UNION OF INDIA Vs. PURUSHOTTAM

JUDGEMENT

(1.) The Respondent herein, No. 7773409X Havildar (Military Police) Purushottam, was enrolled in the Corps of Military Police, on 7th June 1983. On 27th November 2001, while the Respondent was posted to 916 Provost Unit (General Reserve Engineer Force, or GREF), he was detailed as a member of Mobile Squad and was tasked to carry out checks of various Gref detachments located on the Udhampur-Srinagar highway. On completion of duty, the Squad Commander reported the following activities of the Respondent:

(2.) Based on these reports, the Chief Engineer, Project Beacon, ordered a Court of Inquiry which investigated these allegations and concluded that the Respondent was blameworthy for two of the four aforesaid acts committed without authority: firstly, demanding and taking 100 litres of HSD from BR- I HL Meena on 30th November, 2001 and selling it to a civilian, and secondly, on 5th December, 2001 demanding and taking a coat/parkha and two stone breaking steel hammers. The Chief Engineer partially agreed with the findings of the Court of Inquiry and directed disciplinary action against the Respondent for the aforementioned two acts. The Respondent was arraigned on two counts for the two respective acts and charged with committing extortion, under Section 53(a) of the Army Act, 1950. Summary of Evidence was recorded under Rule 23, Army Rules and the Respondent was tried by Summary Court Martial (SCM), headed by Lt. Col CM Kumar, Officer Commanding, (OC) on 11.04.2002. The Respondent pleaded guilty to both charges. At the hearing of the SCM, two prosecution witnesses were examined, both of whom the Respondent declined to cross-examine. The Respondent neither made any statement in his defence, nor did he produce any defence witnesses. He was ultimately awarded the sentence of a reduction in rank to that of "Naik". Thereafter, for reasons recondite, the 'reviewing authority' purportedly acting under Section 162 of the Act, while 'reviewing' the SCM, set aside the same, "due to incorrect framing of charge and lackadaisical recording of evidence at the summary of evidence".

(3.) Deputy Judge-Advocate General purporting to act as the Reviewing Authority, considering this discrepancy, opined that the "officer holding the trial should have, under AR 116 (4), altered the record and entered a plea of 'not guilty' in respect of both charges, and proceeded with the trial accordingly. Non-compliance of the aforesaid provision, in the instant case, being a serious legal infirmity, makes the SCM proceedings liable to be set aside. Therefore, notwithstanding the pleas of guilty by the accused, the findings, conviction on both charges are not sustainable. In view of the above, I am of the considered opinion that, the Summary Court Martial proceedings are liable to be set aside, and I advise you accordingly. If you agree, following will be a suitable minute for you to record on page "J" of the proceedings:- 'I set aside the proceedings. I direct that the accused be relieved of all consequences of the trial'." The records do not reveal that this advice was acted upon.