R S BHAGAT Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition is filed by the petitioner against his dismissal from the Army. At the relevant time the petitioner was a permament Commissioned Officer of regular Indian Army holding the rank of Lt. Colonel. He was tried under section 69 of the Army Act by a General Court Martial. The charge against him was that he had committed a civil offence of theft, contrary to section 379 of the Indian penal Code of a silk saree valued at Rs. 350/ which was the property of a civilian Shri M.L. Kapoor. C.S.O. A.D.P.C. Air Headquarters, New Delhi. The verdict of "guilt of the charge" was returned by the Court Martial on 16-8-1974. The findings and the sentence was then submitted for confirmation to the Chief of the Army Staff under section 164 of the Act. In August. 1974 the petitioner filed a pre-confirmation appeal under section 164 of the Army Act. By his order dated 8-1-1975 the Chief of the Army Staff confirmed the findings of the Court Martial and passed an order dismissing the petitioner. On 14-2-1975 the petitioner filed a post-confirmation appeal under section 164 of the Act to Government of India. It is nut denied by the Respondents that the Defence Minister expressed grave doubts about the verdict of guilt and stated that the benefit of doubt should be given to the petitioner. It is also not denied that at the ministerial level a reference was made to the Ministry of Law. The Minister in the Ministry of Law opined that the prosecution had failed to establish the case and recommended complete acquittal. The petitioner contended that in spite of the decision of the Defence Minister and the Law Minister the final order of dismissal was communicated by the Defence Ministry vide their communication dated 4th December, 1976. A further representation by the petitioner to the Central Government was rejected on March 17, 1977. In this petition the petitioner has prayed that the entire proceedings of the Court Martial from 19th March, 1974 to 2nd April, 1974 and from 5th August, 1974 to 16th Agust, 1974 should be declared illegal and should be quashed. He has further prayed that the orders of dismissal dated 16-8-1974, 8-1-1975, 4-12-1976 and 17-3-1977 be declared illegal and void. He has been then prayed that the said orders should be quashed and set aside. Some other consequential reliefs are also claimed.

(2.) . In order to appreciate the petitioner's submissions we may note some relevant facts. In June 1973 the petitioner went to Bangalore. At that time he was doing the Defence Management Course at the Institute of Defence Management. The training course was in the Airforce Command. On 30th July. 1973 the petitioner shifted to Command Air Force Officers Mess. He was to share the room there with Complainant M.L. Kapoor. Mr. Kapoor who had gone to Bangalore from Delhi for delivering some lectures was to leave Bangalore on 1st August, 1973. On the evening of 31st July, 1973 Kapoor returned to to his room with two packets. The prosecution case is that the packets contained two silk saree, one saree costing Rs. 450 and the other Rs. 350. According to prosecution the second saree had a tag show a number 3455 x 22. These sarees were purchased by Kapoor from SHANTALA SILK AND SAREES STORE. It is alleged by the prosecution that when Kapur returned to his room the petitioner was playing bridge with Lt. Colonel Inder Mohan (Public Witness -10), Sqn. Ldr. Desai(PW-IJ) and Wg. Commander Rakra(PW-12). The prosecution case is that on being asked by the petitioner Kapur told him that he had bought sarees from M/s. SHANTALA SILK AND SAREES STORE but he declined to show the sarees. It is then said that Kapur went to bath room and returned after five to seven minutes when Kapur alone was in the room. It is alleged that on 1-8-1973 Kapur left for Delhi. After reaching Delhi Kapur found that Saree costing Rs. 350 was missing. Kapur rang up one Ramaswamy (Public Witness -2) who had accompanied him at the time of the purchase of the sarees and told him that saree costing Rs. 358 was missing. Kapur wanted Ramaswamy to find out from shop as to whether the said sarees was not packed by the salesman at the shop. Ramaswamy learnt that one Major Verma had returned the saree claiming to the friend of Kapur and in exchange had taken two sarees. The prosecution case is that on 4-8-1973 Ramaswamy (Public Witness -2) and Narasimhan (Public Witness -3) went to the shop and identified the saree purchased by Mr. Kapur (Ex. 'N') . It is then alleged that a sales-boy from the shop, Thimmana (Public Witness -13) was sent to the Headquarters Training Command Officers' Mess along with Narasimhan. Thimmana could not identify the person on August 4 and 6th, 1973. But on 7th August, 1973 he identified the petitioner as a person who went to the shop, posing himself as Major Verma and exchanged the saree. It is alleged that the Sub-Area Commander at Bangalore arranged for the search and the petitioner voluntarily handed over to Lt. Colonel Thaper (Public Witness -5) two sarees and a blouse piece (Ex-'P'). It is said that the petitioner claimed that the sarees were pur. chased by him. The prosecution claims that thereafter on 9th August 1973 the petitioner approached Maruti (Public Witness -9) the proprietor of the shop and made a confession to him. It is also claimed that the petitioner made similar confession to Kapur twice, first on the telephone and then personally during the Court of Enquiry proceedings. Thus the prosecution case is that in the night of 31st July, 1973 the petitioner committed a theft of a saree belonging to Kapur.

(3.) . There are no eye-witnesses. The prosecution evidence is circumstantial evidence. Two main circumstances form basis of the prosecution story. The first is, that the petitioner alone had an opportunity of stealing the saree. The second is, that he exchanged the saree for two other sarees on August 1, 1973 with the shop-keeper. On the question of an opportunity for the petitioner to steal, the prosecution has examined the complainant and three service officers (Public Witness -11, Public Witness -12 and Public Witness -13). For identification of the saree prosecution examined mainly Kapoor (Public Witness -1), Ramaswamy (Public Witness -2), Maruti (Public Witness -9), the proprietor of the shop, Thimmana (Public Witness -13), a helper in shop and Suryakumari the sales-girl, who it was alleged had sold sarees to Kapoor and who had permitted the exchange of one saree. For identification of the petitioner prosecution mainly relied upon the evidence of Thimmana (PW-13). For the transaction of exchange prosecution has principally relied upon the evidence of Public Witness -9, Public Witness -13 and Public Witness -I 4. The documentary evidence is mainly that of the counter-foils from bill books. Bill for sarees purchased by Kapur is Ex. 'F' Bill for saree taken in exchange by petitioner is Ex. 'S'. Ex. 'T' is its first version which later on was cancelled. The stolen saree is Ex. 'N'. Its price tag is Ex. "N1' Prosecution has also relied upon the alleged confession made by the petitioner. The first confession was made to Maruti (Public Witness -9) on August 9, 1973. The second and third confessions were to the complainant on August 9, 1973 and during Court of Inquiry in August, 1973, respectively.