SEWA RAM NAGIAL Vs. UNION OF INDIA

JUDGEMENT

(1.) BY virtue of this writ petition the petitioner challenges an order of a General Court Martial, for short G. C. M., convicting him under Section 63 of the Army Act and Section 3(i)(c) of the Indian Official Secrets Act, 1923, for short, Official Secrets Act, read with Section 69 of the Army Act, and cashiering him and sentencing him to seven years' rigorous imprisonment. Briefly stated, the facts leading up to the filing of the writ petition are as follows:

(2.) THE petitioner as his case shows, was posted as General Staff Officer, 3(Intelligence) at XVI Corps Head Quarters, when on 14 -9 -1975, he was directed to go to Delhi to clear some doubts about him, which had arisen in the mind of the officer, who was interrogating GNR (GD) Aya Singh of 253 Medium Regiment. He reached Delhi on the following day and reported at Raj Rifles Centre, where he was immediately taken into custody. Later on, he was according to him, charged under Section 63 of the Army Act and Section 3(i)(c) of the Official Secrets Act read with Section 69 of the Army Act, and was punished by the G. 0. C, Northern Command, respondent No. 3 herein, and demoted to the rank of Lieutenant, by his order dt. 18 -3 -1976. The higher officers not being satisfied with the quantum of punishment, a fresh charge -sheet under the aforesaid sections, which was based upon the same facts, was served upon him. After recording the summary of evidence, he was arraigned before a G. C. M. to stand his trial for the aforesaid offences. He objected to the constitution of the G. C. M., but his objection was not recorded by it. He also objected to its jurisdiction to try him for the aforesaid offences, but this objection too was overruled by the G. C. M., which eventually found him guilty and convicted and sentenced him as already indicated. In the premises, he has attacked the order of the Court Martial on the grounds: firstly, that in the absence of a complaint by a competent person, the trial was contrary to the provisions of Section 13(3) of the Official Secrets Act; secondly, that the offence with which he was charged not being a civil offence as defined by Section 3(ii) of the Army Act, the G. C. M. had no jurisdiction to try him; thirdly, that he having been already punished by respondent No. 3 and demoted to the rank of a Lieutenant, his subsequent trial by the G. CM. was contrary to the provisions of Article 20(2) of the Constitution; fourthly, that the finding of the G. C. M. was based upon no evidence, as the only evidence relied upon by it was the uncorroborated testimony of the two accomplices, namely, GNRs Aya Singh and Sarwan Dass of 253 Medium Regiment, and his own confessional statement which was procured by torturing him; fifthly, that he was neither allowed to prepare his defence nor allowed to extamine as a defence witness one Bachno Devi, nor was he allowed to engage a defence counsel of his choice duririg the course of his trial which constituted infraction of Article 22(1) of the Constitution and Rules 33 and 34 of the Army Rules; sixthly, that the Staff Officer of the G. O. C. 39 Inf. Division had no power to convene its G. C. M., which was constituted in clear violation of Section 109 of the Army Act and Rules 37, 39 (e), 40 and 197 -A of the Army Rules and an objection taken by him in that behalf was wrongly overruled by the G. C. M.; seventhly, that the summary of evidence was recorded in clear violation of Rule 23 of the Army Rules, in that, it was recorded at his back without affording him any opportunity to cross -examine the witnesses; eighthly, that his trial was conducted without observing the rules of natural justice; and ninthly, that the two accomplices Aya Singh and Sarwan Dass and other superior and Staff Officers of G. O. C. 39 Inf. Division, including the members of the G. C. M, bore enmity towards him and an objection taken by him in that behalf was not even recorded by the G. C. M.

(3.) THE first two grounds raised in the Writ petition are indeed inter -related and may be taken up for consideration together. Precisely speaking the contention raised is threefold. Firstly, it was urged that filing of a complaint in terms of Sub -section (3) of Section 13 of the Official Secrets Act being a part of the offence itself, no offence could be said to have been committed without such a complaint. Secondly, it was argued that before an offence may be said to be a civil offence as defined by Section 3(ii) of the Army Act, it should be triable by an ordinary criminal court in terms of Clause (viii), and not by a court specially empowered to try it. Thirdly, it was contended that even if a proper complaint under Sub -section (3) is not required to constitute an offence under Section 3(1)(c) of the Official Secrets Act, still a Court Martial too shall have no jurisdiction to try the offence in the absence of such a complaint. A court competent to try an offence under the Official Secrets Act requiring a special authorisation in that behalf in terms of Sub -section (1) of Section 13 of the said Act, could not be said to be an ordinary criminal court. No complaint in terms of Sub -section (3) of Section 13 having been made before the G. C. M. it had no jurisdiction to try him for the said offence, and nor could the petitioner be said to have committed a civil offence as meant by Section 69 of the Army Act.