I.A. Ansari, J.@mdashAggrieved by dismissal of his writ petition, Civil Rule No. 139, 1997, by judgment and order, dated 22.12.2004, the writ petitioner is, in appeal, before us.
2. We have heard Mr. R.D. Lall, learned Counsel for the appellant, and Mr. H. Rahman, learned Assistant Solicitor General of India.
3. While working, in the Indian Army, as a sepoy of 1st Battalion of the Bihar Regiment, the appellant was taken into military custody on 25.4.1995 and tried by Summary Court Martial on the charge that on 25.4.1995, while on active service, he had struck, with a stick, on the head of Subedar Lalan Prasad Singh of the same regiment, at Boro Bazar, and committed thereby an offence punishable under Clause (a) of Section 40 of the Army Act, 1950. On the ground that the appellant had pleaded guilty to the charge, framed against him, at his trial, the appellant was, on 6.5.1995, held guilty of the charge, framed against him, u/s 40(a) of the Army Act, which makes use of criminal force to the superior officer liable to punishment. The appellant was accordingly convicted by the Summary Court Martial and sentenced to undergo rigorous imprisonment for five months and to be dismissed from service. The appellant did not prefer any statutory appeal against his conviction and/or the sentence, but he chose to challenge his conviction and the sentence, passed against him, by filing a writ petition under Article 226 of the Constitution of India.
4. Though a number of grounds were taken in the writ petition, the grounds, which were taken, at the time of hearing of the writ petition, assailing the conviction and punishment of the appellant, were not many. At the time of hearing, it was contended, on behalf of the appellant, before the learned Single Judge, that though the appellant was described to be in ''active service'', he was, at the relevant point of time, not in ''active service''. It was also alleged, at the time of hearing of the writ petition, that the provisions of Section 102(1) of the Army Act had been violated inasmuch as the appellant was taken into custody, on 24.5.1995, at about 8.45 hours, but the investigation into the alleged offence was started only on 28.4.1995, i.e., after 48 hours of the appellant having been taken into custody, though the investigation ought to have been started within 24 hours of the appellant having been taken into custody. This delay, contended the appellant before the learned Single Judge, vitiated his trial. It was further contended, at the time of hearing of the writ petition, that the conviction of the appellant and the sentence, passed against the appellant, cannot be sustained inasmuch as no formal complaint had been lodged by anyone about the alleged offence and that the charge, framed against him, was misleading and incomplete. At the time of hearing of the writ petition, grievances were also raised on the ground that the copies of the relevant documents had not been furnished to the appellant and that he was denied opportunity to defend himself effectively by appointing a "friend" of his own choice. Grievances were further expressed by contending that there was non-compliance of the provisions of Sub-rule (7) of Rule 33 and also of the provisions of Sub-rules (1) and (2) of Rule 24 of the Army Rules, 1954.
5. While considering the scope of judicial review of the findings of a Court-Martial, it needs to be borne in mind that a Court-Martial is not subject to power of superintendence of the High Court under Article 227 of the Constitution of India. Though the proceedings of the Court-Martial fall outside the purview of Article 227, these proceedings are nonetheless subject to the overall, power of judicial review by the High Court under Article 226 of the Constitution. If a Court-Martial has been properly convened, there is no challenge to its constitution and if the procedure, which it followed, was in accordance with the procedure prescribed by the Army Act and the Army Rules, the High Court would not interfere with the findings of such a Court unless the findings reached by it are perverse, that is, when the finding reached is wholly without any supporting evidence or wholly against the evidence. The proceedings of a Court-Martial are not to be compared with the proceedings of a trial, in the ordinary criminal Courts, under the Code of Criminal Procedure. A Court- Martial remains, to a great degree, an integral and specialized part of the overall mechanism by which discipline is maintained in a ''force'' such as, Army. It is for the special needs of such a ''force'' that instead of ordinary criminal Court, the offenders are tried by Court-Martial even when the offence is punishable by Indian Penal Code. At the same time, what cannot be ignored is that a Court-Martial functions as a Court to which the provisions of the Evidence Act are applicable. The concept of relevance of admissibility of evidence, the burden of proof, and the standard of proof, as envisaged in the Evidence Act, are applicable, without exception, to the trial of an accused by Court-Martial. Viewed thus, it is clear that a Court-Martial has the same responsibility, as any other criminal Court, to protect the rights of an accused arraigned before it and, therefore, follow the procedural safeguards given to an accused in order to ensure that he has a fair trial.
6. When the provisions contained in the Army Act and the Army Rules are analyzed, in the light of the various administrative instructions, which have been issued from time to time, it becomes manifestly clear that the procedure prescribed is a fair procedure for trial and it is for this reason that the High Court does not, ordinarily, interfere with the proceedings of a trial held by a Court-Martial. When those is sufficient evidence to sustain conviction, the Court-Martial had the jurisdiction over the subject-matter, the Court-Martial followed the prescribed procedure and the punishment awarded was also within its powers, the High Court would not allow challenge to the validity of the conviction and sentence. The High Court, while considering a challenge posed to the findings of guilt reached against an accused or the sentence passed against him, would not function as a Court of appeal. The role of the High Court, under Article 226, in such a case, would, ordinarily, be to review the decision-making process and not the decision as such. If the decision-making process suffers from non-consideration of relevant factors or consideration of irrelevant factors, the High Court may interfere with the decision, so reached, if the High Court is of the view that such a decision-making process has caused failure of justice. The merit of the decision of a Court-Martial can be looked into by the High Court only when it is challenged on grounds of perversity. If two views on the basis of the materials on record are possible to be formed, the High Court would not substitute its views in place of the decision of the Court-Martial merely because of the fact that the High Court is of the opinion that the view taken by it is more plausible and reasonable. (See
7. Bearing in mind the parameters of the powers of judicial review of the High Court in matters of Court-Martial proceedings, we turn to the charge, framed against the appellant. The charge read as follows:
The accused No. 4265277P Sep Dharam Nath Yadav of 1st Battalion of the Bihar Regiment, is charged with:
Army Act Using Criminal Force to his Superior Officer
Section 40(a)
In that he,
While on active service at Boro Bazar on 25th April/95 at about 08 : 45 hours, struck with a stick on the head of JC-179435 W sub Lalan Prasad Singh of the same Regiment.
Place : Filed (A.K. Singh) Lt. Col. Date : 4 May, 1995 Co 1 Bihar.
8. At the time of hearing of this appeal, Mr. Lall, learned Counsel for the appellant, has sought to contend that all such provisions, which were required to be adhered to, in order to bring a person to his trial by a Summary Court-Martial, were not followed in the present case and that the appellant stands convicted by ignoring all the provisions, which have been made in order to secure a fair and just trial.
9. Because of the nature of grievances, which have been expressed before us, on behalf of the appellant, we are of the view that the basic requirements of law, leading to trial of a person, by a Summary Court- Martial, need to be taken not of. What may be pointed out, in this regard, is that the procedural requirements of investigation of charges, and trial by a Court-Martial, is covered by Chapter V of the Army Rules, 1954. In the present case, it is Rule 22, which, according to Mr. Lall, has been violated.
10. It may be noted that Rule 22 lays down the procedure for hearing of a charge by the Commanding Officer (in short, ''CO''). The charge, which Rule 22 refers to, is really a ''tentative charge'' and not a formal accusation, which one, generally, understands as regards a charge framed in a criminal trial. When an accusation is made against a person, subject to the Army Act, Rule 22 of the Army Rules comes into force, which prescribes the procedure, which is required to be adopted by the CO to ascertain if the accusation is required to be proceeded with. There is nothing in the Army Act and/or the Rules framed thereunder, which requires, contrary to what was contended, on behalf of the appellant, that there ought to be a formal complaint, in existence, in order to enable a CO to investigate an accusation made against an accused by hearing the charge as contemplated by Rule 22. In the absence of any such provision, there can be no escape from the conclusion that whatever be the manner in which a CO comes to know that a persons, under his command, has committed as offence, the CO has the power, rather, a duty to ascertain the correctness of such an allegation. Determination of the correctness of such an allegation is, as we shall see, by holding an investigation and the investigation includes, under the scheme of the Army Act and the Rules framed thereunder, hearing of such a charge under Rule 22 though the charge may not be formal in nature, but only tentative.
11. It may, now, be pointed out that as per Rule 22 of the Army Rules, the CO is required to spell out the accusations, in the form of a charge, and this charge, which is really a tentative charge, is required to be heard by the CO inasmuch as Sub-rule (1) of Rule 22 makes it clear that every charge, made against a person, subject to the Army Act, shall be heard by the CO in the presence of the accused. The accused shall, even at this stage, have full liberty to cross-examine any witness, who may be produced, before the CO, at such a hearing, in order to enable the CO, as already indicated, make up his mind if the charge needs to be proceeded further. The accused also has, at this stage, a right to call such witnesses and make such statement as may be necessary for his defence.
12. Pausing here, for a moment, we may point out that Chapter VI of the Army Rules deals with the ''Court of enquiry''. A ''Court of enquiry'' in not really a Court, but an assembly of officers, who may be directed to collect evidence, and, if so required, to report, with regard to any matter, which may be referred to them (see Army Rule 177). The ''Court of enquiry'' is really aimed at finding out if there is any violation of any direction or order or law and, if so, the person responsible therefore. Though, in the light of Rule 181 of the Army Rules, evidence shall be recorded, in the ''Court of enquiry'', on oath or affirmation, Rule 182 makes it clear that the proceedings of a ''Court of enquiry'', or any confession, or statement made, or answer to a question given, at a ''Court of enquiry'', shall not be admissible in evidence against a person subject to the Army Act nor shall any evidence, respecting the proceedings of the ''Court of enquiry'', be given against any such person except upon the trial of such a person for wilfully giving false evidence before the ''Court of enquiry''.
13. It may, now, be pointed out that the proviso to Sub-rule (1) of Rule 22 makes it clear that if a ''Court of enquiry'' has been held and a charge, against an accused, arises as a result of investigation by such a ''Court of enquiry'', the hearing of charge by the CO, under Sub-rule (1) of Rule 22, may be dispensed with.
14. What is, now, necessary to note is that Sub-rule (2) of Rule 22 clarifies that the CO shall dismiss the charge brought before him if, in his opinion, the evidence does not show that an offence, under the Army Act, has been committed. The CO may also dismiss the charge if he is satisfied that the charge ought not be proceeded with. It deserves to be noted that a CO is bound to dismiss a charge if, in his opinion, evidence does not show that any offence, under the Army Act, has been committed. The CO has, however, the discretion to dismiss the charge if he is satisfied that the charge ought not to be proceeded with.
15. If, however, the CO, on hearing of the charge under Rule 22(2), is of the opinion that the charge ought to be proceeded with, he shall, under Sub-rule (3) of Rule 22(3), Act, within reasonable time, as follow:
(a) dispose of the case u/s 80 in accordance with the manner and form in the Appendix III; or
(b) refer the case to the proper superior military authority; or
(c) adjourn the case for the purpose of having the evidence reduced to writing; or
(d) if the accused is below the rank of warrant officer, order his trial by a summary Court-Martial.
16. Rule 23 further makes it clear that if the CO adjourns the case for the purpose of having the evidence reduced to writing, then, at the adjourned hearing, evidence of the witnesses, who wre present and gave evidence before the CO, whether against or for the accused, and of any other person, whose evidence appears to be relevant, shall be taken down, in writing, in the presence and hearing of the accused before the CO or such officer as the CO directs. The accused has been given the liberty, under Sub-rule (2) of Rule 23, to put, in cross-examination, such questions, as he thinks fit, to any witness, and the questions, together with the answers thereto, shall be added to the evidence recorded. The evidence of each witness, under Rule 23(3), after it has been recorded, shall be read over to the witness, and shall be signed by the witness, or if the witness cannot writ his/her name, the same shall be attested by his mark as a token of the correctness of the evidence recorded. According to the provisions of Rule 23, the accused shall, at the conclusion of recording of all the evidence against him (accused), be asked; "Do you wish to make any statement? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given as evidence." Any statement thereupon, made by the accused, shall be taken down and read over to him, but the accused cannot be cross-examined upon the statement, which he may so make. The accused may, then, call his witnesses and, if he so desires, he may also call any witness or witnesses as to his character. The evidence of the witnesses and the statement, if any, of the accused shall, according to Rule 23(4), be recoded in English language. If the witness or accused, as the case may be, does not understand English language, the evidence or statement, as recorded, shall be interpreted to him in a language, which he understands. Rule 23(5) makes it clear that if a person cannot be compelled to attend as a witness, or if, owing to the exigencies of service or any other grounds (including the expense and loss of time involved), the attendance of any witness cannot, in the opinion of the officer taking the summary (to be certified by him in writing), be readily procured, a written statement of his evidence, purporting to be signed by him, may be read to the accused and included in the ''summary of evidence''. Any witness, who is not subject to military law, may be, as per Rule 23(6), summoned, by order, under the hand of the CO of the accused, to attend the proceedings, held under Rule 23. The summons shall be in the form provided in Appendix III.
17. Rule 24 of the Army Rule makes it clear that the evidence and statement, if any, taken down, in writing, pursuant to Rule 23, shall be considered by the CO, who, thereupon, shall either remand the accused for trial by a Court-Martial; or refer the case to the proper superior military authority; or if he thinks it desirable, rehear the case and either dismiss the charge or dispose it of summarily.
18. There are four kinds of Court-Martial as per Section 108 of the Army Act. These four kinds of Court-Martial are:
(a) general Court-Martial;
(b) district Court-Martial;
(c) summary general Court-Martial; and
(d) summary Court-Martial.
19. It is necessary to bear in mind that in the present case, we are really required to determine as to when a ''Summary Court-Martial'' can be held and as to what the procedural requirements, as regards holding of the ''Summary Court-Martial'', are. In this regard, it may be pointed out that u/s 116 of the Army Act, a Summary Court-Martial may be held by the CO and he shall alone constitute the Court. Sub-section (2) of Section 116, however, adds that the proceedings of a summary Court-Martial shall be attended, throughout, by two other person, who shall be officers or junior commissioned officers or one of either, and who shall not, as such, be sworn or affirmed.
21. It is, now, the time to reiterate and clarify that though Rule 22 uses the term "charge" and also the word, such as, "evidence", the charge, at the stage of Rule 22, is merely an tentative charge, because a formal charge is framed only after a decision is taken to try an accused by a Court-Martial. Secondly, as far as the word "evidence" is concerned, the word, "evidence", which appears in Rule 22, really signifies material(s) at the time of hearing of the charge, for, hearing, under Rule 22, is really aimed at enabling the CO make up his mind as to whether the charge needs to be proceeded with, or not. If he finds no material, he is bound to dismiss the charge and, if he finds some materials, he may proceed with the charge, though the CO may, in a given case, opt not to proceed with the charge if he is satisfied that the charge ought not be proceeded with. Under Rule 22(3), when the CO forms the opinion that the charge ought to be proceeded with, one of the options, which he has, is to adjourn the case for the purpose of having the evidence reduced to writing. The expression "reduced to writing" means the materials, appearing against the accused, be reduced into writing. The material(s), so collected, are referred to as the "summary of evidence".
22. The "summary of evidence" is not really ''evidence'' stricto senso inasmuch as a witness, when examined under Rule 23, is (as already indicated above) allowed to be cross-examined by the accused, if he so wishes, but the fact remains that the witness is not administered oath or affirmation. The statement, therefore, made by the witness, at the stage of Rule 23, not being on oath or affirmation, is not stricto senso evidence in terms of the Evidence Act. The "summary of evidence", therefore, means a summary of the materials, which may have been collected, pursuant to the direction, given by the CO, to record the summary of such materials in the form of, or as popularly called, "summary of evidence". The ''summary of evidence'' can be regarded as collection of the previous statements of witnesses examined under Rule 23 and can, therefore, be used for the purpose of contradiction as provided in Section 145 of the Evidence Act. The statements, recorded in the ''summary of evidence'', are, thus, not substantive evidence, but constitute previous statements of the witnesses, who may be examined at the trial, and can, therefore, be used for the purpose of contradicting the evidence given at the trial.
23. The procedure for Summary Court-Martial is embodied in Rule 106 to 113 of the Army Act.
24. Rule 106 of the Army Act makes it clear that the officer, holding the trial, in a Summary Court-Martial, shall record, or cause to be recorded, in Hindi or English, the transactions of every Summary Court-Martial. Rule 109 provides for swearing or affirming of the persons of the Court and the interpreter. Rule 115 makes it clear that the accused has the opinion of pleading ''guilty'', or ''not guilty'', to the ''charge''. Whatever may be the plea of the accused, namely, ''guilty'' or ''not guilty'', the same is required to be recorded. It may be carefully noted that the charge, at the stage of the Court-Martial is, as already mentioned above, a formal charge, as in any ordinary criminal trial, vis-a-vis the ''tentative charge'', under Rule 22.
25. Rule 115(2) makes it clear that if an accused person pleads "guilty", the plea of the accused shall be recorded as the finding of the Court; but before the plea is recorded, as the finding of the Court, the Court shall ascertain that the accused understands the nature of the charge to which he has pleaded ''guilty'' and the Court shall inform him of the general effect of his plea and, in particular, of the meaning of the charge to which he has pleaded ''guilty'' and the difference in the procedure, which will be adopted in consequence of his pleading ''guilty''. Rule 115(2) also makes it necessary for the Court to advise the accused to withdraw his plea if it appears, from the "summary of evidence" (if any) or otherwise, that the accused ought to plead ''not guilty''. Having taken all such precautions, as indicated hereinbefore, if the Court finds that the accused, having fully understood the nature of the charge, has pleaded ''guilty'' to the charge, such plea of being ''guilty'' shall be recorded by the Court as its finding. Clause (a) of Sub-rule (2) of Rule 115 further requires that where an accused pleads "guilty", such plea and the factum of compliance of Sub-rule (2) of Rule 115 shall be recorded by the Court in the following manner:
Before recording the plea of guilty of the accused the Court explained to the accused the meaning of the charge(s) to which he had pleaded ''guilty'' and ascertained that the accused had understood the nature of the charge(s) to which he had pleaded guilty. The Court also informed the accused the general effect of the plea and the difference in procedure, which will be followed consequent to the said plea. The Court having satisfied itself that the accused understands the charge(s) and the effect of his plea of guilty, accepts and records the same. The provisions of Rule 115(2) are thus complied with.
26. Mr. Lall has referred to the decision in
22. Setting at rest the controversy if there is an absolute bar or not in acting upon the plea of guilty of the accused even in a heinous offence, such as murder, it is worth noticing that in
...where the Judge frames the charge, the charge so framed has to be read over and explained to the accused and the accused is required to be asked whether he pleads guilty of the offence charged or claims to the tried. Section 229 next provides that if the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon. The plain language of this provision show that if the accused pleads guilty the Judge has to record the plea and thereafter decide whether or not to convict the accused. The plea of guilt tantamount to an admission of all the facts constituting the offence. It is, therefore, essential that before accepting and acting on the plea the judge must feel satisfied that the accused admits facts or ingredients constituting the offence. The plea of the accused must, therefore, be clear, unambiguous and unqualified and the Court must be satisfied that he has understood the nature of the allegations made against him and admits them. The Court must act with caution and circumspection before accepting and acting on the plea of guilt. Once these requirements are satisfied the law permits the Judge trying the case to record a conviction based on the plea of guilt. If, however, the accused does not plead guilty or the learned Judge does not act on his plea he must fix a date for the examination of (he witnesses i.e. the trial of the case. There is noting in this Chapter which prevents the accused from pleading guilty at any subsequent stage of the trial. But before the trial Judge accepts and acts on that plea he must administer the same caution unto himself. This plea of guilt may also be put forward by the accused in his statement recorded u/s 313 of the Code.
23. From a careful reading of what has been observed and held in Sukhdeo Singh (supra), it is abundantly clear that in law, there is no absolute bar, on the part of the Court of Sessions, to convict an accused on his plea of guilty; but before the conviction of the accused is based entirely on his plca of guilt, the Court must take care to ensure that the plea of the accused is voluntary, clear, unambiguous and unqualified, that the accused understands the nature of the allegations made against him and admits them and that the accused admits all such facts, which are necessary and essential to constitute the offence.
24. What further logically follows is that the Court must also be satisfied that the facts placed before it in support of the plea of guilt are in themselves sufficient to sustain the offence charged with. In other words, the Court must have before it all such facts, which are essential to constitute the offence and such facts must be admitted by the accused before the plea of guilt of the accused is acted upon or conviction is based thereon.
(Emphasis is added)
27. In the light of the law, laid down in Ramengmawia (supra), it becomes clear, and we agree, that there is no absolute bar, in the law, on the part of a Court, to convict an accused on his plea of guilty; but before the conviction of an accused is based entirely on his plea of guilt, the Court must take care to ensure that the plea of the accused is voluntary, clear, unambiguous and unqualified, that the accused understands the nature of the allegations made against him and admits them and that the accused admits all such facts, which are necessary and essential to constitute the offence. The Court must also be satisfied that the facts placed before it, in support of the plea of guilt, are in themselves sufficient to sustain the offence charged with. In other words, the Court must have before it all such facts, which are essential to constitute the offence charged with and such facts must be admitted by the accused before the plea of guilt of the accused is acted upon or conviction is based thereon.
28. While expressing our agreement with the statement of law, as indicated hereinabove, in Ramengmawia (supra), we must hasten to add that, for the purpose of sustaining conviction, in a given case, on the ground that the accused has pleaded ''guilty'' to the charge, the charge must contain all those facts, which are relevant for the purpose of constituting the charge. This apart, the Court, in every given case, must be satisfied, as held in Ramengmawia (supra), that those facts, which are necessary for the propose of constituting the charge, have been clearly understood by the accused and, having understood the facts, which constitute the charge, the accused has admitted the correctness of those facts and, than, pleaded accordingly ''guilty'' to the offence charged with.
29. It is, however, not necessary that the Court must put to the accused, separately, each fact constituting the charge and elicit response of the accused thereto separately. It is enough if the charge states all such facts, which are necessary to constitute the offence charged with, provided that the Court is satisfied that the accused has understood the facts, constituting the offences and the implications thereof, before pleading ''guilty'' to the charge. The basic purpose is that the accused must not be misted by the charge and/or prejudiced and/or no miscarriage of justice takes place.
30. We may clarify the position of law, with regard to the above, with an illustration. Say, an accused is facing trial of a charge of murder punishable u/s 302, IPC. Section 299 read with Section 300, IPC clearly lays down that when a person causes death by doing, inter alia, an act with intention of causing death, he is ''guilty'' of culpable homicide amounting to murder. Now, suppose a Court, while trying an accused, say ''X'', frames charge, u/s 302, IPC, by addressing the accused that he has, on a given date, time and place, intentionally caused death of ''Y''. If ''X'' pleads ''guilty'' to such a charge and the Court convicts ''X'' on such a plea, will such conviction be appropriate in law? The answer to this question may not, in a given case, be in the affirmative, for, a common man takes every killing as murder and he does not know the niceties of law, e.g., that there are exceptions, engrafted in Section 300, IPC itself, which alters culpable homicide from the offence of murder to an offence of culpable homicide not amounting to murder. It is, therefore, necessary, while trying an accused, on a charge of murder, that the Court ascertains from the accused, by putting such facts, as may be necessary to determine, if the accused has done an act of killing and his act falls under any of the exceptions embodied in Section 300, IPC, for, if properly put and clarified, the accused can tell the Court that though he has killed, he has killed the deceased, say, under grave and sudden provocation or in exercise, in good faith, of his right of private defence of person or property, etc. Though intentional killing may amount to offence of murder, every intentional killing will not amount to murder. This proposition can be best illustrated if one bears in mind the provisions of Section 304, IPC, which read as under:
304. Punishment for culpable homicide not amounting to murder-Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a terms which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
31. A bare reading of the provisions of Section 304, IPC would show that where the offence of culpable homicide not amounting to murder is committed without any intention to cause death, then, it would be an offence, which would fall u/s 304 (Part I) IPC; but when death, is such a case, is caused with intention to cause death, the offence would fall under Part I of Section 304, IPC, though an intentional killing is, ordinarily, being an offence of murder, is, otherwise, punishable u/s 302, IPC. It is, therefore, not enough if a Court convicts an accused on his pleading ''guilty'' to the charge of murder, where the charge states that the accused has intentionally killed the deceased. In such a case, the Court also has the duty to ensure that the accused understands that an intentional killing may not amount to murder if it falls under any of the exceptions as provided in Section 300, IPC. It is, therefore, required that the Court, trying an accused, ensures that the plea of ''guilty'', offered by the accused, is unqualified and absolute. Consequently, if an accused has any such defence, which may make his plea qualified, then, even when such an accused pleads ''guilty'' to the charge, he has to be still regarded as having pleaded ''not guilty'' and the Court shall, in such a case, proceed as if the accused has pleaded ''not guilty'' to the charge and determine, on trial, if or not the accused is ''guilty'' of the charge, framed against him, u/s 302, IPC and/or whether his act falls within the exception, which stands engrafted u/s 304 (Part I) IPC.
32. We find, in the light of the various provisions of the Army Act and the Army Rules, as have been discussed above, that even a Court-Martial cannot convict an accused on his plea of being ''guilty'' unless the Court-Martial is satisfied, as already clarified above, that the accused has understood the nature of the charge to which he has pleaded ''guilty'' and the Court-Martial shall inform the accused of the general effect of his plea and, in particular, of the meaning of the charge to which he has pleaded ''guilty''. The Court-Martial is also required to inform the accused the difference in the procedure, which will be adopted in consequence of his pleading ''guilty''. In fact, Rule 115(2) makes it necessary for the Court to advise the accused to withdraw his plea if it appears, from the "summary of evidence" (if any) or otherwise, that the accused ought to plead ''not guilty''. Having taken all such precautions, as indicated hereinbefore, if the Court finds that having fully understood the nature of the charge, the accused has pleaded ''guilty'' to the charge, such plea of being ''guilty'' shall be recorded by the Court as its finding.
33. In the light of the law, laid down in Ramengmawia (supra), it is clear that a Court, be it ordinary Criminal Court or Court-Martial, must take note of the fact as to whether the materials, placed before it, support the plea of ''guilty'' or not. This requirement of law is, in fact, made clear even by various provisions, which we have discussed above, inasmuch as Rule 116 provides that when an accused pleads ''guilty'' to a ''charge'', ''summary of evidence'' has to be read out. The purpose of reading out the ''summary of evidence'' is to enable the Court-Martial and also the defence to know exactly as to what materials, collected against the accused, had led to framing of the ''charge''. If the materials, collected in the ''summary of evidence'', do not make out any case whatsoever of the accused having committed the offence charged with or any offence at all, it will not be possible for the Court-Martial to convict an accused on his plea of being ''guilty''. In such circumstances, the Court, as provided in Rule 116, has the obligation to record the plea of ''guilty'' as not ''guilty'' and proceed with the trial. In fact, under the Army Rule 52(4), when an accused pleads ''guilty'' to a ''charge'', which, if proved, would make the accused liable to be sentenced to death, the Court-Martial is required to record the plea of ''guilty'' as ''not guilty'' and, then, proceed with the case as if the accused has not pleaded ''guilty'' to the charge.
34. We have already indicated above that it was not specifically pleaded, in the writ petition, that the accused had not pleaded ''guilty'' and/or that the accused had not understood the charge. Though it had been alleged, in the writ petition, that the charge was not framed in accordance with law and that it was vague and incomplete, it was not the case of the appellant that he, as an accused, had not understood the charge or had misunderstood the charge. The case of the accused, as pleaded in his writ petition, was that no trial had at all taken place and, hence, no question of pleading ''guilty'' or ''not guilty'' arises. The accused could not, however, bring anything on record to show that his complete denial of holding of the Summary Court-Martial has any substance or credibility.
35. Coupled with the above, it is also worth noticing that the appellant has not succeeded in establishing that the proceedings of the Summary Court-Martial were manipulated or fabricated. Apart from the fact that the learned Single Judge has noted that the accused had pleaded ''guilty'', we have ourselves examined the records of the proceedings of the Summary Court-Martial and we find that in the Summary Court-Martial, the appellant had, indeed/pleaded ''guilty'' to the charge. We may also point out that the record also reveals that on the accused having pleaded ''guilty'' the "summary of evidence" was, as required, read out in the proceeding.
36. In the present case, the charge, as already indicated above, has clearly informed the appellant that he is alleged to have, while on "''active service'', on the given date, time and place, struck, with a stick, on the head of Subedar Lalan Prasad Singh of the same regiment. The charge, so put to the appellant, mentioned all the facts, which constituted the offence. If, in such a case, the accused pleads ''guilty'' to the charge, there could be no impediment in convicting the accused on his plea of being ''guilty'' if the Court is, otherwise, satisfied that his plea is voluntary and the plea has been offered by the accused after having understood the facts constituting the charge and the effect thereof.
37. It may be noted that in a Summary Court-Martial, an accused may, according to Rule 12.9, have a person to assist him, during the trial, whether a legal advisor or any other person. A person, so assisting the accused, may advise him on all points and suggest the questions to be put to witnesses, but shall not examine or cross-examine witnesses or address the court. The person, who so assists the accused, is commonly called as ''friend'' of the accused.
38. It was contended, on behalf of the appellant, at the hearing of the writ petition and even before this Court, that no ''friend'' of the choice of the appellant had been provided to him. However, the record of the proceedings reveals otherwise inasmuch as Captain S.S. Sarma was, according to the record of the proceedings, present, at the Summary Court-Martial, as friend'' of the accused. There is nothing in the record of the proceeding, as correctly noted by the learned Single Judge, to show that the appellant had insisted upon appointment of any other person in place of Capt. S.S. Sarma, as his "friend" and/or that the appellant had expressed his disagreement to have Captain S.S. Sarma as bis "friend". In fact, the records reveal that the appellant had pleaded ''guilty'' to the charge. In such circumstances, particularly when the appellant {i.e., the petitioner in the writ petition) had not sought for any specific person to be appointed as a friend'' of the accused, the appellant cannot raise any grievance, now,'' in this regard.
39. It has been contended that the CO had not taken oath, as interpreter, in the Court-Martial proceedings. This, again, is belied by the record of the proceedings inasmuch the record reveals that the CO had taken oath, as interpreter, while interpreting the contents of the charge. The record further reveals that after the "summary of evidence" was read out, the accused was, in terms of Rule 23(3), asked if he wishes to make any statement in respect of the charge or the punishment. Responding to the queries, so made, the accused replied by saying, "I have heard and I pray for mercy". Thereafter, the accused was asked as to whether he wishes to examine any witness to his character, but the accused declined.
40. In the face of the proceedings, as discernible from the record, we do not find that the holding of the Summary Court-Martial suffered from any infirmity, legal or factual.
41. Turning to the appellant''s case that Rules 22 and 23 were not complied with, it is pertinent to note that the relevant record revel that in terms of the provisions of Rule 22, the proceedings, indeed, took place, on 26.4.1995, inasmuch as the CO read out and explained the charge (i.e., the ''tentative charge'') to the accused (i.e., the present appellant), whereupon some witnesses were heard, in the presence of the present appellant, by the CO. Though the appellant was given, at the hearing, under Rule 22, the liberty to cross-examine the witnesses, he declined. The appellant also declined, at the said stage, to make any statement. On completion of the hearing of the charge, in terms of Rule 22, the CO ordered that the evidence be reduced into writing by Major Harish Kavadia. The direction, so given, amounted to a direction to Harish Kavadia to record what is commonly known as ''summary of evidence''. The ''summary of evidence'' was accordingly recorded. We have already explained as to what the ''summary of evidence'' means. What is also necessary to note is that the whole proceeding, relating to the ''summary of evidence'', took place in the presence of two independent witnesses. In terms of the direction, so given, to record ''summary of evidence'', the witnesses were examined and some of the witnesses were even cross-examined by the accused. On conclusion of the recording of the evidence of the witnesses, the accused expressed his willingness to give his statement. The statement of the accused was accordingly recorded at the stage of ''summary of evidence''. The statement read, inter alia, as under:
39. I went to the lines and prepared may bedding. I had the apprehension that Subedar Lalan Prasad Singh may not let me go on leave. Hence I went to the room where Sub. Lalan Prasad Singh was checking the stores. I asked Sub. Lalan Prasad Singh about my leave. The Senior JCO shouted at me and asked me to go away. I told Sub. Lalan Prasad Singh not to shout at me and to tell me about my request for leave. Sub. Lalan Prasad Singh then slapped me on my face. Others have not said so but I am saying what I have to say. The can say what they want to.
40. I lost my sense and picked up a wooden handle which was lying there and hit Sub. Lalan Prasad Singh on the head. I was arrested by CHM Narendra Singh on the orders of the Company Commander. I told the Company Commander that I was being discriminated against and I had lost my mind.
Stn. Fd. Sd/xxxxxxxx
Date : 2 May, 1995 No. 4265277P
Sep Dharam Nath Yadav
Certified that the statement has been read over to Sep Dharam Nath Yadav in the language he understands best and has been recorded as narrated by the individual.
Sd/-
xxxxxxx
IC-40798P
Maj KPR Hari
Certified that the provisions of Army Rule 23 (1), (2), (3) and (4) have been complied with.
Sd/-
xxxxxxxx
IC-37639M
Maj Harish Kavadia
The foregoing Summary of Evidence which runs into 36 paves in manuscript has been recorded by me and in presence of the accused No. 4265277P Sep Dharam Nath Yadav and provisions of Army Rule 23(1), (2), (3) and (4) have been complied with.
Stn. Fd Sd/-xxxxxxxx
Date : 2 May, 1995 IC-37639M
Maj Harish Kavadia
42. It was contended, on behalf of the appellant, before the learned Single Judge, that the accused was not on ''active service'' and, he was, therefore, incorrectly described, in the charge, to have committed the offence, while he was on ''active service''. It was also contended, on behalf of the appellant, at the hearing of the writ petition, the since the appellant was not on ''active service'', he ought to have been given, in terms of Rule 33, ninety-six hours to prepare his defence.
43. Though the learned Single Judge has concluded that the words, "on active service", occurring in the charge, appear to have been misquoted, what needs t6 be pointed out is that it is Section 3(i) of the Army Act, which defines "active service". Clauses (a), (b) and (c) of Section 3 (i) of the Army Act, which define "active service", read as follows:
3. Definitions.-In this Act, unless the context otherwise requires,-
(i) Active service, as applied to a person subject to this Act, means the time during which such person:
(a) lis attached to, or forms part of, a force which is engaged in operations against an enemy, or
(b) is engaged in military operations in, or is on the line of march to, a country or place wholly or partly occupied by an enemy, or
(c) is attached to or forms part of a force which is in military occupation of a foreign country.
44. Notwithstanding the fact that Section 3(i) defines "active service" to mean three different circumstances during which a person, subject to the Army Act, may be functioning on "active service", Section 9 empowers the Central Government to declare, by notification, any person or class of persons, subject to the Army Act, to be on active service within the meaning of the said Act. For the purpose of clarity, Section 9 of the Army Act is extracted below:
9. Power to declare persons to be on active service.-Notwithstanding anything contained in Clause (i) of Section 3, the Central Government may, by notification, declare that any person or class of persons subject to this Act shall, with reference to any area in which they may be serving or with reference to any provision of this Act or of any other law for the time being in force, be deemed to be on active service within the meaning of this Act.
45. From a bare reading of Section 9, it becomes clear, as already indicated above, that the Central Government has the power to declare, by notification, any person or class of persons, subject to the Army Act, to be on "active service" within the meaning of the said Act. Section 9 makes it transparent that even those persons, who are subject to the Army Act, but do not fall within the category of those persons, who are described to be, in terms of Section 3(i), on "active service", would, nonetheless, be deemed to be on ''active service'', for the purpose of the Act, if a notification, in terms of Section 9, is published by the Central Government declaring that such person or class of persons be deemed to be on "active service". Thus, Section 9 creates a legal fiction by laying down that even when a person does not fall, within the meaning of Section 3(i), in the category of a person being on "active service", he would still be treated as a person on "active service" if a notification, as envisaged by Section 9, is published.
46. At the time of hearing of this appeal, Mr. H. Rahman, learned Assistant Solicitor General of India, has produced a copy of a notification, dated 19.9.1991, issued by the Central Government. This notification reads as under:
SRO 6E-In exercise of the powers conferred by Section 9 of the Army Act, 1950 (46 of 1950), the Central Government hereby declares that all persons subject to the said Act, who are not on active service under Clause (i) of Section 3 thereof, shall, while serving with the Army Formations and units deployed on operation RHINO be deemed to be on active service within the meaning of that Act for the purposes of the aforesaid Act and of any other law for the time being in force.
47. From a patient reading of the above notification; it becomes clear that all persons, subject to the Army Act, who may not fall within the categories of persons being on "active service" as defined in Section 3(i), shall, while serving with the Army formations and units deployed on operation RHINO, be deemed to be on "active service" for the purposes of the said Act and of any other law for the time being in force. The appellant was, as the records clearly reveal, a sepoy in the 1st Battalion of Bihar Regiment and, at the relevant point of time, his Battalion was deployed at Borobazar, Tamulpur, in the State of Assam, on Operation Rhino, which was carried out, in the State of Assam, to apprehend the activists of United Liberation Front of Assam, a banned militant organization. In the face of the Notification, dated 19.9.1991, aforementioned, there can be no escape from the conclusion, and, in fact, it could no longer be disputed before us, that the appellant was on "active service", when the occurrence had allegedly taken place. In other words, when the appellant was on "active, service", he could have been tried by Court-Martial, within 24 hours of his being taken into custody. It was, therefore, not necessary, contrary to what is contended on behalf of the appellant, that he ought to have been given ninety-six hours to prepare his defence. At any rate, the appellant pleaded guilty to the charge at the Summary Court-Martial. The plea of the appellant was recorded, as already indicated above, after taking all such care as are warranted by law.
48. Though, referring to Section 102, Mr. Lall has submitted that in terms of the requirements of Section 102, the investigation, in the present case, was not started within 48 hours of the appellant having been taken into custody, it may be pointed out that the delay, in completion of investigation, will not ipso facto vitiate a trial held on the basis of such investigation inasmuch as Sub-section (1) of Section 102 itself makes it clear that it will be duty of the CO to take care that the person, under his command, when charged with an offence, is not detained, in custody, for more than forty-eight hours after the committal of such person into custody is reported to him without the charge being investigated, unless investigation within that period seems to him to be impracticable having regard to public service. Thus, though it is the duty of the CO to ensure that the investigation is completed within 48 hours after the accused has been taken into custody, the fact remains that if the investigation is not commenced within 48 hours and/or if the investigation is not completed within 48 hours, the delay, in the investigation, would not, as a corollary, make the subsequent proceedings by Court-Martial arbitrary, illegal, without jurisdiction or nullity in the eyes of law. This apart, no specific case of violation of any of the provision(s) of the Army Act, resulting from the delay, in investigation, has been made out in the present case. Moreover, the learned Single Judge has noted that the investigation had started on 28.4.1995, i.e. after 48 hours of the appellant having been taken into custody, he has held mat though it is obligatory for the CO to cause investigation within 48 hours of the detention of an accused, the fact remains that the delay, in commencement of investigation, would not, as a corollary, vitiate the trial. We see no reason to disagree with the conclusion so reached by the learned Single Judge.
49. Though it has also been contended that the Summary Court-Martial had no power to dismiss the petitioner from service and that there is no formal order of dismissal from service, it may be pointed out that Section 120 of the Army Act empowers a Summary Court-Martial to try any person subject to the Army Act and, upon completion of the trial, pass any sentence, except a sentence of death, or transportation, or of imprisonment for a term exceeding the limit specified in Sub-section (5) thereof. Section 120 of the Army Act, which deals with the powers of the Summary Court-Martial, reads as under:
120. Powers of summary Courts-martial.-(1) Subject to the provisions of Sub-section (2), a summary Court-Martial may try any offence punishable under this Act.
(2) When there is no grave reason for immediate action and reference can without detriment to discipline be made to the officer empowered to convene a district Court-Martial or on active service a summary general Court-martial for the trial of the'' alleged offender, an Officer holding a summary Court-martial shall not try without such reference any offence punishable under any of the Sections 34, 37 and 69, or any offence against the officer holding the Court.
(3) A summary Court-martial may try any person subject to this Act and under the command of the officer holding the Court, except an officer, junior commissioned officer or warrant officer.
(4) A summary Court-martial may pass any sentence which may be passed under this Act, except a sentence of death or transportation, or of imprisonment for a term exceeding the limit specified in Sub-section (5).
(5) The limit referred to in Sub-section (4) shall be one year if the officer holding the summary Court-martial is of the rank of lieutenant-colonel and upwards, and three months, if such officer is below that rank.
50. Section 116 makes provisions for Summary Court-martial. Sub-section (1) of Section 116 lays down that a Summary Court-martial may be held by the CO and he shall alone constitute the Court. What is required is that the proceedings shall be attended, u/s 116(2), by two other persons, who shall be officers or junior commissioned officers or one of either, and who shall not as such, be sworn or affirmed. In the present case, as rightly noted by the learned Single Judge, two independent witnesses, namely, Major KPR Hari and Subedar Anant Lal Purty were, as the record reveals, attended the proceedings of the Summary Court-martial.
51. Section 120 makes it clear, as already pointed out above, that Summary Court-martial may try any offence punishable under the Act. Section 120 also makes it clear that a Summary Court-martial may pass any sentence, which can be passed under the Army Act, except sentence of death or of transportation, or of imprisonment for a term exceeding one year, if the officer, holding the Summary Court-martial is of the rank of lieutenant-colonel and upwards, and three months, if such officer is below that rank. In the case at hand, the sentence, passed against the appellant, reads as under:
To suffer rigorous imprisonment for five months and to be dismissed from service.
52. It is Section 71 of the Army Act, which lays down various punishments, which can be inflicted by a Court-martial. The punishments prescribed Section 71(e) include dismissal from service.
53. Section 40 makes using of criminal force, assaulting, or threatening superior officers punishable. If the said offence is committed on "active service", the offence is punishable by imprisonment for a term extending up to fourteen years or such less punishment as the Army Act provides. If the superior officer is not on "active service" or if the criminal force is used against a superior officer, when the superior officer was not executing his duty, the punishment may extend to ten years or such less punishment as the Army Act prescribes. Thus, an offence, committed, while on ''active service'', is viewed more seriously than how the same offence is viewed if the offence is committed, while the offender is not on ''active service''.
54. In the present case, since the superior officer was on "active service", the punishment could have been as much as fourteen years. Since the petitioner was being tried by a Summary Court-martial, which was held by the CO and the CO, being of the rank of lieutenant colonel, no sentence, longer than one year, could have been passed against the appellant, as per Section 120(5). Had the appellant been tried by a District or General Court-martial, he could have been punished by imprisonment of up to fourteen years.
55. We, now, advert to Section 71 of the Army Act, which catalogues various punishments awardable by a Court-Martial. Section 71 reads:
71. Punishments awardable by Court-martial.-Punishments may be inflicted in respect of offences committed by persons subject to this Act and convicted by Court-martial, according to the scale following, that is to say,-
(a) death;
(b) transportation for life or for any period not less than seven years;
(c) imprisonment either rigorous or simple, for any period not exceeding fourteen years;
(d) cashiering, in the case of officers;
(e) dismissal from the service;
(f) reduction to the ranks or to a lower rank or grade or place in the list of their rank, in the case of warrant officers:
Provided that a warrant officer reduced to the ranks shall not be required to serve in the ranks as a sepoy;
(g) forfeiture of seniority of rank, in the case of officers, junior commissioned officers, warrant officers and non-commissioned officers; and forfeiture of all or any part of their service for the purpose of promotion, in the case of any of them whose promotion depends upon length of service;
(h) forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose;
(i) severe reprimand or reprimand, in the case of officers, junior commissioned officers, warrant officers and non-commissioned officers;
(j) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active service;
(k) forfeiture in the case of a person sentenced to cashiering or dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such cashiering or dismissal;
(l) stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good.
56. Being in mind the punishments, which are awardable by a Court- Martial, including a Summary Court-martial, when we come to Section 73, we notice that Section 73 makes a combination of punishments possible inasmuch as in lays down that a Court-martial may award a sentence in addition to, or without, any other punishment, the punishment specified in Clause (d) or Clause (e) of Section 71 and any one or more of the punishments specified in Clauses (f) to (1) of that section. This, in turn, means that apart from being sentenced to various punishments, as prescribed under Clauses (f) to (1) of Section 71, the person, proceeded against, can be, under Clauses (d) of Section 71, cashiered, if he is an officer, or, he may be, under Clause (e) of Section 71, dismissed from service.
57. It has also been contended, on behalf of the appellant, as already pointed out above, that there is no formal order imposing penalty of dismissal from service. We have already noted above that the sentence, pronounced in the present case, read as under:
To suffer rigorous imprisonment for five months and to be dismissed from service.
58. The punishment, as quoted hereinabove, clearly reveals that the accused was sentenced to corporal punishment and also dismissal from service. In view of the fact that such punishment is clearly contemplated by Section 71 read with Sections 72 and 73 of the Army Act, the sentence of imprisonment and dismissal from service cannot be said to be contrary to law.
59. The learned single Judge has concluded that the Summary Court-martial was constituted in complete compliance of the provisions of Section 116(2) and we see no reason to take a view different from what the learned Single Judge had taken inasmuch as we notice that, apart from the CO, as noted by the learned Single Judge, Major K.P. Hari and Subedar Anant Lal Toypi, were present at the trial.
60. Coming to the question as to whether the punishment, imposed on the appellant, was commensurate with the gravity of the offence, it needs to be carefully noted that the accused pleaded ''guilty'' to the charge of having hit a superior officer, while on ''active service''. An offence, so committed, on ''active service'', could have resulted into, as already indicated above, a term of imprisonment extending up to fourteen years and also dismissal from service. In the present case, the accused has been dealt with, rather, leniently compared to the gravity of the offence, which he had committed. If persons from a disciplined force, such as Army, are allowed to hit their superior officer, while on ''active service'', the very purpose of creating the legal fiction, by making the deeming provisions u/s 9, to treat a person, on ''active service'', would stand defeated. Viewed from any angle, therefore, we do not find that the trial of the appellant by the Summary Court-martial and/or the punishment imposed on him warrant interference in exercise of this Court''s powers under Article 226. This appeal, therefore, fails and the same shall accordingly stand dismissed.
61. With the above observations, this appeal shall stand disposed of.
