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R.S. Bhagat Vs. Union of India - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 510 of 1977
Judge
Reported inAIR1982Delhi191; ILR1980Delhi1422; 1981LabIC617; 1981(1)SLJ71(Delhi)
ActsArmy Act, 1950 - Sections 125
AppellantR.S. Bhagat
RespondentUnion of India
Advocates: D. Latifi,; S. Mahajan and; S.N. Sapra, Advs
Excerpt:
army act - section 125 and rules 62(4) & 67(5)--scope--writ of certiorari--when can be granted in matters relating to the army--dismissal order passed contrary to the orders of the defense minister and advice of the law minister at the discretion of the commanding officer--whether valid--court martial proceedings are judicial proceedings and though code of criminal procedure does not apply, evidence act applies and reasons for decision must be recorded--what are the duties of judge--advocate general-whether there was misdirection and miscarriage of justice in the facts and circumstances of the case.; the petitioner, a lt. colonel in the indian army was charged and tried under the army act for the civil offence of theft of a saree belonging to a civilian. a verdict of guilty was.....s.b. wad, j.(1) this petition is filed by the petitioner against his dismissal from the army. at the relevant time the petitioner was a permament commissioned officer of regular indian army holding the rank of lt. colonel. he was tried under section 69 of the army act by a general court martial. the charge against him was that he had committed a civil offence of theft, contrary to section 379 of the indian penal code of a silk saree valued at rs. 350/ which was the property of a civilian shri m.l. kapoor. c.s.o. a.d.p.c. air headquarters, new delhi. the verdict of 'guilt of the charge' was returned by the court martial on 16-8-1974. the findings and the sentence was then submitted for confirmation to the chief of the army staff under section 164 of the act. in august. 1974 the petitioner.....
Judgment:

S.B. Wad, J.

(1) This petition is filed by the petitioner against his dismissal from the Army. At the relevant time the petitioner was a permament Commissioned Officer of regular Indian Army holding the rank of Lt. Colonel. He was tried under section 69 of the Army Act by a General Court Martial. The charge against him was that he had committed a civil offence of theft, contrary to section 379 of the Indian penal Code of a silk saree valued at Rs. 350/ which was the property of a civilian Shri M.L. Kapoor. C.S.O. A.D.P.C. Air Headquarters, New Delhi. The verdict of 'guilt of the charge' was returned by the Court Martial on 16-8-1974. The findings and the sentence was then submitted for confirmation to the Chief of the Army Staff under section 164 of the Act. In August. 1974 the petitioner filed a pre-confirmation appeal under section 164 of the Army Act. By his order dated 8-1-1975 the Chief of the Army Staff confirmed the findings of the Court Martial and passed an order dismissing the petitioner. On 14-2-1975 the petitioner filed a post-confirmation appeal under section 164 of the Act to Government of India. It is nut denied by the Respondents that the defense Minister expressed grave doubts about the verdict of guilt and stated that the benefit of doubt should be given to the petitioner. It is also not denied that at the ministerial level a reference was made to the Ministry of Law. The Minister in the Ministry of Law opined that the prosecution had failed to establish the case and recommended complete acquittal. The petitioner contended that in spite of the decision of the defense Minister and the Law Minister the final order of dismissal was communicated by the defense Ministry vide their communication dated 4th December, 1976. A further representation by the petitioner to the Central Government was rejected on March 17, 1977. In this petition the petitioner has prayed that the entire proceedings of the Court Martial from 19th March, 1974 to 2nd April, 1974 and from 5th August, 1974 to 16th Agust, 1974 should be declared illegal and should be quashed. He has further prayed that the orders of dismissal dated 16-8-1974, 8-1-1975, 4-12-1976 and 17-3-1977 be declared illegal and void. He has been then prayed that the said orders should be quashed and set aside. Some other consequential reliefs are also claimed.

(2) In order to appreciate the petitioner's submissions we may note some relevant facts. In June 1973 the petitioner went to Bangalore. At that time he was doing the defense Management Course at the Institute of defense Management. The training course was in the Air force Command. On 30th July. 1973 the petitioner shifted to Command Air Force Officers Mess. He was to share the room there with Complainant M.L. Kapoor. Mr. Kapoor who had gone to Bangalore from Delhi for delivering some lectures was to leave Bangalore on 1st August, 1973. On the evening of 31st July, 1973 Kapoor returned to to his room with two packets. The prosecution case is that the packets contained two silk saree, one saree costing Rs. 450 and the other Rs. 350. According to prosecution the second saree had a tag show a number 3455 x 22. These sarees were purchased by Kapoor from Shantala Silk And Sarees StorE. It is alleged by the prosecution that when Kapur returned to his room the petitioner was playing bridge with Lt. Colonel Inder Mohan (Public Witness -10), Sqn. Ldr. Desai(PW-IJ) and Wg. Commander Rakra(PW-12). The prosecution case is that on being asked by the petitioner Kapur told him that he had bought sarees from M/s. Shantala Silk And Sarees Store but he declined to show the sarees. It is then said that Kapur went to bath room and returned after five to seven minutes when Kapur alone was in the room. It is alleged that on 1-8-1973 Kapur left for Delhi. After reaching Delhi Kapur found that Saree costing Rs. 350 was missing. Kapur rang up one Ramaswamy (Public Witness -2) who had accompanied him at the time of the purchase of the sarees and told him that saree costing Rs. 358 was missing. Kapur wanted Ramaswamy to find out from shop as to whether the said sarees was not packed by the salesman at the shop. Ramaswamy learnt that one Major Verma had returned the saree claiming to the friend of Kapur and in exchange had taken two sarees. The prosecution case is that on 4-8-1973 Ramaswamy (Public Witness -2) and Narasimhan (Public Witness -3) went to the shop and identified the saree purchased by Mr. Kapur (Ex. 'N') . It is then alleged that a sales-boy from the shop, Thimmana (Public Witness -13) was sent to the Headquarters Training Command Officers' Mess along with Narasimhan. Thimmana could not identify the person on August 4 and 6th, 1973. But on 7th August, 1973 he identified the petitioner as a person who went to the shop, posing himself as Major Verma and exchanged the saree. It is alleged that the Sub-Area Commander at Bangalore arranged for the search and the petitioner voluntarily handed over to Lt. Colonel Thaper (Public Witness -5) two sarees and a blouse piece (Ex-'P'). It is said that the petitioner claimed that the sarees were pur. chased by him. The prosecution claims that thereafter on 9th August 1973 the petitioner approached Maruti (Public Witness -9) the proprietor of the shop and made a confession to him. It is also claimed that the petitioner made similar confession to Kapur twice, first on the telephone and then personally during the Court of Enquiry proceedings. Thus the prosecution case is that in the night of 31st July, 1973 the petitioner committed a theft of a saree belonging to Kapur.

(3) There are no eye-witnesses. The prosecution evidence is circumstantial evidence. Two main circumstances form basis of the prosecution story. The first is, that the petitioner alone had an opportunity of stealing the saree. The second is, that he exchanged the saree for two other sarees on August 1, 1973 with the shop-keeper. On the question of an opportunity for the petitioner to steal, the prosecution has examined the complainant and three service officers (Public Witness -11, Public Witness -12 and Public Witness -13). For identification of the saree prosecution examined mainly Kapoor (Public Witness -1), Ramaswamy (Public Witness -2), Maruti (Public Witness -9), the proprietor of the shop, Thimmana (Public Witness -13), a helper in shop and Suryakumari the sales-girl, who it was alleged had sold sarees to Kapoor and who had permitted the exchange of one saree. For identification of the petitioner prosecution mainly relied upon the evidence of Thimmana (PW-13). For the transaction of exchange prosecution has principally relied upon the evidence of Public Witness -9, Public Witness -13 and Public Witness -I 4. The documentary evidence is mainly that of the counter-foils from bill books. Bill for sarees purchased by Kapur is Ex. 'F' Bill for saree taken in exchange by petitioner is Ex. 'S'. Ex. 'T' is its first version which later on was cancelled. The stolen saree is Ex. 'N'. Its price tag is Ex. 'N1' Prosecution has also relied upon the alleged confession made by the petitioner. The first confession was made to Maruti (Public Witness -9) on August 9, 1973. The second and third confessions were to the complainant on August 9, 1973 and during Court of Inquiry in August, 1973, respectively.

(4) In the Court of Inquiry the evidence was recorded between 18-8-1973 to 21-8-1973. In Summary of Evidence proceedings evidence was recorded between 26-9-1973 and 23-11-1973. Maruti's statement was not recorded. B't his written statement was brought on record after other evidence was recorded. Statement of Thimmana & Suryakumari were recorded two months after Kapoor's statement was recorded. Before Court Martial evidence of Kapoor and other witnesses was recorded in March 1974. Recordings of evidence was adjourned sine die. Suryakumari's evidence (which is a king-pin in the evidence) was recorded four months after, i.e. in August, 1974. The JudgeAdvocate summed up the evidence and the legal position on 16-8-1974 for the benefit of the members of the Court Martial.

(5) The defense of the petitioner was of total denial. His version was that he had learnt from his colleagues that the said shop catered to the need of north Indian taste of sarees. He withdrew money from his bank and purchased two sarees and blouse piece costing Rs. 356. He stated that he was attended to by two male salesmen in the shop and not by a girl. One of them was by name Krishnajirao. As he was ready to pay Rs. 350 only and wanted the salesman to reduce the price, he did not collect the bill/cash memo. He merely put the cash on the counter and walked away. He has denied the transaction of exchange. He has also denied of having made any confessions. He had submitted that the mischief must have taken place in the shop and the three witnesses from shop had given evidence to hide their mischief. According to him the evidence of prosecution witnesses did not support Kapoors' story of the petitioner being alone in the room and an opportunity to steal.

(6) As regards the identification of the accused the petitioner submitted that admittedly no identification parade was held. According to prosecution version Suryakumari had done the exchange transaction. She was not sent for identification. Identification by Thimmana was under suspicious circumstances. The petitioner submitted that the prosecution has failed to identify the saree in question by colour. There are material improvements in the evidence of complainant Kapoor and other witnesses including Suryakumari. Their evidence is contradictory. The petitioner further submitted that prosecution has failed to identify the saree in question by number. The alleged number of the saree was not mentioned by Kapoor in the complaint or at the earlier stages of the recording of evidence. The prosecution has not established that there was a practice of assigning a definite or a distinctive number to each saree. Maruti's written statement in this regard was brought on record behind the back of the petitioner. The primary evidence of bills/cash memo for the purchase of saree by Kapur as well as by the petitioner was withheld by prosecution. Even the secondary evidence was brought on record contrary to law. The petitioner then submitted that in spite of his written requests the bill books were not made available to him for cross-examination of Maruti or Suryakumari, The petitioner also submitted that sarees were sold to him by two male salesmen one of them was Krishnajirao. In spite of his request Krislinajirao was not examined by the prosecution. So also the Cashier, who according to prosecution had seen the alleged exchange, was not examined. The petitioner then complained that all the alleged incriminating circumstances were not put to the pstitioner in his statement. No question was put to the petitioner at the time of the statement regarding the alleged confession made to Maruti and Kapur. The petitioner then submitted that although he had made a request in writing that he should be permitted to be examined as his own witness, he was not allowed to do so. He then submitted that he entire exchange story was unnatural and contrived by the witnesses from the shop.

(7) In the writ petition the petitioner alleged that the order of dismissal was contrary to the decision of the defense Minister and the Law Minister and was, thereforee, illegal. He further submitted that the discretion to try the civil offence of theft by Court Martial in presence in trial by ordinary criminal courts, was improperly excer. cised and was, thereforee, illegal. He also submitted that the recording of one word finding of 'guilt' was contrary to the provisions of Section 62(4) of the Army Rules. In the circumstances of the case a 'special finding' and a reasoned order ought to have been recorded, The petitioner also submitted that there are patent errors of law apparent on the record committed by the Court Martial. He then submitted that the summing up by the Judge-Advocate General was defective and improper inasmuch as he has misdirected himself on important questions of law and fact. This petitioner then submitted that the (whole) trial before the Court Martial was not a fair trial. There was flagrant violation of principles of natural justice and that the findings of fact were perverse. The petitioner submitted that this has resulted into total miscarriage of justice. Let me examine the submissions of the petitioner.

(8) (I). The first submission of the petitioner is that the dismissal order is on the face of it illegal and it is contrary to decision of defense Minister and the opinion of Law Minister. The petitioner was found guilty on a charge of theft by Court Martial and was sentenced to be dismissed from Army. The order was confirmed by the Chief of the Army Staff. Aggrieved by his dismissal, the petitioner represented to the Central Government under Section 164 of the Act. The then defense Minister recorded his finding as follows -'there seems to be a grave doubt. If it is so, the benefit of doubt should be given to the officer.' The matter was referred to the Ministry of Law at the Minister's level. The Minister in the Ministry of Law after recording the reasons recommended clean acquittal. He stated, 'The prosecution has failed to establish any case. In this case there is no question of benefit of doubt. The case warrants a complete acquittal.' These facts are not denied by the respondents in their counter-affidavit. This was noted by the Bench which admitted the writ petition. However, the counsel for the Respondent requested the Court to permit them to file a special affidavit in this regard and also to produce the files concerning the opinion recorded by the defense Minister and the advice tendered by the Minister in the Ministry of Law and Justice. This indulgence was shown by the admitting Bench and the Respondents were permitted to file additional affidavit and to produce the said file. This order was passed by the admitting Bench in 1977. However, no such affidavit was filed till the hearing was commenced before me nor during the course of the hearing which went on for six days. (ii) On the first day of hearing itself, the counsel for the petitioner drew my attention regarding the production of the relevant file by the respondents. Thereafter, at various stages of the hearing, the reference to the file arose. Two officers of the Ministry of defense were present in the Court throughout the hearing. Through the counsel for the respondents, they made repeated promises to produce the file and an opportunity was given to do so. However, till the conclusion of the hearing, no files were produced. The counsel for the petitioner submitted that as the respondents had failed to comply with their undertaking to the Court, I should not hear any arguments on behalf of the respondents. This was at a stage when most of the arguments of the counsel for the respondents were over. I did not find it necessary, in the interest of justice, to stop the arguments of the counsel for the respondents, thereforee, passed an order on 25-4-1980 giving my ruling on the oral prayer of the counsel for the petitioner. I made it clear that the indulgence shown by the admitting Bench was more in the nature of helping the respondents to counter the facts stated in the petition, which they had failed to do in their regular counter-affidavit. I then clarified, that as the position stood, these important allegations and averments offacts stood non-traversed and that the law would take its own course in the circumstances. (iii) Under section 164(2) of the Army Act, 1950, the Central Government have a power to revise the order of the Court Martial and to pass such an order as they think fit. The Central Government can annul the proceedings of the Court Martial under section 165 of the Army Act if they are satisfied that the order of the Court Martial and the proceedings were illegal or unjust. The defense Minister acts for and on behalf of the Central Government under the Rules of Business. He exercises the revisional power under section 164(2) and 165 of the Act on behalf of the Central Government. In the present case, the defense Minister had found that the evidence was such that benefit of doubt should begiven to the petitioner. The law Ministry's advice was that the petitioner was entitled to clean acquittal as no offence was proved against him. The counsel for the petitioner has brought to my notice the instructions of the Ministry of law contained in memo. No. F.18(l)/68 O&M; dated March 28, 1969, wherein it is stated that advice of the Ministry of Law in legal matters was binding on the Administrative Departments. (iv) The counsel for the Respondents states that the said instructions of the Ministry of Law have no binding force. The Ministry of Law exercises its powers and function as entrusted by the Rules of Business which has statutory force. The peculiar facts of this case are that the offence involved in the Court Martial proceeding was a simple civil offence of theft. It was in no way concerned with the military matters or security of State. The questions involved in the proceedings were intricate questions of law such as the legality of the exercise of the discretion to try the offence by Court Martial (as against the ordinary criminal court). Application of the provisions of the Evidence Act, defective summing up by the Judge-Advocate, connecting various chains in the circumstantial evidence and to intelligently decide whether the circumstances pointed out to the (only) conclusion of guilt and no other conclusion, violation of principle of natural justice and finally the prejudice caused to the petitioner, due to the said illegalities and irregularities. In these circumstances, I hold that the advice of the Ministry of Law was binding and should have been followed. No material has been produced by the respondents as to whether the defense Minister reviewed his original findings subsequently and on what material. I fail to understand as to how the opinion of the defense Minister, who is the highest authority has been disregarded and the petitioner had been dismissed. Under section 144 of the Army Act 1950 the Court Martial can consider the 'general character' of the accused and 'other matters as may be prescribed.' Of course the accused must be given an opportunity if adverse material is to be used against him. If such considerations had weighed with the Court Martial, the Chief of the Army Staff and the defense Minister, they should have been borught to the Notice of the Court. The position as it stands is that the final order of dismissal has been passed contrary to the decision of the defense Minister and the advice of the Ministry of Law. On this ground along, the dismissal order will have to be quashed.

(9) (I) Although the Court Martial is not a part of judicial system and is not a court in strict sense, it is a Court of its own kind, sui generis. It is a combination of jury trial and a trial by a judge. The proceedings before the Court Martial are judicial proceedings of the species of criminal proceedings. The Criminal Procedure Code . does not apply. But the Evidence Act applies like civil courts. The duty to act judicially is writ large in the provisions 'of the Army Act and Army Rules. The Court Martial proceedings are amenable to writ jurisdiction of the Supreme Court and the High Court. In particular, writ of certiorari can be issued by the Supreme Court under Art. 32 and by High Courts under Art. 226 of the Constitution. The need for the writ jurisdiction of the Supreme Court and High Courts was explained by Dr. B.R. Ambedkar, in the Constituent Assembly in the following words:

'Ishould, however, like to say this that clause (2) does not altogether take away the powers of the Supreme Court or the High Courts. The law does not leave a member of the Armed Forces entirely to the mercy of the tribunal cons tituted under the particular law. For notwithstanding clause (2) of Article 112, it would still be open to the Supreme Court or to be High Courts to exercise jurisdiction, if the Court-Martial has exceeded the jurisdiction given to it or the power conferred upon it by the law relating to the Armed Forces. It will be open to the Supreme Court as well as the'High Courts to examine the question whether the exericse of jurisdiction is within the ambit of the law which creates or constitutes this court or tribunal. Secondly, if the court-martial were to give a finding without any evidence, then again, it will be open to the Supreme Court as well as the High Court to entertain an appeal in order to find out whether there is evidence. ...Similarly, if I may say so, it would be open for a member of the Armed Forces to appeal to the court for the purpose of issuing prerogative writs in order to examine whether the proceedings of the Court Martial against him are carried on under any law made by the Parliament or whether they were arbitrary in character. This article is a necessary article. It really does not do anything more but give a statutory recoginition to a rule that is prevalent and which, is recognised by all superior courts.'

(ii) The contention of the petitioner is that the discretion under section 125 of the Army Act to try the petitioner by Court Martial and not by the criminal court, was not exercised judicially and properly. The counsel for the petitioner submits that the question goes to the fact of the matter and effects the jurisdiction of the Court Martial and the proceedings held by it. (iii) The submission of the petitioner is an alternate submission. If the decision under section 125 of the Army Act is judicial in nature, lie argues, the discretion has not been exercised judicially. If, however, the discretion is administrative, the discretion has been exercised improperly and arbitrarily in the present case. Section 125 of the Army Act read as follows :

SEC.251 Choice between criminal court and court martial 'When a criminal court or a Court Martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer commanding the Army, Army Corps, Division or independent Brigade in which the accused person is serving or such other officer as may be prescribed to decide before which Court the proceedings shall be instituted, and if that officer decides that they should be instituted before a Court Martial to direct that the accused person shall be detained in military custody'.

(iv) The constitutional validity of Section 125 was challenged before the Supreme Court in Ram Swamp versus Union of India : 1965CriLJ236 . It was urged in that case that there are no guidelines for the exercise of the discretion by the Commanding Officers and other officers mentioned in the Section, and hence, the section violated Art. 14 of the Constitution. The challenge was negatived by the Supreme Court. The Supreme Court observed:

'THEprocedure to be followed by Court Martial is quite elaborate and generally follows the pattern of the procedure under the Code of Criminal Procedure Code . There are, however, material differences to, all the members of the Court Martial are military officers who are not expected to be trained judges, as the Presiding Officers of Criminal Courts etc. No judgment is recorded. No appeal is provided against the order of the Court Martial. The authorities to whom the convicted person can represent against this conviction by Court Martial are also non-judicial authorities. In the circumstances, a trial by an ordinary criminal court would be more beneficial to the accused than by a Court Martial. The question then is whether the discretion of officers concerned in deciding as to which court should try a particular accused can be said to be an unguided discretion as contended for the appellant. Section 125 itself does not contain anything which can be said to be a guide for the exercise of a discretion. But there is sufficient material in the act which indicates the policy which is to be on a guide for exercising the discretion and it is expected that the discretion is exercised in accordance with it.'

The Supreme Court then referred to the provisions of Sections 34 to 68, Sections 69, 71, 72, 102, 103, 120, 124 and 126 and come to a conclusion that the discretion is not unfettered discretion. The Court finally held that Section 125 of the Act did not violate Art. 14 of the Constitution. (v) Appellant Ram Sarup in the said case, who was a sepoy in the Army, was tried by the Court Martial under section 59 of the Army Act read with Section 302 Indian Penal Code for shooting dead, two Sepoys. Although the offence was under section 302, Indian Penal Code , for it related to two other officers belonging to Army. Section 126 of the Army Act and Criminal Codes And Court Martials (ADJUSTMENT Of JURISDICTION) Rules, 1952 (Framed under Section 549 Criminal Procedure Code . 1898) provide for the conflict of jurisdiction, particularly in the cases like murder, and the decision of the Central Government in the matter, is final. Such a problem arises where the criminal court is already set in motion by normal process of law and a Court Martial claims on authority to try a person. In the present case there is no such conflict. The question is whether the exercise of discretion by the military authorities to try the petitioner in exclusion of the criminal courts, was correct. Complainant Kapoor had not gone to the ordinary criminal court. The point is whether the military authorities should have referain and directed Kapoor to move ordinary criminal court. (vi) Although the constitutional challenge was negatived, the Supreme Court has given some guidelines in the exercise of the discretion under Section 125. They are : (1) the nature of the offence, (2) the person against whom the offence is committed, (3) maintenance of discipline in the Army and the exigencies of service. The list, of course, is not exhaustive. (vii) The counsel for the petitioner relies upon the instructions in the Manual of Indian Military Law 1937 published by the Government of India, Ministry of defense. At page 59 of the Manual (reprint 1976), the principles on which discretion under section 125 should be exercised are stated as follows :

'3.Principles on which jurisdiction should be exercised. But though a wide power of trial by court-martial is given, it is not as a rule expedient to exercise the power universally.

WHEREtroops are stationed at places having no competent criminal (civil) courts, it is necessary to try all offences committed by persons subject to the Indian Army Act by military tribunals.

BUTin British India and at places outside British India where a competent civil court has been established it is, a general rule, desirable to try by a civil court a civil offence committed by a person subject to the Indian Army Act if the offence is one which relates to the property or person of a civilian or is committed in conjunction with a civilian, or if the civil authorities intimate a desire to bring the case before a civil court.

THEgeneral rule is, however, subject to qualifications. The line dividing the military from the civil offence may be narrow. The offence may have been committed within the miliatry linss. The offender may be one of a body of troops about to proceed on ac live service. There may be reasons making the prompt infliction of punishment expedient. In any scuh case it may be desirable to try the offence by court-martial.

THEREmay be also consideration arising out of the importance of maintaining discipline. If offences of a particular kind, or offences generally, are rise in a corps or at a station, it may be necessary, for the sake of discipline, to try every offence, whether civil or miliatry, by courtmartial, so that the punishment may be prompt and in accordance with the requirements of discipline.

THEheinousness of an offence is also an element for consideration. A trifling offence, such as would, if tried by a civil court, the properly punishable by a small fine may well be punished by the military tribunal immediately, especially if the case is one in which stoppages may be ordered to make good damage occasioned by the offence. On the other hand certain civil offences (e.g. complicated fraud) are not suitable for trial by court-martial and had better be relagated to the civil court, as should also any case where intricate questions of law are likely to arise.

(viii) The counsel for the petitioner submits that in the present case, the alleged offence was one of a theft of a saree belonging to a civilian and hence the provisions of the Manual in this regard ought to have been followed. The Manual provides that it is desirable as general rule that civil offence should be tried by a civil court unless the offence falls within exceptions provided in the Manual. Such exceptions are offences committed within the military line and a prompt infliction of punishment is expedient. The second exception is where an offence of a particular kind in life amongst the ranks and thereforee, for the sake cf discipline, such an offence is required to be dealt with promptly. The third exception is where the offence is of a trivial nature which can be promptly punished by a small fine. The learned counsel then. emphasises upon a major guidelines given by the Manual, namely, that certain civil offences (for example complicated frauds) are not suitable for trial by Court Martial and better relegated to the civil court. So is a case where intricate questions cf law are likely to arise. (ix) I find that there is a good deal of substance in this contention of the petitioner. Word used in Section 125 is 'discretion' not 'subjective satisfaction'. It must be exercised on objective facts germane to the issue, and stand the test of judicial scrutiny. The present case involves very complicated questions regarding the question of theft of a saree. There is no direct evidence of theft of the saree. The entire evidence is circumstantial evidence. The rule of circumstantial evidence is that there must be a chain of incriminating pieces of evidence and the unbroken chain must lead ultimately to one and the only conclusion that accused is guilty. The experience of criminal crisis is, that it requires a skilful and judicially trained mind to identify the incriminating circumstances, to accurately ascertain the nexus between such circumstances, and finally judging whether the inevitable and invariable conclusion is one of guilt. Secondly, the present case did involve several complicated questions of law which were beyond the comprehension of members of the Court Martial (for want of the legal training). To name a few : (1) the exact identification of rest or the subject matter of theft, namely the saree (2) the proper identification of the accused according to law and the effect of not holding an identification parade (3) the legal effect of absence of the name of the accused in the first F.I.R. and complaint (4) the legal effect of the non-production and non-availability of the Bill Books at the time of the crossexamination of the prosecution witnesses (5) the legal effect of nonexamination of Krishnajirao and the Cashier who were material witnesses, (6) the legal effect of not asking the questions to the accused (while recording his statement), regarding all the incriminating circumstances and particularly the alleged confessions made by him to Mr. Kapoor, the complainant, and Maruti, Public Witness -9 the proprietor of the shop. Thirdly, the offence of theft of a saree of a civilian has haidly any military significance. That a public servant should be a honourable gentleman is not so peculiar to Army. The requirement is common to all public servants. At times, an offence of theft can also be very grave. Suppose, if it involves military documents or weapons. These cases might involve a censideration of the discipline in the rank in this case. But that is not the case here. There is also no evidence to show that the thefts had become veiy common amongst the army officers and, thereforee a prompt and firm handling under Army Act was necessary. (x) Considering the special facts of this case, I hold that the offence involved in the present case was such that a proper court for trying the offence was civil court and not the court martial. The discretion under section 125 has not been judicially exercised. It suffers from non-application of mind and is arbitrary. It goes to the root of the matter effecting the jurisdiction of the Court Martial. The entire proceedings of the Court Martial are illegal and void. Nothing in this conclusion should be understood as laying down a general law as to when the discretion under section 125 of the Act is legal or illegal. think, it is a part of judicial duty not to attempt to cover a general canvass but to restrict only to the facts before it.

(10) (I) The next contention on behalf of the petitioner is that the orders of the Court Martial and the Chief of the Army Staff, confirming the finding are non-speaking orders and that is contrary to the provisions of Rule 62(4) and (5) of the army Rules, 1954. Rule 52(1) provides that the Court Martial should recoid its finding simply by stating whether the accused is 'guilty' or 'not guilty'. Rule 62(4). however, casts a duty to record a special finding. The sub-rules reads; (4) 'Where the court is of the opinion as regards any charge, that the facts which it finds to be proved in evidence, differ materially from the facts alleged in the statement of particulars in the charge, but are nevertheless sufficient to prove the offence stated in the charge, and that the dlifference is not so material as to have prejudiced the accused in his defense it may, instead of a finding of 'not guilty' record a special finding. (5) 'The special finding may find the accused guilty on a charge subject to the statement of executions or variations specified therein.' The petitioner case is that the charge is very vague. Neither the colour of the saree nor its number is stated. Object of theft must be a specific movable property. Prosecution witnesses made several improvements in this regard. The Judge-Advocate told the Court Martial that the saree was of a particular colour and number. Alleged circumstances of theft are not stated in the charge. If prosecution story is to be believed it is materially different from the charge. The counsel submits that in these circumstances the special finding under Rule 62(4) and 62(5) should have been recorded and a speaking order should have been passed incorporating the special findings. He states that the non-compliance of Rule 62 has resulted in miscarriage of justice. Absence of exact charge and summary findings of guilt left him with no option but to make general representations to the higher authorities. The counsel than submits that the necessity of special finding is also proved by the fact that the Adjutant General, while sending the findings for confirmation to the Army Chief of Staff recorded, a note that it was not safe to punish the petitioner on the evidence of the case. The counsel for the respondent counters this contention by saying that the Court Martial is bound to record only whether the accused is 'guilty' or 'not guilty', and the findings of the Court Martial cannot be challenged for not recording a special finding. (ii) A need for special finding under section 62(4) and 62(5) is a requirement of the statutory Rules. Sub-rule (4) makes a special provision and is an exception to sub-rule 2 and sub-rule 3. Moreover, it is a statutory modification of the general principles of criminal law of presumtion of Innocence and benefit of doubt. thereforee, although the word 'may' is used in sub-rule (4), in the appropriate circumstances it will have to be treated as 'shall'. Sub-rule 2 provides that where the facts proved do not disclose any offence, the person should be acquitted However, if there is a doubt, sub-rule 3 provides that the reference should be made to the confirming authority for an opinion. If a. Court Martial does not want to follow any of these courses, it must record a special finding under sub-rules 4 and 5. Since the provisions of sub-rule 4 are the provisions of criminal law, and are at variance, with presumption of innosence and benefit of doubt, they will have to be construed strictly. No material has been placed on record to show as to whether the Court Martial in this case, addressed itself to these provisions or not, provisions of Rules 4 and 5 are statutory provisions and if the mere word 'guilty' is to be recorded by the Court Martial, and if no other material is produced, it would be difficult to ascertain in which of the sub-rules, 1, 2, 3 or 4 and 5 the case falls, and whether the statutory requirements are certified with or not on the facts and or circumstances of this case, I hold that there is non-compliance of subrules 4 and 5 of Rule 62. This is an error of law apparent on the face of the record. This has also caused serious prejudice to the petitioner's defense before the higher authorities.

(11) (I) That takes me to the petitioners challenge to the Court Martial proceedings on the ground of the violation of principles of natural justice. The main submissions are :(l) that in spite of his express written request, bill books were not made availabe to him for cross-examination of Surya kumari and Maruti, (2) that the bank's statement and the counter foil on the cheque book produced by him were not allowed to be taken on record with the result that an important fact of his withdrawal of money from the bank for the purchase of saress, was not brought on record, (3) that in spite of written application, he was not permitted to examine himself as a witness. (ii) The Court Martial proceedings being judicial proceedings, the duty to act judicially is inherent in such proceedings. Moreover. in a criminal trial, all requirements of justice supporting the innocence of the accused, are matters of common requirement flowing from the principles of criminal jurisprudence. The law of natural justice with Maneka Gandhi's case : [1978]2SCR621 has now been so enlarged that the duty to act fairly is cast even on the purely administrative bodies. (iii) The counsel for the petitioner submits that the procedure followed by the Court Martial for taking on record, three bills namely Ex. M., Ex. S. and Ex. T. was contrary to Evidence Act. They purported to be counterfoils of bills/cash memo given at the time of sale. They were torn out from the Bill Books and the Bill Books were returned to Maruti. The petitioner made express request to the Court Martial to make the bill books available for cross-examination of Suryakumari and Maruti, the two star witnesses on whom the prosecution had relied for proving alleged exchange of sarees. The requirements of Evidence Act are that the whole of the document must be proved and should be available for the accused for cross-examination. The procedure followed by the Court Martial was illegal. Apart from this illegality, I am satisfied that this has caused serious prejudice to the petitioner's defense. The evidence regarding identification of missing sarees by its colour is full of contradictions. Kapoor refused to produce second saree, although so directed by Court Martial. The prosecution, thereforee, mainly relied upon the number assigned to the saree and a label attached to it. The petitioner's contention was that the bills were not genuine documents and were forged by the shopkeeper and Suryakumari. The petitioner, by examining the Bill Books and the cross-examining Suryakumari and Maruti, would have been able to find out the truth about the alleged numbers and whether there was a general practice of assigning numbers. This opprotunity was denied to the petitioner. The petitioner had made an application at the earliest stage, that is 19th September, 1973, to summon the original bill book from the shop during the Summary of Evidence. The petitioner then submits that he had produced the counter foils of his cheque book and the bank statement showing that on 28th July, 1973 he had encased a cheque for Rs. 700.00 and that he was having a bank balance of Rs. 2400.00. The petitioner, with this evidence, would have been able to persuade the Court Martial that his version of the purchase of saree (and not of exchange) was correct. There is good deal of substance in the petitioner's contention. (iv) The petitioner finally contends that his statement which is. similar to statement under Section 342 Criminal Procedure Code . did not give him opportunity to orally explain to the Court Martial his version. This is because only few questions were put to the petitioner by the Judge Advocate and as all the incriminating circumstances were not put to him, his defense was seriously hampered. In the said examination no question was put to him regarding alleged confession. He was also not allowed to examine himself as his witness. I have held separately that this was contrary to law. I am satisfied that affective right of being heard has been denied to the petitioner. This is in violation of principles of natural justice.

(12) (I) I am inclined to agree with the petitioner's submission that there is misdirection by the Judge Advocate leading to the erroneous conclusions of law and fact reached by the Court Martial. The counsel for the Respondents submits that mere misdirection is no ground for issuing writ of certiorari to a Quasi-Judicial Tribunal. I think that the scope of certiorari depends upon the constitution and character of a quasi-judicial body. The nature of misdirection is also relevant. Court Martial is constituted by laymen with no legal background. It is an ad hoc body for a specific case. This body sits as a criminal court. Contrast it with an Income Tax Tribunal or Sales Tax Tribunal. They are specialised Tribunals. They have expertise. They perform judicial function as permanent Tribunals. In this process, they acquire judicial experience. In para 27 of his summing up the Judge Advocate has dealt with the question of circumstantial evidence and read out the brief summary of law from the manual. The said summary of law on the cirecumstantial evidence is not complete and does not correctly bring out true legal principles of circumstantial evidence in a criminal trial. (ii) In Umed Bhai Jadavbhai versus State of Gujarat : 1978CriLJ489 (3), the Supreme Court has collected all the relevant principles and the law is stated in the following words :

'IT is well established that in a case resting on circumstantial evidence all the circumstances brought out by the prosecution, must inevitably and exclusively point to the guilt of the accused and there should be no such circumstances which may reasonably be considered consistent with the innocence of the accused. Even in the circumstantial evidence the Court will have to bear in mind the cumulative effect of all the circumstances in a given case and weigh them as an integrated whole. Any missing link may be fatal to the prosecution case.'

In the light of this law, the Judge Advocate should have expressly brought home to the members of Court Martial the pieces of evidence which were consistent with the innocence of the petitioner and the missing links in the evidence. The summing up gives an impression (and will be more so for the members of the Court Martial who were lay citizens) that guilt of the petitioner was the only possible conclusion. (iii) The Judge-Advocate failed to bring out to the notice of the Court Martial that the alleged extra-judicial confessions were not put to the petitioner while statement was being recorded, and thus he had no opportunity to explain them. In any criminal trial, this is a fatal defect. It is more so in a Court Martial the members of which are ordinary citizens without legal training. Such people are easily carried away by the fact that an accused has confessed his guilt. In these circumstances the failure on the part of the Judge Advocate must be held to have caused serious prejudice to the accused/petitioner. (iv) On August 8, 1974, the petitioner requested the Presiding Officer to examine himself as his witness. He also showed his willingness to be cross-examined. The court over-ruled this submission on the advice of the Judge-Advocate. He advised that Army Rules 58 (2)(a) and 59(b) do not permit any oath to be administered to an accused. He further advised that Section 342 of the Criminal Procedure Code . was not applicable to Court-Martial under Army Act. The advice of the Judge Advocate and decision of the Court are patently erroneous in law. (v) The prohibition of administering an oath in Rule 58(2)(a) is no doubt mandatory. But it is mandatory in the sense that an accused cannot be forced to be a witness against himself. Section 58(2)(a) is merely a paraphrase of Art. 20(3) of the Constitution. Art. 20(3) states 'No person accused of an offence shall be compelled to be a witness against himself.' The bar is on compulsion not on a voluntary offer. Section 342A, Criminal Procedure Code . in this sense, does not create a new right of being a witness for himself but merely recognises one which was already available to all accused. Where an accused voluntarily wants to examine himself, he is included in,' any witnesses' envisaged by Rule 58(1). The decision of the Court Martial is clearly contrary to the provisions of Rule 58(1). (vi) Another serious legal infirmity in the conduct of the Court Martial is not summoning of the original bill books of M/s. Shantala Silk and Sarees although an express request in writing was made by the accused. At the trial, Maruti, the proprietor of the shop brought the books. Three bills (Exs. M.N.&N1;) were torn out and taken on record, and the bill book was returned to Maruti. The accused wanted the books for cross- examination of Maruti and Suryakumari, the sales girl. The bills were prepared by her. The question of identification of sareas with numbers was most a crucial question. This was because Mr. K.apor himself could not definitely state the colour ofthe exchanged saree. There we re good deal of improvements and contradictions in the evidence of prosecution witnesses. There is some confusion about the numbers written on the bills. Examination of the Bill Books, and cross-examination of the shop witnesses would have clarified the question of numbers. Court Martial is a criminal court and by virtue of Section 135 and Rule 137 has full power to compel a person to produce documents. Under the Evidence Act accused has a right to utilise bill book for his defense. The failure of the Court Martial to summon the bill books is contrary to Evidence Act. It has resulted into denial of opportunity to defend and has caused serious prejudice to the accused.

(13) (I) As regards the merits of the case the petitioner submits that the findings of guilt is a perverse finding. The petitioner submits that on important aspects of the evidence there are material contradictions between the witnesses. There are improvements made in the evidence from time to time by the witnesses. The petitioner further submits that the approach of the Judge Advocate General while explaining the contradictions to the members of the Court Martial was wholly contrary to law. The counsel then submits that this misdirection has resulted into the perverse finding against him. (ii) After summarizing the contradictions brought out by the petitioners the Judge Advocate observed :

'HOWEVER,when discrepancies are detected in evidence the Court should always ask themselves the question. Are these discrepancies due to the result of fraud or falsehood or due to difference in faculties of observations, recollection and precise narration.'

In a criminal case the entire burden of proving the guilt beyond doubt, by unimpeachable evidence is on the prosecution. If there are serious contradictions, it is irrelevant as to whether they are made as a result of fraud or any other motive. I agree with the submission of the petitioner that the said advice by the Judge Advocate General is contrary to the well set principles of law, in particularly criminal law. It betrays a layman's approach not a legal approach. Layman's approach to crime is, why should anybody be falsely implicated Why person should give false evidence against another person .' How can the witness remember everything after long lapse of time Particularly, the members of the Court Martial were lay people and they were bound to be influenced by such an improper advice of Judge Advocate. I find that the material and vital points of evidence do not find any mention at the first stage viz. Summary of Evidence. There are substantial improvements in the version of the witnesses at three stages Summary of Evidence, Court of Enquiry and Court Martial. If delay in recording of evidence or the difference in the faculties of observations, recollection and precise narration, are the causes of contradictions in evidence, how can the last version be treated as authentic. The entire approach of the Judge Advocate is contrary to law and amounts to mis-direction. (iii) In certiorari jurisdiction I cannot re-appreciate the evidence. However, I can certainly examine whether the petitioner's contention that the finding of guilt is perverse, is correct or not. From the evidence on record three questions appear to be crucial. : (1) Whether the saree allegedly stolen was correctly identified on the evidence on record, (2) Whether the accused was correctly identified. (3) Whether the alleged transaction of exchange was firmly established by prosecution evidence. (iv) The saree in question is tried to be identified by prosecution witnesses by its colour and by its number. The Judge Advocate while summarizing the evidence had told the Court Martial that the saree in question was of deep mixed green colour with circular zaributtis with a white spot and a zari border. In his statement recorded on 6-8-1973 Kapoor, the complainant, stated that the saree in question was of a chocolate colour approximating to coca cola shade. In his evidence before the Court of Inquiry on 18-8-1973 Mr. Kapoor stated that the saree in question was green and brown. In his statement recorded in the Summary of Evidence on 26-9-1973 Kapoor stated 'I picked up a wrong saree (at the identification of stolen, property). The one I picked up wrongly was brown in colour. On 19-3-1974, Kapoor stated that the saree was of deep mixed green colour having circular zari buttie with a white spot and a zari border. According to Kapoor this saree was purchased by him for Rs. 350. He had purchased another saree at the same time for Rs. 450 of light green colour. The improvement in Kapoor's evidence from chocolate colour to deep mixed green colour, is tried to be explained by the counsel for the respondent on the ground that the saree was seen by Kapoor in the artificial light of high powered bulbs in the shop. The Explanationn cannot stand any scrutiny. The saree was seen by Kapoor on 30th July, 1973. Within seven days his first statement was recorded. Even if it is assumed that in the artificial light he could not know the exact colour, how after eight months he could describe the saree as a green saree which he originally described as a chocolate saree. Another clearing contradiction is regarding zari buttis. Zari butti must immediately catch one's eye. Sarees with zari butti are expensive sarees. How in the first three statements Kapoor omitted to mention it . The prosecution has failed to explain, this. Although Kapoor was directed to produce the other saree he did not do so. He stated 'I have already suffered and did not want to suffer more by exhibiting other saree.' Kapoor had admitted in his evidence that along with the officers comprising the Court of Inquiry he went to the shop in question and identified one brown colour saree as a stolen saree. PW-2 Ramaswamy who accompanied Kapoor at the time of the purchase of the saree stated before the Court Martial that the stolen saree was greenish in colour with zari butti. He, however, admitted in the :ross-examination that he took out a piece of paper from his pocket to refresh his memory as regards the description of the exchanged saree. He also admitted that the saree in question was opened for display at the time of purchase but he was not paying much attention as Shri Kapoor was buying the sarees. Public Witness -14 Suryakumari, the main witness from the shop is a sales-girl. The prosecution case was that she sold two sarees to Kapoor and she also attended the alleged exchange saree by the accused. Her evidence was recorded by Court Martial four months after the other evidence was recorded as the Court Martial was sine die adjourned in between to procure the attendance of this witness. She stated in her evidence that the colours of the sarees purchased by Kapoor were blue and Pachi green. She further stated that except the colour of the sarees she did not remember whether the saree had zari border or buttis. I do not think that these improvements and contradictions could be explained away on the suggestion of the Judge Advocate General that it was due to difference in the observation and recollection. On this evidence no reasonable man will come to a conclusion that the object of the theft, namely, saree was identified at all. (v) The counsel for the respondents, however, submitted that the saree was correctly identified by the number slip attached to it. is interesting to note that at no stage earlier to Court Martial the saree was identified by number. In his complaint Kapoor did not mention the number. After reaching Delhi he rang up Ramaswamy. He only told him that saree costing Rs.350 was stolen. At the time of Summary of Evidence Kapoor identified saree by colour. Prosecution alleged that the number of both sarees were written in the cash memo given to Kapoor. It was then urged that a number tag, showing the same number was attached to the sarees. We are made to believe that die accused returned the saree with the original number tag. Before Court Martial the saree was exhibited (Ex.W) and the court noted the number. it is so why there is no evidence of number, before Court Martial reasonable man on this evidence would not be able to fix the identity by the alleged number. The original bill/cash memo was not produced in the evidence. However, a counter-foil was produced by Maruti, proprietor of the shop. The counter-foil of the sarees allegedly taken in exchange by the accused was also produced. This was secondary evidence. It was stated by Public Witness -14 Suiyakumari that she had signed the said cash memos. However, the bill books were not produced in the evidence. The bill books were not made available to the accused in spite of his written requests for cross-examination of Public Witness -14. I have adverted to this circumstance in other context. It was alleged by the prosecution that the saree which was allegedly exchanged had a tag bearing number 3455 x 22. The defense of the accused is that these bills were forged. The prosecution case is that the practice of the shop was to affix a tag to each saree bearing a distinct number. In absence of the entire bill book produced in the evidence and inspected by the members of the Court Martial how could the Judge Advocate advice that the alleged practice was established The relevant bills were shown to us. I find that there is no uniform system in giving the numbers. In Exhibit 'M' against saree pricing Rs. 350 number 3455 x 22 is written. Against saree costing Rs. 450 number written is 'XL'. The digital number is thus written in one case while in the other case alphabetical number is written. I have stated these facts not for appreciating the evidence myself. It was only to ascertain whether the petitioner was prejudiced by non-production of the original bill books in the matter of the identification of the saree in question by number. I am inclined to agree that the petitioner was seriously prejudiced. The petitioner is entitled to the benefit of section 114 of the Evidence Act and to an adverse inference. I, thereforee, hold that finding in this regard is perverse. (vi) The next question is whether the prosecution had correctly identified the accused. It is an admitted fact that there was no identification parade held. Public Witness -14 Suryakumari had asserted that she was the principal person who dealt with the accused in the matter of exchange of saree. The accused was identified in the headquarter's Training Command Officers' Mess. Suryakumari was not taken to identify him. She admitted in her cross-examination that she would not be able to describe the man or identify him. One Thimmana (Public Witness -13) whc was only doing assistant's work identified the accused. He was sent to. the Officers Mess on 4-8-1973 and 6-8-1973 but he could not identify the accused. Ultimately on 7th August, 1973, it is alleged that he identified the accused. These are material irregularities in the identification of the accused. (vii) The evidence cf exchange is mainly that of Public Witness -14 Suryakumari although prosecution has examined Maruti and Thimanna also Maruti, the proprietor, had stated that he had no personal knowledge of the transaction. The accused had submitted that he was not attended by Suryakumari at all but by a salesman named Krishnaji Rao. He also stated that a cashier who was present had also been withheld by prosecution. Suryakumari in her evidence admitted that a cashier was present and had seen the transaction. It is important to note that the defense of the accused was that the mischief had taken place in the shop and in order to cover the mischief false evidence was being given against him by Suryakumari and the other witnesses from the shop to save themselves. He had said that Suryakumari and other witnesses from the shop should have been arraigned as accused and, thereforee, their evidence was of no value. As for the evidence of PW-9 proprietor of the shop, it is an admitted position that his written statement was. taken of the record in the Summary of Evidence behind the back of the accused. The accused had no opportunity to contest it at the stage of Summary of Evidence. The said statement of Public Witness -9 was exhibited as Exhibit 'T' with the Summary of Evidence. As regards the evidence of Public Witness -14 Suryakumari the objection of the accused was that contrary tc Rule 82 of the Army Rules, the Court Martial adjourned the recording of the evidence sine die and after the other evidence was recorded. The delay is of more than four months. The objection of the accused is that this opportunity was used to fill in the gaps by the prosecution. His further objection is that the members of the Court Martial could not have remembered the evidence which was recorded, over the period of six months. Particularly the crucial evidence of alleged exchange given by Public Witness -9, Public Witness -13 and Public Witness -14 could not have been properly appreciated due to the long gap of more than four months. (viii) Hardly any arguments were advanced before me by the counsel for the respondents. to meet the submissions of the petitioner. The infirmities point out by the petitioner are quite weighty. Rule 82 of the Army Act leads as follows :

'CONTINUITYof trial and adjournment of court : (1) When a court is once assembled and the accused has been arraigned, the court shall continue the trial from day to day, in accordance with rule 81, unless it appears to the court that an adjournment is necessary fcr the ends of justice or that such continuance is impracticable.'

I find that there is no power to adjourn the hearing sine die. The counsel for the respondents could not also explain whether in the interest of justice, the adjournment was necessary. Suryakumari Public Witness -14 had already given her evidence twice in the Summary of Evidence and before the Court of Enquiry. I do not understand why a sine die adjournment was necessary for procuring her attendance. Public Witness -9, the proprietor of the shop had admitted that Krishnaji Rao was in their employment during the relevant time (although Public Witness -14 Suryakumari had denied this fact). Although the Court Martial had all the powers of the criminal court to procure the attendance of the witnesses the prosecution merely accepted the statement of Public Witness -9 that Krishnaji Rao had left the job and his address was not known. Nothing is said as to why the cashier could not be produced, although it was stated by Suryakumari that he had witnessed all the facts regarding exchange. Members of Court Martial are lay people. If the evidence is recorded with long lapse they are bound to forget the various aspects of the evidence. In such circumstances they are bound to rely merely on the formal summing up by the Judge Advocate General. I have already held that the evidence of the bills produced, in the absence of cross-examination (with the help of bill books) cannot be relied upon. Thus the documentary evidence and the oral evidence regarding the alleged transaction of exchange suffers from so many legal infirmities that any inference about it is bound to be perverse. The counsel for the respondent has relied upon the fact that the accused did not produce the cash memo to prove that he had purchased the saree. The Explanationn of the accused was that he deposited the money on counter but did not collect the cash memo. There may be several reasons for not collecting a cash memo. One may be sheer negligence. The other may be that a person is not mindful about the cash memo. The third may be (and it is more common) that a person may not take the cash memo for avoiding to pay sales-tax. In this case Explanationn of the accused was that he had already asked for the reduction of the amount and, thereforee, did not want to collect the cash memo. Non-production of cash memo is a neutral circumstance. It cannot be taken as a circumstance necessarily pointing towards the guilt of the accused. (ix) The counsel for the petitioner then submits that the Judge Advocate General had not properly guided the Court Martial regarding adverse inference to be drawn under Section 114 of the Evidence Act. He submits that the non-production of the bill books as a documentary evidence and non-production of Krishnaji Rao and Cashier, and non-production of second saree by Kapoor, should result into adverse inference being drawn. In other words his submission is that in absence of the production of the bill books it must be presumed that there was no general practice of assigning any numbers to the sarees to ip entiy them and that the sarees in question could not be identified by the alleged number. He also submits that Suryakumari's evidence regarding alleged exchange cannot be relied upon as the persons who could have corroborated it, namely, Krishnaji Rao and the cashier were withheld. So also he contends that adverse inference should be drawn because of Kapoor's refusal to produce other saree, in regard to identity of saree. In paragraphs 34 and 38 the Judge Advocate was summarised the law as regards adverse inference under section 114(g). The Judge Advocate General informed the members of the Court Martial that if they find that the evidence was 'purposely withheld' then only the adverse inference should be drawn. I do not think that the Judge Advocate General has correctly informed the Court Martial of the law of adverse inference. If the prosecution shows that the witnesses are gained over by the other side or are not likely to speak the truth then alone there is no duty on the prosecution to produce such witnesses. This requirement of law is more stringent than that the Judge Advocate pointed out. The order of the Court Martial on the guilt of the accused is non-speaking order. It is not possible to know whether the lay members of the Court Martial considered the requirement of section 114 at all. As stated earlier the Court Martial had all the powers of criminal court to find out a witness and to procure. This was not possible for the accused to do. This legal infirmity has a Serious adverse bearing on the merits of the prosecution case. (x) It is alleged by the prosecution that the accused had confessed his guilt, first to Maruti, Public Witness 9, the proprietor of the shop and secondly to Mr. Kapoor, the complainant himself. It is an admitted fact that neither Public Witness -9 nor the complainant referred to the fact of confession in the summary of evidence or in the Court of Inquiry. The confessions were referred to by them for the first time before the Court Martial. It is also an admitted fact that no question was put to the accused regarding the alleged confessions when his statement was recorded before the Court Martial. Extra judicial confessions are required to be carefully scrutinised in law. The infirmities in these extra judicial confessions are too serious. It assumes more seriousness because the accused was not permitted to examine himself as a witness. A lay man's decision is bound to be swayed if he is told that the accused had made confession of guilt to the complainant and also to the shopkeeper. It is not unlikely that the members of the Court Martial were influenced by the said confessions. No reliance can be placed for drawing any legal inference against the accused on the basis of said confessions. (xi) The petitioner has raised several other grounds of challenge in the writ petition. They bring out some other irregularities in the procedure and approach followed by the Court Martial. I do no think it necessary to go into them as I think that the order of dismissal cannot be sustained on the points discussed by me. (xii) To summarise there are patent and serious errors of law on the face of the record. The findings of fact are perverse. There is clear denial of opportunity of being heard to the petitioner. The Court Martial trial is neither fair nor proper. It has resulted into miscarriage of justice. No wonder that the Adjutant General, the defense Minister and the Law Minister found that guilt was not conclusively established. I, thereforee, quash the entire Court Martial proceedings. The findings of guilt and sentence of dismissal are set aside. Impugned orders dated 16-8-1974, 8-1-1975, 4-12-1976 and 17-3-1977 are quashed and set aside. The petitioner is entitled to reinstatement. He is also entitled to all consequential reliefs, monetary and otherwise. Writ petition is allowed with costs. Rule is made absolute.


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