BHAGWAN SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THROUGH the medium of this writ petition, the petitioner seeks to challenge an order bf a General Court Martial, for short G. C. M. convicting him under Sections 39 (a) and 52 (a) of the Army Act and sentencing him to three years rigorous imprisonment, besides dismissal from service. Briefly put, the facts of this case are as follows:

(2.) THE petitioner's case is that he. is an illiterate person, who can only write his name and army number in Roman English. He was enrolled in Indian Army in the year 1971 as a Mechanical Transport Driver. ' In May 1976. he was falsely implicated in a theft case pertaining to an army vehicle. He was taken into custody and under duress compulsion and torture, made to sign some letters, statements and other documents by the Officer Commanding 133 Signal Regiment, respondent No. 4 herein, and two others, namely. Adjutant Quarter Master and M. T. O. of the Unit. Summary of evidence was recorded in his absence, but the statement that he had made during its recording, was not, however, reduced to writing. On 21-1-1977, respondent No. 4 charge-sheeted him under Sections 39 (a) and 52 (a) of the Army Act and the Assistant Adjutant and Quarter Master General of 6 Mountain Division, contrary to the provisions of Section 109 of the Army Act and Rule 197-A of the Army Rules, hereinafter to be referred to as the Rules, convened a G. C. M. to try him for the aforesaid offences. Before the commencement of his trial, he was not allowed to prepare his defence nor was he told as to what were the charges against him. He objected to his trial by the members, of the G. C. M. on the ground that they were personally interested in favour of the prosecution, but his objection was not even recorded by the G. C. M. On 10-3-1977, he was convicted and sentenced by the G. C. M. besides being his missed from service on the basis of disconfessional statement alone, even though he had Qualified this confession by saying further that the same was being made by him against truth in the hope of being pardoned and retained in service. Before convicting him, the G. C. M. did not comply with the provisions of Rule 52,. This order was confirmed by the GOC 6 Mountain Division, respondent No: 3 herein, on 31-3-1977 and the petitioner was committed to civil prison on 1-41977 to serve the sentence. He was not permitted to be defended either by a defending officer, or by a counsel of his choice. In this background he seeks to challenge his aforesaid conviction and sentence on the grounds; firstly, that the finding of guilty recorded by the G. C. M. is based upon no evidence and is vosions of Rule 52: secondly, that the G. C. M. was not properly constituted thirdly, that the summary of evidence was recorded against the mandate of Rules 23 and 24; fourthly that he was not allowed to prepare his defence not was he warned of his intended trial: fifthly, that he was not allowed to be defended by a defending officer or by a counsel of his choice: and sixthly. that the sentence was disproportionate to the gravity of the offences.

(3.) STATEMENTS of prosecution witnesses, recorded during the course of preparing of summary of evidence, the record clearly reveals, were recorded in presence of the petitioner, who was also given an opportunity to crose-examine them, but he declined to do so. He was also given an opportunity to make his own statement with a warning that the same could be used against him at the trial. He had declined to make any statement. This clearly shows that Rules 22 and 23 were fully complied with.