1992 Supreme(Del) 422

High Court Of Delhi
LANCE DAFEDAR LAXMAN - Appellant
Versus
UNION OF INDIA - Respondent
CRIMINAL APPEAL 40 of 1985
Decided On : 08/31/1992

Headnote:Army Act 1959 - Section 69 - Army Rules - Rules 22 and 23 " Provisions are mandatory in nature - Non-compliance as well as violation of the provisions of Rule 22 - Entire proceedings based on the same stand vitiated" Unfair trial- Order of conviction set aside.

       Held: The Rule 22 no doubt pertains to a stage prior to trial but the decision to hold any investigate on and a trial depends upon the procedure laid down under this rule. Therefore, the procedure which has been held by the Supreme Court to be mandatory has to be allowed in letter and spirit. There is no explanation rendered by Mr. Joseph regarding the delay from February, 1983 to 17th May, 1983. Nothing has been brought on record nor stated as to why the action was not taken by Lt. Col.G.S. Sarohi who had by 15th March, 1983 come back and was Commanding Officer of the petitioner? Why the procedure of Rule 22 was not followed by Lt,. Col. Sarohi? Why the respondent had to wait for the return of Col.C.S. Gill on 17th May, 1983 particularly when all the investigation had been done during the time of Maj. P .P. Singh and Lt. Col. Sarohi. It has come on record that Lt. Col. Sarohi did investigate. It has further been reported that accused No. 1 confessed his guilt before Lt Col. Sarohi. This shows that Lt. Col. Sarohi also conducted the investigation. The Supreme Court in the case of Lt. Col. Pritpal Singh Bedi v. Union of India, delivered the judgment in 1982 and once the law is settled, the respondent can not urge that the same could not be followed because there was no administrative instructions issued by the Department. Once the Apex Court interpret the rules that becomes the law of the land. Therefore, the respondent cannot be allowed to take advantage under the garb of the administrative instruction and the delay taken by the respondent in issuing the same. Once the law is settled the petitioner has every right to bank upon the same. No proceedings regarding the investigation were maintained in writing by the respondent than what was placed before Col.C.S. Gill for forming his opinion as required under Sub Rule 3 of Rule 22 of the Army Rules. The bare reading of sub rule 3 of Rule 22 of the Any Rules that after the conclusion of the hearing of a charge, the Commanding Officer has to form an opinion that the charge ought to be proceeded with. For forming this opinion, he has to have some data before him. If what the respondent contends is taken to be correct that the said data collected by Major P.P. Singh and/or by Lt. Col. Sarohi was not reduced in, to writing and is not available on the military record then what was the data available before Col.C.S. Gill for forming the opinion that the charge reprehended with? It is a well-settled principle of law that when the legislature cast a duty on a quasi judicial authority to form an opinion, that opinion has to be in writing and reason must be assigned for forming that opinion. But in this case as per respondents own showing the Commanding-Officer, Col.C.S. Gill has nowhere given any reason for coming to the conclusion that the charge be re-proceeded with. According to Mr. Joseph the only opinion which he has formed is what is reproduced in the Convening Order. The reading of the Convening Order dated 17th May, 1983 which is reproduced above nowhere indicates that Col.C.S. Gill formed any opinion on the basis of any data placed before him. This Convening Order appears to be a routine letter. How he came to the conclusion nowhere indicated. In the absence or any opinion having been arrived at after the conclusion of the proceeding, to my mind, there is any infringement of the mandatory provision: Therefore; the order passed Off the basis of this Convening Order is liable to be set aside. A mandate is given in Rule 22 that the Commanding Officer shall proceed with the charge only after he formed an opinion. That opinion has to be a judicial opinion and not an arbitrary one. Further pursuance to that opinion he has to proceed without unnecessary delay. But there is a delay of about three, months which has remained unexplained. Per prosecution's own story the investigation completed in March, 1983 whereas the Convening Order has been passed on 17th May, 1983. Why it took 2 to 3 months has not been explained. Coupled with this, there is an other limb of the argument of Mr. B.T. Singh which to my mind, has force and that is "Unfair Trial". I have already reproduced above the exact words used by the Counsel for the prosecution before the Enquiry Officer when he asked for adjournment. Counsel for the respondent wanted to talk to the witnesses before producing them in the witness box. Even though he had time to prepare the case but since he could not talk to the witnesses earlier, therefore, he was afraid to adduce them. Unless he had spoken to them he was not confident about producing them. These words clearly indicate the mind of the counsel who wanted to brief his witnesses before adducing them. This can be termed as tutoring of the witnesses. Mr. B.T. Singh has rightly urged that this amounted to tutoring of the witnesses and once the witnesses are tutored before being adduced, it can, without hesitation; be said an unfair trial. (Para 14)

       Result: Petition Allowed. Order of conviction set aside.