KRISHNACHARI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By this Criminal Miscellaneous Application No.664 of 2001, the applicant - convict has prayed for condonation of delay in filing of the Criminal Appeal No. 88 of 2001 against the judgement and order of the General Court Martial made on 28-9-1995 convicting the applicant / appellant for the offence under section 302 of the Indian Penal Code and sentencing him to life imprisonment and also dismissing him from service under section 71(b) and (e) of the Army Act, 1950. In the application, the period of delay is not mentioned, but the Registry has worked out the period of delay as 1886 days. The General Court Martial passed the order of punishment on 28th September 1995 subject to confirmation.

(2.) It appears that writ petition No. 15135 of 1996 was filed before the Karnataka High Court by this applicant challenging the order of the Court Martial and by order dated 31st January 2000, it was permitted to be withdrawn "with liberty to file another writ petition, if necessary, before the appropriate court". A certified copy of that order was shown to us by the learned counsel for the applicant. In view of the nature of the writ proceedings, it cannot be said that the petitioner was bonafide pursuing any appellate remedy else where as contended by the learned counsel so as to entitle him to compute the period spent in pursuing such remedy while working out the period of limitation in filing of the criminal appeal. The petitioner has miserably failed in explaining the gross delay in preferring the appeal. However, if the appeal itself is not maintainable, as we shall presently see, the question of condonation of delay will become irrelevant.

(3.) Apart from the gross unexplained delay which itself is sufficient to reject the application and the appeal, it would also appear that the Criminal Appeal No. 88 of 2001 in respect of which the applicant prays for condonation of delay, would be wholly a misconceived proceeding in view of the various provisions of the Army Act, 1950. The appellant's case was tried by the General Court Martial under section 69 read with section 125 of the Army Act, 1950. As noted above, the sentence imposed by the General Court Martial was subject to confirmation as required by the provisions of section 154 of the Army Act. Under that provision, the findings and sentence of general court - martial may be confirmed by the Central Government, or by any officer empowered in this behalf by warrant of the Central Government. It is not known as to what happened after the sentence was pronounced against the appellant by the general court martial subject to the confirmation by the concerned authority. Furthermore, there is a provision in section 160 of the said Act in which it is laid down that any finding or sentence of a court martial which requires confirmation may be once revised by order of the confirming authority and on such revision, the Court, if so directed by the confirming authority, may take additional evidence. There is also a provision in section 164 of the Army Act prescribing remedy, against any order, finding or sentence of court martial, and it is provided therein that, any person subject to the said Act who considers himself aggrieved by any order passed by any court martial may present a petition to the officer or authority empowered to confirm any finding or sentence of such court martial, and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates. Furthermore, in Chapter XIV of the said Act, there are provisions regarding "Pardons, Remissions and Suspensions". Thus, as regards the orders made by the general court martial under the provisions of the said Act, the remedies are provided thereunder and it being a self-contained code, no appeal would lie to the High Court against the order of the Court - Martial under the provisions of section 374 of the Code of Criminal Procedure. The defence personnel serving in the Army when commit any offence are dealt with by the special provisions contained in the Army Act, 1950 and not by the provisions of the Code of Criminal Procedure. There is finality attached to the findings arrived at by the competent authority in the Court - Martial proceedings and the High Court has no appellate powers over such decisions of the Court - Martial under the said Act.