R D SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner has come forward before this Court challenging the confirming order dated 2.3.1990.

(2.) THE facts giving rise to the present petition are that the petitioner had joined the Indian Air Force in the year 1966 and at the time of incident he has rendered 23 years of service and was Junior Warrant Officer in police trade. It is stated that the petitioner has reported a matter of corruption against Fit. Lt. H.C. Prasad and his summary of evidence was in progress atAir Force Station Memaura. On 20.8.1987 after giving statement at Memaura, the petitioner along with some civilians and Fit. Lt. H.C. Prasad were travelling in Jonga vehicle driven by one K.C. Patel, the driver of the vehicle. THE vehicle was carrying three filled gas cylinders. THE vehicle met with an accident at Banthara-Mohanlal Ganj Road near Village Khatola on 20.8.1987 resulting in serious injuries to passengers and death of Fit. Lt. H.C. Prasad due to explosion of gas cylinders. THE petitioner also became unconscious in the said incident and on gaining sense he could anyhow reached to his parent unit with a view to report the matter, but in the meantime, he learnt that the incident has already been communicated by Air Force Station Memaura. An F.I.R. was lodged at Police Station Banthara. THE police investigated the matter and submitted a charge-sheet to the Magistrate of the Court concerned under Sections 304A, 279 and 337, IPC. THE respondent No. 4 thereafter got the case transferred from the Court of Magistrate to the Air Force authorities to try the petitioner by General Court Martial. THE petitioner was asked his choice of defending officer. THE petitioner submitted his choice of defending officer as Fit. Lt. H.B. Mishra of Headquarters, Central Air Command, Allahabad under the direct administrative control of convening authority respondent No. 3, but the authorities did not agree to the said defending officer and later on provided Sqn Ldr. B.N.S. Chauhan as defending officer. THE petitioner did not accept him as his defending officer. THE respondents persisted not to provide Fit. Lt. H.B. Mishra for defending the petitioner, whereas the petitioner had repeatedly requested for Fit. Lt. H.B. Mishra by means of applications dated 2.1.1988,7.4.1988,28.4.1988 and 4.6.1988 as he was available at Allahabad and also willing to defend the petitioner. THE petitioner preferred a statutory complaint against non-providing of defending officer Fit. Lt. H.B. Mishra to respondent No. 3, but no action was taken in the matter. THEreafter, petitioner filed writ petition bearing No. 5770 of 1988, which was dismissed on 4.8.1988 with a direction to press this point before the General Court Martial. THE said order was served before the General Court Martial and a request was also made by the petitioner, but the said request was not considered. THE petitioner finding no other way, objected for the proceedings of the trial orally on 5.8.1988 and 10.8.1988, but the said objection was not taken into account. An application was submitted by the petitioner before the General Court Martial explaining his inability and claiming the defending officer of his choice, but the same was also not considered by the presiding officer. On 11.8.1988 when the Court was reassembled, the petitioner submitted his written objection for the trial by the General Court Martial. When the request of the petitioner was not considered by the authorities concerned, the petitioner submitted a fresh application on 11.8.1988 requesting them that any of the three officers listed in the said application may be provided for his defence, but even then no change was affected in the defending officer. On 12.8.1988 the petitioner submitted another application requesting to provide him any defence officer from the Indian Air Force instead of the Central Air Command, Allahabad, even then no defence officer of his choice was made available to him. THE petitioner feeling aggrieved with the aforesaid arbitrary action of the General Court Martial proceeded to file writ petition bearing No. 6496 of 1988 on 16.8.1988, but no orders could be passed on the said writ petition and thereafter the General Court Martial proceeded ex-parte without any defending officer. THE petitioner filed a criminal revision challenging the transfer of the case from the Court of Magistrate to the Air Force, which was dismissed as being time barred. THE petitioner thereafter filed third writ petition bearing No. 7969 of 1988, which was admitted on 15.10.1988 and the proceedings before the General Court Martial were stayed. THE statement of 22 PWs were recorded without any defending officer before 15.10.1988 as no witness was cross-examined through the entire proceedings and so the petitioner suffered greatly. THEreafter, interim order dated 15.10.1988 passed in Writ Petition No. 7969 of 1988 was vacated on 25.4.1989, but in Writ Petition No. 6496 of 1988 the final order of the General Court Martial was stayed on 6.8.1989. However, the order dated 6.8.1989 was vacated on 19.6.1989 with a direction that the proceedings before the Court Martial can be concluded and the case against the petitioner may be decided by the Court Martial according to law provided the petitioner is permitted to engage a legal practitioner of his choice and to be defended by him. From 19.6.1989 to 24.6.1989 no proceedings could take place and the General Court Martial reassembled on 24.6.1989 and as directed by this Court the petitioner engaged Sri T. N. Tiwari, Advocate as Counsel of his choice. Sri T. N. Tiwari could not appear before the General Court Martial due to his personal engagement up to 4.7.1989 and accordingly sought adjournment by sending an application on 23.6.1989, which was submitted before the respondents No. 4 and 5 on 24.6.1989, but the request for the adjournment was turned down and the proceedings were finally concluded on 26.6.1989 and the petitioner was taken into custody to serve out the punishment awarded by the General Court Martial. THE concluded proceedings of the General Court Martial were sent to respondent No. 3 for confirmation, which were confirmed by him on 17.10.1989 and promulgated on 18.10.1989. THE petitioner, who was in custody, filed a writ petition in the nature of Habeas Corpus numbering 4007 of 1989 before this Court and all the three writ petitions were dismissed on 19.9.1989 by a single Judge with certain observations, specially in para 29 of the judgment with regard to the defending officer and refusal of the adjournment requested by the Counsel so engaged for defending the petitioner. THE petitioner also filed three Special Leave Petitions against the judgment of this Court, which too were dismissed. THE entire proceedings went ex-parte and no opportunity to cross-examination was given to the Counsel engaged and the proceedings were confirmed in appeal w'cfe order dated 2.3.1990.

(3.) I have heard the learned Counsel for the parties and gone through the record.