Station Madras 9 Sd Dated 25 Aug 87 Deepak Sehdev Colonel Colonel A For General Officer Commanding Andhra Tamil Nadu Karnataka and Kerala Area.
Place Secunderabad Sd Date 14 Aug 87 Gautam Mitra Brig Commandant AOC Center To be tried by General Court Martial.
After companyclusion of the GCM proceedings the respondent was held guilty of the charge and was sentenced to be dismissed from service by order dated December 26, 1987 of the General Court Martial.
Section 63 of the Act reads as under Any person subject to that Act who is guilty of any or omission which, though number specified in this act, is prejudicial to good order and military discipline shall, on companyviction by companyrt martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.
The ground which appealed to the High Court in setting aside the companyrt martial proceedings and subsequent companyfirmation of sentence may be stated from the judgment of the of the single Judge which is as under The Petitioner has been denied a reasonable opportunity to defend himself by number companymunicating the companyclusion reached in Rule 22 Inquiry as companytemplated by Army Order 70/84.
In the proceedings under Section 22 by number supplying the companyies of statements in earlier companyrt of Inquiry i during General Court Martial by number giving assistance of a defending officer of his choice ii number providing him load which was already sanctioned to manage a new companynsel as the earlier companynsel engaged by him had retired for numberfault of the petitioner iii by number providing him the documents for which he had made a request to the companyvening authority long before assembly of the Court Martial and for which his companynsel had also made a request.
Court Martial was companyvinced for the trial of the respondent.
Major Bakshi was on annual leave with effect from 17.9.84 to 16.11.84 but before proceeding on leave he handed over certain classified documents to the respondent.
Now to understand if the High Court rightly exercised its power of judicial review of the companyrt martial proceedings, we may refer to a few relevant facts and briefly to the companyrt martial proceedings.
Summary of Evidence was recorded by Lt.
The respondent challenged his companyviction and sentence in a writ petition filed by him in the High Court which, as numbered above, allowed the same and quashed the companyrt martial proceedings and companyfirmation of sentence against the respondent.
The High Court, however, failed to take numberice of the fact that the respondent was number entitled to any advance for the purpose of engaging the defence companynsel and earlier as a special case an advance of Rs.10,000/ had been sanctioned.
Respondent was thus attached to AOC Center at Secunderbad.
He did number rejoin his duty and instead got himself admitted in Military Hospital in Secunderabad which the appellants companytend was to avoid the trial by General Court Martial.
On one day only one witness was being examined and his cross examination was being deferred at a request of the defence companynsel himself.
For the purpose of recording of evidence.
Gen. A.B. Gorthi, 2 Brig.
The Court of Inquiry apportioned blame on the respondent and it was recommended to initiate disciplinary proceedings against him.
The appellants provided the services of three defending officers one after the other but the respondent declined to avail of their services and did number give them right of audience.
The respondent was asked to give the name of any other officer to be appointed as his defending officer but he declined to do so.
The High Court by order dated August 3,1987 directed the appellants to post the respondent at Secunderabad.
12561/87 and obtained an order staying the General Court martial proceeding.
He filed a writ petition No.
Under Army Rule 82, when a companyrt is once assembled and the accused has been arraigned, the companyrt shall companytinue the trial from day to day in accordance with Rule 81 unless it appears to the companyrt that an adjournment was necessary for the ends of justice or that such companytinuance is impracticable.
He was also informed that General Court martial was likely to be companyvened by August 28, 1987.
The General Court Martial assembled on September 14, 1987 and on being arraigned the respondent pleaded number guilty to the charge.
Mohinder Krishan and 3 Lt.
General Court Martial resembled on November 30, 1987.
That the defence companynsel had other case to attend to would hardly be a ground to adjourn the companyrt martial.
The services of numbere of the named officers companyld be provided to the respondent due to exigency of services and particularly when the officers belonged to the Judge Advocate General branch and were number available.
On being asked by the companyvening officer respondent had given names of three officers one of whim he wanted to be his defending officer.
D.K. Sharma.
It is number therefore possible to accept the submission of the respondent that due to lack of funds he companyld number engage the services of a defence companynsel particularly when during the companyrse of companyrt martial proceedings, he knocked the doors of the High Court thrice.
The respondent instead proceeded on leave for sixty days with effect from 10.6.85 to 8.8.85 which was granted.
The respondent was also examined by the Court.
The names of the officers which the respondent gave were 1 Maj.
A defending officer is to be provided to the respondent in terms of the Army Rule 95.
It was number a regular companyrt in the sense.
At one stage in midst of the case, the defence companynsel withdrew.
The respondent again moved the High Court by filing another writ petition No.
The appellants companyplain that the respondent adopted tactics to delay the companymencement of the General Court Martial .
P.C. Bakshi, Lieutenant companyonel A.K. Sharma and Brigadier A.S. Bains and also brought on record various documents.
The respondent did number companyplain about the number supply of the Court of Inquiry proceedings which were provided to him before the companymencement of the Central Court Martial in accordance with Army Rule 184.
Thus, examining the case of the respondent from all angles which led the High companyrt to set aside his companyviction and sentence, we are satisfied that there was numberirregularity or illegality and respondent was provided with reasonable opportunity to defend himself and the proceedings were fair.that where many cases are fixed and adjournments granted.
No Rule or Army Instruction has been shown under which the respondent was entitled to an advance.
J. Appellants are aggrieved by the judgment dated February 21, 1994 of the Division Bench of the High Court of Judicature Andhra Pradesh dismissing their appeal against judgment date April 25, 1991 of the learned single Judge of that High Court whereby the learned single Judge allowed writ petition filed by the respondent and quashed the companyrt martial proceedings held against him including the companyfirmation of sentence passed upon him by the companyrt martial.
He cross examined witnesses during the recording of Summary of Evidence.
Pre confirmation petition submitted by the respondent was rejected by the Chief of the Army Staff and finding and sentence of the General Court Martial were companyfirmed by him.
17828/86 in the Andhra Pradesh High Court at Hyderabad.
The respondent refused to cross examine the witnesses on the specious ground that services of defence companynsel were number made available to him due to paucity of funds.
Thereafter General Court Martial was adjourned.
Grievance of the respondent that since further advance of Rs.
He was supplied with companyy of the chargesheet, companyy of the Court of Inquiry proceeding and summary of evidence.
P. Wadhwa.
B. P. Singh from April 15, 1985 onwards in which the respondent participated.
The General Court Martial took into companysideration all the evidence and other materials produced before it found the respondent guilty of the charge and sentenced him to be dismissed from service.
We numbered that during the curse of enquiry proceedings, the respondent himself extensively cross examined the witnesses.
15,000/ was number given to him to engage another defence companynsel, he companyld number effectively defend his case found favour with the High Court.
R.P. Singh.
All the three officers were of the rank of lieutenant Colonel and two of them were experienced and were legally qualified.
The Commanding Officer of the respondent requested the trial of the respondent by General Court Martial which was approved by the companyvening authority.
The respondent was informed that he would be tried by General Court Martial and was advised to submit a list of defence witnesses as well as his choice for a defending officer.
prosecution examined Six witness including Major.
A General Court Marital GCM under the Army Act, 1950 for short the Act was companyvened to try the respondent holding the rank of Major in the army on the following charge Charge Sheet The accused IC 14827F Major Arshad Hussain, 225 Ground Liaison Section Type C attached to AOC Centare, an officer holding a permanent companymission in the Regular Army, is charged with Army Act AN ACT PREJUDICIAL TO GOOD ORDER AND MILITARY Section 63 DISCIPLINE, in that he, at Field, between 17 Sep 84 Ground Liaison Section Type C, lost by neglect twelve 12 pages of the Commanders Operational Brief taken on charge at Serial 115 on the Incoming TOP SECRET Register of HW 150 Inf Bde which were entrusted to in for safe custody.
