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1995 Supreme(All) 1336
IN THE HIGH COURT OF ALLAHABAD
N.B. ASTHANA, D.S. SINHA, JJ.
Lt. Col. Jit Pal Singh - Appellant
Versus
Union of India (UOI) and Others - Respondent
C.M.W.P. No. 44364 of 1993
Decided On : 28-08-1995
Advocate Appeared:
For the Appellant : Rajesh Pathik, G.D. Mukherjee and P.P. Srivastava
For the Respondent: Shishir Kumar
A warning issued to an accused by an authority not competent to do so under Regulation 327 of the Defence Services Regulations does not amount to pardon or closure of the case, and a plea of pardon under Rule 53(1)(b) of the Army Rules is not sustainable in the absence of a conviction by a court martial.
Headnote:
ARMY ACT, 1950 - SECTION 179 - PARDON - ARMY RULES, 1954 - RULE 53(1)(B) - PARDON OR CLOSURE OF CASE - DEFENCE SERVICES REGULATIONS - REGULATION 327 - REPROOF - WARNING - COMPETENT AUTHORITY - TRIAL BY GENERAL COURT MARTIAL - BAR TO TRIAL - SUMMARY
Fact of the Case:
Petitioner, a Lieutenant Colonel in the Indian Army, challenged an order directing his trial by a General Court Martial for financial irregularities. He argued that the trial was barred due to a warning issued to him by the Station Commander, which he claimed amounted to pardon or closure of the case under Rule 53(1)(b) of the Army Rules, 1954 and Regulation 327 of the Defence Services Regulations.
Finding of the Court:
The court held that the warning issued to the Petitioner by the Station Commander did not constitute pardon or closure of the case. It noted that the warning was not issued by a competent authority as required under Regulation 327 and that the order did not direct the closure of the case. The court also held that the plea of pardon under Rule 53(1)(b) of the Army Rules was not sustainable as the Petitioner had not been convicted by a court martial.
Issues: 1. Whether the warning issued to the Petitioner by the Station Commander amounted to pardon or closure of the case under Rule 53(1)(b) of the Army Rules, 1954 and Regulation 327 of the Defence Services Regulations? 2. Whether the plea of pardon under Rule 53(1)(b) of the Army Rules was sustainable in the absence of a conviction by a court martial?
Ratio Decidendi: 1. The warning issued to the Petitioner by the Station Commander did not constitute pardon or closure of the case as it was not issued by a competent authority and the order did not direct the closure of the case. 2. The plea of pardon under Rule 53(1)(b) of the Army Rules was not sustainable as the Petitioner had not been convicted by a court martial.
Final Decision: The petition was dismissed, and the ad interim order staying the proceedings pursuant to the impugned order was discharged.
D.S. SINHA, J.
1. Heard Sri G. D. Mukherjee, learned Counsel for the Petitioner and Sri Shishir Kumar, learned Counsel appearing for the Respondents, at length and in detail.
2. By means of Instant writ petition under Article 226 of the Constitution of India, the Petitioner, a Lieutenant Colonel belonging to the Army Supply Corps of the Indian Army, seeks to challenge the order dated 23rd September, 1993 (Annexure 15' to the petition) passed by the Lt. General Officer Commanding I Corps, Mathura whereby he has been directed to be tried by a General Court Martial.
3. The Petitioner was posted as Administrative Officer at Mathura. During the period between 10th July, 1991 and 13th March, 1993, there were complaints against him regarding financial Irregularities relating to reimbursement of medical bills and claims pertaining to night duty allowances. On the basis of these complaints, a Court of Inquiry was constituted for investigating the complaints. The Court of Inquiry, it appears, found substance in the allegations against the Petitioner. This was followed by a charge-sheet dated 21st September, 1993, a true copy whereof is Annexure CA-1 to the counter-affidavit filed on behalf of the Respondents, and also passing of the impugned order dated 23rd September, 1993. The charge-sheet along with the impugned order was served on the Petitioner on 4th October, 1993 and he was put in close arrest.
4. On 23rd November, 1993 the Petitioner filed this writ petition which was admitted on 3rd March, 1994 and the proceedings pursuant to the impugned order were stayed.
5. The learned Counsel for the Petitioner contends that trial of the Petitioner by the General Court Martial cannot proceed in view of the provisions of Rule 53(1) (b) of the Army Rules, 1954, (hereinafter called the Rules), and the provisions of Regulation 327 contained in Chapter VIII of Part II of Volume I of the Defence Services Regulations (Regulations for the Army), (hereinafter referred to as the Regulations), Inasmuch as the Petitioner had already been administered warning by the Station Commander, Station Headquarter, Mathura, the Respondent No. 5, vide order dated 15th February, 1993, a copy whereof is Annexure-'11' to the petition, and, according to the learned Counsel, the administration of the warning will have the effect of closing the case and grant of pardon to the Petitioner as contemplated by the Regulation 327 of the Regulations and Rule 53(1)(b) of the Rules.
6. Learned Counsel appearing for the Respondents counters the contention of the learned Counsel of the Petitioner and submits that the order dated 15th February, 1993 (Annexure 11' to the petition) cannot be construed as either grant of pardon to the Petitioner or closure of the case against him.
7. Rule 53(1)(b) of the Rules provides that the accused at the time of his general plea of guilty or not guilty to a charge or offence may offer a plea in bar of trial on the ground that the offence has been pardoned or condoned by competent military authority.
8. Regulation 327 contains the provisions regarding reproof which may be verbal or in writing or both. Clause (d) of Regulation 327 envisages that It should be ensured that before administering reproof by way of warning or otherwise, the competent authority applies its mind to the case and comes to a conclusion that ends of justice would be met by closing the case with reproof, and once a decision has been arrived at and the case closed by administration of a reproof by a competent authority, no superior authority can reopen the case.
9. The court has examined the submission of the learned Counsel for the Petitioner very carefully but does not find any substance therein.
10. Order dated 15th February, 1993 (Annexure 11' to the petition) relied upon by the learned Counsel of the Petitioner to buttress the plea of pardon and closure of the case, cannot be read to be an order either granting pardon to the Petitioner or directing closure of the case. This
