BALBIR SINGH SAINI Vs. UNION OF INDIA

JUDGEMENT

(1.) Shri Balbir Singh Saini-petitioner has prayed for issuance of a writ of mandamus to respondent No. 2 to delete the portion of proceedings recorded in the case of Squadron Leader K.S.V. Bhupesh by the General Court Martial held at Ambala relating to the petitioner and in particular proceedings dated 20-10-2000, copy of which is Annexure-P-1.

(2.) According to the stand of the petitioner Squadron Leader K.S.V. Bhupesh accused is being tried by the General Court Martial assembled at Ambala. He has been engaged to defend the accused in that case. During the course of the trial on 20-10-2000, the Presiding Officer of the General Court Martial read out from a piece of paper "defence counsel is excluded from the Court." Soon after he requested the Presiding Officer to supply him the copy of the order upon which the Judge Advocate had shouted at him. "You want written order? Get out and clear the Court." Against the oral order of his exclusion from Court proceeding, he had filed C.W.P. No. 14779 of 2000 which was allowed to be withdrawn with the permission to file afresh after obtaining a copy of the order. As the copy of the order was not supplied to him, he had to file another Civil Writ Petition No. 15080 of 2000. Copy of the order dated 20-10-2000 (Annexure-P.1) was accordingly supplied to him in the Court on 13-2-2001 and thereafter he filed the present petition. It has been averred by him that the proceeding has been conducted in violation of Rules 97 and 99 of the Air Force Rules, 1969 (hereinafter referred to as the Rules) as no shorthand writer was present in the Court for taking down the proceedings in shorthand. Even there was no Typist in the Court at that time and the facility of computer typing was not provided for the purposeof recording the Court proceedings. In fact, no proceedings were recorded by the Presiding Officer or the Judge Advocate in his presence and for that reason the documents prepared during the course of trial on 19-10-2000 and 20-10-2000 are false documents. It was also pleaded that in the proceedings recorded on 18-10-2000 leading questions were allowed to be put to the witness despite his objection with regard to hearsay evidence and the identification of the accused was got done from him. His objection was only recorded once in the proceedings prepared. Convening of the General Court Martial as per order dated 30-6-2000 has been assailed being in violation of the provisions of Rules 97 and 99 of the Rules. The further case of the petitioner is that the General Court Martial was not competent to record the proceedings regarding anything done by him in defence of the accused on 20-10-2000 and pass the order excluding him to appear before the said Court on account of his having committed contempt of Court. On these premises he has invoked jurisdiction of this Court under Article 226 of the Constitution.

(3.) We have heard the petitioner in person. The grievance of the petitioner is in two-fold. First grievance relates to the procedure which was followed by the General Court Martial during the course of trial conducted against Squadron Leader K. S. V. Bhupesh. The other is with regard to the utterances attributed to the petitioner during the proceedings and the consequential action taken in this regard as recorded in the proceeding on 20-10-2000, copy of which is Annexure-P. 1.