M.L.Bhat - (1.) FOR proper understanding of the case it is necessary to give a brief resume of the facts as set out in the pleadings of the parties.
(2.) THE petitioner is said to have been posted as Major in Central Ordnance Depot, Agra and he was assigned the duties of Security Officer. THEre were other officers also besides the petitioner who were assigned their respective duties. One Captain Tony George was the Officer Incharge of salvage store and the branch of Director General of Ordnance store. He is said to have made a statement that a theft was committed in the department of salvage on 27-9-1983 and 9-2-1984. On 15-2 1984 a FIR was also lodged against the civilian persons said to have been involved in the commission of theft. Besides the petitioner a number of officers were implicated whose names are given in para 7 of the writ petition. THE matter was taken up against the petitioner and three officers only and all others were left out. Mr. Tony George, who is said to have accepted Rs. 20,000/- and a cooler for supplying additional material to the Kabadis was not impleaded as an accused. He was however, reprimanded. A tentative charge sheet was given after the Staff Court enquiry In the said charge sheet the petitioner was chargesheeted for criminal breach of trust and for negligence of duty. Rules 22 and 23 of the Army Rules consequently were attracted in the case which would mean that the charge against the petitioner was to be heard in his presence and the petitioner was at liberty to cross examine any witness against him and he could also call any witness in defence and make his own statement in defence. THE Commanding Officer at this stage is empowered to dismiss the charge it there is no evidence to substantiate the same. If there are grounds for proceeding further, the Commanding Officer has to refer the case to the superior Military authority or could adjourn the case for recording evidence in writing. Rule 23 prescribes the procedure for taking down the summary evidence. THE Commanding Officer, para Training Centre, Agra was asked to hold enquiry, who collected evidence. At this stage he was bound to follow the mandates of Rules 22 to 24 of the Army Rules. After collection of evidence which consisted of 300 pages the Commanding Officer seems to have taken decision on 17-5-1984. He declared on 18-5-1984 that the case was a fit one for being tried by the General Court Martial. THE petitioner alleges that the Commanding Officer while doing so has committed infraction of rules 22 to 25 of the Army Rules. It is stated that Captain Tony George did not name the petitioner as an accused in his statement nor was the petitioner's name mentioned in the FIR as an accused. A chargesheet was given to the petitioner along with Lt. Col. Balwant Singh on 11-12-1984. It was alleged against the petitioner and the said officer that they together on 27-9-1983 in league with some private persons, who were all 'Kabadis' had committed theft of articles worth Rs 1,20,000/-. Charge No. 2 was framed against the petitioner along with two other officers namely Lt. Col. Balwant Singh and Major Hari Chandra Pahwa. It was also framed for committing theft in league with some civilian persons of the articles worth Rs. 63,661.22 p. from the Army store. On 14-2-1985 the petitioner is said to have been convicted and sentenced to one year R.I. for charge No. 2 i.e. in respect of the occurrence dated 9-2-1984. For charge No. 1 the petitioner was acquitted as no case is said to have been made out against him. All other accused persons, who were tried along with the petitioner, were acquitted. The value of the property, which was the subject matter of charge No. 2, was reduced to 8412.22 the petitioner is said to have filed an appeal against the order of the General Court Martial on 10-3-1985. Chapter XII of the Army Act under the heading 'Confirmation and Revision' contams certain provisions which were invoked by the petitioner. Section 154 lays down that the findings of sentence of general court martial are subject to the confirmation of the confirming authority. The confirming authority is the Central Government or any other officer empowered in this behalf by the Central Government. The revisional authority to which the papers were sent on 31-5-1985 remanded the matter for fresh decision to the general court matrial. The revisional authority remarked that without in any way wishing to interfere with the discretion of the court to arrive at their findings, I as Confirming Officer, feel that the courts findings on the aforesaid charges being against the weight of evidence should be reconsidered in the light of the succeeding paragraphs. The revisional authority pointed out that the petitioner with two more persons, who were performing the duties of Administrative Officer, Installation Security Officer, these there Officers were in a position to control the internal Office procedure (Administrative Officer) and could control the entry/exit rights at the main gate. Tony George, at the relevant time, was the Officer Incharge Salvage and he continued to hold the charge till 13-2-1984. About the petitioner it was remarked that he had told another accused on 27-9-1983 that four trucks would be coming for salvage collection and one of them will not have store gate pass and asked him to pats out the trucks. The trucks are said to have entered the gate at 11:30 Hrs and left at 15:30 hrs. The three trucks were loaded as per the proper documents and the fourth track was unauthorisedly loaded. This incident is said to be relevant for proving the charge of theft against the petitioner. When the four trucks are said to have reached the place, the petitioner along with other officers are also said to have reached there. Tony George also arrived. The fourth truck is said to have been loaded in the presence of the petitioner and other officers and in this regard the statement of PW 2 Havaldar K. D. Upadhyaya and the statement of PW 19 Havaldar MDN Islam were relied upon by the revisional authority. The gate pass is said to have been made only for three trucks. The fourth truck had unauthorisedly entered and left the salvage area. The gate pass is said to have been signed by PW 1 and PW 3. The revisional authority refers the statement of PW 5 also in this connection. One civilian 'Kabadi' had left Rs. 20,000/- at the residence of Tony George on 28-9-1983. Tony George has stated that the petitioner and another accused asked him whether he had named the petitioner and other officers in the incident. Lt. Mohinder Pratap (PW 22), another officer, who has been acquitted, is said to have admitted his guilt, it is pointed out by the revisional authority that it was the duty of the petitioner and other accused, who were at the helm of affairs to take cognizance of the theft by the salvage staff and apprehend the thieves. PW 6 Gian Singh and PW 7 Megh Raj Singh are said to have allegedly seen two trucks being loaded from shed No. 21 and 319 of Group No. 1 PW 12 Havaldar Kal shetty and Sepoy Puran Chand PW 5 are said to have supervised the loading from the two sheds, they were deputed on duty by the accused and another officer. PW 8 Dep Puran Chand is said to have been threatened by the petitioner with dire consequences if he divulged the said illegal lifting of stores to any one. The petitioner is said to have also been seen and meeting with other officers and one of the contractors according to PW 30 Shiv Charan The revisional authority also observed that it was incumbent on the court to have examined Major Raghunathan, who was a member of the said stock taking board and was present right from its inspection. It directed the court to record additional evidence by examining Major Raghunathan. lt also dircted for calling of Sep. Puran Chand. It also observed that it would be in the interest of justice to examine Brig. Chatrath to enquire whether any theft was committed by the petitioner and other officers. The confession of accused No. 4 is said to have been ignored. The revisional authority says that he has named the petitioner and other officers on the second charge. He is said to have retracted the confession but the revisional authority says that his retracted confession may be considered along with the evidence on record. It gave direction to the court martial how it should proceed to record fresh sentence against the petitioner and other officers. It also desired to give opportunity to produce evidence and address the court. It asked the court martial to bear in mind the provisions of section 160 of the Army Act and Rule 68 of the Army Rules.
(3.) IN pursuance of the directions and observations made by the revisional authority the general court marital was again constituted and proceedings against the petitioner and other accused were started afresh. The proceedings commenced on 25th June, 1985 and concluded by the pronouncement of the judgment on 8-7-1985. After the remand additional evidence and the statements of Brig. S. C. Chatrath, Capt. Raghunandan, Sri Bhojraj and some others were recorded. The petitioner was found guilty of both the charges. The petitioner is said to have filed an appeal on 25-2 1986. The said appeal was rejected by the confirming authority and the petitioner was informed about its rejection on 4-10-1986. Against the said order the petitioner is said to have filed a petition to the Government of India under section 164 (2) read with paragraph 364 (a) (ii) of the Regulations on 6-11-1986. The Government of India on 25-1-1988 rejected the appeal of the petitioner. The petitioner submits that serious irregularities were committed by the general court martial in holding him guilty under section 379 IPC. It is the case of the petitioner that the findings are based on in admissible evidence, these ate perverse and these, who are resposible for committing theft, were left out.;