URVINDRA SINGH (MAJOR) Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner, a major in the Army seeks the issuance of writ of certiorari for quashing and setting aside the findings and sentence awarded to him by the General Court Martial and order of respondent No. 5 dated 9,12,1986 whereby his representation under section 164 of the Army Act has been rejected. He has further prayed for the issuance of writ of mandamus commanding and directing the respondents to treat and deem him to have been acquitted of all the charges by the General Court Martial with a direction to the respondents to re -nominate him to the ensuing session of the Defence Service Staff College, Course. The petitioner has further prayed for declaring section 63 of the Army Act as ultra -vires of the Constitution of India.

(2.) SOME of the facts giving rise to the filing of this petition are that in the year 1984 when the petitioner was posted in 841 (Independent) Light Battery. He was attached to 7 Field Regiment and Respondent No. 2 convened a General Court Martial for his trial on five charges. The first two charges against the petitioner were under section 52 (f) of the Army Act of 1950 hereinafter referred to as the Act, charges 3 to 5 under sec. 63 of the Act. Proceedings of the General Court Martial commenced on 1.6.1984 and concluded on 1.9.1984. It is submitted that the petitioner was found not guilty of the first and second charges but was found guilty of the other charges, consequently he was sentenced to forefeit two years service for the purpose of promotion and to be put under stoppages of pay and allowance untill he made good Rs. 6800/ - in respect of the sale of the coal powder. It is submitted that during the course of the proceedings before the GCM the prosecution produced number of witnesses including the eight witnesses detailed by him in his writ petition. After the finding the guilt was arrived at against petitioner, he submitted a post confirmation petition under section 164 of the Act to respondent No, 5 on 25.1.1986 for setting aside his conviction and sentence. Adjutant General, Army Headquarters, New Delhi acting on behalf of the respondent No. 5 did not set aside the conviction of the petitioner but mitigated the first part of the sentence passed against him and directed that instead of forefeiture of two years service his one years service shall be forefeited. The petitioner has stated that he had competed with the promotion of the respondents for selection to the Defence Service Staff College Entrance Examination and after qualifying in the said examination on the basis of his merit, he was nominated for the said course by Army Headquarters, Military Training Directorate vide their letter dated 31.1.1984 and the course was to commence in the month of January, 1985. The petitioner was not allowed to join the said course allegedly in the guise and under the pretext of the pendency of the proceedings against him. It is submitted that the Defence Service Staff College course is most prestigious, coveted and most highly competitive exanimation in the entire army and very small and tiny fraction of officers got admission in it. After being excluded from the said course, the petitioner is alleged to have preferred a representation on 31.1986 to respondent No. 5 which was not accepted. It is submitted that the petitioner could not be convicted and sentenced in respect of 3rd, 4th and 5th charges by the GCM and that the rejection of his representation under section 164 of the Act was unconstitutional, illegal, invalid and incorrect.

(3.) THE petitioner has alleged the whole of the proceedings initiated against him before the GCM are liable to be quashed because section 63 of the Act is alleged to unconstitutional being violative of the provisions of Articles 14, 20 and 21 of the Constitution of India. It is submitted that the provisions made in the said sections are opposed to the basis edific of the principles of criminal jurisprudence of all democratic and civilised nations. The words "though not specific in the Act" are alleged to be liable to totally and absolutely mis -used and abused by the authorities under the Act, without being any guideline in that behalf. It is further submitted that the words, "good order" and "military discipline" are of such wide magnitude and are so vague in connotation that they are also liable to be grossly mis -used and abused by the authorities under the Act. It is submitted that under Art. 20 of the Constitution of India no person can be convicted of any offence except for violation of the law in force at the time of commission of the act charged as an offence and under Art. 21 of the constitution no person can be deprived of his life and liberty except for the procedure established by law. According to petitioner, sec. 63 of the Act patently violates both the aforesaid fundamental rights enshrined in the constitution. It is alleged that Section 63 of the Act discriminates against the persons subject to the Army Act in as much as the same is only applicable to those persons and because there is no such provisions in any other law in force in this country, the same is alleged to be violative of Art. 14 of the Constitution as it is stated to be a bad piece of legislation discriminating between the persons similarly situated. The word, "prejudicial to good order and Military Discipline" can be applied against any person subject to the Act at the whim and caprices of the authorities under the Act, is alleged by the petitioner. It is submitted that the provisions of section 63 of the Act have been mis -used, misapplied and abused in the case of the petitioner. It is stated that when the alleged acts with which the petitioner was charged were committed, the petitioners unit was commanded by Lt. Col Dutta Ram who was also tried by a GCM before the petitioner was put to trial and all the charges on which the petitioner has been convicted were also the subject matter of the charge sheet against the said Lt. Col. Dutta Ram, who was charged under section 52 (f) of the Act. It is submitted that whereas the said Lt, Col. Dutta Ram was found not guilty in respect of the transaction forming the subject matter of the 4th and 5th charges against the petitioner, he was found guilty in respect of the, matter of the 3rd charge as framed against the petitioner. It is submitted that allegation against the petitioner were that he had acquired in the alleged sale of 368 bottles of Rum and in the alleged improper sale of coal powder whereas Lt. Col. Dutta Rain in his GCM was charged for his having actually done those acts with intent to defraud. It is submitted that there was no evidence against the petitioner and the GCM convicted and sentenced him illegally. It is submitted that the respondents violated the provisions of Rules 22,51and 53 of the Army Rules. It was submitted by the petitioner before the GCM that as he and Lt. Col. Dutta Rim were suspected of complicity in the same offence and because the petitioner had been produced as a prosecution witness in the G.C.M. of the Lt. Col. Dutta Ram, his trial, subsequent to Lt. Col. Dutta Ram could not proceed and the G.C.M. had no jurisdiction to try the petitioner for the same offence or analogous to them for which Lt. Col. Dutta Ram was tried separately. The proceedings of the G.C.M. were allowed to continue inspite of categoric objections raised by the petitioner regarding lack of inherent jurisdiction of such court. Rule 22 of the Army Rules is also alleged to have been violated. It is submitted that rule 22 of the Army Rules enjoined upon the Commanding officer to personally hear every case against the accused and to investigate the same. It is alleged that it was brought to the notice of the G.C.M., that the Commanding Officer of the petitioner at the relevant time had not applied his mind, had not personally either investigated he case or satisfied himself regarding the existence of a prima facie case against him. It is alleged that the commanding officer had acted at the behest and dictates of his superior officers. It is submitted by the petitioner that executive instructions being army order No. 217 of 1972 makes a provision of rule 22 of the Army Rules being mandatory in character and its violation rendering the trial irregular" liable to be set aside. It is submitted that as the alleged acts of the petitioner could not amount to prejudicial to good order or military discipline, his conviction under section 63 of the Act was bad in law which is liable to be set aside. The petitioner has further submitted that on account of his involvement in the alleged false, misconceived and baseless case he has suffered an irreparable loss and injury in as much as he has been denied the opportunity of attending the highest academic qualification in the army available to him by his being excluded from the Defence Service Staff College course. As the proceedings of the GCM had concluded in the year 1984 and the course was to start from Jan. 1985, it is claimed that there was no case pending against the petitioner at that stage justifying the respondents to disallow him from attending the said course. It is alleged that the respondents had no authority to exclude the petitioner from attending the aforesaid course.