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Ex. Havildar Gh. Mohd. Dar Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1983CriLJ1899
AppellantEx. Havildar Gh. Mohd. Dar
RespondentUnion of India (Uoi) and ors.
Cases ReferredLt. Col. Prithi Paul Singh Bedi v. Union of India
Excerpt:
- .....to cross-examine the prosecution witnesses. this constituted a violation of rule 23 of the army rules, hereinafter to be referred to as the rules.2. the g. o. c. 15 corps was not a competent officer in terms of section 109 of the army act, read with. rule 197-a, to either charge-sheet the petitioner, or to order his trial by a g. c. m.3. decision to send the petitioner for trial before the g. c. m. was taken by ignoring the mandate of section 125 of the army act as well as the criminal court and court martial (adjustment of jurisdiction) rules, which vitiated the whole trial.4. in the absence of a complaint by a competent person as provided by section 13(3) of the official secrets act, the g. c. m. did not have any jurisdiction to try the petitioner for an offence under section.....
Judgment:
ORDER

I.K. Kotwal, J.

1. The petitioner has been convicted by a General Court Martial for short G. C. M., Under Section 3(1)(c) of the Indian Official Secrets Act 1923, for short Official Secrets Act read with Section 69 of the Army Act and sentenced to ten years' rigorous imprisonment, besides being dismissed from service. By the issuance of a writ of certiorari, he seeks to quash his order of conviction and sentence, and by the issuance of a writ of habeas corpus, he wants his release from Central Jail, Jammu, where he is presently serving the sentence. Compendium of the facts, leading Up to the filing of the writ petition, is as follows :-

The petitioner a Havildar in the Indian Army, was arrested on 9-11-1976 on suspicion of spying for Pakistan, As stated by him in the writ petition he was interrogated. Suspicion against him having been found well founded, summary of evidence was recorded and a tentative charge-sheet Under Section 3(1)(c) of the Official Secrets Act read with Section 69 of the Army Act was served upon him. He was tried by a G.C.M. which eventually found him guilty and convicted and sentenced him as already indicated, He has assailed the entire proceedings culminating into his conviction and sentence on a number of grounds. These are:

1. The summary of evidence was recorded at his back, without affording him an opportunity to cross-examine the prosecution witnesses. This constituted a violation of Rule 23 of the Army Rules, hereinafter to be referred to as the Rules.

2. The G. O. C. 15 Corps was not a competent Officer in terms of Section 109 of the Army Act, read with. Rule 197-A, to either charge-sheet the petitioner, or to order his trial by a G. C. M.

3. Decision to send the petitioner for trial before the G. C. M. was taken by ignoring the mandate of Section 125 of the Army Act as well as the Criminal Court and Court Martial (Adjustment of Jurisdiction) Rules, which vitiated the whole trial.

4. In the absence of a complaint by a competent person as provided by Section 13(3) of the Official Secrets Act, the G. C. M. did not have any jurisdiction to try the petitioner for an offence Under Section 3(1)(c) of the Official Secrets Act even with the aid of Section 69 of the Army Act, and for three reasons : firstly, that a proper complaint being a necessary ingredient of the offence, he in the absence of such a complaint could not be said to have committed it; Second that offence Under Section 3(1)(c) was not a civil offence within the meaning of Section 69 of the Army Act because it was, in terms of Sub-section (1) of Section 13 of the Official Secrets Act, triable by a First Class Magistrate, specially empowered in that behalf by the appropriate Government, who as such could not be said to be a court of ordinary criminal justice within the meaning of Section 3(viii) of the Army Act; and thirdly, that even otherwise also a complaint by a competent person was necessary to confer jurisdiction on the G. C. M. to try the petition for the said offence.

5. The petitioner was not explained by any office his right to prepare his defence which constituted infraction of Rule 33.(7).

6. The petitioner was not permitted to engage a counsel of his choice, which constituted a clear violation of Article 22 of the Constitution.

7. All the members of the G. C. M. were biased against the petitioner. He had on this ground also objected to its constitution in exercise of his right Under Section 130 of the Army Act, read with Rule 44, but his objection was arbitrarily overruled by the G. C. M.

8. The G. C. M. did not allow the petitioner to either cross-examine the prosecution witnesses, and nor did it allow him to examine any witness in defence. Even his confessional statement, which was procured by inducement, threat and promise, was relied upon by it.

9. That G. C. M. did not pass a reasoned order. Relying upon Rule 62, it merely recorded a finding of guilty against him. Rule 62 violated the guarantee of personal liberty provided to the petitioner by Article 21 of the Constitution.

2. The case of the respondents, however, is that the petitioner was involved in espionage activities. Summary of evidence was recorded in his presence in strict compliance with Rule 23 and he was given adequate opportunity to cross-examine the witnesses. Whereas the charge-sheet was served upon him by respondent No. 7, his Commanding Officer, the G. C. M. was convened by respondent No. 6, the G. O. C. 16 Inf. Division, both of whom where prescribed authorities competent to do so. There was no infraction of either Section 109 of the Army Act, or or that matter, of Rule 197A. The petitioner was guilty of a civil offence and could have been tried by a G. C. M. Under Section 69 of the Army Act, to which Sub-section (3) of Section 13 of the Official Secrets Act had no application. He was given full opportunity to engage and consult a counsel of his choice during the trial. Two such counsel, namely, Shri Mohammad Latif Qurashi and Sh. Harbans Singh had defended him. None of its members bore any ill-will towards the petitioner, and nor did he raise any such objection in terms of Section 130 of the Army Act read with Rule 44 during the trial, Besides his voluntary confessional statement, there was ample legal evidence before the G. C M. to base the petitioner's conviction on it. The petitioner was given full opportunity to cross-examine the prosecution witnesses, whom he also cross-examined, and was also given opportunity to produce his own evidence in defence which, however he did not produce. Reasoned judgment was not required to be written by the G. C. M. and nor was R. G2 violative of Article 21 of the Constitution.

3. I now proceed to take up these grounds for discussion one by one.

Ground No. 1.

4. Not only the respondents' counter-affidavit, but the record of the summary of evidence also reveals that compliance with Rule 23 was made by the officer who had recorded the summary of evidence. Even assuming that Rule 23 was not complied with, still the witnesses examined at the time of recording the summary of evidence, having been again examined during his trial, and the petitioner having cross-examined them at length, the infraction if any paled into insignificance, for, the evidence relied upon by the G. C. M. was not that was contained in the summary of evidence, but was one recorded by it during the trial itself. This ground consequently fails.

Ground No. 2.

5. A G. C. M. under Section 109 of the Army Act can be convened by the Central Government or by the Chief of the Army Staff or by any officer empowered in this behalf by a warrant of the Chief of the Army Staff. That respondent No. 6 was so empowered by the Chief of the Army Staff has not been denied by the petitioner and nor was this ground urged during the course of his arguments by Mr. Hagroo. This ground, therefore, also fails.

Ground No. 3:

6. This ground is totally misconceived. Admittedly, no cognizance of the offence was at any stage taken by any other criminal court. The rules, called the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952, framed by the Central Government vide SRO 709 dated 17-4-1952 under Section 475 oi the Code of Criminal Procedure Central Act No. 2 of 1974, which corresponds to Section 549 of the old Code had, therefore, no application to the case. On the other hand, Section 125 of the Army Act gave an upper hand to the G. O. C. to decide as to whether the petitioner should be tried by an ordinary criminal court, or by a Court Martial. He decided to have him tried by a Court Martial. His decision is, therefore unassailable. In the result, this ground also fails.

Ground No. 4.

7. The three points raised in this ground are no more res integra. Quite recently, a Division Bench of this Court in Writ Petition No. 7/78, titled Captain Seva Ram Nagial v. Union of India (reported in 1983 Cri LJ 1788) has dealt with these points and held that a complaint under Sub-section (3) of Section 13 of the Official Secrets Act is not an ingredient of an offence Under Section 3(1)(c) of the said Act, but is a matter that squarely falls in the realm of procedure to be followed in the trial of the offence. The procedure to be followed by Courts Martial being one provided by the Army Rules, which do not require such a complaint to confer jurisdiction on them to try the offence, they have jurisdiction to try a person subject to the Army Act for an offence Under Section 3(1)(c) read with Section 69 of the Army Act, even without such a complaint. The Bench further held that a First Class Magistrate who in terms of Sub-section (1) of Section 13 has been specially empowered to try an offence under the said Act does not for that reason simpliciter cease to be a court of ordinary criminal justice and is, therefore a criminal court as defined by Section 3(ii) of the Army Act. The power conferred on him under Sub-section (1) of Section 13 does not supplant, but merely supplements his ordinary powers under the Code of Criminal procedure. This decision thus provides a complete answer to this ground which must also fail.

Ground No. 5:

8. The plea taken in this ground has also been denied on affidavit by the respondent, according to whom, all requirements of Rule 33 were fulfilled and the petitioner afforded adequate opportunity to prepare his defence by consulting counsel of his choice. This ground too, therefore, fails.

Ground No. 6.

9. This ground is also baseless. The petitioner, during the course of his trial was represented by two counsel of his choice, namely Shri Mohammad Latif Qureshi Advocate and Shri Harbans Singh Advocate. This is amply borne out from the record. The ground, consequently fails.

Ground No. 7.

10. Section 130 of the Army Act requires reading of the names of all the members who constitute the Court Martial to give an opportunity to the accused to object to be tried by any of its members. This section, as held by the Supreme Court in Lt Col. Prithi Pal Singh Bedi v. Union of India : 1983CriLJ647 is mandatory in nature and its non-compliance vitiates the trial. The procedure for making compliance with the provisions of this section is contained in Rule 44. But, even here, the petitioner has no case. His allegation is not that no compliance with Section 130 read with Rule 44 was at all made, but it on the other hand is that he had objected to be tried by the members of the G. C. M., because they were biased against him and still his objection was overruled. The respondents have on affidavit denied this allegation, according to whom no such objection was taken by the petitioner. This plea in defence is supported by the record of the G. C. M. as well, which clearly reveals that before the commencement of his trial, the petitioner was asked whether he had any objection to be tried by any of its members. To this, the petitioner had replied that he had no such objection, The plea raised by the petitioner is, therefore, manifestly false which must also be rejected.

Ground No. 8.

11. I find no force in this ground either. Not only the reply affidavit of the respondents, but even the record of the G. C. M. shows that the petitioner was given full opportunity to cross-examine the prosecution witnesses, whom his counsel had also cross-examined at length. He was also given opportunity to produce defence evidence, but even then he did not produce any. His confessional statement, on evidence, was found by the G. C. M. to be voluntary in nature. Whether or not the statement was voluntary, is a pure question of fact, into which this Court cannot go in its extraordinary writ jurisdiction. Consequently, this ground also fails.

Ground No. 9.

12. Rule 62, in so far as it is relevant for the present discussion may be extracted:

(1) The finding on every charge upon which the accused is arraigned shall be recorded and, except as provided in these rules, shall be recorded simply as a finding of 'Guilty' or of 'Not Guilty'.

13. The challenge to this rule is that since it does not enjoin upon the Court Martial to support its findings by reasons, it is violative of Article 21 of the Constitution, which ordains that no person shall be deprived of his life or personal liberty except according to procedure established by law. The first question which, therefore, fails for determination is : can Rule 62 be said to be a procedural provision established by law? The answer in my opinion must be in the affirmative. Section 191 of the Army Act gives powers to the Central Government to make rules, among others, for the purpose of prescribing procedure to be followed in trials by Courts Martial and the appearance of legal practitioners thereat. Section 192 confers on it the power to make regulations for all or any of the purposes of the Act other than those specified in Section 191, and Section 193 declares that all such rules and regulations shall have the effect as if enacted in the Army Act itself. Not only that, Article 13 of the Constitution provides that law, the validity whereof is to be tested on the touchstone of the fundamental rights guaranteed under Part III, which also contains Article 21 in it shall include even rules or regulations made under an Act. It is thus manifest that Rule 62 squarely falls in the realm of the procedure established by law for trial of offences by Courts Martial.

14. The controversy, however, does not rest here. It was further contended that Rule 62, even though it were to be treated as a procedural law within the meaning of Article 21, it has yet to emerge unhurt after passing through the gauntlet of Articles 14 and 19 to acquire the status of a valid law. In any case, as held by the Supreme Court in Maneka Gandhi's case : [1978]2SCR621 , it must be just, fair and reasonable for no procedure which is not just, fair and reasonable can be said to be a procedure established by law within the meaning of Article 21, To meet this challenge, apart from the argument that the procedure prescribed under the Army Rules for trial of offences by Courts Martial is not violative of either Article 14 or Article 19, and that the same is also just, fair and reasonable, reliance on behalf of the respondents was placed upon Article 33 on the authority of Lt. Col. Prithi Paul Singh Bedi v. Union of India : 1983CriLJ647 and it was contended that the Rules under the Army Act, including Rule 62, are protected under the said Article, the legality whereof is not open to challenge even on the ground of their inconsistency with any of the provisions contained in Part III.

15. As provided by Article 33, fundamental rights guaranteed under Part III could no doubt have been abridged, or even abrogated, in so far armed forces are concerned. But, this could have been done by Parliament alone by making provision to that effect in the Army Act, which was undeniably enacted by it in the year 1950, soon after the Constitution had come into force. Rules under this Act have been framed not by the Parliament, but by the Central Government and are, therefore, clearly a piece of* subordinate legislation. Their Lordships in Prithipal Singh's case (supra) had refused to go into the question as to whether or not the mandate of Section 193 of the Army Act that all such rules shall have the effect as if enacted in the Army Act itself will bring them within the four corners of Article 33, and had kept the question wide open. Their Lordships had said para 20:.it would however, appear that this ancient formula often resorted to, to close subordinate legislation with the force of the provisions of the Statute would require further consideration. It is, however, not necessary to conclude this point because the primary contention was about the non-compliance with Rules rather than with their validity.

No protection on the authority of the aforesaid decision can, therefore, be claimed under Article 33, in so far as these rules are concerned.

16. Even so, the challenge thrown to the validity of Rule 62 is much too weak to sustain the scrutiny of Articles 14, 19 and 21. To begin with, failure to pass a reasoned order does not constitute infraction of any of the fundamental rights guaranteed under Part III. Furthermore so long as there is material to substantiate it, a finding recorded by a Court MartiaL shall not be rendered arbitrary by the mere fact of its not being supported by any reason. Rule C2 should not be judged in isolation thereof, rather in conjunction with other connected rules preceding it, and judged thus, it will surely survive the attack of its being unjust, unfair and unreasonable. Rules of natural justice stand fully complied with by the procedure laid down in these rules. Rule 44 provides that when the accused is brought before the Court, he has to be asked whether he has any objection to his being tried by any of its members. Rule 49 gives him a right to object to the framing of any charge or charges against him, before the prosecution starts producing its evidence, on the ground that no offence is disclosed against him. He, under Rule 51, has again a right to question the jurisdiction of the court to try him for a particular offence. Then comes Rule 52 which envisages in him a right to put forth a plea in bar to his trial on the grounds mentioned in the Rule, Rule 56 goes even to the extent of granting him a right to seek adjournment of his trial for any pre-trial in-vestigational lapse on the part of the prosecution, to obviate any prejudice to him during the course of the trial. After the prosecution has closed its evidence Rule 57 again gives him a right to plead that no case is made out against him. He has a right, not only to cross-examine the prosecution witnesses, but to examine his own witnesses in defence and address arguments to the court on the merits of the case. He will address the court first in case he has led any defence evidence, but the prosecution will address it first when he has not led any evidence in defence. Under Rule 60, after the accused and the prosecution have addressed the court, the Judge Advocate will sum up the evidence and shall also tender his advice to its members upon the law relating to the case. After these three addresses, the court is required to consider the respective contentions of the prosecution, the accused and the Judge Advocate though in a closed session, and record its finding of guilty or not guilty as. it might think just and proper in the facts and circumstances of the case. The aforesaid procedure thus leaves no room for doubt that it fully takes care of the requirements of natural justice, and is highly just; proper and reasonable. The ninth ground therefore, also fails.

17. All the grounds in it having failed, the writ petition also fails, which is dismissed accordingly.


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