B.N. Kirpal, J.
1. This judgment will dispose of Criminal Writ Nos. 75 and 122 of 1981 and Civil Writ Nos. 2582/1 and 537 of 1982. In these petitions the challenge is to the validity of the Court-Martial Proceedings which were taken against the petitioners which resulted in orders being passed against them whereby the petitioners were reduced in rank, sentenced to rigorous imprisonment and ordered to be dismissed from service.
2. The petitioner belong to the Intelligence Corps and on 24th February, 1979 were posted to 480 Infantry and Field Security Company which at the time, was being commanded by Major S. R. Yadav and was stationed at Kota.
3. On 24th February, 1979 an incident took place which culminated in the Court-Martial proceedings being taken against the petitioners. Without going into the details of the incident, it appears that all the petitioners were in an army one ton truck and were coming to the Unit area. It is admitted that the petitioners were coming back to the Unit from a Cinema Hall at about 9 p.m. and that Net Ram, petitioner in C.W. No. 537 of 1982 was driving the truck.
4. According to respondents at about the same time Major S. C. Pandit, while riding a motor-cycle, was approaching the gate of the Unit. It was alleged that Major Pandit noticed that the aforesaid Army truck suddenly turned right to wards the gate without giving any prior indication. Major Pandit is alleged to have approached the driver of the truck in order to find out the particulars. It was further alleged by the respondents that Major Pandit who was in civil dress was surrounded by the petitioners who had got down from the truck Major Pandit is reported to have told them that he was an army officer by he did not have his identity card. The petitioners are alleged to have prevented him from leaving the place and they beat him up. At about the same time another person one Mr. M. L. Mitthaliya was passing that way and he heard painful and loud cries. He stopped near the gate and found a man was being beaten up by a group of 5-7 persons near the said gate. The man who was lying on the ground was shouting that he should be saved and that his name was Major S. C. Pandit. There were some civilians who had gathered outside the gate of the Unit and they are stated to have approached and questioned the persons who were beating Major Pandit. On this the beating is said to have stopped. Thereupon Major Pandit tried to start his motor-cycle to get away from the place by the motor-cycle did not start. Major Pandit was once against allegedly dragged inside the gate of the Unit by 4 or 5 army jawans. Thereupon Shri Mitthaliya went in search for help and contracted Major V. G. Kondalkar and Major S. M. Bakshi and narrated the entire incident to them.
5. In the meantime Captain U. B. Singh of 480 Infantry and FS Coy came to the spot and recognised major Pandit. He apologised for the misbehavior of the petitioners. Thereupon Major Pandit was medically checked by the Duty Medical Officer and it was found that he had multiple injuries on his person. Before going to the Medical Hospital for the said check-up Major Pandit had informed the superior military officers namely. Lt. Col. Surat Singh about the incident from the Div. Duty Officer Room.
6. The petitioner have not denied that an incident did take place on 24th February, 1979 in which they and Major Pandit were involved. According to the petitioners. Major Pandit was intoxicated and he was abusing and misbehaving with the petitioners. On their asking him for his identity, Major Pandit was unable to show his identity card. While they were trying to establish Major Pandit's identity it is alleged that he tried to run away on the motor-cycle. One of the petitioners thereupon remarked that the motor-cyclist was probably a Pakistani Spy and he should be detained pending orders from the superior officers. In short the petitioners denied having beaten major Pandit and do not accept the correctness of the version of the incident as given by the respondents.
7. On 25th February, 1979 the petitioners were put under close arrest under orders of their Commanding Officer Major S. R. Yadav on that very day by orders of the G.O.C. 18. Infantry Division, a Staff Court of Inquiry was ordered to investigate into the circumstances under which criminal force was allegedly used in the aforementioned incident. According to the petitioners they were not held guilty in the said inquiry. On 23rd March, 1979 Major S. R. Yadav ordered the release of the petitioners.
8. On 15th March, 1979 a further inquiry was ordered into the aforesaid incident. The Staff Court of Inquiry then came to the conclusion that the petitioners had used criminal force and had beaten up Major S. C. Pandit in a heartless fashion and that disciplinary action should be taken against them. Major Pandit was also blamed by the said Staff Court of Inquiry for using abusive language to Net Ram, the driver of the aforesaid army vehicle for which disciplinary action was also taken against him.
9. On 15th May, 1979 all the petitioners were attached to 2 Bihar. The Commanding Officer of the petitioners on being so attached to 2 Bihar, was Lt. Col. D. P. Singh. According to the respondents action was thereupon taken by the said Lt. Col. D. P. Singh under Rr. 22 and 23 of the Army Rules. In accordance with the provisions of R. 22, it is alleged by the respondents, he informed the petitioners of the charge against them and he heard them and gave them opportunity to cross-examined the witnesses. It is, of course admitted that at that time the charge was not reduced in writing. Thereupon on 27th June, 1979 Lt. Col. D. P. Singh ordered that summary of evidence should re recorded. This was ordered in terms of R. 22(3)(c). Thereafter the summary of evidence was recorded. In appears that in December 1979 the Commanding Officer 2 Bihar ordered additional summary of evidence to be recorded. This was recorded on 28th December, 1979.
10. On the basis of the summary of evidence which was so recorded the G.O.C. 18 Infantry Division reprimanded Major Pandit.
11. On 8th July, 1980 the petitioners were Charge-sheeted. The evidences were prepared in terms of Rr. 28 to 30 of the Army Rules. By order dated 9th July, 1980 passed by the General Commanding Officer 18 Infantry Division the General Court-Martial was convened.
12. The Court-Martial proceedings commenced on 18th July, 1980 and concluded on 1st August, 1980. The General Court-Martial gave the verdict of guilty and passed sentences against the petitioners Naik Gian Chand was sentenced to suffer rigorous imprisonment for three months while Naik Net Ram, Clerk Gurmukh Singh and Sarwan Ram were sentenced to be reduced to the ranks. Thereupon the petitioners filed pre-confirmation petitions before the G.O.C. In-Chief Headquarters, Western Command, Simla under S. 164 of the Army Act.
13. The Officiating G.O.C. 18 Infantry Division, Kota, who had the jurisdiction and power to confirm the findings and sentence of the General Court-Martial, confirmed the findings recorded against the petitioners. He, however, was of the opinion that considering the gravity of the offence, of which the petitioner were found guilty of the question of sentence should be re-considered by the General Court-Martial. Vide his order dated 30th September, 1980 the officiating G.O.C. ordered the re-convening of the General Court-Martial. The Court re-assembled and after giving the petitioner full opportunity of being heard, enhanced the sentence against the petitioner vide their order dated 4th October, 1980. Gian Chand was sentenced to suffer rigorous imprisonment for three years and to dismissed from service; Sarwan Ram was sentenced to be reduced to the ranks, to suffer rigorous imprisonment for three years and to be dismissed from service; Net Ram was similarly ordered to be reduced to ranks to suffer rigorous imprisonment for two years and to be dismissed from service; and Gurmukh Singh was ordered to be reduced to the ranks, to suffer rigorous imprisonment for three years and to be dismissed from service.
14. Thereupon the sentence - awarded against the petitioners was confirmed by the General Commanding Officer 18 Infantry Division on 11th November, 1980. The pre-confirmation petition filed by the petitioners was also dismissed by him on 16th November, 1980.
15. Appeals were then filed under S. 164(2) by the petitioners to the Chief of the Army Staff. The said appeals were rejected and thereupon the present writ petitions have been filed challenging the said orders.
16. Before dealing with the various contentions urged before us we may briefly refer to those provisions of the act and the Rules which are relevant to this case.
17. In the present case, before proceedings for General Court-Martial were held, a Court of Inquiry had been ordered. Chapter VI of the Army Rules deal with the Courts of Inquiry. According to R. 177(1) a Court of Inquiry is an assembly of officers who are directed to collect evidence and if so required to report with regard to any matter which may be referred to them. According to sub-rule (3), such a Court of Inquiry may be assemble by the Officer-in Command of any body of troops. The procedure which is required to he followed by the Court of Inquiry is laid down in Rr. 179 and 180. Sub-rules (1) ... (5) and (6) of R. 179 read as follows :-
'179. Procedure. - (1) The court shall be guided by the written instructions of the authority who assembled the court. The instructions shall be full and specific and shall state the general character of the information required. They shall also state whether a report is required or not.
...... ....... ....... (5) The court may be re-assembled as often as the officer who assembled the court may direct for the purpose of examination additional witnesses or further examining any witness or recording further information.
(6) the whole of the proceedings of a court of enquiry shall be forwarded by the presiding officer to the officer who assemble the court.
Rule 180 provides for the procedure which is to be followed by the court of inquiry when the character of a person subject to the Army Act is involved. The said rule enjoins upon the court of inquiry to give to such a person full opportunity of being present throughout the inquiry and of making any statement and giving any evidence which he may wish to make or give and of cross-examining any witnesses whose evidence in his opinion affects his character or military reputation and producing any witnesses in defense of his character or military reputation. According to R. 182, the proceedings of court of inquiry are not admissible in evidence.
18. From the aforesaid, it appears that the courts of inquiries are primarily fact finding bodies which are required to collect evidence and to make a report thereon. Such courts of inquiries are usually set up whenever an incident occurs of which the true and the correct facts are not immediately discernible. In the present case the aforesaid incident had occurred on 24th February, 1979. The authorities had with them conflicting versions about the incident. It is in this background that the court of inquiry was constituted to give a report under R. 177 of the said Rules.
19. Chapter V of the Rules contain provisions with regard to the investigation of charges and trial by Court-Martial, Section 1 of the said Chapter provides for investigation of charges and remand for trial. The important rules in this Chapter are Rr. 22, 23, 24, 28 and 30 relevant portions of the said Rules are as under :-
'22. Hearing of Charge. - (1) Every charge against a person subject to the Act other than an officer shall be hear in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him and to call any witnesses and make any statement in his defense.
(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, in his discretion he is satisfied that the charge ought not to be proceeded with.
(3) At the conclusion of the hearing of a charge, if the commanding officer is of opinion that the charge ought to be proceeded with he shall without unnecessary delay :
(a) dispose of the case summarily under Section 80 in accordance with the manner and form in Appendix III : or
(b) refer the case to the proper superior military authority : or
(c) adjourn the case for the purposes of having the evidence reduced to writing; or
(d) if the accused is below the rank of warrant officer, order his trial by a summary Court-Martial :
Provided that the Commanding Officer shall not order trial by a summary Court-Martial without a reference to the officer empowered to convene a district Court-Martial or on active service a summary general Court-Martial for the trial of the alleged offender unless wither :-
(a) the offence is one which he can try by a summary Court-Martial without any reference to that officer : or
(b) he considers that there is grave reason for immediate action and such reference cannot be made without detriment to discipline.
23. Procedure for taking down the summary of evidence :-
(1) Where the case is adjourned for the purpose of having the evidence reduced to writing at the adjourned hearing the evidence of the witnesses who were present and gave evidence before the Commending Officer whether against or for the accused and of any other persons whose evidence appears to be relevant shall be taken down in writing in the presence and hearing of the accused before the Commanding Officer or such officer as he direct.
...... ...... ..... 24. Remand of accused :- (1) The evidence and statement (if any) taken down in writing in pursuance of Rule 23 (hereinafter referred to as the 'summary of evidence') shall be considered by the Commanding Officer who thereupon shall either :-
(a) remand the accused for trial by a General Court-Martial : or
(b) refer the case to the proper superior military authority :
(c) if he thinks it desirable re-hear the case and either dismiss the charge of dispose of it summarily.
(2) If the accused is remanded for trial by Court-Martial, the Commanding Officer shall without unnecessary delay either assemble a summary Court-Martial (after referring to the officer empowered to convene a district Court-Martial when such reference is necessary) or apply to the proper military authority to convene a Court-Martial, as the case may require.
..... ..... ..... 28. Charge-sheet and Charge :- (1) A Charge-sheet shall contain the whole issue or issues to be tried by a court-martial at one time.
(2) A charge means an accusation contained in Charge-sheet that a person subject to the Act has been guilty of an offence.
(3) A Charge-sheet may contain one charge or several charges.
30. Contents of charge :- (1) Each charge shall state one offence only and in no case shall an offence be described in the alternative in the same charge.
(2) Each charge shall be divided into two parts -
(a) statement of the offence; and
(b) statement of the particulars of the act, neglect or omission constituting the offence.
...... ....... ...... ...... (4) the particulars shall state such circumstances respecting the alleged offence as will enable the accused to know what act, neglect or omission is intended to be proved against him as constituting the offence.'
Section 2 of the said Chapter sets out the rules containing provisions regarding the convening of the general and the district Court-Martial and the procedure for trial before the said courts as well as provides for the imposition of the sentence upon the findings being given by the courts. The procedure which is required to be followed after the sentence has been awarded by the court is also contained in the said part of Chapter V.
20. At this stage it is not necessary to refer to various provisions of the Act except to notice that provisions regarding the arrest and proceedings before trial are provided for in Sections 101 to 107 or Chapter IX of the Act. Chapter X of the Act provides for the convening of the Court-Martial and the powers of the said courts. Procedure which is required to be followed by the Court-Martial is laid down in Sections 128 to 152 of Chapter XI. S. 153 occurring in Chapter XII, provides that finding and sentence of a Court-Martial is not valid unless it is confirmed. The other sections in the said Chapter contain provisions regarding the authority which can confirm the sentences and the findings and also provides for revision of finding or sentence. The power for the revision of the finding or sentence is contained in S. 160 which reads as follows :-
'160. Revision of finding or sentence - (1) Any finding or sentence of a Court-Martial which requires confirmation may be once revised by order of the confirming authority and on such revision, the court, if so directed by the confirming authority, may take additional evidence.
(2) The court, on revision, shall consist of the same officers as were present when the original decision was passed, unless any of those officers are unavoidably absent.
(3) In case of such unavoidable absence the cause thereof shall be duly certified in the proceedings and the court shall proceed with the revision provided that, if a General Court-Martial, it still consists of five officers or, if a summary general or district Court-Martial of three officers.'
21. Appearing on behalf of petitioner Gurmukh Singh in Civil Writ No. 2582 of 1981. Shri Rameshwar Sharma first contended that the aforesaid R. 22 of the Army Rules had been violated. The only averment in the petition in this behalf is contained in para 6. In the said paragraph it is urged that 'Under R. 22 of the Army Rules the Commanding Officer was bound to hear the charge and to give full opportunity to the petitioner to present his defense. The entire trial against the accused persons was held in violation of the provisions of Army Act and Army Rules'. In the earlier part of the said paragraph it was stated that a summary of evidence was ordered against all the petitioners without observing the mandatory provisions of the said rule. The aforesaid averment of the petitioner is of course denied by the respondents in the reply-affidavit of Captain P. Bhatnagar filed on behalf to the respondents. According to Cap. Bhatnagar's affidavit the provisions of Army R. 22 were fully observed before recording the summary of evidence.
22. In our opinion the averment of the petitioner lacks in material particulars. The submission on behalf of the petitioner is very general and vague. It is not stated as to which particular step required to be taken under R. 22 was not taken. A vague averment contained in para 6 of the writ petition has been generally denied by Capt. Bhatnagar in his affidavit. No rejoinder to the affidavit of Capt. Bhatnagar has been filed on behalf of the petitioner. The petitioner's counsel has not been able to give us any reason as to why the averment contained in Capt. Bhatnagar's affidavit should not be accepted. It was for the petitioner to have give details in order to substantiate his allegation. The petitioner has failed to do so. In these circumstances we are unable to come to the conclusion that there is any merit in the said submission of the learned counsel.
23. Shri Sharma then contended that one Major Gen. K. K. Nanda was the General Commanding Officer. 18 Infantry Division. According to the learned counsel it is only be who was competent to confirm the verdict and findings given by the general court-martial. In actual fact the said findings were confirmed by respondent No. 4. Brig. J. K. Kohli. The contention of the learned counsel is that Brig. Kohli was lower in rank to Major Gen. Nanda (respondent No. 3) and thereforee, he had no authority to confirm the findings and sentence passed by the General Court-Martial.
24. There is no merit in the aforesaid contention S. 154 of the Army Act provides that the findings and sentences of the General Court-Martial may be confirmed by the Central Government or by any officer empowered in this behalf by warrant of the Central Government. In the aforementioned reply-affidavit of the Capt. Bhatnagar it had been stated that 'The General Commanding Officer 18 Infantry Division or any incumbent officiating on his behalf is holding warrant A3 duly signed by the Secretary of Ministry of defense on behalf of the Central Government which is the authority for confirming the finding and the sentence of the General Court-Martial'. The petitioner has not denied this averment. In this view of the matter the only conclusion which would flow is that as at the relevant time respondent No. 4. Brig. J. K. Kohli was admittedly officiating as the General Officer Commanding, 18 Infantry Division it is only he who had the jurisdiction to confirm the finding and sentence of the General Court-Martial.
25. It was lastly contended by Shri Sharma that respondent No. 4 could not himself enhance the sentence nor direct the Court-Martial to enhance it. According to the learned counsel, any direction which is given by the The General Officer Commanding to the Court-Martial in this behalf is a fetter on the discretion and judicial function of the Court-Martial.
26. The aforesaid contention of Shri Sharma is squarely met by the express provisions of Section 160 Sub-section (1) of S. 160 give the power to the confirming authority, which power can be exercised only once to direct the Court-Martial may be directed to review the order on the evidence already on record or it may also be directed to take and additional evidence. On such direction being received by the General Court-martial it is bound to reconsider its order. On re-General Court-martial may either confirm its original finding and sentence or it may vary the same. There being no challenge to the provisions of S. 160, a plain reading of the same shows that the confirming authority was within its rights to direct the General Court-martial to revise its finding and sentence. There was no direction that the sentence must be enhanced. The General Court-martial after it reconsidered the matter was free to return the original finding. In the present case, of course it chose not to do so. We are unable to appreciate the argument that a direction which is given to revise the sentence should be considered as a fetter on the exercise of its powers by the General Court-martial. An order under S. 160 is a sort of an application for review which a made by the confirming authority. The statute, thereupon, casts a duty on The General Court-martial to reconsider its earlier finding or sentence, but the General Court-martial is not obliged to change its earlier view. In our opinion the Court-martial when it is reconsidering the matter in pursuance of a direction having been issued under Section 160 has to apply its mind to the case independently uninfluenced by any observations which may have been made in the direction given by the confirming authority.
27. Shri Nayar, on behalf on Naik Gian Chand in Criminal Writ No. 75 of 1981, contended that the convening authority cannot be appointed as the confirming authority. His submission was that the convening authority controls the General Court-martial and thereforee, he cannot be the confirming authority. In this connection Shri Nayar referred to Section 169 which gives the power to the confirming authority to require the General Court-martial to revise its finding or sentence. According to the learned counsel the Rules and the Act do not envisage that the same officer can be appointed both as the convening authority as well as the controlling authority.
28. According to S. 109 a General Court-martial can be convened by the Central Government or the Chief of Army Staff or by any officer empowered in this behalf by warrant of the Chief of Army Staff. S. 154 provides that the finding and sentences of the General Court-martial may be confirmed by the Central Government or by any officer empowered in this behalf by warrant of the Central Government. Neither the Act nor the rules prohibit the same officer from being appointed both as the convening authority as well as the confirming authority. Under S. 109 the power to convene can be delegated by the Chief of Army Staff whereas under S. 154 the power to confirm can be delegated by a warrant issued on behalf of the Central Government. We do not see any impropriety in the same officer being empowered under S. 109 as well as under S. 154 Just as under the Central Civil Services (Classification Control and Appeal) Rules it is the disciplinary authority who initiates the disciplinary proceedings and subsequently after the inquiry is completed also imposes the penalty similarly in the present case it is the Commanding Officer who has been empowered to convene the General Court-martial as well as to act as the confirming authority. Furthermore, the reading of the two sections, namely. Sections 109 and 154 would show that the said sections expressly postulate the Central Government itself being the convening authority. thereforee, if the Central Government could be both the convening authority as well as the confirming authority, we see no reason why one officer cannot be delegated with both the powers. It is not disputed that in the present case by warrants issued on 16th April, 1977 by the Chief of Army Staff the Officer, not being under the rank of of a Field Officer, commanding 18 Infantry Division has been appointed as the convening Officer. Similarly by another warrant dated 25th April, 1977 issued by the Central Government the same officer has been authorised to be the confirming authority. To our mind these powers have been properly delegated under Sections 109 and 154 of the said Act. Merely because under S. 160 the convening authority has the right to ask the General Court-martial to reconsider the finding and/or sentence which it may have given or passed it cannot be a ground for coming to the conclusion that the confirming authority cannot be one and the same person.
29. Shri Nayar next contended that the petitioners had filed a pre-confirmation petition under S. 164(1) but the same was not considered prior to confirmation of the sentence and the finding. We do not find any merit in this contention. In para 17 of the affidavit-in-reply of Major B. K. Nagpal, it has been categorically stated that the pre-confirmation petition was considered and the authority found no merit therein. No rejoinder has been filed controverting this averment. We see no reason to disbelieve the affidavit filed on behalf of the respondents in this behalf. There is also merits in the contentions that on 30th September, 1980, the Officiating General officer Commanding, 18 Infantry Division could not order the revision of the sentence without waiting for the result of the confirming authority on the aforesaid pre-confirmation petition. The power under S. 160 is to be exercised before the confirmation of the sentence. This can only be exercised by the confirming authority asking for revision of the finding and/or sentence to be gone into by the General Court-Martial before the pre-confirmation petition is considered and decided upon. The occasion for considering the pre-confirmation petition will arise only after the General Court-Martial has forwarded its report on reconsideration of the matter. If the pre-confirmation petition has first to be decided, as has been contended by the petitioner, as has been contended by the petitioner, there would never be any occasion for the confirming authority to exercise its powers under S. 160.
30. It was next contended by Shri Nayar that after the General Court-Martial had been asked to revise its sentence, it erred in coming to a different conclusion on the same set of facts. According to the learned counsel the earlier punishment which had been awarded by the General Court-Martial was much less in severity than the sentence which it imposed subsequently. It is quite true that after reconsideration the General Court-Martial has passed a much harsher sentence. S. 160 empowers the General Court-Martial to reconsider the same set of facts and, if they are so minded, to come to a different conclusion. This is what has happened in the present case. On the same set of facts which existed earlier the General Court-Martial has now felt, after taking into account the various facts and circumstances which were on the record, that the earlier punishment which it had sought to impose was too lenient and, thereforee, it enhanced the sentence. In our view there can be no judicial review of such a decision which has been arrived at. In the absence of any plea of mala fides against the members of the General Court-Martial having been taken or proved, we are of the opinion that it is essentially for the General Court-Martial to consider as to what sentence should be imposed. A writ court, in our opinion, would not be exercising its discretion properly in interfering with a sentence which is passed by a duly constituted General Court-Martial.
31. Mr. Uma Dutt appearing on behalf of Sarwan Ram, sought to contend that there was no evidence against him which would show that he used any criminal force against Major S. C. Pandit. The submission of the learned counsel is that the Judge-Advocate erred, while summing up, in not bringing to the notice of the General Court-Martial that no prosecution witness had deposed against the petitioner having used force against Major Pandit.
32. The perusal of the Court-Martial proceedings, however, shows that the submission of the learned counsel is not correct, P.W. 2 Major S. C. Pandit has stated during the Court-Martial proceedings that the petitioner was also one of the persons who was present at the scene of incident and who had given him a beating. It is not for this Court to consider whether the evidence of P.W. 2 was sufficient or not or whether it should have been believed or not. All that we have to look into is whether there was any evidence on record to connect the petitioner with the offence which is alleged to have been committed. The testimony of P.W. 2 clearly brings out the part played by the petitioner in the said incident. In view of the said testimony, the Judge-Advocate could not have stated that the evidence did not show that the petitioner did not use any force against Major S. C. Pandit. We accordingly do not find any merit in the aforesaid contention of the learned counsel.
33. Appearing on behalf of Net Ram in Civil Writ No. 537 of 1982 the first contention which was raised by Shri Murgal was that on 3rd March, 1979 the Commanding Officer had dismissed the charge against the petitioner. It was submitted that on 25th February, 1979 the petitioner were put under close arrest. On 3rd March, 1979 the petitioners were released from arrest under orders of the Commanding Officer. From this the learned counsel wants us to deduce that the Commanding Officer dismissed the charges against the petitioners. The facts of the case as noted hereinabove, however, clearly show that the averment of the petitioner in this behalf is clearly unfounded. It is no doubt true that the petitioners were put under close arrest on 25th February, 1979. On that day a court of inquiry was held and it appears that the reports was not against the petitioners. Under these circumstances the Commanding Officer obviously thought it proper to release the petitioner. But what is to be borne in mind is that at this stage there was no charge which had been preferred against the petitioners. On 15th March, 1979 the second court of inquiry was ordered. It was only thereafter that action was taken under R. 22 and recording of summary of evidence was ordered. Before the holding of the second court of inquiry and before the ordering of the summary of evidence being recorded, there could be no question of there being any charge against the petitioner which the Commanding Officer could be said to have dismissed. On 3rd March, 1979 no charge had been framed against the petitioner. The perusal of the record also does not disclose any order having been passed by the Commanding Officer on 3rd March, 1979 dismissing any charge against the petitioners.
34. Shri Murgal then contended that Rule 22 postulates the handing over of a Charge-sheet containing a charge to the petitioner at the time when the Commanding Officer has to apply his mind under sub-rule (1) of Rule 22. Referring in this behalf to Rule 28 it was contended that the 'charge' which is referred to in R. 22 had necessarily to be a charge contained in the Charge-sheet, and to Charge-sheet had been handed over to the petitioner at the stage when action was ordered to be taken under R. 22.
35. The word 'charge' occurring in R. 22(1), to our mind, means nothing more than an 'accusation' against a person. Rule 22(1) provides for the holding of what can be called, a preliminary inquiry. Though witnesses are examined. Rule 22(12) does not require the statement of the witnesses being recorded in writing. The hearing at this stage is only to help the Commanding Officer to decide as to what future course of action be should adopt. If after the hearing the Commanding Officer feels that there is no evidence that an accused has committed an offence then, under sub-rule (2), he can dismiss the charge. It is only under sub-rule (3) of R. 22 that the Commanding Officer, if he is of the opinion that the charge ought to be proceeded with takes further action postulated by Clauses (a), (b), (c) of the said sub-rule. One of the orders which can be passed by the Commanding Officer under R. 22(3)(c) is to adjourn the case for the purposes of the evidence being reduced in writing. This obviously means that prior to the passing of the said order the evidence which is heard by the Commanding Officer under R. 22(1) is not recorded in writing. It is only when the Commanding Officer decides that the charge should be proceeded with and orders recording of the evidence that the procedure for taking down the summary of evidence as provided by R. 23, is followed. An accused is remanded for trial by Court-Martial only after the summary of evidence is considered by the Commanding Officer. It is thereupon that a formal Charge-sheet is prepared containing the charge against the petitioner. This is prepared under Rule 23. Sub-rule (1) of R. 28 clearly shows that the Charge-sheet is prepared to so as to contain the issues which are to be tried by a Court-Martial. It is no doubt true that under sub-rule (2) of R. 28 it is stated that a charge means an accusation contained in the Charge-sheet, but it must be borne in mind that the Charge-sheet is prepared only when the accused is required to be tried by a Court-Martial. This state arises after the summary of evidence has been recorded under R. 23. The petitioner, thereforee, cannot take the support of sub-rule (2) of R. 28. and contend that even at the stage of hearing of the charge under R. 22(1) there should be written charge which should be handed over to the accused. At the stage of R. 22(1) the accused is only required to be informed about the charge or the accusation against him and opportunity has to be given to him to cross-examine any witness or to call any witnesses and make statements in his defense. In the present case it has been averred by the respondents that the procedure laid down in R. 22(1) has been followed. We see no reason to disbelieve this averment. We, thereforee, hold that the word 'charge' occurring in R. 22 does not mean charge as contained in the Charge-sheet.
36. Shri Murgal then contended that the Commanding Officer for all proceedings prior to the ordering of the Court-Martial could only be that Commanding Officer who was there at the time of the commission of the offence. According to the learned counsel it was only the Commanding Officer of 480 I. & F.S. Coy., where the petitioner was deployed at the time of the offence who could order the recording of summary of evidence and for the trial by Court-Martial.
37. The word 'Commanding Officer' has been defined in S. 3(v) of the Army Act, as follows :-
''Commanding Officer', when used in any provision of this Act, with reference to any separate portion of the regular Army or to any department thereof, means the officer whose duty it is under the regulations of the regular Army, or in the absence of any such regulations, by the custom of the service, to discharge with respect to that portion of the regular Army or that department as the case may be the functions of a commanding officer in regard to matters of the description referred to in that provision.'
By eliminating the unnecessary portion the said definition would read as follows :
'Commanding Officer' when used in any provision of this Act, with reference to any separate portion of the regular Army ... means the officer whose duly it is ... to discharge with respect to that portion of the regular Army ... the functions of a commanding officer in regard to matters of the description referred to in that provision.' The Commanding Officer is of a portion of a regular Army or of a Department. He will be the commanding officer of all those persons who are attached to that portion of the regular Army or the Department. As long as the petitioner was attached to 480 I. & F.S. Coy., it was the Commanding Officer of that unit who was the petitioner's commanding officer. As long as the petitioner was attached to the said unit, the powers of Commanding Officer under the Rules and the Act could only be exercised by Major Yadav. The petitioners, however, were attached to the 2 Bihar on 15th May, 1979. Summary of evidence was ordered to be recorded on 27th June, 1979 Action under R. 22(1) was taken by the Commanding Officer of the 2 Bihar. At that time the petitioners were not serving in 480 I. & F.S. Coy. It could not be and the Rules do not contemplate that a person has two different Commanding Officer. If the contention of the learned counsel is accepted it would mean that even after the petitioners had been deployed and attached to 2 Bihar they had two commanding officer, namely, the commanding officer 2 Bihar, in terms of Section 3(v) of the Act, and Major S. R. Yadav who was the Commanding Officer of 480 I. & F.S. Coy, at the time when the offence was committed. Such a situation is not only not spelt out from the Rules but is also illogical. This contention of the petitioner has, thereforee, to be rejected.
38. It was then contended by Shri Murgal that the Commanding Officer, namely. Lt. Col. D. P. Singh of 2 Bihar, had no jurisdiction to act under R. 24(1)(a) and remand the petitioners for trial by a Court-Martial. It is not necessary to go into the question as to whether the Commanding Officer had jurisdiction to remand the petitioner to trial by Court-Martial because in the present case, the Commanding Officer did not take action under R. 24(1)(a). According to the respondents after considering the evidence and the statements which had been recorded under R. 23 the Commanding Officer, 2 Bihar acted under R. 24(1)(b) and referred the case to superior military authorities. The perusal of the General Court-Martial record also discloses that Lt. Co. D. P. Singh on 30th June, 1979, applied for the sanction of the General Commanding Officer, 18 Infantry Division for trial by General Court-Martial against the petitioners. Thereupon it was the G.O.C. 18 Infantry Division, Major General K. K. Nanda who passed orders on 9th July, 1979 convening the General Court-Martial after the formal Charge-sheet had been drawn up on 8th July, 1979.
39. It was then contended that Army Rule 35 had been violated inasmuch as it was alleged the prosecution had not given to the petitioner a notice of intention of a joint trial which was proposed to be held. In our view it is not open to the petitioner to raise this contention before us. The Charge-sheet was given to the petitioner sufficiently in advanced before the commencement of the trial. The petitioner must have known there from that a joint trial was going to take place but he never objected to it. Even during the trial the petitioner die not object before the Court and did not contend that R. 35 had been violated.
40. We may also, at this stage refer to the provisions of R. 55. Under sub-rule (1) of R. 55, after the pleas of the accused are recorded the court is obliged to ask the accused whether he wished to apply for adjournment on the ground that any of the rules relating to procedure before trial had not been complied with and that he had been prejudiced thereby, or on the ground that he had not had sufficient opportunity for preparing his defense. After the pleas of the accused had been recorded the following question was put to each one of them by the Court-Martial.
'Do you wish to apply for an adjournment on the ground that any of the rules relating to procedure before trial have not been complied with and that you have been prejudiced thereby or on the ground that you had not had sufficient opportunity for preparing your defense.'.
All the accused answered in the negative. None of them applied for adjournment. None of them made any grievance about any rule not having been complied with or their not having had an opportunity as envisaged by the rules. Even if, thereforee, we were to assume that the various rules are to be interpreted in the manner in which the petitioner' counsel wants us to interpret, we are of the opinion that the petitioner having themselves not applied for adjournment when they had an opportunity for doing so and not having complained about the violation of any rules, they would not be entitled to come to a court of equity by way of a petition under Art. 226 of the Constitution, and ask for relief on that ground. The answer to the aforesaid question clearly shows that according to the accused themselves the rules had been complied with and the procedure before the trial had been followed and that no prejudice had been caused to them. In our view the petitioners after having been awarded the sentence cannot now be permitted to cry 'wolf'. The petitioner were satisfied with the procedure which had been followed till the start of the Court-Martial proceedings. If they had raised any objections then at the point of time remedial measures could have been taken. If any rule had not been complied with the Court-Martial might have directed for the defect to be removed. Having taken their chance before the Court-Martial without raising any contention about the non-compliance of the rules which is now raised before us, it must be presumed that they abandoned their rights if any to have a particular procedure being followed and they cannot now be allowed to agitate the question or raise a contention which ought to have been raised at the very start of the Court-Martial proceedings. In other words by their conduct the petitioners are estoppel from contending before us that any of the rules relating to procedure before the Court-Martial trial had commenced had in any way been violated or not complied with.
41. It was lastly contended by Shri Murgal that there was no evidence to implicate his client with the offence. We are unable to agree with this contention. We have gone through the testimony of P.W. 2 before the Court-Martial. He has clearly implicated the petitioner. According to him Net Ram had taken part in the incident which occurred on the fateful evening. As we have already observed it is not for us to go into the question of whether the evidence is sufficient or not. All that we have to see is whether some evidence implicating the petitioner exists on the record. We are satisfied that such evidence does exist. The Court-Martial has believed that evidence and we cannot sit in judgment over that.
42. No other contention has been raised before us by any of the counsel.
43. For the aforesaid reasons all the writ petitions are dismissed but with no order as to costs.
44. As a result of the dismissal of their writ petitions two of the petitioners, namely Naik Gian Chand and Sarwan Ram who are on bail. should surrender before the appropriate authorities on or before 31st March, 1983.
45. Petitions dismissed.