MULKH RAJ Vs. UNION OF INDIA

JUDGEMENT

(1.) BY virtue of this writ petition, the petitioner seeks to challenge an order of a General Court Martial, for short G. C. M, convicting him under Section 3 (1) (c) of the Official Secrets Act, 1923, for short Official Secrets Act, read with Section 69 of the Army Act and sentencing him to eight years' rigorous imprisonment besides dismissal from service.

(2.) BRIEFLY put, the petitioner's case is that on 9-12-1977 he was placed under arrest by the Commanding Officer, 57 Field Regiment. While in military custody, he was tortured by Maj. S. S. Jolly, Maj Malhotra and a few other army and staff officers of the Commanding Officer, 6th Battalion of the Jat Regiment, respondent No. 5 herein, and forced to sign confessional statements and other blank papers. Summary of evidence was recorded at his back and he was not given any opportunity to either cross-examine the prosecution witnesses, or to examine his own witnesses in defence. This was contrary to Rules 22, 23 and 180 of the Army Rules hereinafter to be referred to as the Rules. Respondent No. 5 thereafter charge-sheeted the petitioner under Section 3 (1) (c) of the Official Secrets Act, read with Section 69 of the Army Act and sent him up for trial without complying with the provisions of Rules 33 and 34, by not affording him an opportunity to prepare his defence and by not administering a warning to him of his intended trial by a G. C. M. , which was convened by him contrary to the provisions of Section 109, of the Army Act. Before the commencement of his trial, he had not only objected to his being tried by the members of the G. C. M. who were biased against him, but had also objected, to the constitution of the G. C. M. itself. His objection was, however, overruled contrary to Section 130 of the Army Act. He was not permitted to engage a counsel of his choice and nor was a Defending Officer of his choice appointed to assist him. He was convicted without recording any evidence, merely on the basis of the statements of the prosecution witnesses contained in the summary of evidence. On his being committed to civil prison to serve the sentence, he was not supplied a copy of the G. C. M. proceedings and other necessary material to enable him to seek a review of the sentence imposed upon him, as also to file the present writ petition. Rule 147-A, under which exemption to supply the aforesaid material was claimed by the Central Government is violative of Articles 21 and 22 of the Constitution, Even Section 164 (2) of the Army Act, which does not envisage a right of personal hearing or hearing through a counsel in a convict is ultra vires the Constitution and opposed to the principles of natural justice. Even otherwise also, the G. C. M. did not have the jurisdiction to try him for the said offence; firstly, because it was not a civil offence as defined by Section 3 (ii) of the Army Act, and secondly, because the G. C. M. could not have tried the petitioner in the absence of a proper complaint in terms of Section 13 (3) of the Official Secrets Act; and thirdly, because the decision in regard to the forum of his trial was contrary to Section 125 of the Army Act, as well as the Criminal Court and Court Martial (Adjustment of Jurisdiction) Rules, 1953. Even otherwise also, the trial was vitiated on the ground of infraction of the rules of natural justice.

(3.) THE case of the respondents, however, is that the petitioner was not arrested maliciously or due to any enmity towards him, but he was arrested for his involvement in espionage activities against his own country. Summary of evidence was recorded in his presence, and he was afforded adequate opportunity to cross-examine the prosecution witnesses and to produce his own witnesses in defence. The G, C. M. was convened not by respondent No. 5, but by the General Officer Commanding, 16 Corps, respondent No. 4 herein, who was fully authorised to do so under Section 109 of the Army Act. Rules 22 and 23 were fully complied with, inasmuch as, he was supplied copies of the summary of the evidence, the charge-sheet and all other relevant documents, and was also warned of his intended trial. All the formalities of his trial were fulfilled. The charge was read over and explained to him, to which, he had after fully understanding it pleaded guilty. No evidence was, therefore, required to be recorded to found his conviction, because under Rule 52 his conviction had to be based upon his confession, made by him before the G. C. M. itself/before recording his conviction, the provisions of Rule 52 were fully complied with. Even after his conviction, the petitioner had unequivocally confessed to his guilt and pleaded for a lenient view. He was represented by a Defending Officer during the course of his trial. He had never asked for a counsel of his choice to conduct his defence. The Central Government in exercise of its powers under Rule 147-A had claimed privilege on the ground that supplying copies of the proceedings of the G. C. M. would be against the interests of the security of the State. Still, the petitioner was permitted to inspect the said record through his legal adviser. Neither the provisions of Rule 147-A nor those of Section 164 (2) are ultra vires of the Constitution, or otherwise opposed to the rules of natural justice. The offence for which the petitioner was tried, is a civil offence within the meaning of Section 3 (ii), and no complaint under Section 13 (3) was necessary to empower the G. C. M. to try him for the said offence. The decision taken by respondent No. 4 that the petitioner shall be tried by a court martial was perfectly legal and justified which did not contravene any provision of law.