Page 1 of 18 IN THE ARMED FORCES TRIBUNAL REGIONAL BENCH, GUWAHATI. OA. NO. 23/2012 P R E S E N T HON BLE MR. JUSTICE H. N. Sarma, Member (J) HON BLE CMDE MOHAN PHADKE (Retd), Member (A) Smti Anupama Sinha W/O.Ex Riflemen No.3200961N Satyendra Sinha,son of Shri Satyaban Kuber Sinha Village Hatirhar P.O. Srikona PS Silchar, In the District of Cachar,Assam. - Versus- 1. The Union of India, Represented by the Secretary of Ministry of Defence, Government of India, New Delhi-110011. 2. Chief of the Army Staff Ministry of Defence (Army) New Delhi-110011....Appellant Mr.L.P.Sharma Legal practitioner for the applicant.
Page 2 of 18 3.The Commandant, TAC H/Q 32 Assam Rifles, C/O. 99 APO Respondents Mr.C.Boruah, CGSC Legal practitioner For the respondents. Date of Hearings : 07.10.2013 Date of Judgment & Order : 07.10.2013 ( H.N.Sarma,J) JUDGMENT & ORDER ( Oral) The subject matter of challenge in this application is the impugned order of the conviction and sentence dated 29-12-2004 imposed against the husband of the applicant Ex Rifleman Satyendra Sinha by the Summary Court Martial (SCM in short) held on 29.12.2004 dismissing him from service under section 38(1) of the Army Act which was affirmed by the appellate authority. The present application, as filed by the applicant on behalf of her husband was admitted on the basis of the statement in her OA that her husband suffers
Page 3 of 18 from mental ailment and is still suffering from mental disease. 2. Ex-Rifleman Satyendra Sinha, the husband of the applicant was employed in the organization of Assam Rifles on 25.03.1998. After rendering a certain period of service he started showing the symptom of mental ailment. The Commanding Officer referred the Ex-Rifleman Satyendra Sinha (hereinafter referred to as Ex Rifleman ) to the Unit Hospital 31 Assam Rifles. On 24-10-2003, he was referred to the Deptt. of Psychiatrics, G.N.Bordoloi Regional Institute of Psychiatric for specialist opinion. The Rifleman reported to the said hospital on 28-10-2003 wherein he underwent psychiatric evaluation upto 07-11-2003 and was discharged from the hospital on 07-11-2003. In the report dated 20-10- 2003 of the Command it is stated with reference to the mental outlook and personal habits of applicant that he was phobic-afraid of people and surroundings. As regards his behaviour in the unit, he was reported to be non-violent but confused. Similarly, as regards retention in service, it was opined by the Commanding Officer that he could be retained in service if cured permanently. At the time of discharge from
Page 4 of 18 the G.N.Bordoloi Institute of Psychiatric on 07-11-2003, he was advised to be kept under supervision, to record any abbormality if noticed, and sent for review if necessary. After spending sometime in the unit, the Ex-Rifleman again left the unit w.e.f. 07.12.2003. It is found that leaving the unit the rifleman came to his native place at Silchar and he got himself treated in the Silchar Medical College and Hospital and necessary prescriptions/documents to that effect have also been placed on record. Upon getting relief from ailment at Silchar Medical College the Ex-Rifleman rejoined his unit on 16.09.2004. Due to his absence without leave, a Court of Inquiry was held and Apprehension Roll was issued against him on 08-12-2003, which was, however, subsequently recalled on 19-09-2004 on his re-joining the unit. In the Court of Inquiry, the rifleman was held to be a deserter from the unit vides order dated 25.04.2004 which was duly accepted. After the rejoining of Ex-Rifleman Satyendra Sinha on 16.09.2004, a Summary Court Martial (SCM) was ordered and he was informed vide order dated 24.12.2004 that he would be tried by the Summary Court Martial for his offence under section 39(a) of the Army Act for deserting from Unit from 07.12.2003. Prior to that the Commanding Officer of the
Page 5 of 18 Unit Col. S. S. Salkar vide order dated 20.12.2004 ordered the recording of the summary evidence against him which was accordingly recorded. In the said summary of evidence, 3 witnesses were examined and the statement of the Ex- Rifleman was also recorded. Having found a prima facie case, the Ex-Rifleman was tried by the Summary Court Martial headed by Col. S. S. Salkar, who was the Commanding Officer of the Unit. 3. It is pertinent to mention here that initially the respondents proposed to book Ex-Rifleman Satyendra Sinha under section 39 (a) of the Army Act, that is, for the offence of remaining absent without leave. Accordingly, a tentative charge-sheet dated 11.10.2004 was forwarded to him. However, the final charge-sheet was drawn under section 38(1) of the Army Act, which prescribes punishment for the offence for desertion. In the said summary Court Martial, Ex- Rifleman Satyendra Sinha was stated to have admitted his guilt and accordingly, he was found guilty under section 38(1) of the Army Act and punished with dismissal from service vide order dated 29.12.2004.
Page 6 of 18 4. An appeal filed against the said order of punishment before the Chief of the Army Staff (COAS) was also rejected vide order dated 13.03.2009, with modification that the sentence of dismissal was altered to that of discharge with effect from the date of dismissal. Hence, this application, seeking necessary relief, is made by the applicant on behalf of her husband who is stated to be still suffering mentally as well as physically. 5. We have heard Mr. L. P. Sarma, learned Counsel appearing for the applicant and Mr. C. Baruah, learned CGSC assisted by Col. M. S. Yadav, appearing for the respondents. 6. The respondents contested the case by filing a counter affidavit. The stand of the respondents in the affidavit filed is that the Ex-Rifleman was held to be a deserter after holding necessary Court of Inquiry and accordingly he was tried under the Army Act by holding Summary Court Martial. It is also admitted in the counter affidavit that the tentative charge sheet dated 11.10.2004 under section 39 (a) of the Army Act
Page 7 of 18 was served upon him and summary of evidence was recorded and final charge sheet dated 29.12.2004 was drawn up. The final charge sheet, as indicated above, is under section 38(1) of the Army Act. The further case of the respondents is that Ex- Rifleman Satyendra Sinha pleaded guilty before the Court and accordingly he was punished by passing the impugned order of dismissal. 7. From the pleadings of the parties as well as materials on record placed before us, it is crystal clear that Ex-Rifleman Satyendra Sinha was suffering from some amount of mental ailment and on the advice of the Commanding Officer of the Unit, he was examined in the unit Hospital and then in the Gopinath Bordoloi Regional Institute of Mental Health, Tezpur. He thereafter left the Unit and got himself treated at Silchar Medical College and Hospital. Further, the prescriptions dated 05.08.2003, 04.07.2003, 17.06.2003 and 25.06.2003 reflect the fact that he was, in fact, treated by the Registrar of Psychiatric Deptt. of Silchar Medical College and Hospital and prescribed necessary medicines. After getting relief from ailment, he reported back to his unit and rejoined on 16.09.2004.
Page 8 of 18 8. The applicant was tried for offence of desertion under Section 38(1) of the Army Act. The word deserter is not defined in the Army Act, but from the note appended below section 38 of the Army Act, 1950 available in the Manual of Military Law, Vol II, it is sufficiently clear that there must be an intention to desert the service in order to attract the provisions of section 38 (1) of the Army Act. According to that section the intention to leave the Army must be established. Absence without leave may also, in certain circumstances, be deemed to be desertion under section 106 of the Army Act. But in the instant case, Ex-Rifleman Satyendra Sinha after getting himself treated by the Head of the Deptt. of Psychiatric in the Silchar Medical College and after getting relief from ailment, reported back to his Unit and rejoined on 16.09.2004. Had there been any intention to desert from service he would not have rejoined subsequently. Section 106 (2) of the Army Act can therefore, not be applied to treat him as deserter. This position is not disputed by the respondents. 9. From the records we find that initially the Ex Rifleman was sought to be tried under section 39 (a) of the Army Act which prescribes punishment for absence without
Page 9 of 18 leave. The charge under section 38(1) of the Army Act is not attracted to the facts and circumstances of this case wherein the applicant rejoined after recovery from the ailment nullifying the intention to desert from service. Section 38 (1) of the Army Act which relates to desertion is not at all attracted to the facts and circumstances of the case. Framing of final charge under section 38 (1) of the Army Act, 1950 as against the initially proposed Section 39 of the Army Act, was, therefore, legally untenable and the proper course ought to have been to charge him under section 39 (a) of the Army Act as earlier proposed. 10. Mr. L. P.Sharma, learned counsel appearing for the applicant further pointed out that the punishment of offence of desertion is a very serious one and the offender, upon proof of desertion, is liable to be punished with death or such lesser punishment as provided in Section 38 (1) 0f the Act. On the other hand, the power of Summary Court Martial as prescribed under section 120 of the Army Act is restricted to pass any sentence which may be passed under the Act, except a sentence of death or transportation, or of imprisonment for a term exceeding limit specified in Sub section 5 of the Act. Sub section 5 of Section 120 provided the limit mentioned in
Page 10 of 18 section 120(4) as one year if the Officer holding the Summary Court Martial is of the rank of Lt.Col and upwards, and 3 months, if such officer is below that rank. It is thus contended that since the Officer holding the SCM was not authorized to inflict a sentence of more than one year, the the offence ought not to have been tried by way of SCM as has been done in the instant case. 11. We find substance in the arguments advanced by the learned Counsel for the applicant. As the trial for such a serious offence under Section 38(1), as charged against the Ex Rifleman was done by the SCM which is not authorized to inflict the punishment as provided, we hold that the trial by SCM as conducted in the present case does not commensurate with the requirement of law on this ground. 12. In addition to the above we find that the SCM suffered from several other serious defects in this case. For example, the Summary Court Martial was started on 29.12.2004 at 10 a.m. and concluded at 11 a.m., the same day. In the said Court Martial Proceedings which lasted for just one hour, the
Page 11 of 18 Ex Rifleman was stated to have pleaded guilty to the serious charge under section 38 (1) of the Army Act, 1950 in terms of the procedure prescribed in section 115 (2) of the Army Rules. This rule reads as follows:- If an accused person pleads Guilty, that plea shall be recorded as the finding of the Court; but before it is recorded, the court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea, and in particular of the meaning of the charge to which he has pleaded guilty and of the difference in procedure which will be made by the plea of guilty, and shall advise him to withdraw that plea if it appears from the summary of evidence ( if any) or otherwise that the accused ought to plead not guilty. 12.1 It may be seen that the aforesaid rule provides several mandatory procedures to be followed before recording the plea of guilty. These are, (a) the Court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty, (b) the Court is to further inform the accused of the general effect of his plea and in particular the meaning of the charge to which he has pleaded guilty and of the difference in procedure which will be made by the plea of guilty, (c) the Court is further - and more importantly - required to advise the accused to withdraw that plea if it appears from the summary of evidence or otherwise that the accused ought to plead not guilty.
Page 12 of 18 12.2. We are of the view that it is not just possible to comply with all these procedures only within an hour unless it is mechanically proceeded with without compliance of the real terms of the requirement of law. 12.3. The resultant consequences of the illegality and irregularity in holding the Summary Court Martial in violation of Rule 115 of the Army Rule came up for consideration before us in TA 49/2010 (Bhupal Ram Okesa vs Union of India & Ors) decided on 06-06-2011; OA 08/2011 (Prem Bahadur Thapa vs Union of India & Ors) decided on 09-04-2012 and in TA 06/2012 (Ex Rfn Sri Amar Nath Yadav vs Union of India & Ors) decided on05-02-2013. In the case of Prem Bahadur Thapa (supra) at paragraph it has been held as under:- 10. It is found that after arraignment of the accused he was straightway asked whether he pleads guilty or not and the answer of the accused recorded as guilty. The necessary pre-requisite which was mandatorily required to be followed by the Court as incorporated in Rule 115(2) as indicated above has not been followed. We find from the record that by inserting in a footnote the requirement of Rule 115(2) has been incorporated, which is again found to be in a typed form recorded before asking the accused as to whether he pleads guilty or not. We find that by such incorporation in a footnote the provisions regarding compliance mentioned under Rule 115(2) cannot be held to be sufficient compliance in discharging the duties and responsibilities of the court as mandatorily required by Rule 115(2).
Page 13 of 18 12.4 In the instant case, we also find from the record of Summary Court Martial proceeding that the appellant was not given warning as required under Rule 34 of the Army Rules. For the consequence of such omission we may profitably refer to the decision of the Apex Court rendered in Union of India & Ors vs A.K.Pandey, reported in (2009 ) 10 SCC 552, wherein Army Rule 34 has been interpreted as a mandatory one. 12.5. When tested in applying the above statutory requirement under the Army Rule 115(2), we find that none of the procedures, as prescribed, were properly and scrupulously followed. In view of long history of mental ailment that the accused suffered from - and which was known to the Commanding Officer - the SCM should in the first instance have advised him to plead not guilty to the serious charge of desertion which has, as it s essential ingredient, the intention to not return to the establishment. In the present case, the accused had voluntarily reported back for duty after getting relief on treatment and, therefore, the Commanding Officer should not, in the first instance, have framed the charge of desertion. He should have adhered to the charge of absence without leave under section 39 (a) of the Army Act, 1950 as
Page 14 of 18 earlier framed in the tentative chargesheet. Having not done so, he should have referred the matter to the appropriate superior military authority in terms of Army Rule 24 (b). Again having not done so, he should in the least have advised the accused to plead not guilty in view of the facts and circumstance of this case which involved a long history of mental ailment. We also find that after altering the charge from section 39 (a) (absence without leave), as it was initially framed in the tentative chargesheet, to a charge under section 38 (1) of the Army Act (desertion), the Commanding Officer should have issued a fresh notice to the accused applicant in terms of Army Rule 34 considering the gravity of the charge. This was not done as the trial was started at 10 a.m. on 29.10.2004 and concluded at 11 a.m., the same day. It is not practically possible to comply with all the procedure within just one hour. We, therefore, hold that the certificate in terms of Rule 115 which is seen to have been recorded was more by way of a ritual than in the interest of justice showing nonapplication of mind. This is further confirmed by the fact that the said certificate is a part of the pre-typed format of Summary Trial Proceedings. The said certificate, therefore, does not inspire confidence of necessary compliance of Army
Page 15 of 18 Rule 115(2) in the facts and circumstances of the case. We accordingly hold that the mandatory procedures provided in Army Rule 115 were not duly complied with, which has caused serious prejudice to the Ex Rifleman. 13. Recording the plea of guilty is a solemn act. The underlying principle of adhering to such precaution provided under section 115 (2) of the Army Act is that on the face of such plea of guilty the accused can be punished to whatever extent the Court deems fit commensurating with the gravity of the offence without any further evidence. Accordingly, the Court is required to be more and more cautious and careful in recording the plea of guilty with full compliance of the procedure prescribed. It appears from the record that Ex Rifleman after getting relief from his ailment rejoined on 16.09.2004 and, therefore, the SCM ought to have applied its mind to this aspect which prima-facie signifies the fact that applicant had no intention to desert. On this count, the SCM should have advised Ex-Rifleman Satyendra Sinha not to plead guilty but that was not done.
Page 16 of 18 14 Thus, we find that the SCM finding in this case suffered from several serious violations of the mandatory procedures as prescribed under the law as indicated above. In the first instance, the charge itself is liable to be quashed on the ground that the charge framed in terms of section 38 (1) of the Army Act, 1950 for desertion was not at all attracted to the facts and circumstances of the case. Further the proceedings of the SCM are also liable to be quashed on account of serious violations of Army Rules 115 and 34. 15. In view of the above discussion, we do not approve of the finding of the SCM holding the Ex-Rifleman guilty under Section 38(1) of the Army Act vide order dated 29.12.2004. Accordingly, the charge of desertion under Section 38(1) of the Army Act levelled against the husband of the petitioner and the order dated 29.12.2004 finding him guilty of a charge under section 38(1) of the Army Act, 1950 is hereby set aside and quashed. Consequently, the order passed by the appellate authority i.e. Chief of the Army Staff (COAS) dated 13.03.2009 is also set aside and quashed.
Page 17 of 18 16. In the present case, the accused/applicant is stated to be still suffering from mental disease and therefore his reinstatement in service could not be ordered. However, with the quashing of the charge and final order in the SCM proceeding as well as the appellate order, the Ex Rifleman will, as a necessary corollary, be deemed to be in service but till such time as appropriate orders are passed in the matter in accordance with law. The respondents are further directed to grant all consequential benefits to the applicant as may accrue from his deemed reinstatement except the back wages. In this regard, the respondents are directed to pass necessary order(s) within a period of 90 days from the date of receipt of the order. 17. With the aforesaid observations and directions, the Original Application stands allowed to the extent indicated above. 18. No costs. MEMBER (A) MEMBER(J)
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