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  • S.S Kulshrestha, Member
  • S.S Dhillon, Member
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Smart Summary

Judgment Summary — Dated: 02.07.2010

Factual and Procedural Background

This matter arises from a Writ Petition filed under Article 226 of the Constitution of India seeking quashing of Summary Court Martial (SCM) proceedings which had found the petitioner guilty under Section 47 of the Army Act and sentenced him to dismissal from service. The petition, having been received from the Delhi High Court, was treated as an appeal under Section 15 of the Armed Forces Tribunal Act.

The petitioner faced two charges under the Army Act: Charge No.1 (Section 47) alleged ill-treating a subordinate (an assault causing grievous and multiple injury on 04 Apr 1999 at about 0025 hrs at T junction near ASC Sup Depot, Namkom) and Charge No.2 (Section 63) alleged violation of good order and military discipline (threatening a subordinate at about 0010 hrs on the same date at the unit main gate).

The record of SCM proceedings showed that for Charge No.1 the court proceeded on the basis that the accused had pleaded guilty, but the documentation affixed (an overleaf/performa) was unsigned by the accused and contained an endorsement that the accused had refused to sign the plea of guilt. For Charge No.2 the accused specifically pleaded not guilty and was tried; on this charge the SCM found the accused not guilty.

Bench: S.S. Dhillon and S.S. Kulshrestha (Members). Pronounced in open court on 02.07.2010.

Legal Issues Presented

  1. Whether the conviction and sentence arising from the SCM for Charge No.1 are legally sustainable in light of an unsigned plea of guilt and an endorsement that the accused refused to sign.
  2. Whether the requirements of Army Rule 115(2) (and related sub-rules) — particularly obtaining and recording the accused's plea and signatures — were complied with, and the legal effect of non-compliance.
  3. Whether the prosecution discharged its burden of proof for Charge No.1 when no prosecution witnesses were examined and reliance was placed on the purported plea of guilt.
  4. Whether, given the SCM's acquittal on Charge No.2, the punishment (dismissal) imposed by reason of the conviction on Charge No.1 must be set aside if that conviction is unsustainable.

Arguments of the Parties

Petitioner's/Substantive Contentions

  • The SCM proceeded on conjectures and surmises and effectively assumed a plea of guilt despite the accused not pleading guilty and refusing to sign the purported plea.
  • Unsigned plea of guilt has no legal sanctity; where an accused refuses to sign a plea, the court ought to have conducted a full-fledged trial instead of relying on an unsigned plea.
  • No witnesses were examined to substantiate the charges; therefore the prosecution did not discharge its burden of proof.
  • The petitioner asserted a factual background that he had served since 17.03.1987, was posted on 13.01.1998 to 23 Inf DOU, and alleged animus by the Commanding Officer (and harassment) connected with unit-level disputes — asserting that a story was "cooked up" against him and that he was not afforded a fair trial or opportunity.

Union of India (Respondent) Contentions

  • The accused-appellant misbehaved with his senior officer and ill-treated his subordinates; there was ample evidence on record to prove the case against him.
  • Regarding the plea of guilt, it was contended that the accused had pleaded guilty but refused to sign the same.
  • With respect to the second charge, the prosecution says a full opportunity was given to the accused to cross-examine witnesses, and on that charge culpability could not be fixed (resulting in acquittal on Charge No.2).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
L.N.K. Gurdev Singh Vs. Union of India That when an accused pleads guilty, his signatures should be obtained to lend authenticity to such proceedings; absence of signature undermines the plea's validity. Cited to support the proposition that compliance with Army Rule 115(2) (including signatures) is necessary and that the unsigned plea in the present case lacked authenticity.
Chief of Army Staff & Ors. Vs. Ex.14257273 K.Sigmm Trilochan Behera (LPA No.254/2001, judgment pronounced 17.01.2008) Such court martial proceedings (where procedural safeguards are not complied with) would be of no consequence and would not stand judicial scrutiny. Relied upon to show that failure to obtain signatures and adhere to procedural safeguards can render SCM proceedings legally ineffective.
Prithpal Singh Vs. Union of India & Ors. (J&K) 1984 (3) SLR 675 Judgment that resulted in instructions (1984) mandating that signatures of the accused pleading guilty be obtained; infraction violates Rule 115(2) and may violate Article 14. Used to demonstrate that prior judicial decisions and internal instructions require signatures and uniform application of the rule across commands.
Lachhman (Ex Rect) vs. Union of India & Ors., 2003 II AD (Delhi) 103 Found that plea of guilty was not recorded in accordance with Rule 115, and mandatory sub-rules (including sub-rule 2(A)) were not complied with; thus the plea stood on a feeble foundation. Cited as supporting authority that non-compliance with Rule 115 procedures undermines reliance on a plea of guilt.
Uma Shanker Pathak Vs. Union of India & Ors., 1989 (3) SLR 405 Supportive authority holding a similar view on the necessity of complying with procedural requirements when a plea of guilt is recorded. Referred to as corroborative precedent for the requirement of conformity with Rule 115 procedures.
Sukanta Mitra vs. Union of India & Ors., 2007 (2) 197 (J&K) Reiterated importance of signatures where plea of guilt is recorded and discussed the necessity of obtaining signatures as part of the procedural safeguard. Used to show consistent judicial treatment in J&K High Court emphasizing need for signatures to validate plea of guilt.
Union of India and Ors. Vs. Ex-Havildar Clerk Prithpal Singh and Ors., KLJ 1991 page 513 Discussed clause (2) of Rule 115 as mandatory: the court must ascertain accused's understanding of charge, inform general effect of plea, advise withdrawal where required; noted signatures, though perhaps not strictly required, should be taken as a matter of caution. Cited to highlight the mandatory nature of procedural steps under Rule 115 and the cautionary role of obtaining signatures to authenticate proceedings.
R. Venkatakrishnan Vs. C.B.I., AIR 2010 page 1812 para 149 Principle that the burden of proof is heavy on the prosecution; the prosecution must stand on its own legs and base findings on evidence it has produced. Quoted to support the conclusion that the prosecution failed to discharge its burden where it did not examine any witnesses and relied on an unsigned plea.

Court's Reasoning and Analysis

The court examined the SCM record and noted that although the SCM proceedings recorded that the accused pleaded guilty to Charge No.1, the leaf affixed to the proceedings was unsigned and contained an endorsement that the accused refused to sign the plea of guilt. The court treated compliance with Army Rule 115(2) and related sub-rules as central to assessing the validity of a plea of guilt recorded in summary court martial proceedings.

The court relied on a line of authorities and internal instructions (including decisions of the Delhi High Court, Jammu & Kashmir High Court, and other precedents cited in the record) to state the legal position that a plea of guilt must be authenticated — signatures of the accused are necessary to lend authenticity and to ensure mandatory procedural safeguards are met. The court reproduced and relied on extracts showing that absence of signature and non-compliance with Rule 115(2) undermines the validity of a plea of guilt and renders the resulting conviction unsustainable.

The court also emphasized the prosecution's burden of proof. It observed that the prosecution did not examine a single witness in support of Charge No.1. Quoting the Apex Court in R. Venkatakrishnan v. CBI, the court reiterated that the prosecution must base its findings on evidence it produces; absent such evidence, conviction cannot properly rest merely on a purported plea of guilt — especially where that plea was unsigned and the accused refused to sign.

Given that Charge No.2 resulted in an acquittal by the SCM, the punishment of dismissal imposed on the accused was solely predicated on the conviction for Charge No.1. Because the court found the conviction for Charge No.1 legally unsustainable on the twin grounds of procedural non-compliance (unsigned plea/refusal to sign) and failure of the prosecution to discharge its evidentiary burden, the conviction and sentence could not stand.

Holding and Implications

Holding: The appeal is allowed and the conviction and the sentence of the accused-appellant are set aside.

Implications and immediate consequences as stated by the court:

  • The accused-appellant shall be deemed to have been in service until he reaches the minimum pensionable service.
  • The accused-appellant shall not be entitled to back wages or salary for the interregnum period from the date of his dismissal until the date he attained minimum pensionable benefits.
  • No broader or new precedent beyond application of established authorities was announced; the court applied existing judicial pronouncements and Army Rule 115(2) principles to the facts of this case to reach its decision.
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    Rakesh Dhaka v. Union Of India

    Dated : 02.07.2010

    1. This Writ Petition under Article 226 of the Constitution of India has been brought for quashing the Summary Court Martial (SCM) proceedings whereby the petitioner was held guilty for the charge under Section 47 of the Army Act and sentenced to dismissal from service. Having received petition from Delhi High Court, it is treated to be an appeal under Section 15 of the Armed Forces Tribunal Act. It is said that SCM had proceeded to fix the culpability of the accused on conjectures and surmises. The accused-appellant did not plead guilty before the Court but they proceeded assuming the plea of guilt on account of his refusal to sign the so called plea of guilt. It is said that in that situation, the court ought to have adopted full fledged trial of the accused. No attempt was made to examine the witnesses to substantiate the charges. Unsigned plea of guilt has no legal sanctity.

    2. This petition was resisted from the side of Union of India contending that the accused-appellant misbehaved with his Senior Officer and also ill-treated his subordinates. There was ample evidence on record to prove the case against the accused-appellant. As regards the plea of guilt is concerned, it is said that accused-appellant pleaded guilty but refused to sign the same. As regards the other charge, full opportunity was given to the accused-appellant to cross examine the witnesses and in that charge his culpability could not be fixed.

    3. In order to facilitate the disposal of this appeal, brief facts of the case may be mentioned. Petitioner was charged for the offences under Sections 47 and 63 of the Army Act which read as under: CHARGE NO.1 AA Sec 47 ILL-TREATING A PERSON SUBJECT TO THE ARMY ACT BEING HIS SUBORDINATE IN RANK In that he, at 23 Inf DOU. C/O 99 APO on 04 Apr

    99 about 0025 hrs. Ill-treated No. 6912057N Hav SHGD BS Negi of the same unit by deliberate plan and intentionally assaulted him with wooden baton and broken bricks causing him grievous and multiple injury at T junction near ASC Sup Depot. Namkom. CHARGE NO.2 AA Sec 63 VIOLATION OF GOOD ORDER AND MIL DISCIPLINE In that he, at 23 Inf DOU, C/O 99 APO on 04 Apr

    99 about 0010 hrs after completion of Barakhana threatened No. 6912057N Hav SHGD BS Negi his subordinate in the same unit, at unit main gate by saying TUM KYA KAR LOGEY, GATE SE BAHAR AAO, MAIN TUMIHE DEKH LOONGA OR WORDS TO THAT EFFECT.

    4. Record of SCM proceedings reveals that with regard to Charge No.1 accused pleaded guilty. But from the leaf affixed on the SCM proceedings, it is evident that it has not been signed by the accused. It simply conveys that measures for explaining the outcome of plea of guilt in pursuance to Army Rule 115(2) were taken by them but the fact remains that accused-appellant did not sign that overleaf affixed with that performa and endorsement was given that the accused-appellant refused to sign the plea of guilt. As regard to other charge he specifically pleaded not guilty and for which he was tried.

    5. It is submitted on behalf of the accused-appellant that the petitioner was enrolled in the Army Ordnance Corps (AOC) on 17.03.1987 as Store Keeper Technical General Store and Clothing (SKT/GS&C). Petitioner is said to have served with sincerity and devotion. It is said that on 13.01.1998 he was posted to 23 Infantry Divisional Ordnance Unit (23 Inf DOU) where Col H.C.Chawla (Respondent no.3) was the Commanding Officer and Capt Anand Kumar (Respondent no.5) was the Officer-in-Charge. Certain deficiencies were noticed by Capt Anand Kumar which recoiled on the working of Commanding Officer (respondent no.3). Respondent no.3 was annoyed with respondent no.5. He was also bent upon to harass the petitioner considering him to be in connivance with respondent no.5. He however explained to him that since he was working under respondent no.5 so whatever the orders were given, he had to comply his directions. Certain materials were given by respondent no.5 to the petitioner for getting them typed which came to the notice of respondent no.3. He felt annoyed and cooked up a story against the petitioner. It is also said that there was no fair trial of the petitioner and he was not afforded any opportunity.

    6. As regards charge No.1, it may be mentioned that the court proceeded with the assumption that the accused pleaded guilty. However there is also an endorsement in the record of SCM proceedings to the effect that accused-appellant refused to sign the plea of guilt. In order to show that compliance of Army Rule 115 (2) was ensured his signatures ought to have taken as was held in the case of L.N.K. Gurdev Singh Vs. Union of India. The observations made by Delhi High Court are extracted herein under: Though the petitioner has allegedly admitted the charge by pleading guilty, his signatures nowhere appear on the purported plea of guilt. When an accused person pleads guilty, it would be necessary to obtain his signatures to lend authenticity to such proceedings. This basic requirement was not even adhered to, the absence whereof lends credence to the allegation of the petitioner that he was not even present at the time of recording of the summary court martial proceedings and he never pleaded guilty. In our recent judgment pronounced on 17.01.2008 in LPA no.254/2001 entitled The Chief of Army Staff & Ors. Vs. Ex.14257273 K.Sigmm Trilochan Behera, we have concluded that such court martial proceedings would be of no consequence and would not stand the judicial scrutiny. In forming this opinion, we had referred to the judgment of the Jammu & Kashmir High court in the case of Prithpal Singh Vs. Union of India & Ors., 1984 (3) SLR 675 (J&K). We had also take note of the instructions issued by the respondents themselves in the year 1984, based on the aforesaid judgment of the Jammu & Kashmir High Court, mandating that signatures of the accused pleading guilty of charge be obtained and if there is an infraction of this procedural requirement, it would violate the mandatory procedural safeguard provided in Rule 115(2) of the Army Rules and would also be violative of Article 14 of the Constitution of India. Faced with this, an innovative justification was sought to be given by the respondents, namely, the said guidelines were issued by Northern Command whereas the petitioner was tried by the unit in Eastern Command. We feel that the law of the land has uniform application across the country and there cannot be one law for a particular command and different law for another command under the Army. We may note that even this Court has taken similar view in Lachhman (Ex Rect) vs. Union of India & Ors., 2003 II AD (Delhi)

    103 wherein it was held as under:- The record of the proceedings shows that the plea of guilty has not been entered into by the accused nor has it been recorded as per Rule

    115 in as much neither it has been recorded as finding of court nor was the accused informed about the general effect of plea of guilt nor about the difference in procedure which is involved in plea of guilt nor did he advise the petitioner to withdraw the plea if it appeared from the summary of evidence that the accused ought to plead not guilty nor is the factum of compliance of sub-rule (2) has been recorded by the Commanding Officer in the manner prescribed in sub rule 2(A). Thus the stand of the respondents that the petitioner had entered into the plea of guilt stands on highly feeble foundation. Same view was taken by the Allahabad High Court in Uma Shanker Pathak Vs. Union of India & Ors., 1989 (3) SLR 405. The Jammu & Kashmir High Court has reiterated its opinion in a recent judgment in Sukanta Mitra vs. Union of India & Ors. 2007 (2) 197 (J&K), wherein the Court held as follows: This apart the fact remains that the appellant has been convicted and sentenced on the basis of his plea of guilt. The plea of guilt recorded by the Court does not bear the signatures of the appellant. The question arising for consideration, therefore, is whether obtaining of signatures was necessary. In a case Union of India and Ors. Vs. Ex-Havildar Clerk Prithpal Singh and Ors. KLJ 1991 page 513, a Division Bench of this Court has observed: The other point which has been made basis for quashing the sentence awarded to respondent-accused relates to clause (2) of rule 115. Under this mandatory provision the court is required to ascertain, before it records plea of guilt of the accused, as to whether the accused undertakes the nature of the charge to which he has pleased guilty and shall inform him of the general effect of that plea and in particular of the meaning of charge to which he has pleaded guilty. The Court is further required under this provision of law to advise the accused to withdraw that plea if it appears from summary of evidence or otherwise that the accused ought to plead not guilty. How to follow this procedure is the main crux of the question involved in this case. Rule 125 provides that the court shall date and sign the sentence and such signatures shall authenticate of the same. We may take it that the signature of the accused are not required even after recording plea of guilt but as a matter of caution same should have been taken.

    7. The legal position remains that the plea of guilt is necessarily required to be signed to give authenticity to it. The fact remains that the court did not adhere to the rules for the purpose to take signature of the accused. Such unsigned plea of guilty has no significance. Under such circumstances the trial and conviction of the accused-appellant for Charge No.1 are not legally sustainable. Endorsement of plea of guilt alone is not sufficient unless there is signature of the accused for the purpose of attaching authenticity.

    8. It may be mentioned that prosecution did not examine even a single witness in the case. The burden of proof rest on the prosecution. Merely acting on the so called plea of guilt the burden is not discharged. The prosecution must stand on its own legs for basing its findings. It shall be useful to quote the observations made by Apex Court in the case of R.Venkatakrishnan Vs. C.B.I., AIR 2010 page 1812 para 149 which reads as under: The burden of proof is always heavy on the prosecution. The prosecution must stand on its own legs basing its findings on the evidence that has been let in by it. The prosecution has however failed in this task.

    9. With regard to the Charge No.2, the SCM found the accused-appellant not guilty, therefore, the punishment awarded to the accused-appellant is on account of his being guilty of the First Charge, which is not sustainable.

    10. Appeal is allowed and the conviction and the sentence of the accused-appellant are set aside. Appeal is allowed. The accused- appellant shall be deemed to have been in service till he reaches the minimum pensionable service. He shall not be entitled for back wages/salary for the interregnum period i.e. from the date of his dismissal till to the period he attained minimum pensionable benefits. S.S.DHILLON S.S.KULSHRESTHA (Member) (Member) PRONOUNCED IN THE OPEN COURT TODAY ON DATED 02.07.2010

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    Comments

    Rakesh Dhaka v. Union Of India
    (Jul 2, 2010)