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1995 Supreme(Del) 193
High Court Of Delhi
R.S.BUDHWAR - Appellant
Versus
UNION OF INDIA - Respondent
CRIMINAL APPEAL 205 of 1993
Decided On : 02/24/1995
RAJENDRA KUMAR, S.PAPPU, V.K.Shali
Headnote:Army Act, 1950 — General Court Martial proceedings — Challenge to finding and sentence — jurisdiction of the Court under Article 226 of the Constitution — Army Rules 22 to 25 discussed.
The Petitioner was tried by a General Court Martial for a offence, namely, abetment of an offence specified in Section 302 IPC. The Petitioner was found guilty. His post-conformation petition to the Central Government was also rejected.
Dismissing the writ petition, the court.
Held:
1. The Commanding Officer was fully empowered to refer the case to higher authority for expert legal advice. This will not imply that the allegations against the Petitioner were held to be disproved and the Commanding Officer had no option but to discharge the Petitioner.
2. Framing of the charge against the Petitioner has been contested for the first time before this Court and no such plea was taken at an earlier stage when the Petitioner went through the entire trial and fully participated in the same. The plea of the accused is not that he did not understand the charge and he has not been even able to point out any manifest injustice which has been caused to him as a result of charge which has been framed against him. The plea, accordingly, is meritless.
3. Generally speaking there is a great necessity to corroborate the testimony of an accomplice before the conviction is upheld. These are rules of prudence and so far as the law is concerned, a conviction can be based on the uncorroborated testimony of an accomplice provided the Judge has applied the rule of caution to hold that it will be safe to disregard it.
4. Physical presence is not necessary for attracting the provisions of Section 34 of the Indian Penal Code and mere distance the scene of crime cannot exclude culpability of the Petitioner. Physical presence is not necessary in attracting Section 109 of the Indian Penal Code.
5. The jurisdiction of this Court under Article 226 is, defined and is limited to the extent of finding out whether there is an error of jurisdiction and it is a case of total lack of evidence. This Court, as has been consistently held, does not sit as a Court of Appeal. In case legal evidence was available on which a finding could be given, the sufficiency or otherwise was for the Authority to decide and this Court cannot substitute its opinion for that of court-martial. The Court on its own appraisal of the evidence may come to a contrary conclusion but it is not open to quash an order until and unless the impugned order was based on no evidence at all. The sufficiency and insufficiency of evidence is not a matter for this Court to consider in a petition under Article 226 of the Constitution of India. The same is for the Authority to decide. The error or defect of procedure of which some instances have been given by learned counsel appearing for the Petitioner, cannot be entertained in the present proceedings as these may be mere procedural irregularities and they cannot be regarded as errors of law apparent on the face of the record and no challenge was made at an appropriate stage and the principles of natural justice have not been violated.
( 1 ) THE present writ petition challenges the legality of orders passed by the Govnernment of India, Ministry of Defence dated December 24, 1992, rejecting the post confirmation petition dated November 15, 1990, and affirming the finding, sentence, confirmation and promulgamation of General Court Martial held from January 4, 1989 to February 24, 1990. The petitioner has submitted the following facts in the petition, which may be reproduced briefly as under:-
( 2 ) THE petitioner during June, 1987 was serving as a Major in 8 JAT Regiment in Regular Army located in Kaying Area in the eastern sector. At that time. Col. S. S. Sahota was the Commanding Officer and Major Jaspal Singh was the Second-in Command of the above said Regiment. On June 16, 1987, at about 1250 hours two jawans of a Company 8 JAT Regiment, namely, Sepoy Mahavir Singh and L/nk Inderpal Singh absconded allegedly after shooting and killing Col. S. S. Sahota, Major Jaspal Singh, Capt. B. K. Chhetri and Capt. A. Shrivastava. The First Information Report was filed at OIC, Police station Kaying by Capt A. V. Garde, Adjutant 8 JAT Regiment. The patrol parties were sent to cover various routes to ensure that the culprits did not escape. The petitioner further reiterates that he was also sent on a patrol to apprehend the culprits and on June 18, 1987, at about 1630 hours both the killers, Sep Mahavir Singh and L/nk Inderpal Singh surrendered and were taken to HQ 5 Mtn Brigade located at Along and kept in military custody.
( 3 ) CONSEQUENTLY, a Staff Court of Enquiry was ordered by HQ 2 Mountain Division to investigate into the circumstances under which the above said Jawans shot dead the four officers including the Commanding Officer as well as his Second-incommand on June 16, 1987. The Staff Court of Inquiry was also required to investigate the circumstances under which the said two accused shot and injured NK Kami Singh. and L/nk Ranbir Singh. During the Court of Enquiry the two killers Sep Mahavir Singh and L/nk Inderpal Singh made certain insinuations against the petitioner, Sub Major Mahtab Singh and Sub Kartar Singh. The petitioner states that he was shocked to hear the statements accusing him forgiving the task. of eliminating the Commanding Officer, Col S. S. Sahota and Second-in-Command Major Jaspal Singh. The Court of Inquiry proceedings commenced on June 23, 1987 and completed in the first week of September, 1987 and concluded on September 12, 1987. The Court of Enquiry was entrusted to investigate into the following terms and references:
" (A) Circumstances under which L/nk Inderpal Singh and Mahavir Singh both of a Coy 8 JAT on 16 June, 1987 at about 1250 hrs at 8 JAT T-JB, alleged, shot Col. SS Sahota, Major Jaspal Singh, Capt. B. K. Chhetri and Capt. A. Srivastava.
(B) Circumstances under which L/nk Inderpal Singh and Sep Mahavir Singh, on 16 June 1987 at about 1250 hrs. at 8 JAT Loc, shot and injured NK Kami Ram and L/nk Ranbir Singh of 8 JAT.
(C) Examining influence of external factor if any.
(D) Establish the possible cause of the incident.
(E) Establish if there was failure of Command and apportion responsibility for the same.
(F) Circumstances under which L/nk Inder Pal Singh and Sep Mahavir Singh deserted from 8 JAT Loc on 16 Jun 87 along with SLR No. G-7343 and EC-9744 and 367 rds of 7. 62 mm of 8 JAT.
(G) Circumstances under which L/nk Inder Pal Singh Sep Mahabir Singh were apprehended by Hav Rattan Singh on 18 Jun at 1715 hrs. "
(A) L/nk Inder Pal Singh for having shot dead Capt BK Chhetri and Capt A Shrivastava, for stealing a 7. 62 mm SLR and 200 rds and for desertion.
(B) Sep Mahabir Singh for having shot dead Col SS Sahota and Maj Jaspal Singh, causing hurt to NK Karni Ram and L/nk Ranbir Singh, stealing of 7. 62 mm SLR, magazines and approx 200 rods and for desertion.
(C) Disciplinary action to be taken against the following for alleged conspiracy to kill CO and 21c and for instigating L/nk Inderpal Singh and Sep Mahabir Singh:
