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2010 Supreme(Gau) 896
IN THE HIGH COURT OF GAUHATI (SHILLONG BENCH)
Biplab Kumar Sharma, J.
Sri Bram Chand S/o Sri Jai Ram - Appellants
Vs.
The Union of India (UOI) Represented by the Secretary to the Government of India, Ministry of Home Affairs and Ors. - Respondent
Writ Petition No. 126 (SH) of 2009
Decided On : 03.12.2010
For Appellant/Petitioner/Plaintiff: H.G. Baruah, R. Choudhury and A. Khan, Advs.
For Respondents/Defendant: S.C. Shyam, Central Govt.
Headnote:
Constitution of India,1950 - Article 226/227 - Code of Criminal Procedure, 1973 Army Act, 1950 - Section 46(a) , 69 and 63 - Assam Rifles Act, 1941 - Army Rules Rule 34 , 129 and 125 - Posted in the 15th Battalion Assam Rifles - Disgraceful conduct - Dismissal from service - Charge sheet - Petitioner was enrolled in Assam Rifles in year as Rifleman - While was posted in 15th Battalion Assam Rifles, Petitioner was placed under close arrest and charge-sheeted under Section 69 of Army Act, 1950 - Pursuant to such charge sheet followed by Summary Court Martial, Petitioner had been dismissed by impugned order dated - Along with such dismissal from service, Petitioner was also imposed with penalty of 6 (six) months Rigorous Imprisonment in Civil Prison - Being aggrieved, Petitioner filed a writ petition being Civil Writ Petition No - Aforesaid order dated permitting Petitioner to approach competent Court having territorial jurisdiction of subject matter, Petitioner once again approached same Court i.e. Delhi High Court by filing another writ petition being WP(C) No. and by order dated said writ petition was disposed of on ground of lack of territorial jurisdiction - However, liberty was granted to approach competent Court - It is not known as to whether fact of filing earlier writ petition was brought to notice of Court – Held, finding recorded by the Commandant in Summary Court Martial cannot be said to be a perverse finding and/or a finding based on no evidence at all - Petitioner was charged with outraging modesty of a four-year old girl and thereby caused disturbance in Army discipline - Apex Court dealing with the kind of pleas as have been raised in the instant proceeding held that unless the non-compliance of provisions of particular procedure is vital and substantial same would not affect trial- Held that even if there was an irregular procedure, Summary Court Martial would not be held to be invalid where no injustice was done - Particular stand of Petitioner that the Army Act was not applicable to him has been adequately dealt with by Respondents in their counter affidavit and the learned Counsel for Petitioner also did not argue on that point - In Apex Court reminding writ Court exercising its power under Article 226/227 of Constitution of India - Petition dismissed.
B.K. Sharma, J.
1. The Petitioner was enrolled in the Assam Rifles in the year 1986 as Rifleman. While was posted in the 15th Battalion Assam Rifles, the Petitioner was placed under close arrest and charge-sheeted under Section 69 of the Army Act, 1950. Pursuant to such charge sheet followed by Summary Court Martial, the Petitioner had been dismissed by the impugned order dated 3.4.2000. Along with such dismissal from service, the Petitioner was also imposed with penalty of 6 (six) months' Rigorous Imprisonment in Civil Prison. Being aggrieved, the Petitioner filed a writ petition being Civil Writ Petition No. 1059/2001 in the Delhi High Court. The writ petition was disposed of by order dated 26.2.2001 on the basis of the prayer of the Petitioner to withdraw the same enabling him to approach the competent Court having territorial jurisdiction over the subject matter of the writ petition.
2. Even after the aforesaid order dated 26.2.2001 permitting the Petitioner to approach the competent Court having territorial jurisdiction of the subject matter, the Petitioner once again approached the same Court i.e. the Delhi High Court by filing another writ petition being WP(C) No. 1177/2002 and by order dated 4.12.2008, the said writ petition was disposed of on the ground of lack of territorial jurisdiction. However, liberty was granted to approach the competent Court. It is not known as to whether the fact of filing the earlier writ petition was brought to the notice of the Court.
3. The two charges brought against the Petitioner under Section 46(a) and Section 63 respectively of the Army Act, 1950 were as follows :
First Charge Army Act 1950 Section 46(a) Disgraceful Conduct of An Indecent Kind
In that he, at Zunheboto on 03 November 99 at about 1530 hours with indecent intent took Kumari Jyoti Samant, four years old, daughter of No. 153910 Rifleman/GD Bhawan Singh Samant and carried her to the toilet.
Second Charge Army Act 1950 Section 63 An Act Prejudicial To Good Order And Military Discipline
In that he, at Zunheboto on 03 November 1999 at about 1530 hours caused a disturbance in the lines by carrying the four year old of No. 153910 Rifleman/GD Bhawan Singh Samant to the toilet.
4. While Section 46(a) of the Army Act provides that any person subject to Army Act who commits any of the offences indicated under Clause (a) (b) and (c) shall, on conviction by court-martial be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in the Act mentioned, Section 63 of the Act provides that any person subject to the Act who is guilty of any act or omission which, though not specified in the Act, is prejudicial to good order and military discipline shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to seven years of such less punishment as is in the Act mentioned. In the Summary Court Martial, the Petitioner was provided with "the friend of the accused" and an interpreter was also engaged. The Petitioner was asked as to whether he would plead guilty of the charges, to which his reply was in the negative. Accordingly, the proceeding followed thereafter, on conclusion of which the Petitioner was sentenced to suffer 6 (six) months' Rigorous Imprisonment in Civil Prison coupled with dismissal from service.
5. Being aggrieved by the said impugned order dated 3.4.2000, the Petitioner made Annexure-D petition dated 12.6.2000 addressed to the Home Minister, Government of India, on the basis of which the Deputy Director General of Assam Rifles passed the Annexure-E order dated 23.11.2000 rejecting the petition submitted by the Petitioner. For a ready reference, Annexure-E order dated 23.11.2000 is quoted below:
I.12015/14/BC/2000-DV/
Orders of The Deputy Director General Assam Rifles on The Petition Submitted By Ex Number 153420 Rifleman/General Duty Bram Chand Of 15 Assam Rifles.
1. I have carefully considered the petition dated Nil submitted by Ex Number15
