JKLR-Part(I)                                                   LPA 388/1998                                        Back To Index

(2001) 1 J & K LAW REPORTER 67
High Court of Jammu and Kashmir
at Jammu
Before
Hon’ble Mr. Justice A.M. Mir, Judge
Hon’ble Mr. Justice Arun Kumar Goel, Judge

Romesh Bhai                                                                                                                              Appellant
                                                                               versus
Union of india and others                                                                                                           Respondents

LPA (HC) No. 388 / 1998, decided on 30.8.2000.

This aspect of the case as also applicability of principles of natural justice to the proceedings under the B.S.F. Act has been elaborately dealt with by the learned Single Bench and on examination of the whole case we see no reason to take a different view therefrom. In addition to this on examination of the record of proceedings undertaken by G.S.F.C. we are satisfied that there was enough evidence and the trial of the appellant was undertaken by the said court who had jurisdiction as per procedure prescribed by law, thus it calls for no interference in the present proceedings. That being so no fault can be found with the proceedings undertaken by the G.S.F.C. which is in accordance with law.

Advocates who appeared in this case :
Mr. B.B. Kotwal, Advocate for appellant
Sr. Central Govt. Standing Counsel, Mr. Subash Bhatt, respondents
Cases referred : Chronological
1. Union of India and others v. Major A. Hussain (1998) 1 SCC 537
2. Union of India v. Ex. Constable Amrik Singh AIR 1991 SC 564

Per Arun Kumar Goel, Judge
Appellant has challenged the judgment passed by a learned Single Judge of this Court on 16-09-1998 in HC(W) No: 940/92. By means of this judgment writ petition filed by the appellant has been dismissed.

Shri Kotwal, learned counsel appearing for the appellant submitted that no case is made out against his client as there was no evidence before the General Security Force Court constituted under the Border Security Force Act (hereinafter referred to as BSF Act). He further urged that no charge sheet was framed against the appellant under Section 304 RPC. He also questioned the constitution of General Security Force Court (hereinafter referred to as G.S.F.C), when J.P.Mamgain JAD(C) was inducted as a Member in place of Shri R.P.Singh. According to Shri Kotwal these discrepancies have been completely ignored by the learned Single Judge while dismissing the writ petition, therefore, this appeal deserves to be allowed and impugned judgment set aside. Another plea urged was that this court has an overall power of superintendence and control on all courts and tribunals including G.S.F.C. He also placed reliance on certain decided cases with a view to support his pleas and finally urged that while allowing this appeal, writ petition may further be allowed and as a consequence of it order of conviction and sentence as also dismissal imposed upon his client by the G.S.F.C. may be set aside thereby treating the appellant to be in service with all consequential benefits.

On the other hand learned Senior Central Government Standing Counsel has controverted all these pleas urged on behalf of the appellant. He pointed out that so far scope of judicial review under Article 226 of the Constitution of India is concerned, it is limited while examining the proceedings of G.S.F.C. Only jurisdiction vested in this Court in such a situation is whether there is any infraction of the provisions of B.S.F. Act and/or the Rules framed thereunder, and if so, whether appellant has been prejudiced in any manner. While buttressing his this line of argument he pointed out that in exercise of powers under Article 226 of the Constitution of India this Court is not exercising appellate jurisdiction over the proceedings undertaken by the G.S.F.C. constituted as per provisions of B.S.F. Act and the Rules framed thereunder. By referring to Article 227 of the Constitution of India Shri Bhat pointed out that the proceedings before the G.S.F.C. are specifically excluded, as such no advantage can be taken from the powers of superintendence and control, though at the same time he also urged that Article 227 of the Constitution of India is inapplicable so far the State is concerned. By referring to the record of proceedings of G.S.F.C. he also urged that all provisions of BSF Act and the Rules have been complied with and it was only thereafter that the final verdict was given. So far constitution of the GSFC with the substitution of Sh.Mamgain for Shri R.P.Singh was concerned, Shri Bhat pointed that there is neither any illegality nor impropriety committed in view of the fact that Shri Mamgain was an officer who was a waiting Member and substituted Shri R.P.Singh. Thus he urged for dismissal of the appeal because there was no merit in it.

In order to properly appreciate the respective submissions, few facts relevant for determination of this appeal need to be noted.

Appellant was recruited as a constable in the BSF somewhere in the year 1984. While posted at Kupwara in HQ 56 Bn of BSF on the night intervening 7/8 June’90 he is stated to have fired from his service rifle Naik Barinder singh of the same unit causing his death. For his trial GSFC was constituted. Appellant was arraigned before it. After having been charged, prosecution evidence was recorded against him and his statement was recorded. He entered upon his defence, appeared as his own witness besides examining the defence witnesses. Parties were heard in the matter and finally he was found guilty for having committed homocide not amounting to murder and thus was sentenced to undergo four years rigorous imprisonment as also was ordered to be dismissed from service. This sentence was confirmed by IGP, BSF Kashmir in august 1991.

In the context of present case it may be noted that file with the heading GSFC proceeding, on the subject EX-CT Romesh Bhai 56 Bn BSF, containing pages 1 to 169 was produced by Shri Bhat at the time of hearing.

When a reference is made to the proceedings of GSFC, it cannot be said that either charge was not properly framed or Shri Mamgain could not have been substituted in place of Shri Singh. Shri Mamgain was an officer in waiting. Proceedings of GSFC of 29-04-1991 indicate that Shri R.P.Singh could not come due to operational commitments, therefore, waiting Member (Shri Mamgain) took over, who after having been administered oath as per Section 85 of the BSF Act participated in the proceedings. This was at the very thresh-hold of the proceedings of GSFC.

It is also revealed from the record that appellant had an opportunity to raise a challenge to the substitution of Member of GSFC under Section 84 of the BSF Act which he did not. Record suggests that the appellant could not get assistance of a legal practitioner due to prevailing situation in the valley though attempts were made to engage an Advocate from Baramulla, Srinagar. He prayed for transfer of venue of proceedings to Gujarat. This prayer was not agreed to by the authorities. Thereafter he suggested two names with a prayer that one of them may be appointed as his defence counsel. This prayer was allowed and Shri T.R.Malik, BA, LLB was appointed as such. It has come on record of GSFC that Shri Malik was registered Advocate with the Punjab & Haryana High Court, Chandigarh and had served the BSF Law Branch for about 10 years. Appellant had stated that he had consulted Shri Malik and has full faith in him, therefore, the trial may proceed further.

After the requirements of law had been met with, it was only then that the GSFC found appellant guilty at the conclusion of the trial. Moreover the record suggested that there was direct evidence regarding the offence having been committed by the appellant for which he was sentenced. In this view of the matter plea urged on behalf of the appellant that it is a case of no evidence is without any basis.

So far the argument that no case under Section 302 is made out and there was no charge under Section 304 RPC having been framed against the appellant as such he was entitled to acquittal is concerned, it has no basis in law. Reasons being that it is well settled proposition of criminal jurisprudence that when an accused like the appellant is charged for a major offence and ultimately it is found that he is guilty of lesser offence, a criminal court is not precluded from imposing punishment for such an offence. Though it cannot be other way round. Appellant was rightly tried by the GSFC because he committed the offence while on duty. Similarly when a reference is made to the provisions dealing with the Constitution of GSFC as per provisions of BSF Act, by no stretch of imagination it can be said that the Constitution was bad and or violated any provision of law.

So far the plea that this court exercises the powers of superintendence and control over the GSFC is concerned, it is a plea raised simply to be rejected. This is so because of Sub-Clause 4 of Article 227 of the Constitution of India, which reads as under :

"Nothing in this Article shall be deemed to confer on a High Court powers of Superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces."

This aspect of the case as also applicability of principles of natural justice to the proceedings under the BSF Act has been elaborately dealt with by the learned Single Judge and on examination of the whole case we see no reason to take a different view therefrom. In addition to this, on examination of the record of proceedings undertaken by GSFC we are satisfied that there was enough evidence and the trial of the appellant was undertaken by the said court who had jurisdiction as per procedure prescribed by law, thus it calls for no interference in the present proceedings. That being so no fault can be found with the proceedings undertaken by the GSFC which is in accordance with law. It may also be noted that the Law Officer as per provisions of BSF Act was associated throughout with the proceedings. For taking this view we are supported by a recent decision of the Supreme Court reported in (1998) 1 SCC 537, "Union of India & Others Vs. Major A.Hussain". What is relevant for the present case was in the following terms :

"22. We find the proceedings of the General Court-Martial to be quite immaculate where trial was fair and every possible opportunity was afforded to the respondent to defend his case. Rather it would appear that the respondent made all efforts to delay the proceedings of the Court-martial. Thrice he sought the intervention of the High Court. Withdrawal of the defence counsel in the midst of the proceedings was perhaps also a part of his plan to delay the proceedings and to make that a ground if the respondent was ultimately convicted and sentenced. Services of qualified defending officer were made available to the respondent to defend his case, but he had rejected their services without valid reasons. He was repeatedly asked to give the names of the defending officers of his choice but he declined to do so. The court-martial had been conducted in accordance with the Act and Rules and it is difficult to find any fault in the proceedings. The Division Bench said that the learned Single Judge minutely examined the record of the Court-martial proceedings and after that came to the conclusion that the respondent was denied reasonable opportunity to defend himself. We think this was a fundamental mistake committed by the High Court. It was not necessary for the High Court to minutely examine the record of the General Court-Martial as if it was sitting in appeal. We find that on merit, the High Court has not said that there was no case against the respondent to hold him guilty of the offence charged.

23. Though Court-Martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the Court-Martial is not subject to the superintendence of the High Court under Article 227 of the Constitution. If a Court-Martial has been properly convened and there is no challenge to its composition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter any court must stay its hands. Proceedings of a Court-Martial are not to be compared with the proceedings in a criminal court under the Code of Criminal Procedure where adjournments have become a matter of routine though that is also against the provisions of law. It has been rightly said that Court-Martial remains to a significant degree, a specialised part of overall mechanism by which the military discipline is preserved. It is for the special need for the armed forces that a person subject to Army Act is tried by Court-Marital for an act which is an offence under the Act. Court-Martial discharges judicial function and to a great extent is a court where provisions of Evidence Act are applicable. A Court-Martial has also the same responsibility as any court to protect the rights of the accused charged before it and to follow the procedural safeguards. If one looks at the provisions of law relating to Court-Martial in the Army Act, the Army Rules, Defence Service Regulations and other Administrative instructions of the Army, it is manifestly clear that the procedure prescribed is perhaps equally fair if not more than a criminal trial provides to the accused. When there is sufficient evidence to sustain conviction, it is unnecessary to examine if pre-trial investigation was adequate or not. Requirement of proper and adequate investigation is not jurisdictional and any violation thereof does not invalidate the court-martial unless it is shown that the accused has been prejudiced or a mandatory provision has been violated. One may usefully refer to Rule 149 quoted above. The High Court should not allow the challenge to the validity of conviction and sentence of the accused when evidence is sufficient, Court-Martial has jurisdiction over the subject-matter and has followed the prescribed procedure and is within its powers to award punishment."

So far principles of natural justice being not attracted and personal hearing being not necessary in the case of person convicted under the BSF Act is concerned, reference can usefully be made to AIR 1991 SC 564, "Union of India Vs. Ex.Constable Amrik Singh."

Shri Kotwal referred to a number of decisions, which have been referred to in the judgment of learned Single Judge in support of the present appeal. We find that in the face of aforesaid two decisions of the Supreme Court there is no need to deal with those precedents, particularly when we have found that the proceedings of GSFC are in accordance with law governing the same and there was no infraction of either the BSF Act or the Rules framed thereunder.

No other point is urged.

As a result of aforesaid discussion there is no merit in this appeal which is accordingly dismissed.

Record produced by Shri Bhat has been returned to him in court today.