DEV ANAND SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) The present Habeas Corpus Writ Petition was registered on a Jail Petition filed by the petitioner Dev Anand Singh, subsequent to which a detailed petition has been filed under Art.226 of the Constitution of India read with S.103 of the Constitution of Jammu and Kashmir praying for the quashing of the sentence imposed on the petitioner by the General Court Martial sentencing the petitioner for a period of eight years' Rigorous Imprisonment and also dismissing him from the service pursuant to the said conviction. The petitioner admittedly joined the Indian Army as Sepoy/GD on July 31, 1976 and after completing the requisite training in March 1977 was attached to 12 J and K Rifles. The petitioner proceeded on leave from 2-2-1979, he was taken into custody by B.S.F. personnel on March 16, 1979 and was interrogated upon, thereafter freed from them. On completion of his annual leave, when the petitioner joined his Unit on April 3, 1979 was sent for by the Officer Commanding on April 7, 1979 and was taken into custody by the Military Intelligence Bureau on the same day. It is submitted that he remained in solitary confinement upto June 2, 1979 and was subjected to torture and third degree methods. It is also pointed out that while in custody he was forced to sign on a number of blank sheets and also on some English written papers, the petitioner is illiterate, he can neither read nor write English. He was not allowed to meet his relations till January 1980 and was not permitted even to see his counsel and as such was condemned unheard. The petitioner was found by the General Court Martial guilty of offences under Ss.63 and 69 of the Army Act and S.3(1)(c) of the Indian Official Secrets Act, 1923. Being aggrieved against the said conviction, the present Habeas Corpus Petition has been filed challenging the conviction on various grounds.

(2.) At the time of hearing, learned counsel for the petitioner precisely raised the following three contentions : - (i) That the offence charged against the petitioner being an offence under the Indian Official Secrets Act, 1923, the conviction is bad for the want of sanction under S.13 of the said Act and also the same being a Civil Offence should have been tried by an ordinary Criminal Court and not by the General Court Martial. (ii) That under S.152 of the Army Act, 1950, the trial by a Court Martial is deemed to be a judicial proceeding within the meaning of Ss.193 and 228 of the IPC; as such the trial is vitiated as the provisions of Cr. P.C. as well as of S.133 of the Evidence Act are violated, the finding of guilty is based on an alleged retracted confession made to a person in authority which stood uncorroborated and caused substantial failure of justice, and (iii) That the petitioner has already undergone seven years of imprisonment, he is entitled to be set off against the sentence of imprisonment, the period of detention undergone by the petitioner before the order of conviction as required under S.428 of the Cr. P.C.

(3.) The petition is contested by the respondents in their counter affidavit, the respondents have refuted the allegations made by the petitioners regarding torture and refusal of meeting with the family members of the petitioner. It is pointed out that on 20th Jan. 1979, petitioner was granted leave for five days upto 25th Jan. 1979 and subsequent from 3rd Feb. to 3rd April, 1979 in between on 16th March, 1979 near Bakarpur post, the petitioner was arrested under certain suspicious circumstances, but after the establishment of his identity, he was released on the same date. On joining duty after availing the leave on 4th April, 1979, the petitioner was interviewed by his commanding Officer as he was suspected to have been involved in certain acts of espionage against India for Pakistan. On account of the said involvement he was questioned by the appropriate military authorities and was subsequently taken in military custody from 2nd June, 1979 till the date of the commencement of his trial by the General Court Martial on 7th Nov. 1979. On the said charge of espionage activities, a Summary of Evidence under the provisions of the Army Rules was recorded by the Commanding Officer in accordance with Army Rules 22, which established against the petitioner, the charge of espionage and the Summary of Evidence was strictly conducted under the Army Act and the Rules in presence of the petitioner on 30th Oct. 1979 and the regular trial commenced before the General Court Martial on 7th of Nov. 1979. The petitioner was asked as to whether he wanted particular officer to be assigned to represent him as his defending officer during trial, which he was provided. During the trial the petitioner voluntarily made a plea of guilty in respect of both the charges levelled against him. It is also submitted that the conviction of the petitioner is not based on his confessional statement, but is based on sufficient corroborative evidence also, the petitioner was, therefore, convicted by the General Court Martial under Ss. 63 and 69 of the Army Act, 1950 (hereinafter called the Act). It is also denied that the provisions of Official Secrets Act for the grant of sanction are attracted in the present case. It is also submitted that the petitioner had an alternative remedy to file a petition under S.164 of the Act against the order of conviction. Having failed to avail that remedy, the petitioner is not entitled to be heard in the writ petition.