Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2010 Supreme(All) 918

2011 (73) ACC 121
ARMED FORCES TRIBUNAL, REGIONAL BENCH, LUCKNOW
JUSTICE JANARDAN SAHAI, MEMBER (J) and LT. Gen. P.R. GANGADHARAN MEMBER (A)
SHIV KUMAR JOSHI NO. 14391161 HA VILDAR (TECHNICAL ASSISTANT) – Appellant
Versus
UNION OF INDIA and others – Respondents
O.A. (Appeal) No.2 of 2009
Decided on : March 16 2010

Advocates appeared:
Counsel for the Petitioner; B.N. Singh.
Counsel for the Respondent: Ghaus, Beg.

Compliance with mandatory arraignment and recording of plea of guilty for each charge separately in Summary Court Martial proceedings is essential, and non-compliance can vitiate the entire proceedings.

Headnote:
Theft - Summary Court Martial - Army Rules, Rule 123, Rule 64, Rule 111(2), Rule 115(1), Rule 149 - The court discussed the provisions of Rule 123, Rule 64, Rule 111(2), Rule 115(1), and Rule 149 of the Army Rules, emphasizing the mandatory nature of arraignment and recording of plea of guilty for each charge separately, and the consequences of non-compliance with these rules. The court found that the proceedings of the Summary Court Martial were not held in accordance with the law and set aside the sentence and conviction, quashing the proceedings and directing a re-trial from the stage of the arraignment of charges.
Fact of the Case:

The applicant, a Havildar in the Indian Army, challenged the sentence of dismissal and reduction to the ranks in Summary Court Martial for theft of an ATM debit card and withdrawal of money from a fellow regiment member's account. The applicant pleaded guilty to both charges.
Finding of the Court:

The court found that the proceedings of the Summary Court Martial were not held in accordance with the law, and set aside the sentence and conviction, quashing the proceedings and directing a re-trial from the stage of the arraignment of charges.
Issues: Non-compliance with mandatory arraignment and recording of plea of guilty for each charge separately, and the consequences of such non-compliance.
Ratio Decidendi: The provisions of the Army Rules, particularly Rule 111(2) and Rule 115(1), were found to be mandatory, and the court emphasized the importance of complying with these rules in the arraignment and recording of plea of guilty for each charge separately.
Final Decision: The court set aside the sentence and conviction, quashed the proceedings, and directed a re-trial from the stage of the arraignment of charges.

JUDGMENT

JANARDAN SAHAI, J.-The applicant Shiv Kumar Joshi was a Havildar in the Indian Army. He has challenged the sentence of dismissal and reducing him to the ranks in Summary Court Martial. A tentative charge-sheet dated 12.3.2009 was issued to him in which there were two charges. First; he at Meerut on 6th March, 2009 committed theft of HDFC Bank A TM Debit Card, the property belonging to No. 15135702Y Naik (Driver Special) Vijay Kumar of the same Regiment, and Second, that he at Meerut on 6th March, 2009 with intent to cause wrongful loss to No. 15135702Y Naik (Driver Special) Vijay K1.lffiar of the same regiment, withdrew a sum of Rs. 15,000/- (Rs. Fifteen thousand only) from HDFC Bank Account No. 028511550012322 of said person by using A TM Debit Card. After proceedings under Rule 22 of the Army Rules, Summary of evidence was recorded. Five witnesses were examined on behalf of the prosecution, namely, Maj. Himanshu Kalia, who identified the applicant. He stated that the A TM card was kept in the Almirah in the Battery Office from where it was stolen. He also stated that the Videography clipping showed that the money was withdrawn by the applicant by using the ATM card. Prosecution witness No. 2 is Capt Ozarkar Sachin Deepak. He also deposed about the video footage clipping. Prosecution witness No. 3 is Sub. Kashmir Singh, he also deposed about the video clipping. Prosecution witness No. 4 is Sub. Maj. Ram Nath Yadav. He stated about the withdrawal of Rs. 15,0001- by using ATM card which was not in possession of the individual. He also deposed about the video clipping. PW-5 is Vijay Kumar, from whose account money was withdrawn by the applicant. He has stated about the withdrawal from his account and that he suspected the applicant.

2. The statement of the accused was also recorded. He stated that he had taken the A TM/Debit Card from the Battery Office and thereafter having withdrawn a sum of Rs. 15,0001-.

3. After the summary of evidence was recorded, a charge-sheet dated 27th May 2009 was served upon the petitioner. In the original charge-sheet the date 27 is written in pen below which a line has been drawn where under the entire date 21 May 2009 is written in hand. At the bottom there is an endorsement that the date was rectified by the CO and reference is made to a certificate. The certificate is appended on the next page of the Summary Court Martial proceedings. The Commanding Officer Mohit Verma has certified that the petitioner was handed over a copy of the charge-sheet on which the Court Martial was carried out on 21.5.2009 and that the date of the charge-sheet was 21 May 2009, but it was mentioned erroneously by the Commanding Officer as 27 May, 2009. in the proceedings. The charge-sheet dated 27.5.2009 is in the same terms as the tentative charge-sheet dated 12.3.2009. By a letter dated 21.5.2009, the following documents were handed over to the petitioner.

(i) One copy of the charge-sheet (The word 'tentative was printed before 'charge-sheet' but has been scored out by pen)

(ii) One copy of the summary of evidence;

(iii) Letter No. CF/14399116L/SKJ/A dated 21 May, 2009; and

(iv) Vishesh Kaman Adhesh Bhag Pradham dated 21 May, 2009.

4. This letter is addressed to the petitioner and below it is, borne a receipt dated 21.5.2009 of the abovementioned documents obtained from the petitioner.

5. On the basis of the aforesaid charge-sheet. Summary Court Martial proceedings were held and the petitioner was arraigned. The petitioner, it is stated, had pleaded guilty to both the charges and, awarded punishment of dismissal from service and reduction to the ranks.

6. Learned Counsel for the petitioner Shri B.N. Singh made three submissions. The first contention of the Learned Counsel for the petitioner is that after the conviction was recorded, the petitioner was not given any opportunity of hearing on the question of sentence. Learned Central Government Counsel drew our attention to the difference of language used on this poin

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