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1985 Supreme(Pat) 163
PATNA HIGH COURT
Satyeshwar Roy and Abhiram Singh JJ.
Guru Villi Bhima Rao
Versus
Union Of India
Criminal Writ Jurisdiction No. 178 of 1983 ;
Decided On : MAY 3, 1985
The High Court cannot interfere with findings of fact made by a General Court Martial, even if erroneous, as it does not act as an appellate court.
Headnote:
ARMY ACT - COURT MARTIAL - WRIT OF CERTIORARI - JURISDICTION - PROCEDURE - VIOLATION OF RULES - FINDINGS OF FACT - JUDICIAL REVIEW.
Fact of the Case:
The petitioner, a Havildar clerk of the army, was tried by General Court Martial for culpable homicide amounting to murder and sentenced to imprisonment for life, reduced in rank, and cashiered. He challenged the order of the General Court Martial and the confirmation by the General Officer Commanding, alleging violations of Army Rules and the absence of a warrant from the Central Government.
Finding of the Court:
The High Court found no merit in the petitioner's arguments. It held that there was no violation of Army Rules, the General Officer Commanding had the necessary warrant, and the findings of the General Court Martial were not perverse. The court also noted that it could not interfere with findings of fact, even if erroneous, as it did not act as an appellate court.
Issues: 1. Whether there was a violation of Rule 60 of the Army Rules, 1954, due to the Judge Advocate's summing up? 2. Whether there was a violation of Rule 61 of the Army Rules, 1954, as each member of the Court did not give their finding? 3. Whether the General Officer Commanding had the necessary warrant from the Central Government to confirm the order of the General Court Martial? 4. Whether the findings of the General Court Martial were perverse? 5. Whether the absence of an appeal or review mechanism for punishments inflicted under the Army Act violated Articles 14 and 21 of the Constitution?
Ratio Decidendi: 1. The court found no evidence that the Judge Advocate gave his opinion or advice regarding the findings, thus rejecting the alleged violation of Rule 60. 2. The court held that there was no grievance raised in the writ petition regarding the failure of each member of the court to give their finding, and thus rejected the alleged violation of Rule 61. 3. The court accepted the respondents' assertion that the General Officer Commanding held the necessary warrant from the Central Government, dismissing the petitioner's argument on this point. 4. The court declined to interfere with the findings of the General Court Martial, even if erroneous, as it did not exercise appellate jurisdiction. 5. The court referred to the Supreme Court's decision in Prithvi Pal Singh v. Union of India, which held that the absence of an appeal or review mechanism for punishments inflicted under the Army Act did not violate Articles 14 and 21 of the Constitution.
Final Decision: The High Court dismissed the writ petition, finding no merit in the petitioner's arguments and holding that there was no error of law on the face of the record or violation of principles of natural justice.
1. The petitioner, a Havildar clerk of army was tried by General Court Martial for culpable homicide amounting to murder. He was found guilty. He was sentenced to imprisonment for life, reduced in rank and cashiered. The order of the General Court Martial is contained in annexure-7. The order of the General Court Martial was confirmed by the General Officer Commanding the 23 Mountain Division, the officer authorised to confirm the finding and examine the General Court Martial under S.67, Army Act, as contained in Annexure-8. The petitioner in thin writ application under Arts. 226 and 227 of the Constitution, has prayed for a writ in the nature of certiorari for quashing those two annexures.
2. On 26-7-81 at 6.30 Hrs. Jayanti Devi Widow of Havildar clerk Sohanlal, lodged an information with the police that on the previous night at 12.30 somebody came to their quarter and knocked the door. Her husband, Sohanlal came out and told that the petitioner had come. On enquiry the petitioner stated that he had come to have his dinner at their house and both Sohanlal and the petitioner sat in the dining room. Both of them started drinking rum. When the informant came with snack, the petitioner addressed her as Madam and requested her to sit and have some drink. The informant left the room. Sohanlal protested to the petitioner for calling his wife Madam instead of sister. However, about after one hour both of them came down the Varandah and the petitioner requested Sohanlal to reach him to the gate because the sentry would not allow him to go out. Sohanlal accompanied the petitioner and went out of the house. The informant sent her nephew Rajesh to call back Sohanlal. After about five minutes, Rajesh returned and said that the petitioner was assaulting Sohanlal and Sohanlal had fallen down on the ground. The informant along with the others went there and saw that the petitioner was sitting on the chest of Sohanlal and was hitting him on the head by brick. When she asked him why he was assaulting her husband the petitioner stood up and ran away. Sohanlal was removed to Officers Headquarters where doctor declared him dead.
3. The Officer-in-charge of Lalpur Police Station took up investigation. The petitioner was arrested on 26-3-81 and was handed over to the police. A court of enquiry was convened by the General Officer Commanding, 23 Mountain Division. The court of enquiry was of the opinion that prima facie it appeared that the petitioner had murdered Sohanlal. It recommended for taking action against the petitioner under S.69(a) Army Act read with S.302, Penal Code. A General Court Martial under the Army Act was ordered for trial of the petitioner. A number of witnesses was examined in the General Court Martial and the petitioner was found guilty by the order as contained in Annexure-7 and the same was confirmed by Annexure-8.
4. The orders were challenged on the following grounds : (a) violation of R. 60, Army Rules, 1954 , inasmuch as the Judge Advocate in summing up gave his opinion with regard to the evidence; (b) violation of R. 61 as each member of the Court did not give his finding;- (c) the General Officer Commanding, respondent 3, had no warrant of the Central Government to confirm the order as contained in Annexure-7; (d) the finding of the General Court Martial was perverse, and (e) as there is no provision of appeal or review by Judicial authority of the punishment inflicted under Army Act, it is violative of Arts. 14 and 21 of the Constitution. Counter affidavit has been filed on behalf of the respondent in which all the grounds on which the validity of Annexures 7 and 8 was challenged were denied.
5. Before proceeding further, it may be noticed that the writ application was labelled under Arts. 226 and 227 of the Constitution. In view of Art. 227(4) of the Constitution, no power can be exercised by this Court under that Article. It must, therefore, be held that so far Art. 227 of the Constitution was concerned, the
