1. The Central Ordinance Depot (COD) and the Kabadi Bazarin Delhi Cantt. are separated by the Railway line and a ditch. The COD has a parimeter wall of 91/2 ft. high topped with barbed wires and is guarded at 12 posts. In spite of all this security, articles of stores started disappearing from the Depot.
2. On 30-1-1980 at about 9-20 hours Han Ram Stores Superintendent (P. W. 2) noticed a cut in the wire mesh in the Security Cage and yet another cut in the window of Garage No. 13. This indicated that on the preceding night, thieves effected their entry through window of Garage No. 13 and then they cut open the Security Cage Gate wire meshing which is inside Garage No. 13 and removed pump elements and injector nozzles. After stealing the articles, they packed them in gunny bags at the window and carried them on their person and scaled the West Gate near post No. 9. An FIR was lodged under section 380 Indian Penal Code with regard to this theft in the police station, Naraina at the instance of Col. 0. P. Bhatia, vide FIR No. 54/80. This case was reported as untraced on 20-10-1980, but later on passed on to Crime Branch on 24-11-1980.
3. Again, on the night between 15th and 16th September, 1980 thieves came through the gap of Railway Gate between post Nos. 7 and 8 and then went to Garage No. 13 and through the said cut in the window thereof went inside Security Cage Gate through the aforesaid cut therein and reached the Stores and took out articles there from. The theft was discovered by Sub. Chura Mani Bhatt (PW 4) on the next day. On 16-9-1980 during the combing operations of the area an injector nozzle was found between the Railway track underneath the Gate by Capt. B. K. Mathur (P. W. 19 ). Two cartons containing pump elements were found by Blacksmith Man Singh (P. W. 11) on 18-9- 1980 near the pillar of the Railway Gate. On that very day the articles were handed over to the CBI for lifting finger prints on them and for further-investigation. The FIR is RC 48/80 DU.
4. Being concerned over the extensive thefts taking place in the COD, and on receiving information of a theft likely to occur again on the night between 15th and 16th November, 1980, the authorities posted 2 JCOs and 16 AOCs spread over 4-5 posts including post No. 7 to keep a watch. Sub. Brijendra Singh (P. W. 10) and Sep. Gurdayal Singh (P. W. 24) who were watching the area round post No. 7 at about 0-30 hours, noticed three persons scaling the walls between posts Nos. 7 and 8. Sub. Brijendra Singh (P. W. 10) and Sep. Gurdayal Singh (P. W. 11) rushed to catch those persons and were able to catch hold of two, while one was able to escape and hide under the stationary wagon in the railway line. They were able to apprehend him too. They were taken to the Security Officer Lt. R. Chaturvedi (PW 18) and Senior JCO MC Singh (P. W. 17 ). They disclosed their identity as Sep. Trilochan Joshi and civilian labourers Narain Singh and Gurdas. Sep. Trilochan Joshi was directed to be kept in Quarter Guard by Lt. Col. O. P. Bhatia and the two civilians Gurdas and Narain Singh were directed to be kept in the office of the Company Commander. Narain Singh and Gurdas made confessional statements before Lt. R. Chaturvedi (PW 18) and Senior JCO MC Singh (P. W. 17 ). Trilochan Joshi is also said to have confessed that he had come to steal the pinions. On 16-11-1980 in the morning at 8-00 a. m. all these persons took the authorities outside the Disposal Sub-Depot where two pinions were found in the wild growth of grass. Narain Singh said that their co-accused Lattoria had betrayed them. Photographs of the various places were taken. Simultaneously, upon a disclosure statement made by Joshi, Sep. K. Lazar, Sep. N. Seethapathi, Sep. KK Sasi, Sep. V. Bhadrayya and Sep. Punnu Swamy were also arrested as these persons were also said to be involved in the theft. The sepoys were interrogated by Lt. Chaturvedi (P. W. 18) and Sub. Rampal Singh (P. W. 19 ). All of them confessed. The civilians who were employees of the COD and were involved in the theft were: Store Keepers VK Tyagi and Ravinder, Labourers Balwan Singh, Narain Singh. Gurdas, Bishamber Dayal, Gin Lal, Jai Singh, Kesar Singh and Samay Singh, and Kabadis Mohd. Usman and Vinod. Some of the civilians were brought for interrogation before the Company Commanders office on 17. 11. 1980 at the time they were checking in same day an FIR 496/80 was also lodged by Lt. Chaturvedi (P. W. 18) on behalf of the Commandant, COD, Delhi Cantt. under sections 457 and 380 Indian Penal Code in respect of the thefts of the pinions. This was investigated by the CBI. On the evening of 18-11-1980, Sep. K. Lazar. Sep. KK Sasi, Sep. Veer Bhadrayya and Sep. Seethapathy were directed to be placed under Quarter Guards after their confessional statements. On 17th and 18th November some of the confessions were reduced in writing. Commanding Officer Col. O. P. Bhatia thereafter directed recording of the summary of evidence under Rule 22 (3) (c) of the Army Rules, 1954.
5. One of the accused Sep. Lazar who was said to be the kingpin of the crime died during the night of 18th and 19th November, 1980, Dr. S. K. Khanna of the All India Institute of Medical Sciences, New Delhi, who performed the autopsy noticed that he had suffered eleven injuries. Some of them were caused by use of external force by long blunt weapon. The injuries were sufficient in the ordinary course of nature to have caused death. The petitioners Sasi and Seethapathy, it is alleged, were also tortured during investigation.
6. The summary of evidence was recorded by Maj. S. S. Punia (PW 23 ). A report of the torture was leaked in the Indian Express on 20-11-1980. Consequently, one more accused Sep. Sultan Singh was arrested on 13-12-1980. Additional summary of evidence was recorded on 16-12-1980. Further summary of evidence was recorded on 16-3-1981. On 8-6-1981 Maj. Gen. N. Ramchandran, Gen. Officer Commanding, Delhi Area, directed convening of the general court martial for the trial of the persons, namely, Sep. Trilochan Joshi, Sep. K. K. Sasi, Sep. Sultan Singh, Sep. Veera Bhadrayya and Sep. Seethapathy. The civilians who were participants in the conspiracy are being tried separately in the court of a Metropolitan Magistrate in New Delhi, as they were not subject to the Army Act. At one time the case had stood adjourned to 22-1-1983 for framing of charges.
7. The case of the prosecution in short was that the conspiracy to commit thefts from COD was formed at the shop of Kabadi Md. Usman initially but later on due to differences in payment, it switched on in favour of Vinod Kabadi. The deceased Kunjab Lazar used to work out the details. The date for the commission of the theft was fixed when the DSC personnel who were members of the conspiracy were on security duty. Entry into and exist from the depot was effected on receiving pre-arranged all clear signal and the goods were then loaded in the waiting vehicle of the Kabari for consideration.
8. The court martial assembled on 8-6-1981 and the charges were read out to the aforesaid five accused persons under section 69 of the Army Act. Their brief is as follows: Charge No. 1: Under section 120-B Indian Penal Code against all the five accused for criminal conspiracy between January 1980 and November 1980 along with 8 labourers, 2 store keepers and 2 Kabaris and some other persons to commit theft of stores of COD, Delhi Cantt. and to sell the same to the Kabaris. Charge No. 2: Under section 379 Indian Penal Code, only against accused Seethapathy and Veera Bhadrayya, for committing theft of stores mentioned therein between 28-1-1980 and 30- 1-1980 along with Balwan Singh, Narain Singh, Gurdas, Bishmaber Dayal, Gin Lal, Jai Singh and V. K. Tyagi and some other persons in pursuance of the said conspiracy. Charge No. 3: Under section 379 Indian Penal Code against Trilochan Joshi and Sultan Singh upon the allegation that on the night intervening 15th and 16th September, 1980 they along with Bishamber Dayal, Kesar Singh, Gurdas and Balwan Singh committed in pursuance of the said conspiracy theft of stores mentioned therein. Charge No. 4: Under section 120-B Indian Penal Code against Trilochan Joshi, K. K. Sasi and Seethapathy for committing criminal conspiracy between 16th and 18th November, 1980 to commit theft of 14 TMB pinions.
9. The accused pleaded not guilty. The evidence of the prosecution comprised of (i) confessions of the other co-conspirators made to Capt. Chaturvedi (PW 18) and Sub Ram Pal Singh (PW 19), (ii) confessions and conduct of the accused, (iii) recovery of the pinions, (iv) receipt of large sums of money by the accused from the Kabaris. Out of this evidence, the last one was not proved, except by Capt. R. Chaturvedi (PW 18) to which a reference will appear while his evidence with respect to confessions will be discussed. 10. To begin with, the accused raised an objection on 13-6-1981 that the case was not fit for trial by a court martial as it involved several civilians and several intricate questions of law but the court overruled the objection.
10. During the trial when Captain Chaturvedi (P. W. 18) was under examination on 2. 9. 1981, the defence counsel objected to the admissibility of confessional statements of the accused on the ground that those were not voluntary and were extracted by threat and torture so much so that in the process one of the accused K. Lazar died of torture. Though it was for the prosecution to prove that the confessions were voluntary, yet at the instance of the court martial the defence led 22 witnesses to prove this allegation and the prosecution rebutted it by
11.) The court also examined one witness Sep. DSC Punnuswamy (C. W. 1 ). On 13. 11. 1981, the court decided that (a) all written confessional statements of the accused persons are irrelevant and (b) all oral confessions made by the accused persons and co-conspirators up to 20. 00 hours on 18. 11. 1980 are relevant.
12. To prove the oral confessions, witnesses Captain Chaturvedi (P. W. 18) and Sub. Ram Pal Singh (P. W. 19) were then called for further examination-in-chief and they deposed that all the civilians had made confessions orally on 16th and 17th November, 1980. Thereafter, the prosecution closed its case without examining the civilians and some other witnesses numbering 15 in all. They were given up as having been won over. The accused were allowed to cross-examine Vinod Kumar Tyagi (P. W. 32) and SI J. S. Rana (P. W. 33) under Rule 134 of the Army Rules. But the prosecution was also allowed to cross-examine Tyagi (P. W. 32) because he refused to support the prosecution case.
13. After completing the trial, the court martial on 26. 12. 1981 gave the findings and proposed sentences in the following manner:
(1) Trilochan Joshi was found guilty of an the charges. He was sentenced to rigorous imprisonment for two years and dismissal from service. (2) K. K. Sasi was found guilty of all the charges. He was sentenced to rigorous imprisonment for two years and dismissal from service. (3) N. Seethapathy was found guilty of charges 1, 2 and 4. He was sentenced to rigorous imprisonment for two years and dismissal.
He was acquitted of charge 3 because his name was wrongly included in the charge which could not be rectified even by recording a special finding. He was on leave during the concerned period. (1) Veera Bhadrayya was found guilty of all the charges. He was sentenced to rigorous imprisonment for 18 months. He asked for voluntary discharge from the army. (2) Sultan Singh was found not guilty.
The Court Martial also directed that the sentences of rigorous imprisonment shall be carried out by confining the accused in a civil prison.
14. On 26. 4. 1982 the sentences were confirmed by the convening authority Maj. Gen. 0. S. Bhandari, GOC, Delhi Area.
15. The petitioners, Trilochan Joshi, Seethapathy, and Veera Bhadrayya have not availed of the remedy provided under sections 164 (2) and 165 of the Army Act and have on 20. 10. 1982 filed this petition with the prayer that the orders dated 26. 12. 1981 and 26. 4. 1982 be set aside. It was further prayed that directions be issued that they shall be deemed to be in service without any break and entitled to all consequential benefits.
16. The findings and convictions are being attacked on several grounds but the jurisdiction of this court in cases involving army discipline has certain constraints and I cannot improve upon what I said on April 7, 1981 in Captain Jagdish Challder v. Union of India, and which I quote: Clause (4) of Article 227 of the Constitution provides that the High Court has no power of superintendence over any court or tribunal constituted by or under any law relating to the armed forces. It is said that such courts and tribunals are courts of honour. Their business is to find the truth. They are instrumentalities through which the President maintains discipline in the armed forces. They are caned courts but are administrative in character. They are created ad hoc. They are short and swift. They only make recommendations. They are efficient. But being exclusive they are liable to abuse and since they form part of our criminal justice system, the law does not leave the members of the armed forces entirely to the mercy of their compeers. They are not exposed to public glare but have, therefore, been subjected to limited judicial review. In Ram Murti Wadhwa v. Union of India, this court held that under Article 226, a writ of certiorari can be issued against a court martial if it is not duly constituted or it had no jurisdiction over the person or the subject matter of the charge or there is an error of law apparent on the face or the record of the principles of natural justice were violated so as to result in miscarriage of justice. The court can also intervene where any fundamental right of the petitioner has been violated, vide Captain Harish Uppal v. Union of India and others. But the findings of fact reached by it as a result of the appreciation of evidence cannot be reopened or questioned nor can they be challenged on the ground that the evidence before it was insufficient or inadequate to sustain the impugned finding. However, a writ of certiorari can be issued if it is shown that in arriving at the said finding, it has erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding or if a finding of fact is based upon no evidence because all this would be regarded as an error of law. Such error should be self evident and not dependent upon elaborate examination of the record. It is a working test but not an unfailing one. Experience shows that it is not usually difficult to decide whether the impugned error of law is apparent on the face of the record or not, vide Shri Ambica Mills Co. Ltd. v. Shri S. B. and another and Syed Yakoob v. K. S. Radhakrishnan and others. The same limits and extents of jurisdiction under Article 226 have been red lineated in Swam Singh and another v. State of Punjab and others. I will, therefore, not deal with this petition as I would do any other. But I decline to throw out the petition because the petitioners have not presented a petition to the Central Government, or the Chief of Army Staff either under section 164 (2) or section 165 of the Army Act, 1950 and have thus not exhausted the alternative remedies. The reason for my doing so is that those remedies are discretionary and the petitioners are not entitled to a personal hearing under those sections: Lt. Ccl. K. N. S. Sidhu v. The Union of India, and as held in Vellaswamy v. Inspector General of Police, Tamil Nadu and others, it is a serious question whether a right of petition under those sections would provide such an alternative efficacious remedy as to disentitle the petitioners to move the High Court under Article 226; it would be rather harsh to do so. I think so specially because there is no provision of appeal for which there is much need and clamour already. Justice and discipline are not enemies of each other and can very well go hand in hand. Besides, as will presently appear, the order of the court martial is based upon a totally erroneous view of law as respects confessions which have largely affected its verdict. Such fine questions of law were most likely not to receive appropriate examination in the petitions under sections 164 and 165 of the Army Act. Let me then proceed.
17. As set out earlier, the case of the Army is that stores were being pilfered in pursuance of a conspiracy in which soldiers and civilians were engaged out of whom soldiers were tried by the court martial and the civilians are being tried by the ordinary criminal court. In cases like these, section 125 of the Army Act, 1950, the Officer Commanding has the discretion to decide before which court the proceedings shall be instituted. Rule 4 of the Criminal Court and Court Martial (Adjustment of Jurisdiction) Rules, 1952 also points out that the option is that of the military authorities but where the Magistrate feels otherwise, he can refer the matter to the Central Government for decision as to the court before which proceedings should be instituted. Same is the refrain of section 126 of the Army Act and section 475 Cr. P. C. Section 125 does not contain anything which can be said to be a guide for the exercise of their discretion in this matter by the military officers. But there could be variety of circumstances which may influence their decision such as exigencies of the service, maintenance of discipline, speedier trial, the nature of the offence and the person against whom the offence is committed, vide Ram Sarup v. Union of India. It is in the interest of army discipline that a charge against army personnel is investigated and tried with expedition and the somewhat dilatory procedure of the ordinary criminal court is avoided: Major Gopinath v. The State of Madhya Pradesh and another. Since this is the departure from the general law of the land, in the Manual of Indian Military Law, 1937, reprint 1976, Ch. VI, P. 59. c. 2, military authorities are advised that it is not as a rule expedient to exercise their power and discretion universally. A trifling offence may be tried by the military tribunal immediately. But complicated civil offences are not suitable for trial by court martial and should better be relegated to the civil court, as should also any case where intricate questions of law are likely to arise. Mrs. Mahajan, the learned counsel for the petitioners, therefore, contended that the trial in this case raised several questions of law relating to law of evidence which the court martial was ill suited to decide and the commanding officer should have allowed the case to be handled by a civil court which is trained in law. But what I think is that the court martial is empowered to decide both questions of fact and law and the convening authorities and the military courts can legitimately opt for exercise of their jurisdiction when it cannot be anticipated that the court martial will not be able to pronounce properly in respect of such questions as are said to have arisen later on in this case during the course of the trial. Yet, it does appear to me in opposite that the trial of an offence like that a conspiracy in which more than a dozen civilian army I employees and soldiers were involved, should have been tried, in respect of one third of them in the court martial and of two-third of them in a regular criminal court. Though the repetition of the offence of theft of army stores was no doubt of quite a grave nature and the court martial has concluded the trial with commendable expedition, yet I am unable to appreciate that the trial should have been split up in this manner because it is bound to lead to harassment and perhaps different and divergent decision and a person convicted or acquitted by the court martial may with the sanction of the Central Government, be tried again by a criminal court for the same offence or on the same facts in virtue of section 127 of the Army Act, 1950. Even then, I am unable to see any legal infirmity or any error of law in what has been done. It was a case of theft of military stores and involved considerations of discipline and a prompt and firm handling under Army Act was indeed necessary: R. S. Bhagat v. Union of India. It is then difficult to say that the discretion to deal with the soldiers in a court martial was in any manner not exercised discreetly and judiciously. I will, therefore, not uphold the contention of Mrs. Mahajan.
18. She next complained that the whole trial is vitiated because provisions of Rules 22 and 23 of the Army Rules, 1954 have been violated. No specific plea in this regard was taken except by way of a vague reference as to breath of rules in para 3 (j) of the petition. Yet one has to evaluate this contention. Save in case of officers these rules are mandatory and must be applied in all their rigour. The petitioners are non-officer soldiers and there is no escape from non-compliance of these rules except on the pain of invalidation of the inquiry: Prithipal Singh v. Union of India. Rule 22 does require that before directing that the evidence be reduced to writing under sub-rule (3), clause (c) thereof, the Commanding Officer shall hear the charge in the presence of the accused with a right of cross-examination and defence. He may dismiss the charge if he is satisfied that the charge ought not to be proceeded with, or may even impose punishment under section 80 of the Army Act. It is only where he wants to proceed further than that, he will direct that the evidence be reduced to writing under rule 23. Any improper infringement of rule 22 will obviously result in serious consequences for the accused. This rule no doubt pertains to a stage prior to trial and even if it has no bearing on the trial as such, the very decision to hold an investigation and a trial depends upon the procedure laid down in it and its importance cannot be underestimated. Mr. Wadhwa the learned counsel for the respondents, informs me that the hearing of the charge is done orally and the evidence also shows that the Commanding Officer did first make an oral inquiry and then he directed that the evidence he reduced to writing. It appears to me that he is required to make a record in the Form in Appendix III to the Rules only if he himself awards the punishment. I, therefore, hold that there has been no infraction of rule 22.
19. Mrs. Mahajan then alleged that there has been a violation of rule 23 as well because the summary of evidence which was used at the trial was not recorded in the presence of the accused and no cross-examination was allowed. Though this objection was not taken on 17. 6. 1981 when a question in this regard was put by the court to the accused, yet that does not bar the plea and this court is entitled to examine the contention. The statements of some of the witnesses such as Punnuswamy (C. W. 1) go to suggest that they were not examined in the manner provided in the rules. He had deposed that certain prepared statements were read out and go signed by Shri Punia (P. W. 23 ). Mrs. Mahajan further illustrated her point, by pointing out that Col. O. P. Bhatia (P. W. 8) p. 147, and Capt. R. Chaturvedi (P. W. 18) P. 459, deposed that they did not state several facts in the summary of evidence which are now being proved against the accused. Capt. R. Chaturvedi (P. W. 18) p. 459 deposed that his statement was not recorded in full by Shri Punia. He remarked that he had not come to record Mahabharat. Sub. Ram Pal Singh (P. W. 19) p. 479 has stated that the officer recording summary of evidence did not record his statement fully because he said he had not come to record the Ramayana. This shows that he recorded what he wanted and not as and what the witnesses stated. She further charged that the officer showed photographs of Bhagalpur buildings and under the threat got the pre-recorded statements or blank papers signed by the accused and witnesses. The accused were seriously handicapped in preparing their defence because in the summary of evidence of the witnesses, there is no reference to confessions, recovery of pinions and taking of photographs of the various places. This record of evidence prepared under rule 24 is no doubt again of great importance because it resembles to what used to be a full-fledged enquiry in committal proceedings before a Magistrate under the 1898 Code of Criminal Procedure. But if some of the statements made by the witnesses before the court martial do not find mention in the summary of evidence, it does not mean that the officer did not do his job properly. There is no rule or guarantee that witnesses at the trial can or do never resile from what they have told the officer recording the summary of evidence. Inquiry or trial cannot be invalidated merely because the witnesses at the trial have made statements made by them earlier or because the officer in his discretion refused to record what he considered irrelevant or unnecessary. I see no reason to disbelieve Shri Punia (P. W. 23) who recorded the summary of evidence and categorically denied all the charges leveled against him. It is not possible, therefore, to hold that the accused has not been able to prepare his defence because the summary of evidence was made in contravention of rule 24, or that the trial stood vitiated on that account.
20. Mrs. Mahajan next submitted that the accused have suffered in their defence because the reports of the Security Officer Capt. Chaturvedi of 17. 9. 1980 and the report of the CBI were not allowed to be inspected or placed on record under the cover of privilege under sections 123 and 124 of the Evidence Act, though these were not privileged documents in any sense of the term and if these-reports had been placed on record and if the officer of the CBI who actually investigated the case and was proposed to be examined had been led into the witness box, it would have explained why the holes made by the thieves in the Security Cage in 1980 were not repaired for nine months and were left open for future thefts to take place. This evidence would have disclosed the involvement or other rather superior officers in the store thefts. I have considered over this objection, but I do not think that these documents if supplied should have been of much value because these must be the opinions or conclusions of the officers and could not be classed as evidence of previous statements or by themselves could have absolved the accused of the blame. Hence, I reject this submission.
21. Mrs. Mahajan next pointed out that considerable prejudice and miscarriage of justice have occurred to the accused because of the mis-directions given by the Judge Advocate to the court, which were apparent on the face of the record. Relying upon R. S. Bhagat (supra), she canvassed that the entire court martial proceedings be, quashed. As I found in Jagdish Chander (supra), the Judge Advocate performs no functions either-or an advocate or of a Judge. To begin with, he used to be a crown prosecutor but in course of time he ended up an advisor. According to rule 105 of the Army Rules, the prosecutor and the accused both are at all times entitled to this opinion on questions of law both inside and outside the court. It is his duty to inform the court of any informality or defect or irregularity in the charge, in the constitution of the court or in the proceedings, rather on any matter before the court. He sums up the evidence and gives his opinion upon the legal bearing of the case. He has equally with the Presiding Officer a duty to over see that the accused do not suffer any disadvantage in any manner and may with the permission of the court, call witnesses and examine them if it appears to him necessary or desirable to elicit truth. Judge Advocate is thus not a Judge as the one in a trial by jury except in the sense that he has to maintain an entirely impartial position and his addresses cannot be styled an or in the nature of directions. The court martial deliberates on its findings in closed court in the presence of the Judge Advocate, vide rule 61 (1 ). Thus, the quality of his, advice has a very crucial role in the trial in swaying the minds of the members of the court martial and if his advice is patently contrary to law and may have affected, to verdict on the court martial this court will be entitled to see whether or not to substance the verdict. Mrs. Mahajan has pointed out several infirmities in the summing up, of the Judge Advocate have gone through it but I have found that the criticism of his advice is not well founded. Yet, it is appropriate that the points raised by the counsel in this regard should be mentioned and dealt with. Mrs. Mahajan has pointed out that:
(i) The Judge Advocate failed to tell the court that the evidence regarding the alleged confessions of the co-conspirators who were, in spite of an assurance given in this behalf, not produced before the court was inadmissible even if made on oath and should not have been allowed to go on record, and should have been excluded from consideration. It was all hearsay hit by section 60 of the Evidence Act, 1872. It was not covered even under section 10 of the Evidence Act, which provides for admissibility of things said or done by a conspirator in reference to their common intention or design. In Mirza Akbar v. King Emperor, the Privy Council said: The words of section 10 are not capable of being widely construed so as to include a statement made by one conspirator the absence of the other with reference to past acts done in the actual course of carrying out the conspiracy, after it has been completed. The words common intention signify a common intention existing at the time when the thing was said, done or written by one of them. Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is admissible against the other party. There is then no common intention of the conspirators to which the statement can have reference.
(i) The Judge Advocate did not point out the material omissions in the previous statements of Lt. Col. 0. P. Bhatia, (P. W. 1), Maj. M. C. Singh (P. W. 17) and Capt. Ravinder Chaturvedi (P. W. 18) and Sub Ram Pal Singh (P. W. 19 ). These omissions amounted to contradictions, and rendered their testimony unreliable.
(ii) The Judge Advocate was wrong in advising the court martial to follow a very peculiar procedure for, recording the evidence of the defence on the plea relating to section 24 of the Evidence Act and then calling upon the prosecution to rebut the defence witness and further permitting the prosecution to lead additional evidence after the court ruling. It has to be viewed in the context that the only evidence connecting the accused with the offence was in the form of alleged confessions. The alleged confessional statements had been reduced to writing and could not be proved otherwise than provided in sections 65 and 91 of the Evidence Act. The Judge Advocate was wrong in advising the court that section 28 of the Evidence Act could apply to confessions barred under section 24 of the said Act. According to Mrs. Mahajan the oral confessions were not made after the impression caused by the torture and threats had been fully removed.
(iv) The Judge Advocate failed to explain the effect of 90 hours delay in lodging the F. I. R. when the police station was only 4 kms. away.
(v) The Judge Advocate failed to explain the legal effect of failure of the prosecution to produce the material witnesses, such as the civilians named as co-conspirators and Investigating Officer of the C. B. I. who investigated the theft of September, 1980, and couple of them more.
(vi) The Judge Advocate failed to explain the correct law of recovery pursuant to the alleged disclosure made by the civilians. The discovery had no meaning because the articles had already been recovered.
(vii) The Judge Advocate failed to point out some significant and material flaws in prosecution evidence such as tampering of records, duty registers and prisoners in and out register.
(viii) The Judge Advocate participated in the deliberations and thus offended Article 14 of the Constitution.
22. I have considered all this criticism. The alleged delay in the F. I. R. is not fatal to the prosecution. The case was not presented to the court martial on the basis of police investigation. Their own investigations and interrogations were being carried on with promptness. Nor do I think that the verdict should have suffered because the Judge Advocate had just missed to point out in his summing up some omissions or contradictions in the statements of the witnesses. Nor do I further think that the evidence of the investigating officer of the C. B. I. was material and would have if produced disclosed something in favour of the accused or against the prosecution. The advice or verdict cannot be quashed simply because the Judge Advocate did not dilate upon certain alleged alterations in the registers or certain contradictions in the statement of some witnesses. The Judge Advocate after reading his advice in the open court used to sit in the closed court with the members of the court. This is a course permissible under Rule 61 (1 ). It was pointed out put the Naval Regulation No. 175 requires the Judge Advocate to retire from the court while it deliberates upon the verdict. Rule 61 (1) was challenged as discriminatory and violative of Article 14 of the Constitution. But for the present I need not go into the validity of this rule. The matter which case for more urgent consideration is the evidence of confessions of the accused and the other coconspirators and upon which the decisions of this petitions depends.
23. I have gone through the summing up made by the Judge Advocate and I find that he has stated the legal position quite correctly. In cases of conspiracy better evidence that acts and statements of co-conspirators in pursuance of the conspiracy is hardly ever available. Bhagwandas Keshwani v. State of Raj. But hearsay evidence relating to a statement of co-conspirators is not admissible under section 8 of the Evidence Act if it did not explain any accompanying conduct of the conspirator. Subject to certain conditions it is admissible under section 10 of the Evidence Act. The substance of the decisions in Bhagwan Swarup v. State of Maharashtra, and Sardul Singh Caveesher v. The State of Bombay, is that when there is a prima facie evidence that a person was a party to the conspiracy; then anything said, done or written by one of the conspirators in reference to their, common intention, after the said intention was entertained, is relevant against the others, not only for the purpose of praying the existence of the, conspiracy but also for proving that the other person was a party to it. The expression in reference to that common intention is so wide in scope that any act of a co-conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it. In the normal class of cases, such evidence is admissible as against himself and not against others. Section 10 has introduced the principle of agency but only to the extent confined to things said, done or written by a co-conspirator while the conspiracy was a foot and in carrying out the conspiracy. I am, therefore of the view that the statements of co-conspirators could be proved by other evidence and it is not necessary that the conspirators must be examined in the capacity either of the accused or of the witnesses. But these statements in order to be admissible should not be in, the form of confessions proved to have been made to the witnesses. They will be mere narratives of the part played by the conspirators and not coming directly from the accomplice himself will be mere hearsay not covered by Section 10. I do not see that the Judge Advocate has tendered any advice which is not in conformity with the law laid down by the Privy Council and the Supreme Court. Consequently, I hold that the trial has not vitiated by any act or failure on the part of the Judge Advocate, as canvassed by Mrs. Mahajan. But I must add that the evidence led by the prosecution relating to the confessions made by the co-accused was inadmissible in evidence and could not be pressed into service to prove the charges of conspiracy against the accused.
24. Mrs. Mahajan urged that the prosecution has attempted to show that fourteen pinions were recovered on 2 1. 11. 1980 at the instance of Gurdas and Narain Singh by S. I. Jagdish Singh Rana (P. W. 33) of Police Station Naraina in FIR No. 496/1980-registered at 22. 30 hours on 19. 11. 1980 on the report of Capt. R. Chaturvedi. They are not accused in this trial. The police recorded disclosure statements of these persons, but there is no record of information given by them under section 27 of the Evidence Act. That apart, according to Col. Bhatia, (P. W. 8) the pinions had already been discovered by the military authorities. Therefore, the recovery of the pinions does not prove the charges against the accused. I agree with this contention.
25. It now appears that the only evidence against the petitioners was the oral confessions. Mr. Wadhwa took pains to point out those confessions. Col. 0. P. Bhatia (P. W. 8) deposed that at about 3. 15 hours of 18-11-1980- M. C. Singh (P. W. 17) reported to him that two labourers Gurdas and Narain bad named the petitioners. Hearing this the petitioner Joshi who was standing next to him, got nervous started fumbling and he then on his own told him that apart from Sepoys some labourers were involved in the theft and he gave the names pf the civilians. He further stated that about the plan for removal of the pinions, the labourers Gurdas and Narain told him that Sept DSC Trilochan Joshi was to post himself outside the wall of the Depot while one of the labourers and have positioned himself on top of the wall and the third one would have brought the pinions from inside. I am unable to read in this statement that Joshi had confessed anything before Lt. Col. Bhatia with reference to the events of 16. 11. 1980. Sub. Maj. Mahesh Chandra Singh (P. W; 17) stated that he found Lt. Col. Bhatia talking to Trilochan Joshi in the lawn in front of the quarter guard. Trilochan Joshi stated of his own that apart from the DSC personnel civilian were also involved. He subsequently came to the quarter guard to make further enquiries from Tritochan Joshi. In answer to a question he said that he had come to the Depot to commit theft of pinions. Tritochan Joshi further told him that opinions removed fromaxies kept in DSD were put at a predetermined place by Shri Ravinder and Lattoria. He then went to his quarter. Later on the accused led them to a place where there was some wild growth and showed them two pinions lying there. This appears to relate to the morning on 16. 11. 1980. But in cross-examination this witness admitted that in his statement at the two court of inquiries as well as summary of evidence no reference was made by him to the accused persons as well as civilians having made confessions admitting their involvement in the theft of Government Stores from the COD. Delhi Cantt. He also admitted that in his statement in the summary of evidence, he had not stated about Narain and Gurdas having named certain DSC personnel involved in the theft apart from admitting their noninvolvement. He further admitted that he had not stated about this development to Lt. Col. Bhatia while he was making inquiries from Sep. Trilochan Joshi in front of the quarter guard. His explanation for these material and vital omissions in the summary of evidence is that as he was not asked any specific-questions in this connection, he did not mention these facts. This explanation is totally unsatisfactory. The evidence of this witness in examination-in-chief was, therefore, clearly an after-thought and the court martial was bound to discard such type of witnesses led to prove a confession of an offence.
26. Capt. R. Chaturvedi (PW 18) and Sub. Ram Pal Singh (PW 19) have no doubt deposed that the petitioners had confessed that they planned and participated in the conspiracy and committed thefts and received consideration for sale of the articles of theft. But Capt. R. Chaturvedi (PW 18) also disclosed that while the suspects were being questioned by him and during the course of their confessions, he had switched on the tape recorder. These confessions were recorded simultaneously. Thereafter he told Nb. Sub. Ram Pal Singh to take down the confessions in writing for which the suspects again made statements to Nb. Sub. Ram Pal Singh (PW 19), who then took them in his presence. As regards Sep. Trilochan Joshi he had made no mention of his oral confession at the time of the summary of evidence. Rather, in the summary of evidence he had stated that during initial interrogation the suspects did not reveal the facts. Subsequent attempts and advice to speak the truth compelled them to come out with true version of the incident. He admitted that in his statement before the court of inquiry he had stated that he had interrogated the suspects day and night to bring out accomplices involved and the reference to the word night was for the night between 18th and 19th November, 1980. Sub. Ram Pal Singh (PW 19) deposed that the written statements from the suspects were written by him after an interval of half an hour after recording their statements on the tape recorder. He wrote the statements of the petitioner Trilochan Joshi and Veera Bhadrayya on 16-11-1980. He himself had questioned Sep. Veera Bhadrayya some times between 13. 00 and 14. 00 hours on 16-11-1980. Explaining the procedure of recording these confessions, he said that while one of the suspects would make statement, others would be present with whom the details would be cross-checked. Thereafter the next person would be questioned and details given by him used to be cross-checked with the remaining suspects. After question, the suspects were individually asked to re-make their statements so that they could be recorded on the tape recorder. They were instructed to speak into the built-in- microphone of the tape recorder. While statements were being taken on the tape, questions used to be asked at times to clarify matters. The statements were written by him after completing the tape recording of the said statements. Statements were written by him in Hindi, in the presence of Capt. Chaturvedi. Same procedure was also followed in respect of all suspects, the accused as well as co-conspirators. He could not any why the officers recording the summary of evidence did not incorporate these details in his statement.
27. It is now obvious that the evidence with regard to oral confessions made after the witnesses were recalled was clearly not only an after-thought but it also shows how these were obtained and should have been excluded from consideration by the court martial. The court martial after examining the evidence of both the sides had found that the recorded confessions were not voluntary and were hit by section 24 of the Evidence Act and, therefore, rightly excluded, but it decided to rely upon the oral confessions that preceded the recording thereof. An these were also tape recorded, but the tapes have not been produced. Besides, I have not been able to understand the strange dichotomy proposed to be made between written confessions and oral confessions because what had been recorded in the tape and in writing were nothing but records of oral confessions. What one will understand by oral confessions will be that the same were not recorded by anyone. Since the tapes have been with held and the written records have been found to be vitiated as the court martial was not satisfied that the same were voluntary, there is absolutely no guarantee that the so-called oral confessions were voluntary and not obtained by force. Such confessions cannot be used against the petitioners. If the so-called oral confessions were voluntary, why threat and force were used in making a written record thereof. Same yardstick will apply to the confessions said to have been made by the civilians. They were called after the prosecution evidence had been closed under rule 134, but were not led into the witness box and have made no statements before the court martial. Their statements are introduced by way of confessions said to have been made to Capt. Chaturvedi and Sub. R. P. Singh with the aid of section 10. But we have already seen and even the court martial was not satisfied with the voluntaries of any of the confessions. Moreover, these statements were made after the conspiracy was over. If we exclude the confessions and the statements from evidence, there is no evidence against the petitioners. As against Sep. Trilochan Joshi it has, however, been proved that he was found hidden under a wagon near the place of theft and his explanation that he did so because the police had raided their gambling place is not satisfactory. But to my mind, it would be a case of sheer suspicion and no more and even before a court martial the crime must be proved beyond any manner of reasonable doubt. The result of all this discussion is that there was no legal evidence against the petitioners to support their conviction and consequent sentence. Their petition I must succeed.
28. The last point that was urged by Mrs. Mahajan is that the petitioners were entitled to set off under section 428 Criminal Procedure Code of the period in custody during trial. She relied upon Subramaniam v. Officer Commanding. But I am unable to toe that line in view of a Division Bench decision of this court in F. R. Jesuratnam v. Chief of Army Staff, which has taken a contrary view, nor is it now necessary in view of the order that I am making.
29. I, therefore, accept this writ petition, set aside the impugned orders, convictions and sentences including dismissal and direct that the petitioners be set at liberty forthwith if not wanted otherwise. Costs will be borne by the parties. Writ petition allowed.