SOM DATT DATTA Vs. UNION OF INDIA

JUDGEMENT

(1.) In this case the petitioner has obtained a rule from this Court asking the respondents to show cause why a writ in the nature of certiorari should not be issued under Art. 32 of the Constitution for calling up and quashing the proceedings before the General Court Martial No. JAG 26/66-67/AA of 1965 from the Judge Advocate General (Army branch), Army Headquarters whereby the petitioner was found guilty of charges under Sec. 304 and Section 149 of the Indian Penal Code and sentenced to a period of 6 years' rigorous imprisonment and cashiering. Cause has been shown by the Attorney-General on behalf of the Union of India and other respondents to whom notice of the rule was ordered to be given.

(2.) The petitioner was commissioned in the Indian Army in February, 1964 and was posted as Second Lt. (E. C. 55461) and was attached to 397 Engineering Construction Equipment Company in December, 1964. In August, 1965 the petitioner was posted as a Quarter Master and was transferred to Madras along with the Company. It appears that Wednesday. September 1, 1965 was to be celebrated as the Raising Day of the Unit when Games and Sports entertainment and Bara Khana (evening dinner) were to be arranged. In this celebration, all officers an other ranks of the Unit had to take some part and a number of other Army officers were to be received and entertained on behalf of the Unit. At the variety entertainment Punjabis and Garhwalis took part and each party was given free one bottle of rum. But it is alleged that the Purblic were not given an opportunity to put up their show and were not given free a bottle of rum. They were consequently aggrieved for this reason. The variety entertainment concluded at about 1900 hours at the end of which rum was issued to the jawans. The bara khana was to commence at 2000 hours. As there was a delay in the assembly of the men at the dining hall, Maj. Agarwal sent the petitioner to the lines to find out the cause for the delay and to get the men quickly. The petitioner went to the lines and it is alleged that the accused used filthy language while addressing the men. Some of the Purbias including the deceased Spr. Bishwanath Singh protested against the use of such language. Though the petitioner expressed regret, the men were not satisfied. A few of the Sikh jawans, including some of the accused sided with the petitioner and there was a heated argument between the two groups on their way to the dining hall. The bara khana was served in two sittings. The petitioner did not join the first sitting but joined the second sitting which consisted of about 30 to 40 men. The quarrel which started between the two groups earlier was continued in the dining hall. The lights went off for a few minutes and when the lights came on, it was observed that a scuffle was going on in the middle of the ball between the petitioner and other Sikh jawans and the deceased. As the scuffle progressed, the deceased was surrounded by petitioner No. 1 and the other accused persons and the group moved towards the service counter. The lights went off for a second time. In the darkness tables, benches and plates were hurled about. Most of the men ran out of the dining hall. It is alleged that accused No. 6 was seen stabbing with a knife Spr. Bishwanath Singh and the latter slumped to the ground. Accused No. 3 hit him with a soot rake. When the lights came on after a few minutes, the petitioner and the other accused were found standing near the place where Spr. Bishwanath Singh had fallen. Consequently, Maj. Agarwal arrived at the scene and took Spr. Bishwanath Singh to the MI room where he was found dead by Maj. Koley, the Medical Officer. It appears at on September 2, 1965 at about 0400 hours the matter was reported to the Civil Police by Second Lt. F. D. A. Jesudian. A case under S. 302, Indian Penal Code was registered as crime No. 726/1965 at Pallavaran Police Station, Madras. Shri Bashyam, Inspector of Police reached the place of occurrence at 0430 hours on the same date. He inspected the dining hall and seized certain exhibits produced by Maj. Agarwal. He also held inquest on the dead body of Spr. Bishwanath Singh and sent the dead body for post-mortem examination to the mortuary, Madras General Hospital through Police Constable No. 1407, Ratnam. He sent the exhibits seized to the State Forenisc Science Laboratory, Madras for chemical examination. At 13-30 hours on the same date Sri Bishyam stopped further investigations as Lt. Col. Bajpai wanted the case to be handled by the Military authorities.

(3.) On September 3, 1965, a Court of Enquiry under the provisions of Ch. VI of the Army Rules was ordered by the Commander, Mysore and Kerala Sub-Area. After the Court of Inquiry had concluded the proceedings, a Court Martial was constituted by an order dated August 11, 1966 by Major-General S. J. Sathe, General Officer Commanding, Madras, Mysore and Kerala area to try the petitioner and other accused persons. The Court Martial assembled on August 18,1966 and conducted its proceedings on several subsequent dates. In support of the case of the prosecution 30 witnesses were examined. At the Court Martial, the petitioner was defended by an Advocate of the Madras High Court Sri Natarajan and he was also assisted by a friend of the accused Major T. B. Narayanan. At the trial the Counsel for the petitioner cross-examined the witnesses for the prosecution and after the prosecution evidence was concluded, the petitioner said that he did not intend to call any defence witnesses. The petitioner, however, submitted a written statement. He was also put various questions by the Court Martial to which be replied. After the Counsel for the defence was heard and after the Judge Advocate summed up the case, the Court Martial came to the finding that the petitioner was guilty of culpable homicide not amounting to murder and that he was a member of an unlawful assembly and the petitioner was sentenced to cashiering and 6 years' rigorous imprisonment. Against the decision of the Court Martial the petitioner filed a petition under Section 164 of the Army Act but the petition was dismissed by the confirming authority and the finding and sentence by the Court Martial was confirmed so far as the petitioner was concerned. The petitioner thereafter filed an appeal under Section 165 of the Army Act to the Central Government but the appeal was dismissed.