armed forces tribunal, chandigarh regional ......purchases from the csd canteen which indicated that...

OA (Appeal) 1523 of 2014 [Ram Gopal v. UOI & Ors] - 1 -

ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL

BENCH AT CHANDIMANDIR -.-

OA (Appeal) 1523 of 2014

Ram Gopal …… Petitioner(s)

Vs

Union of India and others …… Respondent(s)

-.-

For the Petitioner (s) : Mr DS Kauntae, Advocate

For the Respondent(s) : Mr Rajesh Sehgal, CGC

Coram: Justice Prakash Krishna, Judicial Member.

Lt Gen (Retd) Sanjiv Chachra, Administrative Member

-.-

ORDER

16.02.2016

-.-

This petition is in the nature of appeal filed under Section 15 of

the Armed Forces Tribunal Act, 2007 questioning the legality, validity

and propriety of the Summary Court Martial conducted against the

petitioner and its verdict.

2. The petitioner joined the Army as an Infantry soldier in the JAT

Regiment on 2nd

April, 2005. He at relevant point of time was under the

command of respondent No.4, Commanding Officer 14th Battalion,

JAT Regiment. The petitioner was placed in Low Medical Category,

when the Unit was at the Base Camp, Siachen Glacier, he was directed

to appear before the Review Medical Board through 403, Field Hospital

on 12th October, 2010 but he failed to do so and his whereabouts were

unknown. An apprehension roll was issued vide letter dated 24th

November, 2010 and he was ultimately declared as „deserter‟. It

appears that the petitioner thereafter (after more than two years) in the


year 2013 approached the Unit and was tried by the SCM for the

following charges:

“First Charge Army Act Section 39(a)- Absenting himself without leave In that he, At field, on 12

th October, 2010, when referred

To 403 Field Hospital for Review of Medical Category absented himself without leave till He voluntarily reported at JAT Regimental Centre, Bareilly on 19

th October,2011.

Second Charge Army Act Section 39(a)- Absented himself without leave In that he, At Bareilly on 19 July, 2011, when dispatched to 14 JAT vide JAT Regimental Centre movement Order No. 0364/A-2 dated 19 July, 2011, absented himself without leave till he voluntarily reported at JAT Regimental Centre, Bareilly on 19

th October, 2011.

Third Charge Army Act Section39 (a)- Absenting himself without leave In that he, At Bareilly on 20 October, 2011, when dispatched to 14 JAT vide JAT Regimental Centre Movement order No. 0364/A-2 dated 20

th

October, 2011 absented himself without Leave till he voluntarily reported at JAT Regimental Centre, Bareilly on 12 February, 2012. Fourth charge Amry Act Section 39(a)- Absenting himself without leave In that he, At Bareilly on 19

th July, 2012, when dispatched

to 14 JAT vide Jat Regimental Centre Movement order No. 0364/A-2 dated 19

th

February, 2012, absented himself without Leave till he voluntarily reported at 14 JAT 01 March, 2013.”

3. The Summary Court Martial after recording the evidence of the

prosecution found that all the charges are proved and the guilt of the

petitioner is established and it awarded the sentence to be dismissed

from service on 23rd

day of May, 2013, impugned in the present

petition (appeal).

4. The case of the prosecution in brief is that the petitioner was

required to appear before the Re-Assessment Medical Board at Field,


403 Field Hospital vide movement order dated 11th October, 2010 but

he failed to appear without any reasonable excuse and absented

himself. After more than one year, the petitioner instead of reporting

back to the Unit, reported to the JAT Regimental Centre and obtained a

movement order therefrom to report to the Unit, but in that too he failed

to report to the Unit. A Summary of Evidence was recorded and

thereafter a Summary Court Martial was convened / ordered. He was

served with the charge-sheet but he refused to sign on the

acknowledgement receipt of the charge-sheet. In the Summary Court

Martial proceedings, the petitioner remained physically present but

refused to sign any document etc. nor did he produce any evidence in

his defence. Questions were put to him in the Summary Court Martial

but he did not give any reply.

5. The present appeal has been filed on the allegations that an

Apprehension Roll was issued to him on 24th November, 2010; the

petitioner accepted the apprehension roll and immediately reported and

tried to join voluntarily for further duties at his Unit, but no action was

taken by the said authority. He thereafter reported to his Regimental

Centre Bareilly on 19th July, 2011 at 1300 hrs and was directed to

report to his parent unit 14 JAT Regiment vide movement order dated

19.07.2011. The petitioner moved from Bareilly to his parent unit

through transit camp but he was not allowed to join his duties. He was

not sent to the unit location at the Base Camp in Siachen Glacier, for


which movement of the petitioner was routed through three Transit

Camps. The further allegation is that the petitioner made certain

purchases from the CSD Canteen which indicated that he actually tried

to report to his Unit but the Unit Commander did not allow him to join.

Hence, the finding of guilt with regard to absence of duty is totally

uncalled for, the fault if any, lies with the Commanding Officer and not

with the petitioner. Along with the petition (appeal), the petitioner has

enclosed copies of the movement orders and copies of two CSD

Canteen Bills in support of his case.

6. We may also place on record that further case of the petitioner is

that the entire SCM proceedings are nothing but an eye wash, false,

fabricated and a concocted one. A Civil Writ Petition No. 965 of 2013

was filed in the High Court in the year 2013 and copies of the said

petition were sent to the respondents therein. The Commanding Officer

in order to cover up his inaction, ordered trial of the petitioner by

Summary Court Martial.

7. The respondents have filed a detailed reply refuting the

allegations of the petitioner. They have come out with the case that the

petitioner is a habitual defaulter and in a short span of 5 years service,

he has been punished four times as brought out in para 2 of the written

statement. The petitioner absented himself without leave since 13th

October, 2010 from the unit when it was deployed in Siachin Glacier

and did not report to the Unit since then, even after reporting at JAT


Regimental Centre and getting movement orders. He has shirked away

from his soldiery obligation to serve in the operational area and thus

brought a bad name to the organization. The petitioner, after

completion of stipulated period of 30 days of absence without leave,

was declared a deserter and a desertion roll was sent to the concerned

authorities and his documents were closed and forwarded to Records

JAT vide letter No. 1140/DC dated 31st December, 2010. Although

copies of movement order(s) issued by the JAT Regimental Centre,

prepared in triplicate, were received by the Unit but the petitioner did

not physically report to the Unit. He sent a telegraph after consulting

Advocate Shri DS Kauntae of Delhi High Court and raised the

allegation of not being taken on strength and non-payment of salary.

The movement orders produced by the petitioner do not contain any

seal or authentication with date of reporting. He was informed about

convening of SCM proceedings vide unit letter No. 1113/1/A/3202021

dated 15th

May, 2013. The further allegation is that after reporting to

the Unit on 1st March, 2013, the petitioner immediately spoke to his

father and lawyer on mobile phone and told “mere lawyer ne kaha hai

kahin sign mat karo, main tume bacha lunga.” To guard against this

and to show that the proceedings were conducted in a fair manner,

photographs of Summary Court Martial trial were recorded. The

allegation that the petitioner was confined and his movement was

restricted has been denied by the respondents and they have produced


the Arrest Register to show that during the relevant period, the

petitioner was not arrested.

8. The reply/written statement is a detailed document and it is not

necessary to note all other pleas raised therein and they will be

considered at the appropriate stage.

9. Heard the learned counsel for the parties and perused the record.

10. The learned counsel for the petitioner argued the case with great

vehemence on the ground that the entire Summary Court Martial

(SCM) proceedings are a manufactured document and as a matter of

fact, no such SCM ever took place in presence of the petitioner.

Elaborating the argument, it was submitted that petitioner‟s signature

does not find place on any piece of paper before the Court Martial

proceedings. It shows that the SCM as a matter of fact was never

convened. He was not served with the charge-sheet nor any reply was

called for from him. He was neither associated with Court Martial

proceedings and the entire Court Martial proceedings seem to have

been conducted behind the back of the petitioner. He was not informed

about the SCM proceeding at any point of time. Further, the petitioner

had all the time been trying to join the Unit but the Commanding

Officer did not permit him. To buttress this argument, reliance has been

placed upon copy of certain movement orders filed before us for the

first time along with the petition to show that the petitioner, as a matter


of fact, reported to JAT Regimental Centre and he was directed to

report to the Unit. To show that he thereafter proceeded to join the

duty to the Unit, two CSD Canteen bills showing purchases from the

Canteen have been annexed. This is the entire evidence given by the

petitioner in support of his case with regard to his joining the Unit.

Pointedly, we asked the learned counsel for the petitioner as to whether

there is any other documentary evidence besides these to prove his

actual reporting to the unit, but he answered in the negative. The

learned counsel for the petitioner submitted that the petitioner had filed

Civil Writ Petition No. 965 of 2013 in the Punjab and Haryana High

Court at Chandigarh claiming certain reliefs such as deeming the

petitioner to be in service w.e.f. 20th

July, 2011 etc which infuriated the

Commanding Officer who after the receipt of the notice of the writ

petition, manufactured the so called SCM proceedings.

11. We have given our thoughtful consideration to the aforesaid

submissions of the learned counsel for the petitioner and crux of the

matter is, whether the petitioner, in pursuance of the movement orders,

reported / joined duty to the Unit or not.

12. Reference was made to the movement order dated 19th

July,

2011. Its bare perusal would show that the petitioner reported to the

JAT Regimental Centre Bareilly and was asked by the JAT Regimental

Centre Bareilly to proceed to 14th JAT. Further reliance has been


placed on movement orders dated 20th October, 2011 and 19

th February,

2012. The case of the petitioner is that in pursuance of the aforesaid

movement orders, he did join his unit, 14th JAT but was not permitted

to do so by the Commanding Officer. To prove his case, reference has

been placed upon a photocopy of Canteen Bill dated 28th September,

2011 filed as Annexure A-4. It has been categorically stated by the

respondents that the petitioner was directed to report to the unit but he

failed to report. Much reliance has been placed on two CSD Canteen

receipts. One of the said receipts is of 3983-HQ 29 Infantry Div, Ext I,

HQ 29 INF Div URC Ext I C/o 56 APO. It was pointed out by the

respondents that the said canteen receipt is of a different canteen which

is situated far away from the Unit of the petitioner. The petitioner was

supposed to move from Bareilly to Pathankot with direct train

connectivity since by then the Battalion had moved and reached

Pathankot on 10th July, 2011. The petitioner‟s contention that he

reported to Jammu, a distance of 120 KM from Pathankot, when was

not required to report to Jammu Transit Camp which is also not

specified in movement order. The respondents have come out with the

case that as per movement order, the petitioner was required to report to

14th JAT and Jammu Tawi was not enroute to Unit location. It is for

the petitioner to explain as to why he did not report to Unit directly at

Pathankot and went to Jammu. There is also no evidence to prove that

he actually reported to Jammu Transit Camp. The items purchased by

the petitioner through the above canteen receipt is from 29th Infantry


Div CSD which is also situated near Pathankot. In para 4.9 of the

reply, the respondents have taken a specific stand that the said canteen

is adjacent to highway and anybody can buy from there without

physically reporting to Battalion. CSD card can also be used by a third

person as well. The said canteen is located at 8.5 KM away from the

Battalion location. If the petitioner had indeed reported to the Battalion,

he should have used the Battalion CSD Canteen. There are numerous

CSD Canteens in the Cantt adjacent to the Battalion which could also

have been used by the petitioner. These facts have not been rebutted by

the petitioner either by filing a rejoinder affidavit nor the learned

counsel for the petitioner could place any material during the course of

the argument to dispute these facts as pleaded in the said para 4.9 of the

written statement. It leads to the conclusion that as a matter of fact the

petitioner did not report to the Unit and has indulged in manufacturing

the documents for the purposes of the case.

13. A strange plea has been taken by him that since the present

proceeding is in the nature of appeal, as a matter of fact, no written

statement or reply could have been filed by the respondents. The said

plea is like a double edge weapon. It is rejected for the simple reason

that it is the petitioner who has created such a situation. It is admitted

by him that for whatever reason, he did not file any document or could

he produce any evidence before the SCM. For the first time during

these proceedings in appeal, he is questioning the legality of the


Summary Court Martial on the basis of the documents filed for the first

time during appeal. This being the position, it is but obvious for the

respondents to give a reply, otherwise it would amount to violation of

principles of natural justice. The point which we try to bring home is

that there is, as a matter of fact, no evidence worth convincing, to show

that the petitioner in pursuance of any of the movement orders, reported

for duty to the Unit. Pointedly we asked repeatedly to the learned

counsel for the petitioner to refer any material which may establish the

petitioner‟s case of joining duty at the Unit. Fairly enough, except for

the two canteen bills, he could not refer to any other document. We are

of the opinion that the canteen bills were obtained by the petitioner for

the purposes of the case. Had he reported to his Unit, he should have

purchased the goods from the canteen of the Unit or other CSD

Canteen nearby to the Unit. The learned counsel for the petitioner

submits that the petitioner was all alone and as such there was no

necessity to purchase items mentioned in the canteen bill dated

28.09.2011, which relate to ladies wear or use. It cannot be said that

the said argument has got no force but we leave it as it is.

14. The upshot of the above discussion is that the petitioner has not

been able to establish even prima facie that he reported for duty to his

Unit at any point of time prior to 1st March, 2013. The petitioner failed

to report to 403 Field Hospital from the Base Camp, Siachen Glacier

for review of his medical category in pursuance of the movement order


dated 12.10.2010 and absented himself thereafter from duty, and

finally reported on 1st March, 2013 after more than two years.

15. The petitioner was found absent without leave and as per

procedure provided under the relevant Army Act/Rules, the matter was

investigated by the concerned authority and apprehension roll of the

petitioner was issued. A copy of the apprehension roll was served upon

the petitioner on 24th November, 2010. He should have reported to the

Unit shortly thereafter but from the documents produced by him, he

reported to JAT Regimental Centre on 19th July, 2011 as per the

movement order filed as Annexure A-3. The reporting to JAT

Regimental Centre at Bareilly was done with a view to create evidence

that the petitioner still wants to serve the Army although he was already

declared „deserter‟.

16. We find substance in the argument of the learned counsel for the

respondents that after receiving apprehension roll, the petitioner started

manufacturing documents to prove his innocence and in pursuance of

the design he obtained firstly movement order on 19th July, 2011 with a

direction to proceed to Unit but never proceeded to join the duty and

secondly the CSD Canteen Bills. It is not difficult to make purchases

from CSD Canteen by a soldier by producing CSD card of his friend

and this appears to have been done in the present case. Another CSD

Canteen bill produced by the petitioner is of 28th September, 2011 of


Div CSD at Mamun Cantt. The respondents have further pleaded that

the petitioner claims to have stayed at JAT Regimental Centre for three

months from 19th

July, 2011 to 19th

October,2011 vide para 11 of the

Writ Petition at page 56 of the paper book. If that is so, how he was

present at both places i.e. Bareilly and Pathankot during the same

duration. In the facts and circumstances of the case, it is difficult to

believe the version of the petitioner that in pursuance of the movement

orders, he reported to the Unit but the Unit Commander refused to

permit him to join the Unit. The evidence produced by the petitioner is

sketchy and is not worthy of credence and the same is hereby

discarded.

17. At one point of time, the learned counsel for the petitioner

vehemently argued that all these proceedings are barred by time in view

of Section 122 of the Army Act, 1950. The period of limitation as

prescribed is 3 years and when it was pointed out to him to demonstrate

as to how the trial has commenced after a period of three years, the said

point was not pressed and was given up.

18. It was then argued that the entire Court Martial proceedings are

based on forged and fabricated documents and as such the alleged

Charge-Sheet and the subsequent proceedings should be quashed. The

argument proceeds on the footing that the petitioner was never served

with copy of any charge-sheet nor was he associated with the SCM


proceedings. The impugned SCM proceedings were conducted in total

violation of the principles of natural justice and, therefore, are null and

void. Reference was made to a judgment of the Apex Court given in

the case of Union of India and others v. AK Pandey [2009]10 SCC

552.

19. We have given our thoughtful consideration to the aforesaid

submissions of the learned counsel for the parties. The first and

foremost question of fact which falls for consideration is, whether as a

matter of the fact, the petitioner was served with a copy of the charge-

sheet and was associated with the SCM proceedings? It is admitted by

the respondents that there is no receiving receipt under the signature of

the petitioner of the charge-sheet. They have come out with the case

that the petitioner was totally non-cooperative and he refused to put his

signature in token of having received the charge-sheet but however, the

record shows that the charge-sheet was actually served on the petitioner

and he was physically present during the SCM proceedings throughout.

20. We have examined the original record of the SCM proceedings.

The presence of the petitioner is established from the witnesses who

were examined in the SCM proceedings. Sub Maj (Clerk) Rohitesh

Kumar has been examined by the prosecution. He states in para 1 (c )

of his deposition that “I recognize Sep Ram Gopal who is sitting as

accused in the Court”. He has further deposed that after absence of


280 days, Sep Ram Gopal reported to JAT Regimental Centre Bareilly

on 19th July, 2011 and was dispatched from JAT Regimental Centre on

19th July, 2011 to report to the Battalion vide movement order dated

19th July, 2011. He did not report to the Battalion. At the end of

deposition, there is an endorsement by the concerned officer, that Sep

Ram Gopal (petitioner) declined to sign in presence of independent

witnesses i.e. Maj Subhash Pradhan and Sub Ramesh Kumar with

requisite certificate that Army Rules 144(2)(3) and (4) have been

complied with. The second prosecution witness is Havildar (Clerk)

Jitender Singh, who has also stated that he recognizes Sep Ram Gopal

who is sitting as accused in the Court. The cross-examination of said

witness was denied by the accused and the requisite certificate under

Army Rules is endorsed. The third prosecution witness is Havildar

(Clerk) Sikander Ekka who was examined on the next date i.e. 23rd

May when the Court re-assembled. The proceeding shows the presence

of the accused as also his friend vide page D-13 of the SCM

proceedings. He has also stated that he recognizes the accused Ram

Gopal who is sitting in the Court. The cross examination of the witness

was declined by the petitioner as per the certificate attached thereto.

Havildar Dalpat Ram has been examined as PW4 . He also recognized

the accused who was sitting in the Court. The cross-examination was

declined by the petitioner. In the absence of any contrary evidence, the

statements of the prosecution witnesses to the effect that the accused

(petitioner) was present in the Court and they recognized the accused,


cannot be discarded. There is no evidence in rebuttal. The accused

could not produce any evidence either before the SCM or in this appeal

before us, to discard the statements of the prosecution witnesses. It is a

case of no defence evidence.

21. It appears that looking to the defiant attitude of the petitioner, the

Commanding Officer was apprehensive that any such kind of plea

could be taken by the accused in future. To safeguard and as a matter

of precaution, the Commanding Officer very wisely took photographs

of the proceedings and they have been annexed along with the reply by

the respondents to show participation of the petitioner in the SCM

proceedings. These photographs have been filed as Annexure A-19.

They are 13 in number and were taken out at different stages of SCM

proceedings to show the presence of the petitioner. We may place on

record that during the course of the argument when these photographs

were pointed out to the learned counsel for the petitioner, he could not

give any satisfactory reply. It is not the case of the petitioner that he is

not present as shown in the photographs of SCM proceedings or it is by

way of trick photography. A U-turn was taken by him that the

petitioner being an obedient soldier may have been physically present

without understanding the things which were going on around him. The

explanation given by the petitioner is far from satisfactory. It is an

explanation for the sake of the explanation. The pleadings of the

petitioner in this regard before us are completely silent. The petitioner


could have challenged those photographs had there been any doubt by

filing an affidavit in rebuttal. What to say about an affidavit, there is no

plea that these photographs are manufactured documents. There is no

reason to disbelieve these photographs and thus we reject the case of

the petitioner that he was not present during the SCM proceedings.

22. Annexure A-10 (on page 129 of the paper book) is a copy of

application filed by Shri D.S.Kauntae Advocate of the petitioner to the

Additional Registrar to treat Civil Writ Petition No. 965 of 2012 as

urgent and ground of urgency is “The petitioner is ordered to be tried

by Court Martial on 22.05.2013, ad-interim relief is prayed for.” It is

dated 20.05.2013. Thus, it does not lie in mouth of the petitioner to say

that he had no knowledge of SCM proceedings or charge-sheet was not

served on him.

23. The attending facts and circumstances of the case as also the

conduct of the accused and his documents would show that the entire

case of the petitioner is based on falsehood. Annexure A-11 (on page

146 of the paper-book) is a copy of letter dated 28.06.2013 wherein it is

stated that “accused was assured by the said CO that a complete set of

SCM trial proceedings would be supplied to him within a week”. This

shows that the accused had full knowledge of SCM proceedings.


24. In totality of the circumstances i.e. the statements of the

prosecution witnesses, referred to here-in-above, coupled with the

photographs and the fact that there was no personal enmity of the

Commanding Officer with the petitioner, there is no manner of doubt

about the presence of the petitioner during the course of the SCM

proceedings.

25. Feebly it was argued that it is a case of total violation of

principles of natural justice and the petitioner was not asked to produce

his defence. The said argument is meritless and has no legs to stand.

Firstly, the petitioner came out with the case that he was not associated

with the SCM proceedings and everything was done behind his back

which as demonstrated above, he failed to prove. On further probing of

the matter, we find that the Commanding Officer not only granted

opportunity to the petitioner to cross-examine the prosecution

witnesses, asked specific questions to enable the petitioner to put his

defence. As many as 13 questions vide Exhibit E2 were put to him and

the reply of each question is „No‟. There is an endorsement by the

Court that the accused declined to call any witness in his defence. He

has declined to sign the SCM proceedings. In the facts situation, what

reasonably one could do? If an accused is adamant not to sign any

document and not to answer question, the authorities concerned are not

supposed to force him to sign a document. One can bring a horse to

water but not force him to drink water. The prosecution has taken every


possible step to see that justice is done to the petitioner by giving

opportunity to cross-examine the prosecution witnesses, and an

opportunity to produce the evidence in defence and through questions

answers, as permissible under the Army Act and Rules. If a person

refuses to avail the opportunity afforded to him he cannot be heard to

say afterwards that principles of natural justice have been violated. This

disposes of the above argument raised by the learned counsel for the

petitioner.

26. At one point of time the learned counsel for the petitioner argued

that no summary of evidence was recorded before convening the

Summary Court Martial proceedings. This is not correct. The

respondents have placed the Summary of evidence recorded along with

the written statement and we have no reason not to accept it on the ipse

dixit of the petitioner. An attempt was made that the said summary of

evidence is undated but we find that at the end of the document. Major

Bikram Ashok Rastogi officer recording the summary of evidence has

put the date after his signature as 26th March 2013. The proceeding of

recording of Summary of Evidence would also show that the petitioner

was associated with it, as the witnesses have stated his presence in the

SCM proceedings also. For example witness No 1 Hav (clerk) Sikander

Ekka has stated that he recognizes the petitioner Sep Ram Gopal who is

sitting next to him.


27. It is interesting to note that in the petition the petitioner has

stated that he was put under house arrest when he reported on duty on

1st March,2013 and as such he could not have participated in the SCM

proceedings. To rebut it the respondents have filed the „Arrest Register‟

of the relevant period to show that the name of petitioner does not find

place therein. A general argument was raised that the copy of the said

register is also a manufactured document as it is in the same

handwriting and has not been certified by anybody to be correct. We

find that at no stage of the proceedings, the petitioner could dare to

challenge the authenticity of the said document in his pleadings. Only a

general remark that the document is forged one has been made during

the course of the argument for the first time. Such conduct of the

petitioner is not permissible under the law. There is no explanation as

to why he has not filed any pleading disputing the genuineness of the

said document. Even otherwise the document in question is an official

document prepared by an official of the Government in the ordinary

course of business and a presumption about its genuineness is available

under the Evidence Act. Such a presumption cannot be denied by

making sweeping remarks without pleadings during hearing.

28. Much was said that a copy of charge-sheet was not served on the

petitioner. A perusal of the documents on the record would show that it

was served to the petitioner but he refused to give the receipt under his

signature. Certificate has been attached to this effect and we have no


reason to discard such a certificate when the petitioner has not set out

anything in his pleading that he was never served with a copy of

charge-sheet. The Learned counsel for the petitioner could not point out

any specific plea in this regard from the pleading. In the absence of

necessary pleadings and presence of the certificate given by the officer

in the discharge of official duty, the plea of the petitioner is liable to be

rejected.

29. The argument that the petitioner was tried in respect of four

charges under a single trial is not permissible under the law is liable to

be rejected. Firstly the learned counsel for the petitioner could not point

out any provision that for each charge, there should be a separate trial.

Secondly, no prejudice has been caused to the petitioner if he has been

tried for four charges simultaneously. Instead of four separate trials,

one trial has reduced the mental agony and pain of the petitioner. Even

otherwise also, it is an acknowledged legal position that on such

technical pleas, trial is not vitiated unless it is shown that some

prejudice has been caused to the accused which is not so here in the

present case.

30. The argument that instead of dismissal from service, the

petitioner should have been provided punishment of imprisonment as it

would have met the ends of justice, has got no force. Section 71 of the

Army Act provides for the punishment awardable by Court Martial


according to the scale provided thereunder. Dismissal of service as

provided in clause (e) of Section 71 is below imprisonment either

„rigorous‟ or „simple‟ for any period not exceeding 14 days. See [2001]

9 SCC 592 “Union of India and others v. R.K.Sahrma. Thus, the

SCM was considerate to the petitioner by awarding less sentence and

this cannot be a matter of complaint in appeal.

31. Rules 23 and 117 of the Army Rules were not complied with and

as such trial is vitiated, was also argued. The necessary pleadings in

this regard have not been set out in the appeal nor the petitioner could

point out any specific violation of any of them. Mere saying that these

rules have been violated is not sufficient to set aside the verdict of the

Court Martial. At the cost of repetition, it may be stated that it has been

found on perusal of summary of evidence that the petitioner was

present during its recording. Moreover, the verdict of SCM is based on

the evidence recorded before it. It has been laid down by the Apex

Court in the case of Prithipal Singh Bedi v. Union of India and

others AIR 1982 SC 1413 that pre-trial irregularity, if any, will not

vitiate the Court Martial proceedings or its verdict.

32. According to the respondents, the petitioner was legally advised

by his counsel that he should not speak any word or sign any document

“mere lawyer ne kaha hai kahin sign mat karo, main tume bacha

lunga.” That is the reason which impelled him to adopt a total non-


cooperative attitude. Be that as it may, we are not required to say

anything in this regard.

33. Before saying omega of the case, we cannot lose sight of the fact

that the petitioner has been punished earlier of his misdeeds. The

details have been given in para 2 of the written statement. He has

served only for 5 years 6 months and has been punished for four times.

He was awarded rigorous imprisonment for seven days for overstaying

of leave by the then Commanding Officer Deepak Joshi. On the second

time, he again failed to join back the Unit for a long time and he was

declared a deserter and the „Apprehension Roll‟ was prepared and sent

to concerned authorities. The petitioner after absence of 7 months and

16 days, joined the duty on 16th

March, 2008. He was awarded 28 days

RI on 25th February, 2008. Thirdly, he was dispatched for medical re-

categorization as he was in Low Medical Category to 153 General

Hospital where he was admitted and where he committed theft but was

verbally warned by the Commanding Officer. On a fourth time he

committed theft of combat uniform of Ganesh Bisoyi and was awarded

7 days RI and 14 days pay fine. The habitual conduct of the petitioner

speaks itself. Thereafter, the incident in question has happened.

34. We find that the petitioner is in habit of making wild and

frivolous allegations against his superiors. The allegation that he was

not permitted to join the duty in the Unit made against his superior


officer has been found to be incorrect by us in this judgment. The

further allegation that he was not made to participate in the SCM

proceeding has been found to be not proved. Looking to the earlier

conduct of the petitioner that some frivolous pleas may be taken by him

in future, the Commanding Officer got photographic evidence of the

SCM proceedings, which completely demolishes the case of the

petitioner. Much was said against the respondents but we are of the

view that this is a case where the work and conduct of the Summary

Court Martial should be appreciated, instead of condemnation. Difficult

situation like the present one gives rise to new solutions. Here the

officer concerned in his wisdom has rightly got the proceedings

photographed to belie the claim. Persons like the petitioner, should be

dealt with firm hands. Court of justice is not meant for such type of

person. Nobody should entertain the belief that he can do anything at

his whims and desire or is permitted under the law to make any sort of

allegation against his superiors without any seriousness.

35. The reliance placed by the learned counsel for the petitioner on

the judgment of the Apex Court in Ranjit Thakur v. Union of India

and others [1987] 4 SCC 611 is misplaced one and has no application

to the facts of the present case. There the Apex Court has found that

the charge leveled against the accused was ridiculous, which is not so

here. It is a case where the individual during his posting at Siachin

Glacier absented from duty. If such a course is permitted then it is


beyond imagination of anyone how the frontiers of the country would

be protected. In the case of Rajiv Arora v.Union of India and others

[2008] 15 SCC 306 relied upon by the learned counsel for the

petitioner, the Hon‟ble Supreme Court interfered with charge Nos.1,2

and 3 as the witnesses named in support of the charges were not

produced for cross-examination. It was given in a different factual

matrix and has no application here.

36. It will be useful to refer to the following observations of the

Apex Court in Kishore Samrite v. State of Uattar Pradesh and

others [2013] 2 Supreme Court Cases 398, paragraphs 34 to 38 in

particular, reproduced below:

“34.It has been consistently stated by this Court that the entire

journey of a Judge is to discern the truth from the pleadings,

documents and arguments of the parties, as truth is the basis of

the justice-delivery system.

35.With the passage of time, it has been realized that people

used to feel proud to tell the truth in the courts, irrespective of

the consequences but that practice no longer proves true, in all

cases. The court does not sit simply as an umpire in a contest

between two parties and declare at the end of the combat as to

who has won and who has lost but it has a legal duty of its own,

independent of parties, to take active role in the proceedings

and reach at the truth, which is the foundation of administration

of justice. Therefore, the truth should become the ideal to

inspire the Courts to pursue. This can be achieved by statutorily

mandating the courts to become active seekers of truth. To

enable the courts to ward off unjustified interference in their


working, those who indulge in immoral acts like perjury,

prevarication and motivated falsehood, must be appropriately

dealt with. The parties must state forthwith sufficient factual

details to the extent that it reduces the ability to put forward

false and exaggerated claims and a litigant must approach the

court with clean hands. It is the bounden duty of the court to

ensure that dishonesty and any attempt to surpass the legal

process must be effectively curbed and the court must ensure

that there is no wrongful, unauthorized or unjust gain to anyone

as a result of abuse of process of court. One way to curb this

tendency is to impose realistic or punitive costs.

36. The party not approaching the court with clean hands would

be liable to be non-suited and such party, who has also

succeeded in polluting the stream of justice by making patently

false statements, cannot claim relief, especially under Article

136 of the Constitution. While approaching the court, a litigant

must state correct facts and come with clean hands. Where such

statement of facts is based on some information, the source of

such information must also be disclosed. Totally misconceived

petiton amounts to an abuse of process of Court and such a

litigant is not required to be death with lightly, as a petition

containing misleading and inaccurate statement, if filed, to

achieve an ulterior purpose amounts to an abuse of process of

Court. A litigant is bound to make full and true disclosure of

facts” (refer: Tilokchand Motichand v. HB Munshi, A.

Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya

Nandhavana Paripalanai Sangam, Chandra Shashi v. Anil Kumar

Verma, Abhyudya Sanstha v. Union of India, State of MP v.

Narmada Bachao Andolan, Kalyaneshwari v. Union of India).

37. The person seeking equity must do equity. It is not just the

clean hands, but also clean mind, clean heart and clean objective

that are the equi-fundamentals of judicious litigation. The legal

maxim jure naturae aequum est neminem cum alterius

detriment et injuria fiery locupletiorem, which means that it is a

law of nature that one should not be enriched by the loss or


injury to another, is the percept for courts. Wide jurisdiction of

the court should not become a source of abuse of process of law

by the disgruntled litigant. Careful exercise is also necessary to

ensure that the litigation is genuine, not motivated by

extraneous considerations and imposes an obligation upon the

litigation to disclose the true facts and approach the court with

clean hands.

38. No litigant can play “hide and seek” with the courts or adopt

“pick and choose”. True facts ought to be disclosed as the court

knows law, but not facts. One, who does not come with candid

facts and clean breast cannot hold a writ of the court with soiled

hands. Suppression or concealment of material facts is

impermissible to a litigant or even as a technique of advocacy. In

such cases, the court is duty bound to discharge rule nisi and

such applicant is required to be dealt with for contempt of court

for abusing the process of Court.”

37. Having regard to what has been stated above, we do not find any

merit in the petition (Appeal). The same is hereby dismissed. Looking

to the fact that the petitioner is a dismissed soldier, we make no order

as to costs.

The SCM record may be returned to the respondents.

(Justice Prakash Krishna)

(Lt Gen (Retd) Sanjiv Chachra)

16.02.2016

raghav

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