forcibly got recorded. There was, in fact, no evidence of the alleged disgraceful conduct of the applicant as alleged in the charge-sheet. On the basis of such materials, the Presiding Officer of the summary court martial proceeding passed the order dt. 5.10.2004 holding the applicant guilty of the charges and the sentence of dismissal from service was awarded against him.
4. Being aggrieved and dissatisfied with the said punishment, the applicant preferred a writ petition before the Allahabad High Court. However, as there was lack of territorial jurisdiction, so, the Honble High Court preferred not to entertain the writ petition and gave liberty to the applicant to prefer application in proper format before the appropriate forum. Consequent to such direction, the applicant has filed this application before this Tribunal, although after the period of limitation was over. However, on the prayer of the applicant, the delay, as took place in filing this application, was condoned and the original application was admitted.
5. In the application, the applicant has claimed that he was not identified by the victim during the identification parade when it was first held. However, illegally, a second identification parade was held intentionally to implicate the applicant in connection with this case. The entire summary court martial proceeding was conducted without giving adequate opportunity of hearing to the applicant. It has further been alleged by the applicant that evidence that was available with the authority, did not justify initiation of any proceeding against the applicant U/s 46(a) of the Army Act. According to the applicant, the decision of the court martial authority in this respect in holding the applicant guilty is totally unwarranted and is not supported on the basis of evidence so available in the record. He has further claimed that the punishment, as awarded to him, was very harsh and is not in consonance with the available materials that were there in the court martial proceedings. Since the court martial proceeding was held in violation of the provisions of the army Act and also in violation of the principles of natural justice, so, the applicant has prayed that the decision as passed in the court martial proceedings, should be set aside and the respondents should be directed to reinstate the applicant in the service.
6. The application has been contested by the respondents by filing a counter affidavit wherein the allegations made in the application are denied.
7. According to the respondents, a complaint was received on 18th September 2004 to the effect that a minor child named, N. Praveen, was subjected to some indecent act/or disgraceful behaviour on the part of the accused/applicant. On the basis of such complaint, statements of the witnesses were recorded in a court of enquiry. Thereafter, a direction was issued for recording summary of evidence and on the basis of such recording of evidence, charge-sheet was issued in the name of the applicant. Consequently, the applicant was tried by summary court martial on 5.10.2004 U/s 46(a) of the Army Act on two charges. In the said summary court martial proceedings, provisions of Army Rule 115(2) were complied with and the applicant was given full opportunity to defend himself. When the charges were explained to the applicant, he preferred to plead guilty in presence of âfriend of the accused and also confessed his guilt by making a statement, which was duly signed by him. Such plea of guilt was accepted by the presiding officer, who held the applicant guilty for the offence charged with and the punishment of dismissal from service was passed against the applicant. The respondents have clearly denied that the statements of the victim and the witnesses were recorded in absence of the applicant and that the applicant was forced to sign on the statement given by him. The respondents have categorically claimed that since the summary court martial proceeding was conducted properly and legally, there is now no scope for interference into the said finding of the proceeding of summary court martial and they have claimed that the applicant was rightly dismissed from service and as such, the original application, as filed by the applicant, should be dismissed.
8. The applicant has filed a rejoinder to the counter affidavit, as filed by the respondents wherein he has practically reiterated the claim as made in the original application.
9. We have considered the submissions of the ld. Advocates for both the sides and also perused the copy of the summary court martial proceedings, as produced by the applicant along with the OA. The respondents have also filed the original record of the summary court martial proceedings in a sealed cover which we took into consideration at the time of writing of this order.
10. It is the admitted position that the applicant while in service faced a summary court martial proceedings on the basis of allegation, as made by a particular child viz. Master N. Praveen and consequent to that, a court of enquiry was held and recording of summary of evidence was ordered and the applicant was directed to face the said summary court martial proceedings on the basis of two charges, as famed U/s 46(a) of the Army Act. The charges, as were framed against the applicant, were as follows:-
(a) At Panagarh on 30 Aug 2004 at about 1345 hrs attempted to carry out an act of indecent intent wherein he hugged and bit on the cheeks of Master Karan Singh Biswas age 12 years S/o Shri Shibu Biswas of Sadhu Nagar.
(b) At Panagrarh on 31 Aug 2004 at about 0730 hrs attempted to carry out an act of indecent intent against Master M. Praveen age 13 years S/o Shri M. Umapathi Cl. IV employee of Stn. WKSP (EME) Panagarh.
11. From the record of summary court martial proceedings, it appears that those charges were explained to the applicant and his plea was recorded. The record shows that the applicant pleaded guilty to the charges and such plea was accepted by the presiding officer, who has given a certificate to the effect that while recording such plea, the applicant was explained about the consequences of the charges and he, after fully understanding the implication of the charges, pleaded guilty. Such plea was accepted by the presiding officer and the applicant was held guilty of the offences charged with. We find no illegality whatsoever in this respect.
12. The ld. Advocate for the applicant, at the time argument, pointed out that there are defects in mentioning the name of the witness and also to the effect that during the first TI parade, the victim could not identify the applicant. It was further pointed by the ld. Advocate for the applicant that the second TI parade was held and at that time, the applicant was identified, which according to him, was not at all permissible in the eye of law. He further drew our attention to the fact that while the statement of the accused/applicant was recorded, at that time, he was asked as to whether he wanted to cross examine or not. This question, as allegedly put forwarded by the presiding officer to the accused to cross examine himself, in our opinion is of not much significance. We must not forget that an Army officer, having no expertise in holding judicial proceeding, asked such question, probably due to ignorance of the procedure. In our considered opinion, no undue importance should be given in this respect.
13. Be that as it may, undoubtedly, there is mistake in mentioning the name of one of the witnesses and also in holding the TI parade. The mistake in mentioning the name of the witness correctly would have been important if there was a full fledged trial before the summary court martial proceeding. Similarly, the question of holding second TI parade would have been important if there was a regular trial before the said summary court martial proceedings. All these defects, as pointed out by the ld. Advocate for the applicant, took place during the recording of summary of evidence. Mr. Dutta, ld. Advocate for the applicant, argued that on the basis of such summary of evidence, it was not proper on the part of the concerned authority to pass direction for holding summary court martial proceeding, as there was no available material against the applicant. With due respect, we do not agree with this argument. From the summary of evidence, it appears that a clear picture of committing indecent behaviour by the applicant was made out and on the basis of that, the competent authority directed that charges should be framed and the accused/applicant should be tried by a summary court martial proceedings. While such action was taken, at that time, the commanding officer was to look into the prima facie material, which was certainly there while the charges were framed. We find nothing wrong on the part of the commanding officer in passing direction to hold summary court martial proceedings in respect of the allegation, as made against the applicant. During the summary court martial proceedings, the applicant was given sufficient opportunities to defend himself. Instead of challenging the allegation, as made out in the charges, the applicant preferred to plead guilty. We must not forget that the applicant was represented at that time through a âfriend of the accused. We have already pointed out that the presiding officer issued a certificate that all legal formalities were complied with before recording the plea of guilt. We find no reason to disbelieve this certificate, as issued by the presiding officer of the summary court martial proceedings. If the accused did not plead guilty, then certainly, he would have been given the opportunity of cross-examining the witnesses, who deposed in favour of the prosecution during the recording of summary of evidence. However, the accused/applicant himself did not prefer to avail such opportunity and as such, the question of disbelieving the witnesses, who were examined during the recording of summary of evidence, does not arise at all. We find no reason to disbelieve the official version as given by the presiding officer in the record of the summary court martial proceeding.
14. That apart, it appears that the accused/applicant himself gave a statement before the concerned authority wherein he vividly described his guilt in committing such offence. This statement was signed by the accused/applicant himself. Of course, the accused/applicant has claimed that such signature in the alleged statement was illegally taken from him and that he did not make any such statement voluntarily. But in order to prove such allegation, the applicant has failed to adduce any evidence whatsoever and in absence of any such material, we are unable to accept the claim of the applicant that he did not make any such statement. So, the fact remains that the statements, as made by the witnesses during the recording of summary of evidence, have been duly corroborated by the statement of the accused himself. This fact coupled with the fact hat the accused himself pleaded guilty in the summary court martial proceeding, clearly establishes the guilt of the accused in commission of the offence, as stated in the charges. In our considered opinion, the presiding officer of the summary court martial proceeding did not commit any mistake in accepting all those materials and in holding the accused guilty of the offence charged with. We have go no hesitation to hold that the decision as given by the presiding officer of the summary court martial proceeding, was perfectly justified and does not require any intervention by this court.
15. In the application, the applicant has claimed that the sentence of dismissal from service, as imposed upon him, was certainly excessive in nature and as such, should be interfered with. We have already pointed out that the claim of the prosecution that the accused/applicant was guilty of indecent behaviour with some minor children and he was found guilty of those charges and consequently, the dismissal from service was passed. We must not forget that the accused/applicant was a member of the Armed Force where discipline is the first and foremost thing. The nature of the offence, as committed by the accused/applicant, clearly shows that the applicant is not a fit person to be retained in the military service and under such circumstances, we are of the opinion that the sentence of dismissal from service was rightly passed by the presiding officer of the SCM. We do not find any illegality in such finding and as such, we refrain ourselves from interfering into such finding.
16. Therefore, from our discussion made above, we are of the opinion that the presiding officer of the summary court martial proceeding rightly held the accused/applicant guilty for the offence charged with and the punishment as imposed upon him, does not call for any interference from this court. Consequently, since the application/appeal is devoid of merit, same, in our opinion, should be rejected.
17. In the result, the original application stands dismissed on contest but without cost.
18. Let the original record of the summary court martial proceeding be returned back to the ld. Advocate for the respondents on proper receipt.
19. Let plain copy of this order be handed over to the ld. Advocates for both the sides.