Citation Codes

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Case Number

O.A. No. 142 of 2010

Attorney(S)

Mr. S.R. Kalkal, ;
Mr. Anil Gautam,

Judges

S.S. Kulshrestha, Member
Z.U. Shah, Member

Acts

SECOND CHARGE Army Act Section 36(d)
CHARGE Army Act Section 63
Army Act Section 63
Army Rule (AR) 180
sub rule (2)

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Smart Summary

Structured Summary of the Opinion — O.A. No. 142 of 2010 (Ex L/Hav Jitender Singh)

Factual and Procedural Background

The appellant, Ex Lance Havildar Jitender Singh, filed O.A. No. 142 of 2010 seeking setting aside of Summary Court Martial (SCM) orders dated 12.11.2007 (proceedings reference suggests SCM held on 12.11.2007) and the post-confirmation rejection dated 3.3.2009, which resulted in his reduction to the ranks and dismissal from service, and prayed for reinstatement with consequential benefits.

The appellant was enrolled in the Army on 3.3.1994 and had attained the rank of Lance Havildar. While serving with 268 Regiment, he was detailed as Stop Party Commander on 10.9.2007 during counter-terrorist operations in the general area of Tintheejen Gaon, Assam. Following a search, an FIR was lodged on 11.9.2007; the police report was later closed on 20.9.2007 according to the appellant.

A Court of Inquiry (COI) was convened on 12.9.2007. The COI recorded that the appellant had procured and consumed country-made liquor on 10.9.2007; the village elder (Gaon Budha) stated there was no improper behaviour by military personnel. Summaries of evidence were recorded on 6.10.2007 and 27.10.2007. The SCM was conducted on 12.11.2007, at which the appellant pleaded guilty and was sentenced to reduction to the ranks and dismissal. A post-confirmation petition to the Chief of Army Staff was filed on 22.7.2008 and rejected on 3.3.2009.

Legal Issues Presented

Whether the Summary Court Martial orders (resulting in reduction to ranks and dismissal) should be set aside.
Whether statutory/procedural safeguards under Army Rules (including AR 180, AR 115(2), AR 33(7), ARs 33 & 34, and AR 184) were complied with during the COI, summary of evidence and SCM.
Whether the appellant's plea of guilty at the SCM was made deliberately and voluntarily (i.e., without threat, inducement or promise) and could form the basis of conviction.
Whether the punishment awarded was disproportionate in the light of precedent (reference to ex Col Kishan Kumar) and the appellant's service record.

Arguments of the Parties

Appellant's Arguments

The appellant challenged the SCM orders and post-confirmation rejection and sought reinstatement with consequential benefits.
He alleged procedural violations: COI procedures under AR 180 were violated (not asked to produce witnesses or to make statements in his defence); he was made to sit outside and coerced into signing statements; Appendix A to Army Order 24/94 was not completed until 12.11.2007; he was denied a copy of the summary of evidence in accordance with AR 33(7) 24 hours prior to the SCM; ARs 33 and 34 (warning order requirement for field area) were violated.
He contended AR 115(2) was not complied with at the SCM (the functum of compliance of sub-rule (2) should have been recorded and his signature issues: signatures obtained on separate typed paper pasted on the proceedings).
He alleged denial of a true choice in the selection of a "friend of the accused" since the friend was an officer from his unit; the copy of the COI was not provided before the hearing, violating AR 184; and his Commanding Officer did not call prosecution witnesses per AR 22(1).
He argued that, unlike in the cited case of ex Col Kishan Kumar where reinstatement was granted for a first offence with prior unblemished service, his punishment was not appropriately considered (he claimed he did not commit misconduct after consuming liquor and merely slept in a vehicle).

Respondents' Arguments

The respondents stated that the appellant procured liquor and left his stop location without orders, jeopardising ongoing operations; a COI was ordered on 12.9.2007 and the SCM proceeded based on COI and summaries of evidence.
They asserted procedural compliance: the appellant was at liberty to request the COI and a copy was provided to counsel when asked; AR 180 was complied with and the appellant signed certificates on witness statements; the appellant signed a certificate on 11.11.2007 consenting to Capt. Anil Dhiman acting as friend of the accused; AR 115(2) precautions were observed and explained; the appellant pleaded guilty without raising issues about the COI at the SCM.
The respondents maintained the hearing of witnesses was dispensed with in terms of AR 22(1) because AR 180 had been complied with during the COI, and that each accused was tried by separate SCMs.
They highlighted the appellant's prior disciplinary record (four punishments dated 18.5.2000; 2.3.2001; 22.11.2001; and 17.2.2006) to justify the punishment and distinguished the appellant's case from ex Gnr. Kishan Kumar on facts (Kishan Kumar's penalty was considered unduly harsh because it was his first offence and he had prior unblemished service).
They sought dismissal of the application.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
ex Col Kishan Kumar (TA No. 312 of 2009)	Illustration of a case where punishment was found shockingly disproportionate and the Tribunal allowed reinstatement (relevant when assessing proportionality of punishment).	The Court distinguished that precedent on facts: unlike Kishan Kumar (first offence with prior unblemished service), the appellant had a chequered disciplinary record. The Court did not replicate reinstatement; instead it converted dismissal to discharge but upheld reduction to the ranks.

Court's Reasoning and Analysis

The Court proceeded by first setting out the charges: a first charge under Army Act Section 63 (act prejudicial to good order and military discipline — procurement and consumption of country-made liquor while on active duty in operational area) and a second charge under Army Act Section 36(d) (leaving post without orders while on active service).

The Court relied upon the summary of evidence and witness testimony (PW1 to PW4), which described the appellant's procurement and consumption of liquor and observed inebriety while on active duty. The appellant did not dispute procurement and consumption of liquor. The testimony on inebriety remained unimpeached.

On the plea of guilty, the Court noted that a conviction can be based on a plea of guilt when it is deliberate and voluntary; that voluntariness depends on absence of threat, inducement or promise and must be assessed against the entire prosecution case. The Court found that the plea was supported by the summary of evidence and witness statements, and that precautions under AR 115(2) were taken and its effect explained to the appellant.

Addressing procedural complaints, the Court recorded that the COI, summary of evidence and additional summary of evidence were conducted in accordance with statutory provisions and found no material violation that would vitiate the proceedings. The Chief of Army Staff's decision noted that non-supply of the COI did not amount to a violation of AR 184 in the circumstances because the appellant had pleaded guilty and no prejudice was caused.

On comparative proportionality, the Court considered the cited authority of ex Col Kishan Kumar but distinguished it on factual grounds: the appellant had multiple prior disciplinary punishments during service, whereas Kishan Kumar had been a first offender with years of unblemished service. The appellant's prior record and the operational context (being stop commander and leaving post) weighed against a full reinstatement.

Balancing the procedural findings, the voluntariness of the plea, the evidence, and the appellant's service record, the Court concluded that while the substantive conviction and reduction to ranks were sustainable, the severity of dismissal could be moderated in recognition of time already served in military custody.

Holding and Implications

PARTLY ALLOWED

Holding (direct effect): The appeal was partly allowed. The Court converted the order of dismissal into a discharge, but upheld the punishment of reduction to the ranks. The appellant remains deprived of rank but is no longer dismissed; he has approximately 13 years of service before his deemed date of discharge and is free to file a petition for grant of pensionary benefits, which the Court directed should be sympathetically considered.

Implications: The direct consequence for the parties is the modification of sentence from dismissal to discharge while maintaining reduction to ranks. The Court distinguished the precedent relied upon by the appellant (ex Col Kishan Kumar) and did not apply reinstatement in the present case because of the appellant's prior disciplinary record; no broader change in legal principle was announced beyond the case-specific decision.

Bench: Z.U. Shah and S.S. Kulshrestha, Members

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Ex. L/Hav Jitender Singh v. Union Of India & Ors.

22.02.2011

1. The appellant had filed O.A No. 142 of 2010 praying for setting aside the Summary Court Martial orders dated 12.10.2007 and 3.3.2009, wherein he was reduced to the ranks and dismissed from O.A No. 142 of 2010 Ex L/Hav Jitender Singh service. The applicant has also prayed that he be reinstated with all consequential benefits.

2. The applicant was enrolled in the Army on 3.3.1994 and rose to the rank of Lance Havildar. On 10.9 2007, the appellant, while serving with 268 Regiment, was detailed for joint operations and was leader of a stop along with a party which was searching village Tintheejeam Gaon in Assam. The appellant states that verbal instructions were given to him to search houses without informing the local police. Consequent to the search, a report was made to the police and media regarding ill treatment of the local population of the village by the Army. On 11.9 2007 an FIR was lodged by SHO Police Station Kahwang. The appellant states that after investigation the police closed the report on 20.9.07.

3. On 12.9.2007, a staff quarter of inquiry (Court of Inquiry) was convened (Annexure A1). During the enquiry, the Gaon Budha in his statement brought out that there was no improper behaviour on the part of military personnel. The Court of Inquiry, however, brought out that the appellant had bought country made liquor and consumed the same at 10 pm on 10.9.2007 along with other military personnel. The O.A No. 142 of 2010 Ex L/Hav Jitender Singh appellant contends that there was no medical report to establish that he was intoxicated. The appellant also states that during the Court of Inquiry, he was made to sit outside and coerced into signing statements that he was given a chance to cross examine the witnesses. The appellant states that Army Rule (AR) 180 was violated, in that he was not asked to produce any witnesses or to make statements in his defence.

4. A summary of evidence was recorded on 6.10.07 and additional summary of evidence was held on 27 10 07. The appellant contends that Appendix A to Army Order 24/94 during hearing of charge was not filled up at that time but only completed on 12 11 2007 at the time of conduct of Summary Court Martial (SCM). The appellant also states that he was denied a copy of the summary of evidence in accordance with AR 33(7). The same should have been supplied to him

24 hours before SCM.

5. The appellant also states that ARs 33 and 34 were violated since warning order of his impending SCM should have been given 24 hours in advance since he was serving in field area. O.A No. 142 of 2010 Ex L/Hav Jitender Singh

6. The appellant states that the SCM was convened on 12 11 2007 (Annexure A3). During the SCM the appellant pleaded guilty. The appellant contends that the provisions of AR 115(2) were not complied with i.e. the functum of compliance of sub rule (2) should have been recorded by the court. The appellant contends that his signatures were obtained on a separate piece of typed paper which was pasted on the proceedings. The appellant also contends that the friend of the accused was an officer from his unit and he was not given a choice in the matter. The copy of the COI was also not provided before hearing of the charge in violation of AR 184. During the hearing of the charge in accordance with Appendix A to Army Order 24/94, his Commanding Officer did not call any prosecution witnesses in terms of AR 22(1). The appellant states that all four personnel accused were called in together by the Commanding Officer and punishment was announced for all the four.

7. The appellant was awarded a sentence of reduction to the ranks and dismissal from service. The appellant submitted a post confirmation petition to the Chief of Army Staff on 22 7 2008. The same was rejected on 3.3.2009. O.A No. 142 of 2010 Ex L/Hav Jitender Singh

8. The respondents in their counter affidavit have stated that the appellant was enrolled in the Army on 3.3.1994 and during the course of his service, earned four disciplinary awards. While deployed in Operation Rhino the appellant was detailed as Stop Party Commander in joint operations on 10.9.2007 in general area, Tintheejen Gaon under Khawang Police Station. The respondents state that the appellant procured liquor and left his stop location without orders of the superior officer thereby jeopardising on going operations. The Court of Inquiry was ordered on 12.9.2007 and based on the Court of Inquiry and summary of evidence, the appellant was tried by the SCM. The appellant was at liberty to ask for the court of inquiry any time prior to hearing of the charge. A copy of the court of inquiry was provided to the applicants counsel as and when asked for. During the summary of evidence and additional summary of evidence, AR 180 was complied with. The appellant signed a certificate to that effect on each statement of witnesses. The appellant also signed a certificate on 11.11.2007 stating that he had no objection to Capt. Anil Dhiman of his unit being detailed as friend of the accused. During the SCM, the appellant O.A No. 142 of 2010 Ex L/Hav Jitender Singh pleaded guilty and no plea regarding court of inquiry was made at that stage.

9. The appellant was tried by the SCM on 12.11.2007 and awarded the punishment of reduction to the ranks and dismissal from service. The appellant submitted a post confirmation petition to the Chief of Army Staff on 22.7.2008. The same was rejected on 3.3.2009 wherein the Chief of Army Staff in his directions stated that non supply of court of inquiry to the appellant did not amount to violation of AR

184 as the appellant had pleaded guilty during the SCM and thus no prejudice was caused to the appellant. The respondents state that the appellant was present during the court of inquiry and AR 180 was complied with. During the SCM, the hearing of witnesses was dispensed with in terms of AR 22(1) since the provisions of AR 180 were complied with during the conduct of the court of inquiry. The respondents maintain that all four accused in the incident were tried by separate SCMs and not jointly. The respondents state that the appellant had a poor disciplinary record and had earned four punishments. The appellant on 18.5.2000 had been awarded 28 days RI, on 2.3.2001 he was again awarded 28 days RI, on 22.11.01, a SCM awarded him 2 O.A No. 142 of 2010 Ex L/Hav Jitender Singh months and 20 days imprisonment and on 17.2.2006 the appellant was awarded 7 days pay fine. The respondents state that in view of the past disciplinary record of the appellant and the fact that he was stop commander and his absence jeopardised the operations. The application, therefore, be rejected. The respondents state that there was a difference in the case of Ex. Gnr. Kishan Kumar whose order has been cited by the appellant. In the case of Gnr. Kishan Kumar, it was his first offence and prior to that he had six years of unblemished service. The punishment at the young age of 25 was, therefore, found unduly harsh by this Tribunal.

10. We have heard the arguments and perused the records. Before appreciating the rival contentions of the parties, it would be appropriate to quote the charges, for which the appellant was tried by the SCM. They are: FIRST CHARGE Army Act Section 63 AN ACT PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE in that he, At Field, when deployed as Stop Party Commander for Counter Terrorist Operations, procured country made O.A No. 142 of 2010 Ex L/Hav Jitender Singh liquor from unauthorised sources at about 1800h on 10 Sep

07 and thereafter consumed this liquor at about 1810h on

10 Sep 07 while on active duty in operational area in contravention to the Regimental Orders. SECOND CHARGE Army Act Section 36(d) LEAVING POST WITHOUT ORDERS FROM HIS SUPERIOR OFFICLER WHILE ON ACTIVE SERVICE. in that he, at Field, when deployed on active duty as Stop Party Commander for Counter Terrorist Operations, left his stop location from 0230h to 0300h on 11 Sep 07 without orders from his Section Commander. The offence under Army Act Section 63 alleged against the appellant is proved from the statements of the prosecution witnesses. PW 1 Nb Sub (GD) Deep Raj has stated about the detailment of the appellant to Stop No.2 and he narrated with regard to the incident in which the appellant was involved. PW 2 Hav (GD) Abid Ali Mandal has stated of having seen the appellant to be intoxicated during active duty on 10.9.2007. Identical is the statement of PW 3 Gnr (GD) Sahadev and PW 4 Gnr (GD) Krishan Kumar. The testimony of these witnesses on the inebriety of the appellant remained unimpeached. The appellant has not disputed with regard to the procurement of country made liquor from O.A No. 142 of 2010 Ex L/Hav Jitender Singh unauthorised sources and his consuming liquor while on active duty in operational area. Such activities on the part of the appellant were in contravention to the relevant Regimental Orders and unbecoming of an individual who was on active duty in operational area. So is the position with regard to the second charge also. He made transgression of the established Rules/Orders.

11. Apart from substantiating the charges against the appellant based on summary of evidence, the appellant pleaded guilty. The plea of guilt finds support from the summary of evidence. A judgment can also be based on such plea of guilt when made deliberately and voluntarily. The voluntary nature of guilt depends upon whether there was any threat, inducement or promise and its truth is just on the basis of the entire prosecution case. The witnesses, as referred to above, have categorically stated about the incident in which the appellant was involved. There was also the statement of the appellant admitting procurement of country made liquor and consuming it. All precautions under AR 115(2) were taken by the prosecution and explained its effect to the appellant. O.A No. 142 of 2010 Ex L/Hav Jitender Singh

12. It has next been argued that in an identically placed circumstance, this Bench, in the case of ex Col Kishan Kumar (TA No.

312 of 2009), finding the punishment shockingly disproportionate, allowed the appellant therein to be reinstated in service. Here, in this case, the appellant had a chequered career. The appellant was enrolled in the Army on 3.3.1994 and rose to the rank of Lance Hav. During his service, the appellant had been awarded punishments on four occasions. The appellant contends that he did not commit any misconduct after consuming liquor. He slept in the 3 Ton vehicle after consuming liquor.

13. The Court of Inquiry, summary of evidence and additional summary of evidence were conducted as per the statutory provisions and there was no violation on the same. Since the appellant had already served for an extended period in military custody, we direct that the order of dismissal be converted to discharge, but the punishment of reduction to ranks should stand. The appellant would have approximately 13 years service before his deemed date of discharge and he is free to file a petition for grant of pensionary O.A No. 142 of 2010 Ex L/Hav Jitender Singh benefits, which should be sympathetically considered. To this extent, this appeal is partly allowed. (Z.U SHAH) (S.S KULSHRESTHA) MEMBER MEMBER

Ex. L/Hav Jitender Singh v. Union Of India & Ors.

Structured Summary of the Opinion — O.A. No. 142 of 2010 (Ex L/Hav Jitender Singh)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ex. L/Hav Jitender Singh v. Union Of India & Ors.

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