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2004 Supreme(J&K) 268
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Permod Kohli, J.
Balbir Singh - Appellant
Versus
Union Of India & Ors. - Respondent
OWP No. 1016/2000
Decided On : 24 September, 2004
Advocate For Appellant: Surinder Kour
Advocate For Respondent: Tashi Rabstan
The judgment emphasized the importance of strict adherence to the provisions of the Indian Army Act, particularly regarding the convening of the General Court Martial, trial commencement within the prescribed period, and procedural safeguards, while highlighting the limited scope of judicial review in re-appraising evidence.
Headnote:
Conviction - Challenge to Conviction and Sentence by General Court Martial - Indian Army Act - Section 109, 122, 130 - The court discussed the convening of the General Court Martial, the period of limitation for trial, and procedural safeguards under the Army Act. The judgment highlighted the interpretation of the provisions and their application in the present case, influencing the court's decision to dismiss the writ petition.
Fact of the Case:
The petitioner challenged the conviction and sentence by the General Court Martial, alleging irregularities in convening the court, inordinate delay in trial, non-compliance with procedural safeguards, and lack of evidence appreciation.
Finding of the Court:
The court found that the convening of the General Court Martial was in compliance with the Army Act, the trial commenced within the prescribed period, procedural safeguards were adhered to, and the power of judicial review did not extend to re-appraising evidence.
Issues: Convening of General Court Martial, Period of Limitation for Trial, Compliance with Procedural Safeguards, Evidence Appreciation
Ratio Decidendi: The court held that the convening of the General Court Martial, trial commencement within the prescribed period, adherence to procedural safeguards, and the exclusive domain of the Court Martial for evidence appreciation were in line with the Army Act, leading to the dismissal of the writ petition.
Final Decision: The writ petition challenging the conviction and sentence by the General Court Martial was dismissed.
2. Factual background as averred in the writ petition leading to the filing of the present petition is being noticed.
3. Petitioner was appointed as Sepoy on on 9-10-1978, he came to be promoted as Lance Naik in 1981 and Naik on 15-8-1982, He earned further promotion as Havaldar in August, 1988. In the year 1992 he was posted at Asansole where an FIR came to be registered against him under section 307/34 Indian Penal Code. Petitioner was accused of causing injury to one Master Mohinder Pal Singh a Civilian with intent to murder him. On being handed over to the Army Authorities he was charged for offence under section 307 read with section 34 Indian Penal Code and a charge-sheet in terms of section 69 of the Indian Army Act came to be served upon him on 21-2-1995 with the following charge:
"The accuded (1) No. 2470609 P Naik (Paid Acting Havaldar) Balbir Singh; (2) No. 2469538M Havildar Gurmeet Singh, and (3) No. 2471540H Havildar Avtar Singh, all of 10th Bengal battalion, national Cadet Corps, Asansol, are charged with
COMMITTING A CIVIL OFFENCE THAT IS TO SAY ATTEMPT TO MURDER, CONTRARY TO SECTION 307 OF THE INDIAN PENAL CODE READ WITH SECTION 34 OF THE INDIAN PENAL CODE
In that they together,
At Asansol on 12 Mar 1992, hit with a `Khukri, Master Mohinder Pal Singh, a civilian with intent to murder him and thereby wounded that said Master Mohinder Pal Singh in the head and rear of neck."
4. He was ordered to be tried by General Court Martial jointly with two other accused namely, Gurpreet Singh and Avtar Singh, who were also shown as co-accused in the FIR vide order dated 23-2-1995. Admittedly no Court of Inquiry was held and summary of evidence was ordered by General officer Commanding on 28-10-1994 which concluded on 16-1-1995. It is based upon the material/evidence collected during the summary of evidence that the charge-sheet came to be issued. The General Court Martial convened on 24-2-1995 under the orders of Major General, General Officer Commanding and the petitioner put to trial. General Court Martial proceedings commenced on 4-3-1995 and the final order came to be passed on 8-7-1995, whereby the petitioner was convicted to undergo imprisonment for life and ordered to be dismissed from service. The conviction and sentence of the Court Martial was confirmed by General Officer Commanding, Bengal area vide order dated 12-8-1995. However, the sentence of imprisonment for life awarded by the General Court Martial was commuted to rigorous imprisonment for 10 years.
5. Statutory appeal preferred by the petitioner under section 164 of the Army Act came to be rejected vide order dated 9-6-1997. Petitioner was lodged in District Jail, Udhampur at the time of filing of this petition.
6. The challenge to the conviction and sentence is made on the following grounds: --
(a) The General Court Martial has been ordered by the General Officer Commanding, who was not empowered under section 109 of the Army Act. It is alleged that no convening order has been passed.
(b) There is in-ordinate delay in trial of the petitioner. The convening and holding of Court martial was barred under section 123 of the Army Act. With a view to establish this point, it is stated that the occurrence took place on 12-3-1992, the charge-sheet was issued on 21-2-1995 and the Court Martial held the proceedings from March, 1995 to July, 1995. The Court martial was convened beyond the period of three years as prescribed under section 123 of the Army Act.
(c) The provisions of Rules 22 and 23 have not been complied with in as much as there was no hearing on charge nor the petitioner was allowed opportunity to cross-examine the witnesses.
(d) The procedural safe-guards provided under section 130 of the Army Act have not been foll
