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1989 Supreme(Del) 186
DELHI HIGH COURT
CHARANJIT TALWAR AND MALIK SHARIEF-UD-DIN, JJ.
RAM CHANDER
VERSUS
UNION OF INDIA AND OTHERS
Criminal Writ Petn. No. 187 of 1988,
Decided on : 21-4-1989.
The High Court clarified that the trial was not barred by limitation, the charge sheet was not vague, and the Summary Court Martial was properly constituted.
Headnote:
ARMY ACT - S.64(e) - Obtaining Gratification for Enrolment - Limitation - Charge Sheet - Contents - Court Martial - Jurisdiction - Summary Court Martial - Commanding Officer - Leave.
Fact of the Case:
Havildar Ram Chander, an Army personnel, was convicted by a Summary Court Martial for obtaining gratification from two persons as a motive for procuring their enrolment in the Army. He was sentenced to dismissal from service and one year of rigorous imprisonment. He challenged the legality and validity of the proceedings, arguing that the trial was barred by limitation, the charge sheet was vague, and the Summary Court Martial was not properly constituted.
Finding of the Court:
The High Court held that the trial was not barred by limitation as the evidence showed that the offences were committed within the three-year limitation period. It also found that the charge sheet was not vague and provided sufficient details of the offences. Further, the Court held that the Summary Court Martial was properly constituted and that the Commanding Officer's absence on leave did not invalidate the proceedings.
Issues: 1. Whether the trial was barred by limitation? 2. Whether the charge sheet was vague and did not provide sufficient details of the offences? 3. Whether the Summary Court Martial was properly constituted and whether the Commanding Officer's absence on leave invalidated the proceedings?
Ratio Decidendi: 1. The Court held that the trial was not barred by limitation as the evidence showed that the offences were committed within the three-year limitation period. It relied on the fact that the prosecution witnesses had testified to the dates on which the gratification was paid, and that the accused had admitted to accepting half of the amount. 2. The Court held that the charge sheet was not vague and provided sufficient details of the offences. It noted that the charge sheet specified the dates, amounts, and names of the persons involved in the alleged offences. 3. The Court held that the Summary Court Martial was properly constituted and that the Commanding Officer's absence on leave did not invalidate the proceedings. It relied on the fact that the Commanding Officer had issued an addendum directing that the summary court martial would be held by the Offtg. Commanding Officer, and that the Offtg. Commanding Officer had recorded most of the evidence by the time the Commanding Officer returned from leave.
Final Decision: The High Court dismissed the petition, holding that there was no merit in the petitioner's contentions.
Charanjit Talwar, J. :- The petition is on behalf of Ram Chander who was a Havildar in the Education Corps of the Indian Army. At the relevant time, he was posted at Headquarters 41, Sub Area, somewhere in Assam. He was tried by a Summary Court Martial; convicted for two separate offences under S.64(e) of the Army Act and sentenced to (1) dismissal from service and (2) to suffer rigorous imprisonment for one year. S.64 of the Army Act deals with miscellaneous offences committed by any person subject to the Army Act. Sub-Sec. (e) of S.64 reads as under :
"(e) directly or indirectly accepts or obtains, or agrees to accept or attempts to obtain, for himself or for any other person, any gratification as a motive or reward for procuring the enrolment of any person, or leave of absence, promotion or any other advantage or indulgence for any person in the service."
2. The allegations against Ram Chander were that he had obtained for himself, gratification from two persons as a motive for procuring their enrolment in the Army. The relevant portion of the charge sheet dt. the 17th June, 1987 reads as under :
"First charge Army Act Section 64 (e) Obtaining for Himself a gratification as a motive for procuring the enrolment of a person in that he, at Jorhat, sometime during June 1984, while working in Headquarters 41 Sub Area obtained Rs. 2,000/- (Rupees two thousand only) from Shir Ranjit Datta, son of Shri Sonai Dutta as a motive for procuring his enrolment in the Army.
Second Charge Army Act Section 64 (e) Obtaining for Himself a gratification as a motive for procuring the enrolment of a person in that he, at Jorhat, sometime during Feb. 1986 while working in Headquarters 41 Sub Area obtained Rs. 3,000/- (Rupees three thousand only) from ABSI Profulla Saikia through No. 4345997 Hav. Amulya Saikia of same Headquarters as a gratification for procuring the enrolment of his nephew, in the Army."
3. The Summary Court Martial, which was presided over by the Officiating Commending Officer of the Unit, after trial, held him guilty on 13th August, 1987 of the above charges and sentenced him to the punishment as noticed above.
4. By this petition under Art.226 of the Constitution the legality and validity of the proceedings of the Summary Court Martial are being challenged. Mr. R.P. Bansal, learned counsel for the petitioner submits that the proceedings are vitiated because the period of limitation for trial as provided under S.122 of the Army Act had expired by 17th June, 1987, the date on which the change sheet was served. According to him, the offences, if any, had been committed three years prior to that date.
5. He has further urged that the law prescribing the procedure for trial has also not been complied with. His reliance is on Rs. 28 to 30 of the Army Rules, 1954. R. 28 of the Rules reads as under :
"28. Charge-sheet and charge - (1) A charge sheet shall contain the whole issue or issues to be tried by a court-martial at one time.
(2) A charge means an accusation contained in charge-sheet that a person subject to the Act has been guilty of an offence.
(3) A charge-sheet may contain one charge or several charges."
6. R.30 of the Rules which according to the learned counsel has also not been followed is to this effect :-
"30. Contents of charge -(1) Each charge shall state one offence only and in no case shall an offence be described in the alternative in the same charge.
(2) Each charge shall be divided into two parts- (a) statement of the offence; and
(b) statement of the particulars of the act, neglect or omission constituting the offence.
(3) The offence shall be stated, if not a civil offence, as nearly as practicable, in the words of the Act, and if a civil offence, in such words as sufficiently describe that offence, but not necessarily in technical words.
(4) The particulars shall state such circumstances respecting the alleged offence as will enable the accused to know what act, neglect or omission is intended to be proved ag
