General Court Martial & Ors Vs. Col. Aniltej Singh Dhaliwal  INSC 930
(12 December 1997)
PUNCHHI, M. SRINIVASAN
respondent was an Army Officer of the rank of Lt.
Col. and was posted as Commanding
Officer under 116 Engineer Regiment, with head quarter, 17 Mta. Arty. Brde.
Nine charges were framed against him on 24.6.1995 and General Court Martial was
held from 1.7.95 to 10.11.95. He was found guilty on charges 2,3,8 and 9. He
filed Crl. Writ Petition No.1 of 1995 in the High Court of Sikkim on 11.12.95.
on 2.3.1996 the order of the Court Martial was confirmed under Section 154 of
the Army Act. By judgment dated 9.8.96 the High Court allowed the writ petition
and quashed the order or the Court Martial. The appellant has preferred this
appeal against the judgment of the High Court.
main contention of the appellant is that the High Court has exceeded its power
of judicial review under Article 226 and acted as a court of appeal by
discussing and appreciating the evidence. Reliance is placed on Nagendra Nath Bora
Versus The Commissioner of Hills Diven and Appeals 1958 SCR 1240 wherein this
court held that the High Court had no power under Article 226 to issue a writ
of certiorari in order to quash an error of fact, even though it may be
apparent on face of the record unless there is an error of law which is
apparent on the face of the record. The court observed that the jurisdiction of
the High Court is limited to seeing that the judicial or quasi-judicial
tribunals or administrative bodies exercising quasi-judicial powers do not
exceed their statutory jurisdiction and correctly administer the law laid down
by the Statute under which they act.
H.S. and I.E. Board, U.P. Versus Bagleshwar AIR 1966 SC 875, the court held
that an order passed by a Tribunal holding a quasi judicial enquiry which is
not supported by any evidence is in order which is erroneous on the face of it
and as such is liable to be quashed by the High Court under Article 226. In
Parry & Co. Versus Judge, 2nd I.T.
AIR 1970 SC 1334 the court held that a writ is granted generally when a court
has acted without or in excess of its jurisdiction or where the Tribunal acts
in flagrant disregard of the rules of procedure or violates the principle of
natural justice where no particular procedure is prescribed.
4. In Bhagat
Ram Versus State of H.P. AIR 1983 SC 454 the court held that where a finding of
the disciplinary authority is utterly perverse, the High Court can interfere
with the same.
S.N. Mukherjee Versus Union of India (1990) 4 SCC 594, the Constitution Bench
dealt with a case wherein the appellant had challenged the validity of the
finding and the sentence recorded by the General Court Martial and the order of
the Chief of Army Staff confirming the same. The court held that the Supreme
Court under Article 32 and the High Court under Article 226 have the power of
judicial review in respect of proceedings of courts martial and the proceedings
subsequent thereto and can grant appropriate relief if the said proceedings
have resulted in denial of the fundamental rights guaranteed under Part III of
the Constitution or if the said proceedings suffer from a jurisdictional error
or any error of law apparent on the face of the record. After elaborately
considering the provisions of the Army Act and Rules, the court pointed out
that at the stage of recording of findings and sentence the Court Martial is
not required to record its reasons. It will be advantageous to extract the following
passage in the judgment:
the provisions referred to above it is evident that the Judge-advocate plays an
important role during the course of trial at general court martial and he is
enjoined to maintain an impartial position. The court martial records its
findings after the judge- advocate has summed up the evidence and has given his
opinion upon the legal bearing of the case. The members of the court have to
express their opinion as to the finding by word of mouth or each charge
separately and the finding on each charge is to be recorded simply as a finding
of "guilty" or of "not guilty". It is also required that
the sentence should be announced for the with in open court. Moreover Rule
66(1) requires reasons to be recorded for its recommendation in cases where the
court makes a recommendation to mercy. There is no such requirement in other
provisions relating to recording of findings and sentence.
66(1) proceeds on the basis that there is no such requirement because if such a
requirement was there it would not have been necessary to make a specific
provision for recording of reasons for the recommendation to mercy.
said provisions thus negative a requirement to give reasons for its finding and
sentence by the court martial and reasons are required to be recorded only in
cases where the court martial makes a recommendation to mercy. In our opinion,
therefore, at the stage of recording of findings and sentence the court martial
is not required to record its reasons and at that stage reasons are only
required for the recommendation to mercy if the court martial makes such a
6. In Chaturvedi
Versus Union of India (1995) 6 SCC 749, the court observed that judicial review
is not an appeal from a decision but a review of the manner in which the
decision is made and the power of judicial review is meant to ensure that the
individual receives fair treatment and not to ensure that the conclusion which
the authority reaches is necessarily correct in the eye of the court.
Relying on the aforesaid relines learned counsel for the appellants submit that
the High Court in this case has exceeded its jurisdiction not only by reappreciating
the evidence but also by erroneous understanding provisions of the Evidence
Act. It is argued by him that in this case there has been no violation of
principles of natural justice or rules of procedure and that there is ample
evidence on record to support the findings of the Court Martial.
Learned counsel for the respondent contends that the court martial has relied
on inadmissible evidence and over looked certain relevant evidence on record
and its findings are vitiated. He has placed reliance on the ruling in Ranjit Thakur
Versus Union of India & Ors. (1987) 4 SCC 611. In that case the court found
that there was failure to enquire from accused as required by section 130 of
the Army Act whether he objects to trial by any of the officers present and
held that the entire proceedings was vitiated. The court went on to hold that
the punishment awarded was disproportionately excessive and quashed the same.
Now, we shall proceed to consider the four charges found against the respondent
and the decisions of the High Court thereon.
Charge No. 2 reads as under:
A DOCUMENT SIGNED BY HIM KNOWINGLY MAKING A FALSE STATEMENT ( Army Act Section
57 [a] ) :
that he, at field, on 23rd
October 1993, while
being Commanding Officer 116 Engr. Regt.
116 Engr. Regy. letter No.2012/Gen/SAT/OPV dated 23rd October 1993 addressed
Maj. Gen. K.C. Dhingra, V.S.M., GOC 17 Mtn. Div. stating "It is brought
fwd for your information that all the SRTs procured from M/s. Dhariwal Steel
Pvt. Ltd. Calcutta have since been issued out for the constr. of PDs are likely
to be completely ground applied by 30th October, 1993", well knowing the
said statement to be false".
The Court Martial dealt with it in the following manner:
Charge After considering the evidence on record the court find that there is no
denial on the part of accused for having written the said letter to Maj. Gen.
K.C. Dhingra, V.S.M.
also nowhere being brought on record that prior to date of writing this letter
dated 23rd October , 1992 (Ext. Q), the accused had ascertained that the said
Arts. had been issued for ground application although the accused has averred
in his unsworn statement (Ext. BT) that he had checked up with Maj P.K. Mangal
(PW 16). In addition to the above the following reasons clearly indicate the
guilt of the accused:- (a) Maj P.K. Mangal (PW 16) has deposed that on 27th September,
1992 he was told by the accused that he was issuing SRTs from defence brick
stores so that early completion of permanent Defence OP Task could be ensured.
16 has further stated that on the inster of the accused he wrote letter dated
24th October, 1993 (Ext.M) to all coys asking them to identify such PDs where
the said SRTs have been utilise and confirm the same by 13th October, 1992,
this action of accused is subsequent to and not prior to his writing the said
letter (Ext.Q) (c) Vide his noting sheet dated 20th October, 1993 (Ext.M)
addressed to Maj. Gen. K.C. Dhingra, V.S.M. the accused in para (c) had
mentioned that he had accepted below specification SRTs to make up the SRTs of defence
brick issued by him for Job s - 212.
Vide his letter to Maj.Gen. K.C. Dhingra, V.S.M. dated 20th October, 1993 (Ext.
accused had stated therein his opinion the SRTs supplied by M/s. Dhariwal Steel
Ltd. should be utilise for making up of the deficiency of Defence Brick SRTs
which had been issued for consturction of PDs.
673 SRT out of a total of 680 were found at ETP-V when checked by Lt. Col. K.K.
Khosla (PW 27) and Capt. Sant Ram Verma (PW 25) on 10th December, 1993.
common military knowledge it can be inferred that between the date of writing
the letter Ext. Q-10 i.e. 23rd October, 1993 and probable date of completion given therein i.e. 30th October, 1993 it is not possible to apply the
said quantity of SRTs on ground".
Before the High Court the contention of the respondent was that the letter Ext.
Q-10 on the basis of which charge No. 2 was framed was written by him in
response to a query from the staff of Court of Inquiry and it was therefore not
admissible in evidence. The High Court accepted that contention and held that
the said letter was not admissible in view of the provisions in Rule 182 of
Army Rules. It is also held by the High Court of Army Rules. It is also held by
the High Court that the court material had not taken into consideration a
report of Lt.Col. K.K. Khosla which was marked as Ex. AW. On those grounds the
High Court held that the findings of the Court Martial were wholly
Both the reasons given by the High Court for quashing the finding of the Court
Martial, as stated above, are totally erroneous. As regards the admissibility
of Ex. Q-10 in evidence, Rule 182 of the Army Rules is not applicable to the
same. It is brought to our notice that factually, the Court of Inquirty
commenced on 28th
September, 1992 and
culminated on 14th
October, 1993. The
letter Ex. Q-10 was written only on 23.10.1993 i.e. after the Court of Inquiry
concluded. Further the letter was addressed to Maj. Gen.
VSM. Admittedly he was not a member of the Court of Inquiry and had nothing to
do with the same. The only contention urged before us is that he was the
Commanding officer Incharge at the time when the alleged offence took place.
That is not sufficient to attract Rule 182 of the Army Rules.
The Rule reads as follows:
Proceedings of Court of Inquiry not admissible in evidence The proceedings of a
Court of Inquiry. or any confession, statement or answer to a question made or
given at a Court of Inquiry shall not be admissible the Act, nor shall any
evidence respecting the proceeding of the Court be given against any such
person except upon the trial of such person for willfully giving false evidence
before the Court." The Rule refers only to the proceedings of a Court of
Inquiry or any confession, statement or answer to a question made or given at a
Court of Inquiry. Ex. Q 10 does not belong to any of the above categories. The
latter part of the Rules refers to evidence respecting the proceedings of the
Court and prohibits the same being given except upon the trial of such person
for wilfully giving false evidence before that Court. That part of the rule is
also not acceptable. Moreover, Ex.Q-10 does not refer to any query being put by
the addressee. It has only referred to an earlier letter dated 20.10.1993.
Reliance is placed upon the caption in Ex. Q-10 which makes a reference to
staff of Court of Inquiry. That does not help the respondent in any manner. We
have been taken through the averments contained in the writ petition filed by
the respondent before the High Court. They do not disclose as to how the letter
could be said to be falling within the scope of Rule 182 of the Army Rules.
Hence, the view of the High Court is based on a flagrant error that the
document was inadmissible in evidence.
The other reason given by the High Court for interferring with the findings is
that Ex. AW by Lt. SRTs out of a total of 680 were found at ETP-V when he
checked the same on 10.12.1993. Lt. Khosla was examined as PW 27 before the
Court Martial and there is a specific reference to the same in the order of the
Court Martial. The respondent places reliance on a portion of that report in
which the responsibility for the lapses was attributed to Son. Sukhdev Singh.
It is argued that the report of Lt. Col. Khosla fixing the responsibility on
Sub. sukhdev Singh should have been accepted by the Court Martial. There is no
merit in this contention. In the first place, the High Court is error in
thinking that the Court Martial had not taken into consideration Ex.A.W. On the
other hand, the Court Martial has expressly referred to the evidence of Lt.
himself and contents of Ex.AW. Secondly, the High Court is wrong in thinking
that the report fixing the responsibility on Sub. Sukhdev Singh should have
been accepted and the respondent should have been exonerated.
Sub. Sukhdev Singh is a subordinate official.
responsibility for the stores was with the respondent.
cannot escape by contending that a subordinate official was responsible. It is
for the Court Martial to consider the said question and come to a conclusion.
When the Court Martial has held that the respondent was responsible for the
lapse, it was not for the High Court to interfere with the same as there was no
omission on the part of the Court Martial to consider the relevant evidence.
Turning to Charge No.3 the same is to the following terms:
DOCUMENT SIGNED BY HIM KNOWINGLY MAKING A FALSE STATEMENT:- Army Act - Sec.
57(a) In that he, as filed, on 23rd Oct. 1993
while being Commanding Office 116 Engr. Regt. signed 116 Engr. Regt. letter OPW
dated 23rd VSM, DOC 17 MTN Div. stating "It is brought fwd. for your info.
that all the FRTs procured from M/s. Dhariwal Steel Pct. Lt. Calcutta has since
been issued out for the constr. of PDs in the current working season. On these
PDS are likely to be completely ground applied by 30th Oct, 1993", well
knowing the said statement to the false" (b) The decision of the Court
Martial was a followed:
CHARGE:- In support of this finding the evidence i.e.on record is as follows:
Lt. Col. B. Manickam, PW-5 has deposed that during second week of November 1992
he was called by the accused in his office where he was made to sign the Bd.
proceedings pertaining to generators and alternators (Ex.U). At the same time
the accused asked him to take the Bd. proceeding to Maj. G.K. Mediratta (PW 21)
and obtained his signatures also on the Bd.
to whom the accused had already spoken to PW 6 has also stated that at no stage
the Bd. of offers has physically assembled to check the generators/alternators
Maj. G.K. Mediratta, 9PW 21) has deposed that the Bd. proceeding were brought
to him by PW 6 and he signed the said Bd. proceedings.
also averred that the Board physically never assembled.
Sub. KKV Pilla (PW 24) has deposed that he signed the Board proceedings on
insistence of PW 21 and he did not even known at that stage which Bd.
proceeding he was signing.
Major MMS Bharaj (PW 11) has deposed that before making the payment he had told
the accused that the said Bd. proceeding (Ex.U) were neither countersigned nor
dated and on the inster. of accused he put the date as '27' (Exhibited as
U-5)d. He (PW 11) has further stated that at the time of making payment he had
also informed the accused that it will not be correct to make the payment since
all generators had not come after repairs.
According to deposition of Hav. Amin ali (PW 12) and Hay. B.L. Prajapati (PW
28), the generators kept coming even after 30th Nov. 1992 i.e. the date of payment".
The respondent contended before the High Court that the oral evidence of PWs6,
21 and 24 was not admissible in view of the provisions of Section 94 of the
Evidence Act as the same was contrary to the proceedings of the Board. The High
Court has accepted the said contention and held that Section 94 of the Evidence
Act barred the admissibility of the oral evidence. The High Court has also
observed that the Members of the Board who has deposed that they had assigned
the Board proceedings because the respondent wanted them to do so should have
been proceeded against for their lapses.
to the High Court the non consideration of the said aspect of the matter was a
gross omission on the part of the Court Martial. It was further observed by the
High Court that the evidence of PW 20 was omitted to be considered by the Court
None of the reasons given by the High Court is sustainable. A perusal of
Section 94 of the Evidence Act shows that it has no applicability whatever. The
Section reads thus:
Exclusion of Evidence against application of document to existing facts:- When
language used in a document is plain in itself and when it applies accurately
to existing facts, evidence may not be given to show that it was not meant to
apply to such facts" The Section will come into play only when there is
document and the language of it has to be considered with reference to a
particular factual situation. That Section will apply only when the execution
of the document is admitted and no vitiating circumstance has been put forward
against the same. In the present case, the document in question is a proceeding
of the Board. If at all, it can only be said that said document contains an
admission made by the signatories thereto that they had checked the materials
and the serviceability thereof. It is well settled that an admission can be
explained by the markers thereof. In Naqubai Versus B. Shama Rao AIR 1956 S.C.
593 the Court held an admission is not conclusive as to the truth of the matter
stated therein and it is only a piece of evidence, the weight to be attached to
which must depend upon the circumstances under which it is made.
Court said that it may be shown to be erroneous or nature so long as the person
to whom it was made has not acted upon it at the time when it might become
conclusive by way of estoppel. The same principle has been reiterated in K.S. Srinivasan
versus Union of India AIR 1958 S.C. 419, Basant Singh Versus Janki Singh AIR
1967 S.C. 341 and P.Ex-s. Co-op. T. F.S.
State of Haryana. AIR 1974 S.C. 1121.
The appellants herein contended before the High Court that the relevant
provision of the evidence Act is Section 92, Proviso 1. The same contention was
repeated before us.
view neither Section 92 nor Section 94 is attracted in this case. Hence, the
view of the High Court that the oral evidence given by PWs 6, 21 and 24 is
inadmissible is totally erroneous.
There is another aspect of the matter to be considered.
133 of the Army Act provides that the Indian Evidence Act shall subject to the
provisions of the Act applied to all proceedings before the Court Martial.
134 provides that a Court Martial may take judicial notice of any matter within
the general military knowledge of the members. It is quite obvious that in this
case the Court Martial had taken judicial notice of the fact that a lower
official obeys implicitly the directions of a higher official. The respondent
being an official higher in rank to the aforesaid witnesses, the latter carried
out his directions by signing the Board proceedings. The High Court has also
observed that the evidence of PW 20 was not considered by the Court Martial. We
are unable to appreciate how the evidence of PW 20 is relevant in this regard.
Hence, the reasoning of the High Court for setting aside the finding of the
Court Martial on Charge No.3 is wholly unsustainable. 20. (a) Charge No.8 was
in the following terms:- SUCH AN DEFENCE AS IS MENTIONED IN CLAUSE (f) OF
SECTION 52 OF THE
ACT WITH INTENT TO DEFRAUD
that he, at field, between 30 Dec. 1992
and 22 July 1993, while being the Commanding Officer
of 116 Engr.
with intent to defraud, made payments of Rs. 7,720/- (Rupees seven thousand
seven hundred twenty only) against purported supply of AIG Stores as per Appx
'B' to the charge-sheet, well knowing that no such items were infact received
in the said unit (b). It is dealt with by the Court Martial in the following
Charge:- The reasons are as follows:
Rajkumar Singh (PW 30) has deposed that on 18 March 1993, Hav. Pillai brought a CRX for 2 Ltrs
of paint and 4 brushes 75 mm. As he was not dealing with A10 stores he refused
to sign the CRV.
he was called by the accused and ordered to sign the CRV and he accordingly
signed CRV dt. 18 March
1993 (Ex. BL) (b)
Capt. A.K.Gautam (PW 32) has deposed that he had not received any ARG stores in
further deposed that he signed the Bill No.420/92-93 dated 27 February 1993 after he had informed the accused
that Capt. A.K. Jain has refused to sign since no stores have been received.
A.K. Jain was also not available at Mile 2 location at that time. The accused,
thereafter, instructed Capt. A.K. Gautam (PW 32) to sing the said bill and he
Lt. Col. B. Manickam (PW 6) has deposed that the accused asked him to take on
charge ATG stores which he refused since no stores had arrived. He further
reflected the deficiency of ATG stores in handing taking over noted ME-2 which
was brought to the notice of accused on 09 June 1993.
The fact that accused was made aware on 09 June 1993 that physically no ATG store had
been received and yet he did not take any action, is an indication of his
The High Court reversed the finding on this charge on the same reasoning as
with reference to Charge No.3. The High Court has held that the oral evidence
adduced before the Court Martial was inadmissible. The reasons which we have
already give when we dealt with Charge No.3 are equally applicable here.
Hence, we hold that the High court s in error in interferring with the findings
of the Court Martial on Charge No.8.
The Nineth Charge read as follows:
OMISSION PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE In that he, at
filed, between 01 Nov. 92 and 21 Nov. 93 while being the Commanding Officer of
116 Engr. Regt. and having come to know about the losses/deficiencies of Defence
Brick Stores on charge of his regiment, improperly omitted to report the said
losses/deficiencies in contravention of Para 1(c) of SAO 13/s/80.
is unnecessary for us to consider the discussion of this charge by the Court
Martial for on the face of it the charge is unsustainable. The charge is under
Para 1(c) of SAO 13/2/80. A copy of the said SAO has been
produced before us. The relevant part of it reads as follows:
General's Branch SAO 13/S/80 Discipline-Procedure For Submission of Reports
Regarding Incidents and Offences Involving Army Personnel and for Their
and offences to be reported.
following incidents and offences will be reported:
All cases of assault and affray where persons subject to Army Act are involved.
Breaches of discipline:-
attempted or suspected suicide:
Murder or an attempt to murder.
Rape (v) MT accidents resulting in fatal or serious causalities, accidents
involving civilian vehicles resulting in damage to property or injuries to
civilians or persons subject to Army Act.
Other serious cases e.g. unnatural deaths not covered under sub-para (b) above.
is quite obvious that the charge framed against the respondent will not fall
under Para 1(c). The charge is not that some other persons brought about
losses/deficiencies of defence Brick Store and the same was not reported by the
respondent. Not is the charge to the effect that it was the respondent himself
who caused such losses/deficiencies. The charge itself is very vague. The High
Court is therefore justified in holding that the charge is defective and the
respondent cannot be made guilty.
There is no doubt that the High Court has erroneously set aside the findings of
the Court Martial on Charges 2,3 and 8. Now that we uphold the findings of the
Court Martial on the said charges, the only question which remains to be
considered is that of punishment awarded to the respondent.
facie, the sentence awarded by the Court Martial appears to be very service.
But we do not want to decide the question here. As the Court Martial awarded
such a sentence on the basis of the findings on all the four charges, namely,
2, 3, 8 and 9 the same cannot be sustained as we have now held that Charge No.9
is unsustainable and the finding thereon has been rightly quashed. Hence, the
question of sentence has to be considered on the basis of three charges namely
2, 3 and 8 being found against the respondent. That has to be done by the Court
the matter has to be remanded back to the Court Martial for deciding that
Consequently the appeal is partly allowed and the judgment of the High Court is
set aside except with reference to its conclusion on charge No.9. The sentence
awarded by the Court Martial is set aside and the matter is remitted to the
Court Martial for considering and passing an appropriate sentence on the basis
of findings on Charges 2, 3 and 8.
the facts and circumstances of the case we find it necessary to invite
attention of appellants 2 to 4 to consider initiating appropriate proceedings
against PWs 6, 21 26, 30 and 32 who deposed at the Court Martial that they had
signed or prepared official record on the oral directions of the respondent
without verifying the correctness thereof which act of their was in direction
of duties. These state of affairs is highly distressing. We record our