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1991 (0) MPLJ 985
D.M.. Dharmadhikari, P. Chouhan
Kulwant Singh (Nk.) S/O Sardar
vs
Union Of India (Uoi) And Ors.
Decided On : 24 June, 1991
ARMY ACT, 1950 - SECTION 37(C), 38(1), 63 - COURT MARTIAL PROCEEDINGS - JUDICIAL REVIEW - SCOPE - VALIDITY OF CONVENING ORDER - ESSENTIAL FUNCTION OF CONVENING - DELEGATION OF AUTHORITY - OATH OF MEMBERS - PRESENCE OF ACCUSED - MERITS OF THE CASE - OFFENCES OF MUTINY, DESERTION AND MILITARY INDISCIPLINE - INTERPRETATION OF THE PROVISIONS - MEANING OF 'MUTINY' AND 'DESERTION' - INTENT TO ABANDON SERVICES - LEGAL ASSISTANCE TO ACCUSED - DISQUALIFICATION OF PRESIDING OFFICER - EXAMINATION OF EXPERT WITNESS - CROSS-EXAMINATION OF HOSTILE WITNESS.
Fact of the Case:
Petitioners, army personnel, were convicted and sentenced by a General Court Martial for alleged offences committed by them under Sections 37(c), 38(1), and 63 of the Army Act, 1950. They challenged the conviction and sentences on various grounds, including the validity of the convening order, the absence of oath-taking by the members of the Court Martial in the presence of the accused, and the merits of the case.
Finding of the Court:
The Court held that: 1. The convening order was valid and the essential function of convening a Court Martial was not delegated to any other authority. 2. The oath could be administered and taken even if the accused were not present at the time of oath. 3. The evidence on record, even if fully accepted, established the commission of offences of 'mutiny', 'desertion', and 'military indiscipline'. 4. The meaning of 'mutiny' and 'desertion' under the Act was interpreted, and it was held that the petitioners' conduct fell short of the expected conduct from armymen in military law.
Issues: 1. Validity of the convening order. 2. Oath-taking by the members of the Court Martial in the presence of the accused. 3. Merits of the case, including the offences of mutiny, desertion, and military indiscipline.
Ratio Decidendi: 1. The essential function of convening a Court Martial is to take a decision to hold a General Court Martial and select members to it. Mere signing of convening order on behalf of and under the authority of the General Officer Commanding by his delegate could not be treated as contravention of the provisions of the Act. 2. The requirement of law is that a General Court Martial has to be called by the Central Government or the Chief of the Army Staff or by any officer empowered in this behalf by warrant. The convening of the Court Martial was done by the General Officer Commanding himself and the Assistant Adjutant General merely signed the convening order on his instructions and under his authority. 3. The oath could be administered and taken even if the accused were not present at the time of oath. The accused are in fact arraigned before the Court Martial after the members of the Court Martial assemble consequent upon taking oath. 4. The offence of 'mutiny' cannot be committed singly or individually and it is an offence committed in concert or collectively by a body of persons. The word 'mutiny' has not been defined under Section 37 of the Act, but its meaning has to be understood in the context of military law. 'Mutiny' as understood in the Army is "collective insubordination or combination of two or more persons to resist, or to induce others to resist, lawful military authority." 5. The meaning of the word 'desertion' under Section 38 of the Act was interpreted, and it was held that the petitioners' conduct as disclosed from the evidence of record was found to be subsersive of good order and military discipline, apart from the offences committed by them of mutiny and desertion.
Final Decision: The petitions were dismissed, but without any order as to costs.
D.M. Dharmadhkari, J.
1. The order passed in this petition shall also govern the disposal of following Misc. Petitions which were heard together :-
(1) M. P. No. 2320 of 1987 (Hav. Kashmir Singh 3362069 and Ors. v. Union of India and Ors.)
(2) M. P. No. 170 of 1990 (3369816 Hav. Harisingh and Anr. v. Union of India and Ors.)
(3) M. P. No. 171 of 1990 (3368252 Sep. Balwinder Singh v. Union of India and Ors.)
(4) M. P. No. 172 of 1990 (3363144 Nk. Baldev Singh and Ors. v. Union of India and Ors.)
(5) M.P. No. 173 of 1990 (No. 3370117 Nk. Kuldeep Singh and Ors. v. Union of India and Ors.).
2. We have taken up the present petition for decision first because the points common in all the above petitions were argued by the learned counsel for the petitioners on the basis of contentions and grounds raised in this petition.
3. The petition is filed challenging conviction and sentences of the petitioners in Court Martial proceedings for alleged offences said to have been committed by them Under Sections 37(c), 38(1) and 63 of the Army Act, 1950 (hereinafter referred to as 'the Act').
4. In the Sikh Regiment Centre at Ramgarh on 10-6-1984 soldiers waged a mutiny and looted the arms in battalion kotes. The cause of mutiny in the Sikh Regiment was said to be the entry of the Indian Army in the precinct of the Golden Temple, Amritsar in its action called 'Operation Blue Star' and the blood shed in course of it. The above action of the Army is said to have grievously hurt the religious sentiments of the Sikhs throughout India including those in the Army. The petitioners four in number in this case were tried in General Court Martial for the charges contained in the charge sheet as under :-
"Charge Sheet The accused (1) No. 3368610 Nk. Kulwant, (2) No. 3381849 Sepoy Balraj Singh, (3) No. 3382130 Seopy Gurmeet Singh, (4) No. 3381905 Sepoy Hakum Singh all of the Sikh Regimental Centre, attached with Adm. Bn. The Jammu and Kashmir Rifles Regimental Centre are charged with :
First Charge Army Act, Section 37(c) against all accused persons BEING PRESENT AT A MUTINY IN THE MILITARY FORCES OF INDIA, NOT USING THEIR UTMOST ENDEAVOURS TO SUPPRESS THE SAME, in that they together at Ramgarh, on 10 June 84, while on guard duty at training battalion kotes of SIKH Regimental Centre and when soldiers of the said centre advanced towards the training battalion kotes in a mutinous spirit to loot the said kotes, failed to use their utmost endeavours to supress the said mutiny.
Second Charge Army Act Section 63 (against all accused persons) AN OMISSION PREJUDICAL TO GOOD ORDER AND MILITARY DISCIPLINE IN THAT THEY together at RAMGARH, on 10 June 84, while on guard duty at training battalion kote of the SIKH Regimental Centre improperly omitted to protect the said battalion kote, which resulted in the loss of following arms:
(a) Rifles 7.62 mm Al - 1330
(b) Carbine Machine 9 mm - 111
(c) Gun machine 7.62 mm IB - 96
(d) Gun machine 7.62 mm IC - 06
Third Charge Army Act, Section 38(1) against accused No. 3 only DESERTING THE SERVICE, in that he, at Ramgarh on 10 June 1984, absented himself from Sikh Reginmental Centre until apprehended by personnel of 4 para on Agra Udla Road on 11 June 1984
Fourth Charge Army Act, Section 38(1) against accused No. 4 only DESERTING THE SERVICES in that he, at RAMGARH on 10 June 84 absented himself from SIKH Regimental Centre until apprehended by personel of Bihar Regimental Centre at Fatua on 11 June 84.
Sd/-
(M.S. batt)
Place:- Jabalpur Lt. Col.
Dated:- 19th March, 85
Commanding Officer,
Adm. Bn. The JAK Rif.
Regt. Centre.
To be tried by General Court Martial.
Place : Jabalpur
Dated : - 30 March, 85
Sd/-
(A.T. Marath,)
Lt. Col.
Asstant Adjutant General for General Officer Commanding, Madhya Pradesh, Bihar And Orissa Area."
5. The General Court Martial after holding trial under the Act and the Army Rules recorded findings of the petitioners being 'not guilty' for some of the charges and 'guilty' for the remaining charges. The Confirming Authority in revision s
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