LAWS(DLH)-2003-3-97

SATYA PAL SUD Vs. UNION OF INDIA

Decided On March 13, 2003
SATYA PAL SUD Appellant
V/S
UNION OF INDIA Respondents

JUDGEMENT

(1.) This appeal has been filed aggrieved by the order dated 5th July, 1999 passed by the learned Single Judge. Mr.E.X. Joseph, learned senior counsel for the appellant has contended that in view of the extreme penalty imposed by the General Court Martial of cashiering and sentence for rigorous imprisonment for one year, the finding of General Court Martial as confirmed by the confirming authority is liable for strict judicial review.

(2.) At the outset it was contended that there was non-compliance of Rule 97 (2) by the General Court Martial as notice of seven days, was not given to the appellant to engage a counsel, although the prosecution had engaged a lawyer. It was contended before us that the appellant was under arrest from the day on which the trial started and no opportunity, much less an opportunity of seven days notice, was given to the appellant. It was also contended that non-compliance of Rule 97 of the Army Rules has resulted in serious prejudice which was caused to the defence of the appellant and that aspect of the matter was not taken note of in the impugned judgment. It was also contended before us that other officers who were working under the appellant had not been proceeded against and only the appellant was singled out for that purpose. It was further contended that the appellant was a meritorious officer. He became a Brigadier on his merit and he was re-employed for two years and an officer who was a meritorious officer and on selection became a Brigadier and no adverse finding was ever recorded against him, overnight he could not have become a corrupt officer. In support of his arguments, Mr.Joseph relied upon a judgment of Supreme Court in the case M.S. Bindra Vs. Union of India & Ors. JT 1998 (6) SC 34. Learned counsel for the appellant had vehemently contended that there was no mens rea, i.e. intent to defraud as was the charge on which the appellant was tried by General Court Martial. He had contended that there was no evidence on record to show that the appellant was benefited by approving the higher rates as charged by the respondent. It was also contended before us by counsel for the appellant that there was no material or evidence on record that on account of any action of the appellant the State was put to a loss. In support of his contention, Mr.Joseph relied upon A.L.N. Narayan Chettyar and Anr. Vs. Official Assignee, High Court Rangoon & Anr. (28) AIR 1941 PC 93 and Anil Kumar Bose Vs. State of Bihar AIR 1974 SC 1560.

(3.) On the other hand, Ms.Jyoti Singh, learned counsel for the respondent has contended that it was the appellant who himself had refused to take the help of a defence counsel. She has contended that the appellant wanted to have a counsel at the expense of the State. However, as there was provision for the army authorities to provide the help of a counsel only in cases where the penalty is death or the person so charged is incapable to defend himself, no counsel at State expense could be provided for the defence of the charged officer in view of Defence Services Regulation 479. It was also contended by Ms.Singh that officers who were junior to the appellant were also charge-sheeted and criminal proceedings were held against them. It was contended that there was over-whelming evidence on record from which it could be inferred that the appellant was involved with the other junior officers in approving higher rates.