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 proceedings of the Court Martial are illegal and void. The order of dismissal is illegal and void. The findings of guilt is a perverse finding.

Headnote:
COURT MARTIAL - JURISDICTION - DISCRETION TO TRY CIVIL OFFENCE - EXERCISE OF - PRINCIPLES - COURT MARTIAL PROCEEDINGS - JUDICIAL PROCEEDINGS - DUTY TO ACT JUDICIALLY - VIOLATION OF PRINCIPLES OF NATURAL JUSTICE - MISDIRECTION BY JUDGE ADVOCATE - EFFECT - FINDINGS OF GUILT - PERVERSITY.
Fact of the Case:

Petitioner, a permanent Commissioned Officer of regular Indian Army, was tried under section 69 of the Army Act by a General Court Martial for committing a civil offence of theft of a silk saree valued at Rs. 350/-. The verdict of “guilt of the charge” was returned by the Court Martial. The findings and the sentence was then submitted for confirmation to the Chief of the Army Staff under section 164 of the Act. The petitioner filed a pre-confirmation appeal under section 164 of the Army Act. The Chief of the Army Staff confirmed the findings of the Court Martial and passed an order dismissing the petitioner. The petitioner filed a post-confirmation appeal under section 164 of the Act to Government of India. The Defence Minister expressed grave doubts about the verdict of guilt and stated that the benefit of doubt should be given to the petitioner. 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 Defence Minister and the Law Minister the final order of dismissal was communicated by the Defence Ministry. The petitioner 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 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.
Finding of the Court:

1. 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. 2. The proceedings of the Court Martial are illegal and void. 3. The order of dismissal is illegal and void. 4. The findings of guilt is a perverse finding.
Issues: 1. Whether the discretion under section 125 of the Army Act to try the petitioner by Court Martial and not by the criminal court, was exercised judicially and properly? 2. Whether the proceedings of the Court Martial are illegal and void? 3. Whether the order of dismissal is illegal and void? 4. Whether the findings of guilt is a perverse finding?
Ratio Decidendi: 1. 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 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. 2. The proceedings of the Court Martial are illegal and void. 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 has now been so enlarged that the duty to act fairly is cast even on the purely administrative bodies. The petitioner was denied the opportunity to cross-examine the witnesses, to produce evidence in his defence, and to examine himself as a witness. This is in violation of principles of natural justice. 3. The order of dismissal is illegal and void. The final order of dismissal has been passed contrary to the decision of the Defence Minister and the advice of the Ministry of Law. 4. The findings of guilt is a perverse finding. The findings of guilt is based on circumstantial evidence. The circumstances pointed out by the prosecution do not inevitably and exclusively point to the guilt of the accused. There are material contradictions between the witnesses. There are improvements made in the evidence from time to time by the witnesses. The approach of the Judge Advocate General while explaining the contradictions to the members of the Court Martial was wholly contrary to law. This misdirection has resulted into the perverse finding against the petitioner.
Final Decision: The entire Court Martial proceedings are quashed. 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.

"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 certainlyexamine 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 summarising 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 explanation 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

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Judicial Analysis

1980 Supreme(Del) 271

High Court Of DelhiR.S.BHAGAT - AppellantVersusUNION OF INDIA - RespondentCivil 510 of 1977Decided On : 10/01/1980

Cases Referred (3)

Judicial Analysis

High Court Of Delhi
R.S.BHAGAT - Appellant
Versus
UNION OF INDIA - Respondent
Civil 510 of 1977
Decided On : 10/01/1980