Abhimanyu Dhondiram Lahane Vs. Union of India [Bombay High Court, 21-06-2016]

Army Act, 1950 – Sections 44, 164 – Army Rules of 1954 – Appendix-I Form No.II – Penal Code, 1860 – Sections 326, 324, 504, 506 r/w. 34 – Summary Court Martial – False answers on enrolment – The conviction of the petitioner for the offence under Section 44 of the Army Act, 1950 is maintained, however, sentence of rigorous imprisonment for one month awarded to him is set aside.


IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

CORAM: S.S. SHINDE &  SANGITRAO S. PATIL, JJ.

WRIT PETITION NO.4140 OF 2002

Pronounced on : 21.06.2016

Abhimanyu s/o. Dhondiram Lahane, Age-21 Years, Occu:Nil, R/o. Makegaon, Tq. Renapur, Dist. Latur PETITIONER

VERSUS

1] The Union of India [Copy served through the Standing Council for Union of India in the High Court Bench at Aurangabad]

2] The Commanding Officer, 3 Adm, and DVRS Trg Regt. Artillery Center, Hyderabad-500031.

3] The General / Chief of the Army Staff of Indian Army, Army Headquarter, R.K.Puram New Delhi RESPONDENTS …

Mr.B.R.Kedar, Advocate for the petitioner Mr.Bhushan B. Kulkarni, ASG for Respondent Nos.1 to 3. …

JUDGMENT

[Per S.S.Shinde, J.]

This Petition takes exception to the impugned judgment and order dated 23rd July, 2001 passed by the Commanding Officer 3 Adm and Dvrs Trg. Regt. Artillery Center, Hyderabad in Summary Court Martial No. 15145400A and the order No.C/07488/DV-3 passed by the Chief of the Army Staff on 31st May, 2002 in Petition under

Section 164 of the Army Act.

The petitioner further seeks direction that the punishment awarded to the present petitioner by the respondent nos.2 and 3 is excessive and therefore the petitioner is entitled to be reinstated in service with full back-wages, and consequential benefits with 18% interest.

The Relevant facts in brief, for the purpose of deciding the present Petition are as under:

2] It is the case of the petitioner that on 29th September, 2000, he was enrolled as Gunner Soldier through regular recruitment process in Army at B.R.O. Aurangabad and sent for training. He had successfully and without any break completed the training and served with the Indian Army up to 23rd July, 2001. It is further the case of the petitioner that before joining the Army, he had prosecuted his studies at taluka place, which is far away from his village. According to the petitioner, due to group politics in his village, the persons from opposite party lodged a false criminal complaint against the petitioner and his family members with an intention to harass them even though the petitioner was not present in the village at the relevant time, and his father was dealing with the case since he was minor, and not residing in the village nor attending the court any time. Therefore, the petitioner was not really concerned with the criminal proceeding when he was enrolled in the Army.

After his enrolment, the record from the Police Station was called by the Army Office and in the said record it was found that the Regular Criminal Case No.147/1999 was pending against the petitioner for the offences punishable under Section 326, 324, 504, 506 r/w. 34 of IPC. As the consequence of which the Commanding Officer had framed the tentative charge against the petitioner under Section 44 of the Army Act, 1950 on 9th May, 2001 for giving negative answer at the time of enrolment when query was put to him that ‘Have you ever been imprisoned by the Civil power or are under trial for any offence or has any complaint or report been made against you to the Magistrate or Police for any charge?’.

3] It is the case of the petitioner that without following the proper procedure and provisions of the Army Act and Army Rules, the Summary Court Martial was conducted against the petitioner and he has convicted for one months rigorous imprisonment and also has been dismissed from service by the order in Summary Court Martial No.15145400A on 23rd July, 2001.

4] It is further the case of the petitioner that though he has already undergone one month rigorous imprisonment, he has challenged the validity of the order of conviction and dismissal dated 23rd July, 2001 in Summary Court Martial No.15145400A before the Commander in Chief of the Army in Petition under Section 164 of the Army Act.

However, the Appellate Authority rejected the same without recording any reasons and without considering the legal provisions.

Hence this Petition.

5] The learned counsel appearing for the petitioner submits that the questions which are required to be asked to the candidate while enrolling him are provided under Appendix-I Form No.II of Army Rules of 1954. In the said Appendix, the question no. 7 is regarding the order of imprisonment passed by the Civil power and the same does not cover query regarding any pending complaint or trial. Therefore, the punishment provided under Section 44 of the Army Act can be awarded only in respect of the false answers given in respect of questions provided under Appendix-I, Form No.II. It is submitted that, before conducting Summary Court Martial and imposing punishment on delinquent, it is necessary to ask him that, whether he objects to be tried by any Officer sitting in Court Martial. However, the said procedure was not followed. It is submitted that the Judicial Magistrate First Class at Ahmedpur acquitted the petitioner in RCC No. 147/1999. The learned counsel invited our attention to the provisions of Section 44 of the Army Act and submits that on plain reading of the said provision, in cases where the candidates giving false answer wilfully at the time of enrolment, the punishment is provided. The petitioner being unaware of the pending criminal case and below 18 years of age, while answering the question no.7, answered the same in negative. Therefore, the act of the petitioner was not wilful so as to attract the provision of Section 44 of the said Act. In case the Commanding Officer was of the opinion that charge deserved to be proceeded with and not otherwise, the case should have been referred to the Superior Authority and he himself should not have decided the case and pass the order of dismissal for punishing the delinquent. The learned counsel for the petitioner pressed into service the provisions of Rule 17 of the Army Rules, 1954 and submits that, no person shall be dismissed or removed from the service under Section 20 of the said Act, unless he has been informed of the particulars of the case and action likely to be taken against him and he is given reasonable time to reply in writing. Before ordering the Court Martial every charge should be heard in the presence of the accused and he should be given full liberty to call any witness in his defence and cross examine witnesses. However, the said procedure has not been followed. No prior warning of trial as provided under Rule 34 of the said Rules was given to the petitioner, nor documentary evidence supplied to him as provided under Rule 25 of the said Rules.

The defence of the petitioner was not properly considered by the Commanding Officer, and therefore, the order passed by him is bad in law. It is submitted that for one offence petitioner cannot be punished under Rule 65 by imposing one month rigorous imprisonment and dismissal from service. It was necessary for the Authority to consider the provision of the Probation of Offenders Act, 1958, keeping in view the antecedents of the petitioner that there was no conviction for any offence to his credit. The Authority did not follow the provisions of Article 311 of the Constitution of India. The learned counsel appearing for the petitioner relied upon the judgment of the Supreme Court in the case of