1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5226 OF 1996 DIST.: SANGLI (Ex-Hav) Raghunath Mahadev Kadam ] (S.No. 7768489-N) ] Indian citizen, aged 42 yrs., residing at ] Village Upalavi, Taluka Tasgaon, Dist. Sangli, ] Maharashtra State ] ...Petitioner Versus 1. The Union of India, Ministry of Defence, ] Through the Secretary of Defence having his ] office at South Block, New Delhi 110 011 ] 2. The Chief of the Army Staff, ] Army Headquarters, New Delhi 11 ] 3. The General Officer Commanding-in-chief, ] Eastern Command, Fort William, Calcutta 21 ] (All the three Respondents to be served through ] the learned Govt. Pleader, Central Govt. Panel, ] Aaykar Bhavan,near Churchgate Station,Mumbai) ] ...Respondents. Mr. Machindra Patil for the Petitioner Mr. D.A. Dubey i/by Mrs. S. Bhattacharjee for the Respondents. CORAM: B ILAL NAZKI and J.H. BHATIA, JJ. DATE: OCTOBER 21, 2008 2 ORAL JUDGMENT (Per Bilal Nazki, J.) Against conviction and sentence imposed upon the petitioner on 13th January, 1995 by the Secretary, Court Martial, the petitioner filed an appeal before the Chief of the Army Staff, which was also dismissed. 2. The facts leading to the conviction of the petitioner are that he was working as a Havildar in 101 Area Provost Unit. On 30th January, 1994 at about 8 p.m., Major A.N.M. Sarma, Officer of Transit Camp at Lumding, was informed by the Military Police Detachment personnel that they had apprehended four civilians with three trunks containing approximately 60 Kg. of Ganja. On receiving the information, Major Sarma went to the Railway Station, seized the trunks containing the Ganja, and at about 10 p.m., after reaching the camp, called the petitioner from his tent, and ordered him to keep those four civilians in a tent guarded by unarmed guards. The confiscated trunks were kept by the said officer Major Sarma in his tent. 3 On the next day at about 9 a.m., Major Sarma directed the petitioner to proceed to Civil Police Station Lumding, along with the four civilians and confiscated trunks, in a 1 ton vehicle driven by signal man Satish Kumar. Lans Naik Dewan Singh accompanied the said vehicle on a motor cycle. The prosecution story was that at a particular point, while going to the police station, the petitioner asked the four civilians to come out of the vehicle, and two army personnel, who were accompanying him, were asked to remain with the vehicle, and he, along with the four civilians, went on foot. After a few hours, he came back, complaining that some armed persons had attacked him, and had threatened to kill him, and then, he had no option but to release the civilians. 3. This story was proved by the prosecution during the court martial. The petitioner contended that he was unarmed, and since many people, who were armed, had attacked him, he had no option but to leave the civilians, but the record shows a different picture. The petitioner was in possession of a weapon, but he had left it behind and had not carried with him. Then, when he took the civilians, it was for him to take any further help, if he wanted, and there was no 4 justification in asking the four civilians to get out of the vehicle, and to accompany him on foot and in leaving other military personnel, who were with him, behind. 4. The jurisdiction of this Court, while hearing writ petitions under Article 226 of the Constitution of India, is limited, and is not as wide as jurisdiction of an appellate Court. Therefore, we will not be in a positon to re-appreciate the evidence. 5. In the grounds attacking the impugned order in the Writ Petition, it is mentioned that the Commanding Officer, who was presiding the court martial, was prejudiced against the petitioner, but the Commanding Officer has not been made a party-in-person. Therefore, this ground canot be gone into. 6. Another ground, on which, possibly, this Court could intervene, was that the petitioner was not allowed to cross-examine any of the witnesses, but in the counter-affidavit, it has been made clear that after the evidence was led by the prosecution, the petitioner himself confessed to the guilt, and pleaded for a lenient view. Therefore, no 5 stage had arrived for the respondents to decline cross-examination of the witnesses produced in case. However, the learned counsel for the petitioner contended that no confession was given, but he was asked to sign the papers. This is an issue which we may not be able to decide in these proceedings, and at this stage. 7. For these reasons, we do not find merit in the petition. It is accordingly dismissed. The Rule is discharged. 8. At this stage, the learned counsel for the petitioner submits that since the petitioner had served the Army for more than 20 years with an unblemished record, the Court may order to grant him pension. This issue was not raised in the petition, and as such, the respondents had no occasion to contest whether the petitioner, after being convicted and sentenced, was entitled to pension or not. However, in the interest of justice, the petitioner may make a representation, and the representation may be considered by the respondents in accordance with rules within 6 months after representation. BILAL NAZKI, J. 6 J.H. BHATIA, J.